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Lenin, (Just) Wars of National Liberation, and the Soviet Doctrine on the Use of Force

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Lenin, (Just) Wars of National Liberation, and the Soviet Doctrine on the Use of Force Journal of the history of International Law 19 (2017) 219–245 JHIL brill.com/jhil Lenin, (Just) Wars of National Liberation, and the Soviet Doctrine on the Use of Force Johannes Socher* Research Associate, German Research Institute for Public Administration Berlin, Germany [email protected] Abstract Today, the prohibition of the use of force is universally accepted as a norm of custom- ary international law. Nevertheless, several exceptions are discussed in international law scholarship. One of them, wars of national liberation, originates in Lenin’s socialist war theory and was subsequently maintained by the former Soviet doctrine of inter- national law. Little known in western academia, this Soviet argument of national lib- eration struggles to be ‘just wars’ is still alive in Russian international law scholarship today, and, therefore, a lasting legacy of Lenin’s theory of wars of national liberation in international legal discourse as developed around the time of the Russian Revolution (even if sometimes ignored) may be conceded. Keywords Lenin – wars of national liberation – Soviet doctrine of international law – use of force, prohibition of – just war theory * Where English translations of Russian works were not available, German translations are cited instead and used as intermediates. These, as well as all ‘direct’ translations from German and Russian into English are the author’s. I would like to thank Bill Bowring, Lauri Mälksoo, and Marija Peran for providing equally helpful comments. My gratitude also goes to Bruno Simma for discussing the topic with me and reading an earlier draft of this article. Any mistakes or inaccuracies are, of course, solely my own. © koninklijke brill nv, leiden, ���7 | doi �0.��63/�57�8050-�9�3�Downloaded0�8 from Brill.com10/02/2021 01:17:56PM via free access 220 Socher 1 Introduction: The Standard Account on the Use of Force in International Law Scholarship Today Today, the prohibition of the use of force is universally accepted as a norm of customary international law and agreed by many as ius cogens.1 Formulated for the first time as a general prohibition in the Kellogg-Briand Pact of 1928,2 it marks a cornerstone of the United Nations Charter, which in its article 2(4) states that [a]ll members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. But the prohibition of the use of force is not absolute: the UN Charter itself contains two exceptions (plus one against former enemy states that has become obsolete),3 and two others are commonly discussed as norms of customary international law: enforcement actions of resolutions by the UN Security Council (article 42), self-defence (article 51), humanitarian interven- tion, and protection of nationals abroad.4 However, a quick look into one of the standard accounts dealing with the interpretation of the UN Charter, the Commentary edited by Bruno Simma and others, will provide the reader with a further exception, namely that of so called wars of national liberation: The former Soviet doctrine of public international law, supported in this respect by the majority of developing countries, had maintained that there is a further exception to the prohibition of the use of force. Wars of 1 Albrecht Randelzhofer/Oliver Dörr, ‘Art. 2(4)’, in Bruno Simma/Daniel-Erasmus Khan/Georg Nolte/Andreas Paulus (eds.), The Charter of the United Nations: A Commentary, vol. 1 (Oxford: Oxford University Press, 3rd edn 2012), MN 1, 64–68. 2 Treaty between the United States and other Powers Providing for the Renunciation of War as an Instrument of National Policy, 27 August 1928, 94 LNTS 57. 3 It is commonly held that article 107 of the UN Charter, according to which ‘nothing in the present Charter shall invalidate or preclude action in relation to any State which during the Second World War has been an enemy of any signatory to the present Charter’, has become obsolete, since all former enemy states are now UN member states, see e.g. Alfred Verdross/ Bruno Simma, Universelles Völkerrecht: Theorie und Praxis (Berlin: Duncker & Humblot, 3rd edn 1984), para. 106; Antonio Cassese, International Law in a Divided World (Oxford: Clarendon Press 1986), 137. 4 Randelzhofer/Dörr, ‘Art. 2(4)’ 2012 (n. 1), MN 44–61. Journal of the History of InternationalDownloaded Law from 19 Brill.com10/02/2021(2017) 219–245 01:17:56PM via free access Lenin, (Just) Wars of National Liberation, & the Soviet Doctrine 221 national liberation by peoples under colonial or racist regimes or other forms of alien domination were claimed to be as lawful as the support, including the use of force, given to those peoples by third States.5 This position always faced strong opposition in western academia for a num- ber of reasons, above all because the legal regime of article 2(4) is commonly thought to bind only states and therefore to be inapplicable to struggles deriv- ing from a people’s right to self-determination.6 Albrecht Randelzhofer and Oliver Dörr, the authors of the just quoted entry of the Commentary for exam- ple, regard this Soviet view to be ‘incompatible with the relevant interpretation of Arts. 2(4) and 51 of the Charter’.7 Yoram Dinstein in War, Aggression and Self-Defence is of the opinion that there is ‘no way to reconcile Article 2(4) with recourse to force [. .], even if the target is a colonial Power’.8 And Louis Henkin in How Nations Behave simply called it ‘surely a distortion’.9 Nevertheless, one may also find reaffirmations for an exception to the prohi- bition of the use of force in wars of national liberation in western international law scholarship up to today. One proponent of this view is Noelle Higgins, author of the Oxford Bibliography on the topic,10 as well as of Regulating the Use of Force in Wars of National Liberation,11 the only substantial contribu- tion to the issue since Heather Wilson’s 1988 monograph International Law 5 Ibid., MN 62 (footnotes omitted). 6 For a discussion of the inapplicability of the prohibition of the use of force to national liberation struggles see Olivier Corten, The Law against War: The Prohibition on the Use of Force in Contemporary International Law (Oxford: Hart Publishing 2010), 135–149. Contra Julio Faundez, ‘International Law and Wars of National Liberation: Use of Force and Intervention’, African Journal of International and Comparative Law 1 (1989), 85–98, and Bill Bowring, The Degradation of the International Legal Order? (Abingdon: Routledge 2008), 34, restated in his ‘Positivism versus Self-Determination: The Contradictions of Soviet International Law’, in Susan Marks (ed.), International Law on the Left: Re-examining Marxist Legacies (Cambridge: Cambridge University Press 2011), 133–168, at 163. See also Antonio Cassese, International Law (Oxford: Oxford University Press, 2nd edn 2005), 374. 7 Randelzhofer/Dörr, ‘Art. 2(4)’ 2012 (n. 1), MN 62. 8 Yoram Dinstein, War, Aggression and Self-Defence (Cambridge: Cambridge University Press 2012), paras. 188–194, 249. 9 Louis Henkin, How Nations Behave: Law and Foreign Policy (New York: Columbia University Press 1979), 144. 10 Noelle Higgins, ‘International Law and Wars of National Liberation’, Oxford Bibliographies (online edn). 11 Noelle Higgins, Regulating the Use of Force in Wars of National Liberation: The Need for a New Regime (Leiden: Martinus Nijhoff Publishers 2010). Journal of the History of International Law 19 (2017)Downloaded 219–245 from Brill.com10/02/2021 01:17:56PM via free access 222 Socher and the Use of Force by National Liberation Movements.12 In her book, Higgins skips (apparently on purpose)13 the entire Soviet literature on the topic and bases her argument instead on the originally religious concept of ‘just war’ (bellum iustum).14 Quoting from another passage in the ‘Commentary’ of the UN Charter, she states: Article 1(1) refers to the maintenance of international peace and secu- rity as the overarching purpose of the United Nations, whereas the sup- pression of aggression is only referred to as one objective to be achieved through measures of collective security. This means that international peace and security may be endangered not only by acts of aggression, but also by any other threat to the peace.15 12 Heather Wilson, International Law and the Use of Force by National Liberation Movements (Oxford: Clarendon Press 1988). 13 In the Oxford Bibliography on ‘International Law and Wars of National Liberation’ (n. 10), Higgins lists the below-mentioned article by George Ginsburgs (n. 34) and des- cribes it as ‘an interesting discussion of the Soviet perspective on wars of national liberation’. Nevertheless, Lenin’s or any other Soviet contribution to the topic is non- existent in her Regulating the Use of Force in Wars of National Liberation 2010 (n. 11). 14 Higgins, Regulating the Use of Force in Wars of National Liberation 2010 (n. 11), 8–17. The origins of the just war theory go back to antiquity. Cicero, for example, stated already in his De Officiis, I, 36, 15: ‘No war is just, unless it is entered upon after an official demand for satisfaction has been submitted, or warning has been given and a formal declaration made’. However, it remained to early Christianity to give material content to it. In order to separate those wars that must be suffered because they are ordained by providence and those that are to be avoided, the idea of the just war was born, for which Augustine of Hippo is credited for having first shaped it into the form of a scientific system (see his De Civitate Dei, Liber XIX, Caput VII).
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