ULUSLARARASI KAMU HUKUKU II

For Grotius, war must be just, and it can be waged only when there is a damage given by the other party.

Second World War caused the highest number of deaths in modern history.

The concept of total war encompassing civilian life caused a huge amount of loss of life during the First World War and forced the States to reconsider the rules regulating resort to force.

Article 11 regulates only “war”, but not limited methods not amounting to war. In other words, it was not regulating all occasions of use of force.

The only restriction stipulated in Article 12 is the ‘cooling period’ of three months before resorting to war.

The Charter permitted use of force only in self-defense.

According to its first paragraph, maintaining international peace and security is the first of the purposes although there is not a hierarchy between them. To achieve this purpose, Article 2 determines the principles to be followed by the organization and its members.

Prohibition brought by Article 2/4 encompasses not only the actual use of force, but also the threat of force. It is in the Security Council’s authority to determine whether a certain action constitutes a threat of force or not. It can be an action like military exercise near border when the relations are bad or deteriorating, or a Statement with the possibility of going into action any time.

Under customary international law, reprisals are lawful if certain criteria are met. These criteria identified at the Naulilaa Arbitration, were that there must have been a prior deliberate violation of international law; that an unsuccessful attempt must have been made at redress, and that the action taken in reprisal be proportionate to the injury suffered.

It was the veto power of the permanent five (P5) members of the Council that rendered the Council’s work impossible in the first place. P5 members are the US, the Russian Federation, China, Great Britain and France.

What changed all of the previous practice was the technological development that made war affect civilian life in an unprecedented degree. The concept of total war encompassing civilian life caused a huge amount of loss of life during the First World War and forced the States to reconsider the rules regulating resort to force. Doğru cevap " A " dır.

French Minister of Foreign Affairs Aristide Briand proposed it as a bilateral agreement between the United States and France to outlaw war between them. U.S. President Calvin Coolidge and Secretary of State Frank Kellogg were less eager about it since they worried that it could be interpreted as a bilateral alliance. To avoid this, they suggested to extend it to other States. After the severe losses of the First World War, many nations had no objections to signing it. Doğru cevap " B " dir.

Peacekeeping is not considered as a method of coercive action. There is not any provision in the Charter regulating such forces explicitly. It was invented by the General Assembly in 1948 and taken over by the Security Council in 1956 with the establishment of the first armed peacekeeping force. It is accepted as a method of pacific settlement with a right to use force only in self-defense, although in 1990s some of them deviated from its basic characteristics being called ‘hybrid’ operations, and endowed with the right to use force in other conditions as well. Blue beret is an integral part of the uniforms of such forces. Doğru cevap " C " dir.

Various measures of self-help ranging from economic retaliation to the use of force have historically been used (Keskin, 1998, 89). Since the establishment of  the Charter regime there are basically three categories of compulsion open to States under international law: retorsion, reprisal, and self-defense.  Self -defense is still the only exception to the prohibition of the use of force open to the individual States. Doğru cevap " D " dir.

Article 39 gives the Council two duties: First, it needs to determine the existence of threat to the peace, breach of the peace, or act of aggression. Then, it needs to decide what kind of action is going to be taken by the UN and its member States. The Council has a wide discretion under Chapter VII. Determination under Article 39 is only a first step in the process. Doğru cevap " E " dir.

It was the veto power of the permanent five (P5) members of the Council that rendered the Council’s work impossible in the first place. P5 members are the US, the Russian Federation, China, Great Britain and France. According to Article 27, the Council takes decision by 9 votes including the concurring votes of P5. Abstaining and not participating in voting are not considered as veto, meaning any P5 State who wishes to use its veto power has to show it by casting its vote as negative. Doğru cevap " A " dır.

The UN Charter improves customary international law by recognizing the right of
collective self-defense. Organizations of collective self-defense arises from the rule stipulated in Article 51. State practice shows that one State may defend the other upon its request. However, State claiming individual self-defense must declare this situation and ask for the help of the others. Other States cannot have the right of collective self-defense if there is not a call for help (Keskin, 1998, 59). Doğru cevap " B " dir.

The UN Charter remains the principal frame for the legal justification of use of force by States. This frame includes the “inherent right of self defense” in Article 51, the prohibition on the threat or use of force in Article 2(4), and the authority of the Security Council to act on behalf of all UN members to take any actions necessary to deal with threats to or breaches of international peace and security (Articles 25, 39, 41 and 42). The Security Council is authorized to use force as it sees fit to restore international peace. Doğru cevap " C " dir.

Classic humanitarian intervention can be defined as those instances in which a State unilaterally uses military force to intervene in the territory of another State with the purpose of protecting a group of people from life-threatening violations of the government. A more compact definition would be “a military intervention
undertaken by a State or group of States outside the umbrella of the UN in order to secure human rights in another country” (Sen, 2014, 468). Doğru cevap " D " dir.

After NATO’s intervention in Kosovo, some commentators agreed that some form of exception to the prohibition may be gaining acceptance. One supporter of this view offered certain criteria under which armed force may become justified, even in the absence of any authorization by the Council (Cassese, 1999, 27). These were:
• gross breaches of human rights involving loss of innocent life amounting to crimes against humanity,
• central authorities unable to put an end to those crimes or responsible of them itself,
• the Security Council unable to take coercive action because of the use of veto,
• exhaustion of all peaceful avenues,

• a group of States(not a single State) deciding to try to halt atrocities with the support or at least the non-opposition of the majority of the member States of the UN,
• vi) armed force being used exclusively for the limited purpose of stopping the
atrocities and restoring respect for human rights, not for any goal going beyond this limited purpose.

Doğru cevap " E " dir.