Journal of Conflict and Security Law Advance Access originally published online on February 25, 2008
Journal of Conflict and Security Law 2007 12(3):389-417; doi:10.1093/jcsl/krn003
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The Legal Regime Applicable to Use of Lethal Force When Operating under a United Nations Security Council Chapter VII Mandate Authorising ‘All Necessary Means’
* Legal Officer, Royal Australian Navy, PhD (Cantab)
Correspondence: Email: rob.mclaughlin1{at}defence.gov.au
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Abstract |
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This article examines the issue of authorisation to use of lethal force under a UN Security Council Chapter VII ‘all necessary means’ resolution. Because UN-mandated or endorsed forces are regularly confronted by complex operational environments of mixed—often ambiguous—legal nature, it is essential that both the international and domestic legal implications and consequences of the use of lethal force are considered when planning and executing such operations. This is important for a number of reasons—not least among them being the legal protections and certainties that individual UN force members are entitled to expect are correctly reflected in their Rules of Engagement (RoE). Through an examination of the scope of SC Chapter VII powers generally—with particular emphasis on the human rights and IHL dimensions of the use of lethal force—the analysis arrives at the conclusion that there are two ‘use of force paradigms’ governing UN Chapter VII ‘all necessary means’ mandates. The first is the ‘law enforcement’ paradigm, which essentially countenances the use of lethal force within the limitations of self-defence. The second is the ‘armed conflict’ paradigm, where use of lethal force is permitted in wider circumstances. From this point, the article examines which paradigm is at play in a number of specific SC Chapter VII ‘all necessary means’ mandates, noting that the default position appears to be the law enforcement paradigm. The analysis then concludes by arguing that, for individual UN force members, the consequences and implications of this characterisation are ultimately a domestic legal issue, using one particular domestic legal jurisdiction—Australia—as an example.
The views expressed in this commentary are those of the author alone, and should in no way be inferred as representing the views of any part of the Australian Government. Although the author was most fortunate to receive very constructive comments from a number of reviewers, all errors are the author's alone.