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The Use Of Force, War And The Role Of The Un

3079 words - 12 pages

The Use of Force, War and the Role of the UN

The corollary of the necessity of any effective legal system to
provide a fair and adequate means of peacefully settling disputes is a
prohibition on unlawful use of force. Theoretically, this necessity
not to use unlawful force can be said to be one of the most
fundamental rules of international law and has the status of jus
cogens. The United Nations Charter demonstrates profound commitment to
denounce the use of unlawful force in its preamble. It avows,
“[determined] to save succeeding generations from the scourge of
war….to reaffirm faith in fundamental human rights, in the dignity and
worth of the human person…to practice tolerance and live together in
peace with one and other as good neighbours…..[and of paramount
importance] to maintain international peace and security….”[1]
However, the actual use of force remains to be a highly litigious area
of international law. When legal principles are made to prevent
certain acts, it does not signify that those acts would never take
place. Hence, if war is written on the cards it is predestined that it
will take place. Not even international law can capitulate to this day
and age, but to stand back and watch[2].

It has been claimed by W. E. Hall[3], “International Law has no
alternative but to accept war, independently of the justice of its
origin, as a relation which the parties to it may set up if they
choose, and to busy itself only in regulating the effect of the
relation”. Through the course of time, international lawyers and
writers of international law have accepted this statement by W. E.
Hall. It is submitted, that such a statement may be said to highlight,
that international law has so far failed in the predominant task of
all legal systems, that is, of establishing and maintaining a
distinction between the legal and illegal use of force. One reason for
this may be, as M. Dixon[4] points out, that idealism is misplaced
precisely because international law does not provide an adequate,
effective and compulsory enforcement machinery for the peaceful
resolution of disputes. Hence, atrocities of war will perpetuate and
will remain to make headline news

Traditionally, there has always been a distinction made between the
law relating to the resort to war, technically known as jus ad bellum
and the law governing conduct of war, jus in bello. Under
International law there are a set of procedures for States to follow[5]
in order to settle their disputes.[6] Notwithstanding this, there
still remains an element of stigma that States are not prepared to
concede entirely in a system where disputes are settled in accordance
with legal principles. Therefore International law can only regulate
the right to use force. T. Meron[7] illustrates this by providing an
analogy: “As in a boxing...

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