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OBJECTIVES/SPECIFIC AIMS: By combining clinical knowledge of hoarding disorder (HD) with qualitative methods from cultural anthropology, we hope to build a patient-centered approach that will allow us to better understand the clinician perspectives on patient motivations and explanatory models of individuals with HD, and improve treatment outcomes. We describe the ways that these methodologies are productively merged in this project as a result of TL1 collaboration, and present a preliminary picture of methodological and theoretical issues uncovered as part of this processes. We further describe the analytical methods used for this project, and explore issues raised through the combination of psychological and anthropological data and insights. METHODS/STUDY POPULATION: This study represents an attempt to combine the qualitative methodologies of cultural anthropology with the clinical knowledge of psychology and psychiatry in order to better understand gaps between provider and patient beliefs and knowledge about hoarding disorder. This study will present preliminary methodological issues arising from interviews with hoarding experts. RESULTS/ANTICIPATED RESULTS: This study will discuss preliminary issues including shared language, strengths and limitations of both disciplines, and factors for consideration when combining these disparate methodologies. It will close with recommendations for consideration when moving forward with similar collaborations. DISCUSSION/SIGNIFICANCE OF IMPACT: This project seeks to unite psychological and social factors that may contribute to the lived experience of individuals with HD in order to better understand the way that HD is manifested. It also unites disparate methodologies to provide us with a more holistic and complete picture of the experience of HD. While HD has been studied within psychiatry, it has never been assessed using the qualitative methods of anthropology. These methods provide the possibility of expanding knowledge about the ways that this disorder is experienced by individuals and their families, and potentially impacted by shared beliefs and cultures. Furthermore, qualitative data of this nature provides a patient perspective on the experience of HD as a psychiatric illness. This patient perspective can be used to better inform treatment, improve patient outcomes, and to allow providers and researchers to gain a fuller understanding of this complex population.
Article 51 of the United Nations (UN) Charter provides for the right of self-defence ‘if an armed attack occurs’. There is nothing, however, in the Charter, or in other documents, to guide us specifically on the temporal meaning of this requirement. The ordinary meaning of this phrase would suggest that an armed attack needs to be physically occurring, or have perhaps occurred in the recent past with a continuing defensive necessity. While not entirely novel, an issue that has come into sharp focus in recent years, and particularly in the aftermath of the attacks of 11 September 2001 (9/11), is whether the right of self-defence can be invoked before an armed attack has been launched, or at least before the physical manifestations of one have begun to occur. Given that there have been no attempts at formal reform of Article 51, the question arises as to how, if at all, might preventative selfdefence be reconciled with this key requirement of an armed attack.
This, of course, raises the question of when an armed attack can be said to have begun. Is it when the victim state begins to witness the physical manifestations of the effects of the armed attack, for example the destruction caused by a missile hitting a target, tanks rolling over the border, the explosion of a bomb or the mass destruction caused by a cyber-attack upon the computer systems operating a dam? Or, alternatively, is it when the aggressor state has completed the final step in the launching of the attack, for example the pressing of the trigger in launching a missile? However, could it be said that accepting either is counterintuitive in that they both favour the aggressor and potentially seal the fate of the victim state? In this respect, and going further back along the temporal spectrum, might an armed attack be said to occur before either of these stages have been reached? If so, at what point, exactly? Is it immediately before the taking of an irreversible step in launching an armed attack?
While the previous chapter discussed the general scope and breadth of the prohibition of the threat or use of force contained within Article 2(4) of the United Nations (UN) Charter and customary international law, the purpose of this chapter is to provide some focused discussion on the meaning of the ‘force’ prohibited. As will have become clear from the previous chapter, it is difficult to be categorical when talking about the law in this area, and there is some uncertainty regarding various issues. Indeed, it is true that ‘[t]here is no authoritative definition of, or criteria for, “threat” or “use of force”’. While this chapter will seek to expose the uncertainties in regard to this particular issue, various factors or common elements of ‘force’ can be distilled.
Force, however, is a particular kind of intervention, and it is important to first be clear as to the kind of intervention that it represents, which is addressed in section 1. The chapter then moves on in section 2 to look at the type of force that the prohibition is concerned with and, concluding that it is ‘armed force’, then moves on in section 3 to attempt to distil the key elements of such force, including whether a weapon must be used and whether force can be used indirectly. Section 4 of the chapter then addresses the ‘gravity’ or severity aspects of a use of force, in particular by distinguishing it from an armed attack or act of aggression, two other terms that are found within the UN Chapter, but also by examining whether there is a level of force – or de minimis threshold – below which an action falls out of the remit of the prohibition. In this context, a distinction will be drawn between uses of force and law enforcement measures. Finally, and having distilled the key practical components of a prohibited use of force, section 5 of the chapter focuses upon the mens rea component.
The previous chapter sets out the collective security framework of the United Nations (UN) and the development of the practice of the Security Council authorising states and organisations to use force in implementation of its mandate. While this practice has a clear grounding within the Charter, and in many ways is not controversial per se, there are numerous issues and concerns that have come to light since 1990 when it was first employed in Resolution 678 (1990) to evict Iraq from Kuwait. In some cases these have been resolved or are no longer present. In others, however, great division and mistrust has resulted. Indeed, the problems regarding the relative inactivity of the Security Council during the Cold War have been replaced by problems regarding the breadth and legitimacy of states and organisations acting under the auspices of the Council in the post-Cold War era.
This chapter first examines some of the initial ways the Council has attempted to obtain a balance between multilaterialsm and unilateralism in the design and implementation of its resolutions which have authorised ‘all necessary means’. One issue that has not been resolved, and is apparent in many sections of this chapter, is the authority to interpret resolutions of the Security Council. In this respect, section 2 addresses the possibility of ‘reviving’ past authorisations, something that has thus far been restricted to the use of force in Iraq between 1991 and 2003. Section 3, on the other hand, examines the issue of determining the breadth and scope of an authorisation, while section 4 looks at the issue of ‘implied’ authorisation, in particular in attempts to enforce what might be perceived as the ‘collective will’ of the Council as well as the Council providing what might be seen as retrospective or ex post facto authorisation or approval for military action. Finally, section 5 addresses the issue of the forcible implementation of the ‘Responsibility to Protect’ concept which has recently found its way into the debates regarding the powers and responsibilities of the Council.
Responses to attacks by non-state actors is something that today, and in particular following the attacks of 11 September 2001 (9/11), is a central concern to the international community. This is, however, an issue of historical importance as it arose not only in the Caroline incident of the nineteenth century but has also been a persistent one within the era of the United Nations (UN) Charter, as seen in the actions of South Africa in Botswana and other countries in southern Africa in the 1970s and 1980s, Israeli interventions in Lebanon in 1968 and Tunis in 1985, and Turkey's various interventions in northern Iraq against the PKK during the 1990s and 2000s. It was also a central aspect of the Nicaragua and Armed Activities cases before the International Court of Justice (ICJ), and in the Wall advisory opinion. As discussed in Chapter 6, today it is an emerging view that non-state actors are not excluded as the possible perpetrators of an armed attack. While not a point free from controversy, attacks by non-state actors are arguably within the purview of the right of self-defence, in particular in the light of the fact that the right arises in the face of an ‘armed attack’ and is not restricted to ‘any particular kind of attacker’. However, establishing that they may perpetrate an armed attack, and, indeed, have perpetrated such attacks, is only one half of the equation.
Chapter 7 examined the issue of when it might be possible to respond to the threat of an armed attack, including from non-state actors. This chapter is more concerned with the fundamental questions of if, how and where to respond to such attacks. Measures in self-defence against an armed attack, or imminent threat thereof, from a state take the form of either repelling the armed attack in motion, and perhaps therefore take place upon the defending state's territory or, more often, striking targets within the attacking state's territory. Yet, non-state actors are not located on the high seas or in outer space, but normally instead within the territory of another state.
It is a sad and depressing reality that for any international lawyer interested and working in the field of international law governing the use of force business tends to be bad during moments of relative peace and stability. Arguably even more depressing, however, is the fact that this is not often the case. The adoption of the United Nations (UN) Charter in 1945, at the end of the Second World War, was a landmark moment for this branch of international law, in that a prohibition of the ‘threat or use of force’ had taken the place of the broader – and largely unsuccessful – attempts at regulating the resort to ‘war’ as found in the Covenant of the League of Nations (1919) and the Kellogg–Briand Pact (1928). Although the world has not witnessed catastrophic global wars since 1945, the use of force is, nonetheless, never far from our consciousness. This is often in the form of one or more states taking, or at least threatening, military action against another, which was arguably the type of scenario envisaged by the prohibition of force contained within Article 2(4) of the UN Charter, confined as it is to the ‘international relations’ between states. The military action by the United States, the UK and Australia against Iraq in 2003, which had the somewhat inevitable result of a regime change, provides a notable example of such action, and one which proved highly controversial and the ramifications of which both Iraq and the broader international community are continuing to face.
However, today it is more likely that when a state resorts to force it does so against a non-state actor, often of a terrorist nature. Indeed, just a few years preceding its use of force against Iraq, the United States responded to the attacks of 11 September 2001 by launching a military campaign against al-Qaida, the terrorist group responsible for the attacks. To remain relevant, the law, whilst not being infinitely malleable to suit the interests and actions of individual states, must be capable of meeting new developments and challenges within the international community.
While authorisation by the United Nations (UN) Security Council and self-defence are two clear exceptions to the prohibition of the use of force, even if their application is often mired in controversy, it might plausibly be contended that there is a further exception to the prohibition: consent by a state to the forces of another state operating upon its territory. Although on the one hand the coercive nature of the force used under Security Council authorisation or in self-defence remains a violation – albeit, a justified violation – of state sovereignty, a state's use of force upon the territory of another state with its consent, on the other hand, involves no violation of state sovereignty ab initio. If consent to the deployment of military personnel is validly given, there is no use of force against the host state and it should not, therefore, be considered as an exception to the prohibition of the use of force. This appears to be a widely shared view of consent to intervention. It is, for example, the view of the UK that ‘in the case of consent validly given, there is no violation of international law, and therefore no question of wrongfulness should arise’, and it is arguable that ‘the majority of doctrine has come down on this side’.
Yet, this apparently clear position regarding the legality of consent to intervention assumes ‘clarity in the status of actors and the nature of the consent that is often lacking’. Force is employed in these situations most often against non-state actors present and operating within a state's territory, who may be a perceived enemy of either the acting state, the territorial state or both. An invitation was thus provided to the United States and other states by Iraq in 2014 to take action upon its territory in the battle against so-called Islamic State. Yet, what happens in cases where it is not clear which entity represents, or has come to represent, the ‘state’? For example, a full-blown civil war may have become identifiable with both sides controlling a portion of state territory, as was witnessed at times during the Syrian civil war that began in 2011.
The first Part of this book provides an examination of the contemporary prohibition of the threat or use of force, as found within Article 2(4) of the United Nations (UN) Charter and in customary international law. Not only is this a pivotal rule within the international legal framework governing the use of force, but is also a ‘cornerstone’ provision of the UN Charter and a norm of great importance within international law more generally. Nonetheless, it has given rise to some controversy in regard to both its breadth and scope of application and the specific meaning of ‘force’ leading to the observation that there is a ‘lack of agreed-upon definitions, criteria and thresholds for application’.
As such, the first of the chapters in this Part provides an exposition of the general breadth and scope of the contemporary prohibition, while the following chapter examines the specific meaning of ‘force’ that is the focus of it. Only by understanding this fundamental norm, including its difficulties, can one fully appreciate the actual and proclaimed exceptions to it that are addressed in the subsequent sections of the book. Together, the chapters provide an understanding of the design and function in practice of this fundamental norm of international law. Furthermore, an appreciation of the contours and application of these exceptions will provide a greater understanding of the circumstances in which we might be able to conclude that the prohibition has been breached.
The prohibition does not operate in an historical vacuum and, in understanding its breadth and scope, one must first understand where it is positioned along the historical continuum of efforts to regulate force. Section 1 of this chapter therefore sets the contemporary prohibition in this context. Section 2 then examines the sources of the prohibition, as found in Article 2(4) of the UN Charter and in customary international law, but also its status as a ‘peremptory’ or ‘jus cogens’ norm of international law and what this means in terms of the prospects for its adaptation and modification in the future.
The term ‘humanitarian intervention’ might be taken to mean simply one state criticising the human rights record of another with the aim of influencing the latter state's treatment of individuals within its territory. Such a practice is common today and when it occurs does not normally attract stinging rebukes, and neither is it described as a violation of international law. Of course, whether it is politically or economically wise for a state to engage in commenting on the affairs occurring within another state is a separate issue. The term ‘humanitarian intervention’ is instead employed in the common parlance of international lawyers as referring to the use of armed force in the absence of the authorisation of the United nations (UN) Security Council for humanitarian purposes – that is, the use of force to intervene in another state to prevent or end a humanitarian crisis.
Although there are examples of what might be described as humanitarian interventions in the pre-UN Charter era, in 1945 the UN Charter prohibited all uses of force except those undertaken with the authorisation of the UN Security Council or in self-defence. In assessing the current status of the doctrine the focus of this chapter will be on post-1945 practice. In this respect a focus is placed in section 1 upon assessing if the doctrine can be reconciled with the UN Charter. Section 2 proceeds to address the issue of whether humanitarian intervention might constitute a ‘circumstance precluding wrongfulness’, while section 3 looks at Cold War and post-Cold War practice respectively in assessing the position of the doctrine during the UN era. Given that the forcible entry by the North Atlantic Treaty Organization (NATO) in the Kosovo crisis in 1999 proved something of a landmark in terms of events that have shaped the path of the modern doctrine of humanitarian intervention, the status of the doctrine in the immediate aftermath of this intervention will be given particular attention. A conception of humanitarian intervention that has come to dominate contemporary debates on the issue is that of the ‘Responsibility to Protect’ (R2P).
One theme that it is hoped emerges from this book is that the law governing the use of force is not purely epiphenomenal. It is possible to take a counterfactual approach and suggest that as states more often than not refrain from resorting to force the law clearly has a restraining influence upon their actions. However, such assumptions must give way to the reality that the law actually has a far more subtle influence over the actions of states. There can be no escaping the fact that states, and some more often than others, resort to force. Yet, states clearly engage with the law in justifying their actions, responding to those of other states, and in attempting to shape the contours of the law through interpretation and practice. While there are occasions when states use force without offering a legal justification for doing so, as was the case with the US strikes against Syria in April 2017, it is more often the case that states engage in justificatory discourse of a legal nature which is indicative that they consider the law to be at least of some relevance, even if violations of its strictures are not supported by clear and reliable enforcement mechanisms. It arguably follows, then, that if they feel compelled to offer a justification they feel similarly compelled to adjust their actions to make them at least plausible within the substantive rules and procedures that exist. Furthermore, the law in this area, if nothing else, and as is arguably the case with much of international law, provides a language and framework through which discursive intercourse between states can occur.
A further theme that hopefully emerges through the chapters of this book is that there exists no general appetite amongst states for either the scrapping, rewriting or radical reinterpretation of the the rules within the UN Charter and customary principles governing the use of force which both enable and restrain state action. That is not to say, however, that the rules have not been constantly challenged and, in some cases, adapted to meet contemporary threats and challenges.
The previous chapters of this Part of the book addressed the use of force under the auspices of the United Nations (UN), in particular the development of the ‘authorisation method’ as a means of overcoming the fact that forces that were envisaged as existing under the wings of the UN Security Council, as part of the Article 43 agreements, had never been realised. Of course, even if they had been, agreement within the Council would still have been required for their deployment. The authorisation method has proved far from perfect, but nonetheless revitalised the enforcement powers of the Security Council following years of Cold War deadlock. However, it was the early deadlock within the Council that also gave rise to the institution of peacekeeping. Indeed, ‘[t]he concept of UN peacekeeping developed as a response to failure of the collective security system envisaged in the Charter’, and it is true to say that ‘[f]rom its modest beginnings … UN peacekeeping has become a central and indispensable activity of the organization and is now an accepted part of UN law and practice’. Today, there are fifteen peacekeeping operations around the world. Yet, while it is possible to make a relatively direct link between the UN Charter and the authorisation method, in that the concept of force being employed with the authorisation of the Security Council is contained within Chapter VIII, the concept of peacekeeping forces, on the other hand, is not specifically provided for anywhere in the UN Charter.
Peacekeeping forces have traditionally been deployed to observe and facilitate the implementation of either a ceasefire or a peace agreement. Given the general principles of peacekeeping that were developed early on – consent, impartiality and the non-use of force except in self-defence – the institution of peacekeeping may not seem particularly controversial, and may be seen as falling squarely within the UN's purpose of the maintenance of international peace and security. Yet, very early on it became clear that given the complexity of the situations that peacekeeping forces were established to deal with, in particular the situation in the Congo in the 1960s, these principles were to be tested to – and, arguably, beyond – their limits.
The three chapters of this Part of the book have as their focus the right of self-defence, which constitutes the only established exception to the prohibition of the use of force outside of action undertaken under the auspices of the United Nations (UN) Security Council. Consequently, it is of no surprise that the justification of self-defence is the one that is most commonly resorted to by states and the one that has arguably given rise to the greatest controversy in both theory and practice.
The textual source of the right of self-defence is contained within Article 51 of the UN Charter which provides that:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
This right was not one that was to be originally included within the Charter and was not a right included within any of the previous attempts at regulating the use of force, including within the Covenant of the League of Nations or the Kellogg–Briand Pact. Yet, it was included within the UN Charter at the insistence of certain South American states that had previously entered into the collective self-defence arrangement found in the Act of Chapultepec so as to protect the right of collective self-defence.
A debate has arisen between scholars as to the impact of the adoption of the UN Charter, which included both a prohibition of the use of force in Article 2(4) and the Article 51 right of self-defence, in particular as to whether Article 51 had created a novel right which was not to be impaired by any of the other stipulations contained within the Charter, or, alternatively, whether it preserved a pre-existing right of self-defence and, if so, the consequent breadth and scope of this right after the adoption of the Charter.
The Use of Force and International Law offers an authoritative overview of international law governing the resort to force. Looking through the prism of the contemporary challenges that this area of international law faces, including technology, sovereignty, actors, compliance and enforcement, this book addresses key aspects of international law in this area: the general breadth and scope of the prohibition of force, what is meant by 'force', the use of force through the UN and regional organisations, the use of force in peacekeeping operations, the right of self-defence and the customary limitations upon this right, forcible intervention in civil conflicts, and the controversial doctrine of humanitarian intervention. Suitable for advanced undergraduate and postgraduate students, academics and practitioners, The Use of Force and International Law offers a contemporary, comprehensive and accessible treatment of the subject.