The Virginia-Georgetown Manual Concerning the Use of Force Under International Law: Rules and Commentaries on Jus Ad Bellum
As current events so clearly demonstrate, there is no subject more fundamentally important to the maintenance of global security than that of the jus ad bellum, the rules and procedures for assessing the permissibility of a State’s resort to force in its international relations. That is, when is it lawful for a State to use force in the international arena?
Despite its importance, however, no effort has ever been made to develop a detailed statement of the rules applicable to the use of force similar to the approach adopted for manuals codifying various aspects of the jus in bello (the law of armed conflict) which articulate rules with accompanying commentaries. With this in mind, in 2018, two of the most universally recognized authorities on the law applicable to the use of force, the late Professor Yoram Dinstein and Professor John Norton Moore, undertook a comprehensive restatement of the contemporary jus ad bellum. Based on the efforts of a working group comprised of international experts, brought together by Professors Dinstein and Moore, this initiative has resulted in the formulation of The Virginia-Georgetown Manual on the Law Concerning the Use of Force: Rules and Commentaries on Jus ad Bellum (the Manual).
Key Challenges
Among the key challenges of preparing a jus ad bellum manual is the very nature of the law in this area. Accordingly, the background section of the Manual reviews the principal history of efforts to develop substantive rules governing the use of force, as well as the centrality of the UN Charter. As that discussion suggests, this is an area in which both treaty law (in the form of the Charter) and customary international law figure heavily. The Charter provisions, however, are often brief and somewhat vague and have not been interpreted or applied in a uniform or consistent manner by either the UN Security Council or individual Member States.
Determining the content of the jus ad bellum is further complicated by uncertainty as to whether a principle has crystallized as a customary international legal rule. While an inherent, customary right of self-defense has long been recognized as preexisting the Charter, the concepts of “aggression,” “armed attack,” and “self-defense,” in particular, have been consistently debated, and the parameters of these principles have undoubtedly evolved.
Numerous States have issued white papers and other forms of documentation that have addressed their understanding of the specific meaning of these use of force principles in a manner that serves to justify a particular resort to the use of force. Likewise, scholarly literature in this domain is vast. Positions taken in this area, however, are often informed by views associated with what the law should be, rather than a close consideration of the relevant rules of treaty interpretation or the doctrinal expectations of customary international law.
The lack of clarity in this critical area of the law does not serve global security. And, while there may never exist unanimous agreement within the international community as to precisely when, where, and how a State might resort to the use of force, it is clear that a consensus has evolved among an ever-growing majority of States regarding the governing use of force norms. Accordingly, it is in this context that the drafters of the Manual made a concerted effort to set forth rules which, in their view, objectively assess the existing international agreements and demonstrated State practices and opinions generating these norms.
The Drafting Process
Professors Dinstein and Moore determined that the Center for National Security Law (CNSL) at the University of Virginia (UVA) School of Law should undertake this initiative. As the first step in the process, a small planning group (identified in the Manual) met in Charlottesville, Virginia in November 2018. Over a two-day period, the group identified specific topics the Manual should address, as well as the international experts best placed to deal with these subjects (twelve individuals with expertise in this area of the law, from ten countries). Invitations were then issued to these individuals (identified in the Manual) to form a Group of Experts (GOE), with each requested to produce a research paper dealing with one of the specifically designated subject areas. Participants were advised to address what they viewed as the international law norms relevant to their assigned topic, defended to the greatest extent possible with reference to primary sources (treaties, UN Security Council Resolutions, State practice, etc.), rather than sources of a secondary nature (books and scholarly articles). Additionally, each author was requested to craft specific rules applicable to their subject.
The initial meeting of the GOE occurred in Charlottesville in June 2019. Over a three-day period, these individuals discussed half of the papers prepared, formulating rules for each of the subjects assessed, as well as accompanying commentary. A second meeting of the GOE occurred in November 2019, at which the remaining expert papers were discussed and topic-specific rules and commentaries were drafted. At the close of this session, the project co-chairs named a Drafting Committee (DC) (also identified in the Manual), tasked with producing a consolidated draft of the Manual that would then be circulated to the GOE for review and comment.
The Manual DC met at the UVA CNSL in January 2020 and developed an initial draft manual, distributed to the GOE for review later that month. While a second DC meeting was scheduled for April 2020, this, and several subsequently planned drafting sessions were unfortunately thwarted by the COVID pandemic. It was not until two years later (in April 2022) that the DC was able to re-convene. During this interim period, the closure of the CNSL as a stand-alone entity at the UVA Law School occurred. As a result, support for the Manual project was quickly assumed by the Georgetown Law Center on National Security. Accordingly, it was this Center that hosted and provided the essential administrative support for all in-person DC sessions that followed. While both Centers were instrumental in the production of the Manual, as reflected in its name, the Manual’s titling is not meant to convey a formal endorsement by either of these law schools.
In the succeeding months, the DC produced a second draft manual, taking into consideration all comments and recommendations made by the GOE members. This draft, in turn, was then forwarded to the GOE for further review. Additionally, Professor Gabriella Blum, Harvard Law School, conducted a peer review of the draft manual, a review that contributed substantially to its development.
Verification and Finalization of the Manual
The repeated redrafting of the Manual provided the DC with insight into the draft manual’s omissions and, in some instances, its lack of clarity. As a result, following the latest input of the GOE and the Manual’s peer review, the DC further revised the Manual in August 2022 by crafting both new and revised rules and commentaries. This revision process saw the DC engage in a careful reconsideration of the rules, as a whole, to ensure that they remained true to the purpose of reflecting a real-world application of international norms.
In an effort to verify its work, the DC then met with a number of government and organizational representatives for several days in May 2023, to solicit their views on the Manual’s content. While these individuals’ participation should in no way be viewed as an indication of their governments’ or institutions’ endorsement of the Manual, in whole or in part, the DC profited significantly from its extensive discussions with them. Their thoughtful and candid recommendations led to several revisions to the Manual that have made it a much more substantive and user-friendly document.
For example, in its original conception, the Manual was intended to be a lean, concise work. Rules were to be supported by primary sources, but with limited footnoting. However, following the DC’s discussions with these government and organizational representatives, a concerted effort was made to enhance the Manual’s references to State practice, or to the practices or conclusions of international tribunals or organs. Thus, readers will now find detailed footnoting associated with those rules and commentaries that generated the most extensive debate during the drafting process.
Following an August 2023 re-draft of the Manual, Professor Dinstein made the decision to withdraw from the project. His death several months thereafter was a significant loss to the field of international law. He was an intellectual giant and will be sorely missed by all who knew and worked with him. Suffice it to say that his wisdom and unsurpassed knowledge of this particular area of the law contributed immeasurably to the Manual’s development.
The August 2023 re-drafted rules and commentaries were recirculated to the GOE for final comments. With these in hand, a final Manual product was then agreed upon at a meeting of the DC, held in Charlottesville, in February 2024.
The Manual’s Rules and Commentaries
The Manual reflects the views of the DC’s members, as informed by those of the GOE and other commentators associated with the project. No contention is made that it has binding force. However, it must again be emphasized that it is intended to reflect an objective assessment of the controlling law (lex lata) of the jus ad bellum.
It is hoped that the Manual will serve as a ready and valuable reference for government representatives, both civilian and military, as well as for academics. It sets forth, in a structurally efficient and comprehensive manner, the legal issues associated with each of the lawful categories of the use of force deemed permissible within the context of the UN Charter and customary international law. Toward this end, its 56 rules and accompanying commentaries offer succinct statements and explanations for the positions taken on each identifiable instance of a lawful resort to force. In those very few cases in which consensus could not be achieved on a particular matter, this is noted.
The Manual, as a whole, may not be embraced as a restatement of the jus ad bellum by those who harbor divergent views on the subject. A discussion of such differing perspectives is welcomed, particularly if this comes in the form of a detailed critique of a specific rule or commentary, rather than in that of general objections lacking any meaningful specificity. A broad, clearly articulated consensus within the international community regarding the contemporary rules regulating the use of force—rules equally applicable to every State within that community—is essential.
Since the adoption of the UN Charter, there have been more than 30 major armed conflicts and countless lesser uses of force and acts of terrorism. No knowledgeable observer wishes to return to the pre-Kellogg-Briand and pre-Charter days of legally unconstrained uses of force. The Charter, in prohibiting the use of force while preserving the right of individual and collective defense, is a core fundament of a stable international order. The Virginia-Georgetown Manual Concerning the Use of Force Under International Law is dedicated to achieving a more peaceful world served by these core principles.
The Manual has recently been published by West Point Press and is available in both print and online.
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Colonel (Retired) David E. Graham is the former Chair of the International/Operational Law Department–the Judge Advocate General’s School of the Army (TJAGSA); the former Director of the Center for Law and Military Operations, TJAGSA; the former Chief of the International/Operational Law Division—Office of The Judge Advocate General, Department of the Army; the former Executive Director—The Army’s Judge Advocate General’s Legal Center and School; and the former Associate Director, Center for National Security Law, the University of Virginia School of Law.
Photo credit: Pexels, West Point Press
