Wyniki wyszukiwania - Biblioteka Nauki

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PRE-EMPTIVE AND PREVENTIVE USE OF FORCE (Wyprzedzajace a prewencyjne uzycie sily)

100%

Marcinko M.

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2010

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tom 1

43-61

EN

The concept of pre-emptive use of force and preventive use of force — though may sound similar and often used interchangeably, especially when linked with the right of self-defence — are not identical notions and require their scope to be defined very precisely. The above conceptions do provoke contentious debates and in truth are approached differently in the light of the international law, in particular in terms of their legality and legitimacy. However diverse they may be, the potential threats to which they refer are almost the same. Therefore, it is of utmost importance to define the legal framework for the above conceptions since it will allow creating a new approach towards the use of force as envisaged by the international law, and notably towards the global “war on terrorism” conducted by many countries since a number of cases is known when the above-cited conceptions were referred to as an aftermath of terrorist activity. Assessment of military actions carried out by various states within either preemptive or preventive operations must, however, take into account not only the letter of the law, whether treaty or customary, but also the previous practice of a given state in this respect, possible implications which an operation may produce, other available methods of settlement of a dispute, powers of international organizations as regards the maintenance and restoration of peace and security or a question of necessity and proportionality of means undertaken within such operations.

2

Prawo państwa do samoobrony podstawą legalnego użycia siły zbrojnej

100%

Milena S.

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2012

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tom 3

187-198

EN

A basic principle of international law is the prohibition of the use of armed force, which is regulated in Article 2 of the UN Charter. Charter provides for two exceptions to this rule, and one of them is the right to self-defence. This right for it legality must meet certain conditions in both the United Nations Charter and by customary law. The right to self defence is a right derived from common law and the Charter makes its confirmation and concretization. A prerequisite for taking action in self-defence is an instance of an armed attack. Further conditions to be met in action of self-defence are the conditions of proportionality and necessity, which are not mentioned by the UN Charter but have their confirmation in the common law as well as have been confirmed by the International Court of Justice.

3

Zasady podejmowania działań przy użyciu siły wobec statków powietrznych na przykładzie incydentu z USS “Vincennes”

88%

Marcinko M.

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2012

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tom 3

113-148

EN

The use of armed force against civilian airliners, especially when the action takes place outside the zone of military operations or when such force is employed by the state that is not a party to an armed conflict, is perceived as highly controversial. Therefore, in each such case, while evaluating an incident, it is advisable to consider circumstances, the course of events as well as corresponding legal standards and detailed instructions addressing the armed forces, referred to as rules of engagement. The most typical known example is that of Iran’s civilian jet airliner shot down by U.S. missile cruiser USS “Vincennes” over the Strait of Hormuz in July, 1988. Although an incident took place during the Iran-Iraq War, the Unites States was not a party to this conflict. The United States expanded protection of the U.S. Navy to secure the convoys of tankers and the rules of engagement elaborated for that purpose permitted the so-called anticipatory self-defense, that is resorting to armed force before an attack occurs which was considered unavoidable. The incident itself was described as having occurred due to misidentification of the Iranian airliner, however, it gave rise to heated discussions on the legality and legitimacy of taking military action against civilian aircraft. Article 3 of Chicago Convention of 1944, generally forbids the use of force aiming at civilian aircraft, however, it provides for one exemption justifying the right to self-defense similarly to the rules of engagement as outlined above. Thus, at the core of both legality and legitimacy of above-mentioned actions stands the question whether circumstances requiring self-defense as defined in art. 51 of the United Nations Charter as well as customary international law have been fulfilled.

4

ARMED ATTACK IN INTERNATIONAL LAW - IN SEARCH OF CONTEMPORARY DEFINITION (Napasc zbrojna w prawie miedzynarodowym - w poszukiwaniu wspólczesnej definicji)

88%

Kowalski M.

Studia Prawnicze

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2008

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nr 3(177)

59-82

EN

The text analyses one of the key notions of Chapter VII of the United Nations Charter, namely the armed attack notion. The interpretation of this notion - which still misses the generally accepted definition - is of crucial significance as it determines the scope of the right to self-defence under Article 51 of the UN Charter, which together with the collective security system create the only two exceptions to the prohibition on the use of armed force in international law. The notion is interpreted in relation to the use of force notion and the act of aggression notion. The understanding of the armed attack notion as the gravest form of the use of force is challenged. Also, the problem of the source of an armed attack is analysed. It is submitted that non-state actors themselves may not be perceived as a source of an armed attack. However, the standards relating to the attribution of non-state actors' military actions to states should be extended. In general, the presented interpretative approach towards defining the armed attack notion shows that it is indeed possible to interpret the 'jus ad bellum' norms in such a manner as to, on the one hand, carefully adjust them to new threats in order to let states respond individually more adequately, but, on the other hand, to remain within the framework of the UN Charter and keep all the system safeguards.