Conceptualizing Violence: Present and Future Developments in International Law
Henkin, Louis, Albany Law Review
Thank you, Professor Halewood. As the beneficiary, I am pleased that introductions are not made under oath.
My assignment is to introduce the Symposium and to strike a key note. I leave the difficult part to the fine instrumentalists here assembled.
It is not easy to strike a single note that will serve for all aspects of this very rich subject which Peter [Halewood] suggested was "vaguely, but intriguingly, entitled." Violence is not a term known to international law. It is not even a term of art in international politics. That is evident from the titles of the panels in this Symposium and from the individual papers, various in form and multi-faceted in context.
The term "violence" includes, of course, what might have been the whole subject of a symposium--the use of force between states. For us here, however, it includes also military hostilities within states, as well as other forms of violence--from terrorism to genocide, from rape to battered women, and, apparently, even to the market. (I will be intrigued to learn about the relationship of the market to violence and to international law.). But "vaguely, and intriguingly," the term "violence" for us today includes also the task of conceptualizing it. I do not know whether we will seek to give legal characterization to the whole subject, or whether we will try to convert words that are not terms of art, such as violence, into legal norms, into international legal norms.
The panels will deal with all of these. For my part, I wish to address two or three "sub-subjects" briefly.
Violence, alas, is a pervasive and diverse phenomenon within states and in international relations. International law has not addressed all of it, and today's discussion will attempt to relate international law to aspects of violence not familiar to the law of yesterday, or perhaps even to today's law. We are asked also to discuss future developments in international law. I will not attempt to prophesy, but as a springboard for those who dare to do so, I will suggest where I think we are on two or three aspects of the subject.
First, as to violence that has been the subject of international law for more than half a century--the use of force between states--I am of those who believe that the law on that subject is established, clear, and, I hope, not changing. In my view, the law that was established immediately after World War II, in the United Nations Charter, is sound and firm. Article 2(4) of the Charter provides that no state may use force or the threat of force against the political independence or territorial integrity of any other state, or in any other manner inconsistent with the purposes of the United Nations.(1) That has been the international law on the use of force since 1946; it remains the law governing the use of interstate force today.
There have been attacks on that law, and some have proposed exceptions to it. For me, there are no exceptions to Article 2(4), other than the right of self-defense which I shall address in a moment. The only exception that may have emerged is what some refer to as the "Entebbe Principle."(2) That, you will recall, is the name of a place in Uganda to which, in 1976, terrorists brought an Israeli plane they had hijacked. Idi Amin, the President of Uganda, would not release the plane. Then, Israeli commandos, in a dramatic, heroic action, liberated the plane, secured the hostages, and departed.
Most of us have been hard-put to resist that situation as providing a permissible exception to Article 2(4). In the ordinary sense of the term, sending commandos into Uganda was a use of force. It was a use of force against the territorial integrity of Uganda--in the ordinary sense of the word--since the Israeli commandos penetrated, landed, and acted on Ugandan territory. It was not a use of force against the political independence of Uganda, except, again, in the sense that the Israelis did something which the politically independent Mr. …