State prosecution of terrorism and rebellion : a functional examination of the protection of civilians and the erosion of sovereignty
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The comparative and international law journal of Southern Africa, Vol. 46, no. 1, March 2013
This paper outlines a possibly emerging policy governing the transnational use of force. It contends that the Security Council has begun allowing, even calling for, the use of force in response to large-scale targeting of civilians. This new policy, by focusing on the threat to "civilians" instead of the Charter's express prohibition on the use of force and its fundamental respect for sovereignty, violates the cornerstones of the Charter system. While these considerations are facially incompatible with the Charter's principles governing force, they help provide a new framework for analysing how the Security Council will act regarding intervention in today's security environment. The Security Council, due to its unique nature, small voting structure and the broad deference afforded it by states and under the Charter, has been able to respond to threats against civilians from transnational terrorism and state violence on a step-by-step basis. This paper pieces together some of these steps to show the Security Council is indeed using a new framework for the use of force that incorporates considerations outside those contemplated in the Charter.