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THE USE OF FORCE: INTERNATIONAL LAW AFTER IRAQ

Published online by Cambridge University Press:  17 January 2008

Jutta Brunnée  and
Stephen J Toope
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Abstract

Debates surrounding the second Iraq war have prompted a range of commentators to diagnose the death of the law on the use of force, to call for its adaptation to the globalization of threats and the problem of so-called failed States, or to assert the need to defend the UN Charter framework. In this article, we look behind the shrill rhetoric of the post-invasion commentary and invite a sober assessment of the current situation. Our aim is not to evaluate in detail the legality of the Iraq war. Others have done so thoroughly.1 Rather, we are interested in exploring whether we are truly at a turning point for international norms and institutions governing the use of force. If we do confront a ‘fork in the road’, as suggested by Kofi Annan in his address to the UN General Assembly on 23 September 2003,2 what changes to legal institutions and structures are required, and what new claims should we resist?

Type
Articles
Information
International & Comparative Law Quarterly , Volume 53 , Issue 4 , October 2004 , pp. 785 - 806
Copyright
Copyright © British Institute of International and Comparative Law 2004

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References

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94 Ibid at XII, 35–7.

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96 Ibid at XIII, 51. As Tanguy, above n 90 at 145 points out, while this proposal was guided by the need for political buy-in, it does not suggest how the international responsibility to protect might be exercised vis-à-vis the Chechens or Tibetans, to take but two contemporary examples.

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103 Ibid at 137.

104 Ibid at 138.

105 Ibid at 145–6.

106 Feinstein and Slaughter do outline a series of precautionary principles, but they largely address the extent of allowable force, rather than providing limits on the initial triggering: ‘Force must be exerted on the smallest scale, for the shortest time, and at the lowest intensity necessary to achieve its objective; the objective itself must be reasonably attainable when measured against the likelihood of making matters worse. Finally, force should be governed by fundamental principles of the laws of war…’ ibid at 149.

107 Ibid.

108 Ibid at 142.

109 Ibid at 139.

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