Use of Force
- The law governing the right to the use of force (jus ad bellum)
Prohibition on the use of force
Art. 2(4), UN Charter: All members shall refrain in their international relations from the
threat or use of force against the territorial integrity and political independence of any
State, or in any other manner inconsistent with the Purposes of the UN.
- The provision also applies to non-members of the UN (Art. 2(6))
- ‘Force’ under Art. 2(4) only refers to an armed force, and not forms of economic or
political pressure, unless they amount to a threat of force.
- ‘Use of force’ not only includes the direct use of force prohibited, but also the use of
indirect armed force.
- Nicaragua case: The use of force in this instance includes:
- Laying of mines in Nicaraguan waters
- Attacks on Nicaraguan ports and oil installations
- Support for the military by providing weapons and military training
(indirect use of force)
- The establishment, organisation or control of a rebel force or
giving of material support (logistic support, bases) would qualify
- A mere supply of funds would not amount to the use of force
- A ‘threat of force’ is also prohibited under the provision.
- Legality of Nuclear Weapons case: A signalled intention to use force if certain
events occur could constitute a threat under Art. 2(4) where the envisaged use
of force would itself be unlawful.
- The notion of threat and use of force must be read together, in that if
the use of force is illegal, then the threat is also illegal
- The mere possession of a nuclear weapon is not a threat to the use of
force
- E.g: The ultimatum issued by France and the United Kingdom, to Egypt and
Israel in 1956 demanding a ceasefire within 12 hours.
- ‘Against the territorial integrity and political independence of any State’ refers to the
non-consensual use of a State’s territory or act to compel a State to make a decision
it would not otherwise have made.
- Corfu Channel case: No use of force is permissible irrespective of its purpose
- The prohibition as jus cogens:
- A rule of jus cogens is a peremptory norm of international law from which no
derogation (exemption) is permitted and all treaty and customary rules
contrary to it is null and void.
- Nicaragua case: The law of the Charter concerning the prohibition on the use
of force in itself constitutes an obvious example of a rule of international law
having the character of jus cogens.
- Two differing interpretations of Art. 2(4):
- Permissive view:
- The use of force is allowed provided that its aim is not to overthrow the
government or seize the territory of the State
- A total ban on the use of force would be foolish
- Restrictive view (established law):
- Strict prohibition on all forms of use of force against another State
- The only justification for the use of armed force by one State against another
under the legal regime of the UN Charter is self-defence and participation in
UN enforcement action
- Corfu Channel case: The UK contended that a mine-sweeping operation performed by
the UK in Albanian territorial waters was not contrary to Art. 2(4) as it threatened
neither the territorial integrity nor the political independence of Albania (permissive
view). Albania suffered neither territorial loss, nor any part of its political
independence. ICJ rejected the defence submitted and concluded that the action of
the British Navy constituted a violation of Albanian sovereignty (restrictive view)
There exists only two legitimate uses of force expressly provided for in the Charter, namely:
- The right of self-defence
- The enforcement action under Chapter VII of the Charter
The right of self-defence of States
Art. 51, UN Charter: Nothing in the present Charter shall impair the inherent right of
individual or collective self-defence if an armed attack occurs against a Member of the
United Nations, until the Security Council has taken measures necessary to maintain
international peace and security.
- If a State is attacked it is entitled in circumstances of necessity to use armed force in
order to defend itself against the attack to repel the attackers and expel them from its
territory.
The provision gives rise to three elements essential to establish a lawful exercise of the right
of self-defence: Armed attack, necessity and proportionality.
- Caroline incident: It concerned a dispute between the US and Britain over the
destruction by British forces in American waters of the Caroline, an American ship that
was used to transport rebels to assist a rebellion against British rule in Canada. The
British Government, upon claiming self-defence, was informed that it would only
succeed if it fulfils the elements of necessity and proportionality.
Armed attack
- Permissive view: Art. 51 does not restrict the right of self-defence to cases of an armed
attack only.
- However, the restrictive view holds: Art. 51 is limited to the situation of an armed
attack, which is clear, objective, easy to prove, difficult to misinterpret or fabricate.
- It is established law that the natural and ordinary meaning of the phrase “if an armed
attack occurs” can be nothing less than the restriction of the right of self-defence to a
case where there is an actual armed attack against a State.
- Thus, the right of self-defence of States arises only when there is an armed
attack.
- Nicaragua case: ‘Armed attack’ includes not only action by regular armed forces
across an international border, but additionally the sending by or on behalf of a State
of armed bands or groups which carry out acts of armed force of such gravity as to
amount to an actual armed attack conducted by regular armed forces or its substantial
involvement.
- The scale and effect of the use of force must be sufficient to constitute an
armed attack, or else they will be considered as mere frontier (border)
incidents (Nicaragua case)
- Two types of armed attacks
- Direct armed attack by a State:
- An attack by a regular army of one State against the territory or against the
land, sea or air force of another.
- 1974 Definition of Aggression: A direct armed attack may include:
- Invasion or attack by the armed forces of a State
- When large armed formations of one State crosses an
international border into another State, without the consent of
its government, the former must be deemed to have
commenced an armed attack.
- Any military occupation, however temporary, resulting from such
invasion or attack
- The occupation of a territory constitutes a continuous armed
attack against which the right of self-defence exists for as long
as the occupation continues.
- E.g: Israeli occupation of Arab and Palestinian territories during
the Six-Day War of 1967.
- Bombardment by the armed forces of/the use of any weapons by a
State against the territory of another State
- Indirect armed attack by non-State entities which is attributable to a State:
- The action of armed bands or irregulars (not part of the regular armed forces)
sent by a State can be classified as an armed attack because of its “scale and
effects”.
- Only where there exists a sufficiently close link between the State and the
private groups will it be justified to hold the sending State responsible for an
armed attack.
- A sufficiently close link can be established through the substantial
involvement of the State in the action of the armed bands or irregulars.
- Nicaragua case: Although mere assistance to rebels through the
State’s act of providing weapons, or logistical or other support may
amount to an indirect use of force, it would not constitute an armed
attack for the purpose of self-defence.
- The armed attack against the victim State must have been commenced or is ongoing.
- Thus, the victim of a completed armed attack has no right to claim self-defence
through retaliation by armed forces.
- Doing so would cause the State to be considered as engaging in reprisal, rather
than self-defence, which is contrary to Art. 2(4) and illegal (1974 Definition of
Aggression)
- An attack by a State’s armed forces on the land, sea or air forces, or flagged marine
or air fleets, of another State, which are outside the national territory amounts to an
“armed attack” provided that the use of force is not considered as insignificant.
- The right of self-defence under Art. 51 covers situations where warships and
combat aircraft are assaulted by foreign forces on the high seas or in
international airspace.
- Oil Platforms case: Mining (unrestricted use of mines) of a United States-
flagged military vessel could constitute an armed attack, but an attack on a
ship owned, but not flagged, by the US did not amount to such.
- Thus, the ICJ in this case was of the view that only attacks on vessels
which are flagged to a State could constitute an armed attack against
that State.
Both, the requirement of necessity and proportionality must be exercised with due regard to
the legitimate targets (military objectives) of an armed action against the other State.
Necessity
- The State claiming the right of self-defence must first establish that there was in fact
an armed attack against it.
- The State attacked must not have had any means of stopping the attack against it
other than recourse to armed force.
- Thus, in order for the victim State’s claim of the right of self-defence to be
justified, it must have retaliated only through the use of armed force.
- This element also gives rise to the requirement of “immediacy”.
- Caroline incident, ‘Immediacy’: The armed attack necessitates self-defence,
instant, overwhelming, leaving no choice of means, and no moment for
deliberation.
- If a small-scale armed attack occurs, the response by the victim State must be
immediate, otherwise the requirement of immediacy would not be fulfilled,
and the use of armed force would amount to an unlawful reprisal.
- Once the armed attack is over the right of self-defence comes to an end and
States must then rely on the Security Council for assistance.
- Nicaragua case: The condition of necessity was not fulfilled when the US began
its collective defensive measures many months after the alleged attack by
Nicaragua on El Salvador had begun.
- Falkland conflict: The UK retained the right of self-defence for a period of time
after the initial attack by Argentina and the ensuing occupation of the islands.
- However, in this instance, although the initial armed attack had ceased,
the military occupation of the territory amount to a continuous armed
attack, which justified the use of self-defence.
Proportionality
- Self-defence warrants only measures which are proportionate to the armed attack.
- Whether or not the exercise of the right of self-defence is proportionate depends on
the scale and effect of the attack.
- Oil Platforms case: The whole operation (by the US) which involved the destruction of
two Iranian frigates (warships) and a number of other naval vessels and aircraft, as
well as attacks on Iranian oil platforms, was a response to the mining of a single US
warship by an unidentified agency, which was severely damaged but not sunk, and
without loss of life. ICJ held that the US failed to establish a lawful exercise of self-
defence as:
- It failed to discharge the burden of proof that an armed attack existed
- The requirement of necessity was not satisfied as the oil platforms were not
military facilities, and thus, were not legitimate targets for an armed action in
self-defence
- Even if Iran was responsible for the supposed armed attack, the scale of the
whole operation cannot be considered as a proportionate use of force in self-
defence, particularly because the attacks on the oil platforms were
disproportionate.
If the use of force on the basis of the exercise of the right of self-defence by the victim State
satisfies the three essential elements, then the victim State may invoke the right of individual
or collective self-defence as under Art. 51.
- Nicaragua case: The exercise of the right of individual self-defence is subject to the
State concerned having been the victim of an armed attack, and reliance on collective
self-defence does not remove the need for the State to be the victim of an armed
attack.
Individual self-defence: Where the victim State defends itself against an armed attack
- Oil Platforms case; Armed Activities in Congo case
- Anticipatory self-defence: Based on the principle of military necessity, where a State
defends itself by attacking an aggressor State first before it has the opportunity to
attack.
- This is considered a controversial attempt to widen the exceptional right of
self-defence
- However, many factors have evidenced that it is not accepted under Art. 51
as its exercise would be regarded as a use of force under Art. 2(4)
- Caroline incident: Knowing that the Caroline was being used to send more
rebels to assist the rebellion against British ruling in Canada, a British force
seized the ship and shot her down. The act was not accepted as a form of self-
defence as the British government failed to show that self-defence was
necessary in that situation.
- Nuclear weapons and modern sophisticated missile systems do not make
anticipatory self-defence a necessity.
- Although a State is not expected to wait until it is attacked, an attack must
have been initiated upon it and is under way in order for any defensive
measures to be justified.
- Israeli destruction of Iraq’s nuclear reactor: Israeli planes raided and destroyed
a nuclear reactor, which was meant for research and peaceful purposes,
situated near Baghdad, causing civilian casualties and severe damage. Israel
claimed that it was exercising its right of self-defence in anticipation that the
nuclear reactor would be used against it. A Resolution adopted by the Security
Council condemned the military attack as a violation of Art. 2(4).
- Self-defence against a terrorist attack:
- Art. 51 provides for the right of self-defence in situations of an armed attack
by a State against another State.
- In order for the exercise of a right of self-defence against a terrorist attack to
fall within the ambit of Art. 51, as ruled in the Nicaragua case:
- The terrorists must be sent by or on behalf of a State so as to allow the
armed attack to be attributed to the State (armed attack by non-State
entities)
- The scale and effect of the attack must be sufficient as to amount to an
actual armed attack
- The armed attack must not be indirect in order to allow the exercise of
the right of self-defence
- Although States have the obligation to apprehend and prosecute terrorists
(1994 Declaration on Measures to Eliminate International Terrorism), the act
cannot be regarded as an exercise of the right of self-defence unless it falls
within “an armed attack by non-State entities”.
- Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory: Following the start of the Second Intifada (armed conflict between
Israel and Palestine), Israel began building a 720 km long wall in the region of
the boundary between Israel and Palestine. The main justification for building
the wall was based on self-defence. Israel submitted that the wall was a
temporary measure and would be dismantled once the terrorist attacks
launched from the West Bank ceased. ICJ held: The construction of the wall
amounted to a de facto annexation of the territories that Israel had occupied,
and was thus in breach of the prohibition on the acquisition of territory by the
use of force under Art. 2(4).
Collective self-defence: Where any member of the UN is authorised to assist the victim State
with its armed forces against an aggressor.
- Nicaragua case: Nicaragua alleged that the US had carried out a range of activities
consisting of the mining of Nicaraguan ports, the arming, training and directing of
rebels, and the supplying of financial and logical support to them. In response, the US
raised the defence that they were acting in the collective self-defence of El Salvador
and Costa Rica against which, they alleged, Nicaragua had been involved in illegal uses
of force, to which the ICJ rejected.
- The case established three conditions in the exercise of collective self-defence:
- There must be an armed attack
- The victim State has formally declared itself to be under attack
- The victim State has requested the assistance of a third State
- It is not necessary for there to exist any threat to the assisting State’s
security.
Role of the UNSC (Art. 51)
- Measures taken in self-defence shall be immediately reported to the Security Council
- Nicaragua case: A State could not invoke the right of self-defence if it failed
to comply with the requirement of reporting to the Security Council
- E.g: Armed Activities in Congo case
- The right of self-defence can only be exercised until the Security Council has taken
measures necessary to maintain international peace and security.
- The victim State must stop its action in self-defence as soon as the Security
Council takes the measures necessary.
Enforcement action by the UNSC (Second exception to the prohibition on the use of force)
- Enforcement action (“collective security”) is the use of force on behalf of the
international community as a whole against an aggressor State
- Art. 39, UN Charter: The Security Council has the power to determine whether or not
there is a threat to the peace, a breach of the peace, or an act of aggression, and to
decide on the measures to maintain or restore international peace and security.
- Art. 42, UN Charter: The Security Council may take measures involving the use of
armed forces.
Armed reprisals
- Unlike self-defence, which is used to protect the sovereignty of the State, reprisals are
punitive (penal) in nature, as it seeks to impose reparation for the harm done, or to
compel the aggressor State to abide by the law in the future.
- 1970 Declaration on Principles of International Law: States have a duty to refrain from
acts of reprisal involving the use of force.
- Thus, it is established law that armed reprisals are illegal.
Principle of Non-intervention: The right of every sovereign State to conduct its affairs without
outside interference.
- What amounts to a prohibited interference may be determined by the State itself.
- However, as a general rule, a third State is only allowed to assist another State to put
down an internal resurrection (possible conflicts with the rights of self-determination)
- States may only intervene to assist a foreign government experiencing low
level civil strife and with the consent of the foreign government, but only
against the rebels themselves and within the limits imposed by territorial
sovereignty
- A third State cannot give assistance to rebels as it is against the principle of
non-interference with domestic affairs of another State
- Nicaragua case: Customary international law forbids all States or groups of States to
intervene directly or indirectly in the internal or external affairs of other States. The
element of coercion clearly exists in the case of intervention which uses force, either
in the direct form of military action, or in the indirect form of support for subversive
or terrorist armed activities within another State.
- In this case, the alleged acts of Nicaragua which was considered below the level
of an “armed attack” did not justify intervention involving the use of force by
the US.
- Where intervention by a third State is allowable at the request of the
government of a State, El Salvador could have invited the US to send troops or
provide arms to help it fight against the rebels on El Salvadoran territory, but
the US still would not be permitted to effect countermeasures against
Nicaragua.
- Armed Activities in Congo case: During a period of extensive ethnic and military
conflict in the region (Second Congo War) the Ugandan army invaded portions of the
Democratic Republic of Congo (DRC). Uganda initially sought to act against rebel
movements operating against it from the Congolese territory, and later began
assisting rebels acting against the Congo government (to which it claimed was an act
of individual self-defence). Held: It had violated the principle of non-intervention
because of its occupation of Ituri (a region in Congo) and its active involvement in
military, logistic, economic and financial support to irregular forces having operated
on the territory of the DRC.
Humanitarian intervention
- When a State commits cruelties against, and persecution of, its nationals so as to deny
them of their fundamental human rights and to shock the conscience of mankind,
intervention in the interest of humanity is legally permissible.
- However, unilateral humanitarian intervention (where one State or a group of States
intervene against another State on humanitarian grounds) is a violation of Art. 2(4)
- Kurdish crisis: Turkey and Iran, which were protecting Kurdish refugees from
the Iraqi army, established “no fly zones” in Iraq against Iraqi aircraft in order
to protect the Kurds from further attack. However, the intervention was seen
as a fundamental breach of sovereignty of Iraq.
- Collective humanitarian intervention in the form of enforcement action by the UN is
legal.
- Interventions in Somalia, Rwanda, Haiti and Yugoslavia: Interventions based
on Security Council Resolutions, which are categorised as instances of
humanitarian intervention, but are in effect enforcement action.
