Legal Regulation of the Use of Force

1.0 Basic rule ; use of force is prohibited

Article 2 (4) enshrines the principle of ‘prohibition of the use of force’

‘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’

Meaning of force ;

Interpretation of force in Article 2 (4) is armed force, not other forms of economic or political pressure, unless, in certain circumstances it constitute a threat of force

Not only direct, but also include indirect armed force (Nicaragua case ; the World Court recognize a wider interpretation of force to include an ‘indirect use of force’)

Threat of force ;

Article 2 (4) bars not only use of force, but also threat of force

Example ; ultimatum announcing recourse to military measure if certain demands are not accepted (ultimatum issued by France and the UK to Egypt and Israel in 1956 demanding a ceasefire within 12 hours would be a threat of force)

Prohibition of the use of force as jus cogen ;

Nicaragua case ; quoted with the approval of ILC that the prohibition of the use of force constitutes a conspicuous example of a rule of international la having the character of jus cogen

2.0 Interpretation of Article 2, Paragraph 4

There are two different views on the interpretation of Article 2 (4) ; the permissive and the restrictive

Permissive view – states are still permitted to use force in quite a number of situations

A total ban would be a foolish in an international society that has no police force and no effective machinery

The phrase ‘against the territorial integrity and political independence of states’ means – the use of force violates the charter only if it causes impairment to another states’ territorial integrity and political independence permanently

So the use of force is not unlawful if the state using the force does not occupy the other state’s territory , exercising force in a transitory operation for limited purpose (temporary protection of its national/ properties in the territory of the victim state)

This was the interpretation of the article by the UK agent in Corfu Channel case - that a mine weeping operation performed by the UK in Albanian territorial waters was not contrary to Article 2 (4)

Restrictive view – the charter brought about a radical alteration in a state’s right to use force

A total ban on the unilateral use of force unless explicit exceptions are made in the charter

Force may be used only for self defence under Article 51 and enforcement action under Chapter VII of the charter.

Majority of jurist accept the restrictive view of Article 2 (4), state practice also favors this view.

3.0 Legitimate use of force

Restrictive view provides a total ban on the use of force unless explicit exceptions are made in the charter

There are two legitimate use of force provided in the charter ;

3.1 The right of self defence of state

Essence of self defence ; if a state is attacked, it is entitled out of necessity to use armed force in order to defend itself against the attack / to repel the attack / to expel them from its territory

Article 51 ; the element contained in this provision is ‘armed attack’

However, in the case of Nuclear Weapon Advisory Opinion, ICJ stated that – the submission of the exercise of the right of self defence to the conditions of necessity and proportionality is a rule of customary international law

Thus, three essential elements of lawful self defence

a) armed attackb) necessityc) proportionality

Necessary to satisfy the three elements ; a lawful self defence must satisfy all the three elements

The requirement has been reaffirmed by the ICJ in all leading cases where self defence was an issue

o Nicaragua case

o the court held that in the case of self defence, the exercise of its self defence is subjected to the state concerned having been the victim of an armed attack and the response to the attack is lawful depends on the observance of the criteria of the necessity and proportionality of the measures taken

o Oil Platform

o Facts ; During the Iran-Iraq war, the Sea Isle City, a Kuwaiti tanker that had been re-flagged to US, was hit by a missile in Kuwaiti waters and a few months after that the warship USS Samuel Roberts was damaged by a mine in international waters. Claiming self defence, some three or four days later respectively, the US attacked Iranian Oil Platforms.

o Held ; US attack against Iranian oil platform were not justified to be lawful because i) the US failed to discharge the burden of proof of the existence of ‘armed attack’ by Iran oil ii) the requirement of necessity was not satisfied iii) even if Iran was responsible for the armed attacks, the US attacks on oil platforms were not proportionate

a) armed attack

Either restrictive or permissive

Restrictive – Article 51 restrict the right to exercise self defence when there is an occurrence of armed attack only

Permissive – the right to exercise self defence does not restricted only when there is an armed attack (relying on travaux preparatoires by Bowett)

Hierarchy of interpretation of international treaty and convention – gives priority to its ordinary meaning ; the right to exercise self defence when there is an occurrence of armed conduct

The meaning of armed attack ;

Meaning of armed attack received the authoritative interpretation in Nicaragua case

Facts ; the World Court rejected the assertion of the American administration that the right to self defence arises not only in response to an armed attack but also in the case of various subversive /terrorist acts/border incidents. The court rejected such a broad treatment of the concept of armed attack.

Dictum ; armed attack – the sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another state of such gravity as to amount to an actual armed attack conducted by regular force

UN General Assembly’s 1974 Definition of Aggression divided armed attack into two categories

i) Direct Armed Attack by a state

The invasion/attack by the armed forces of a state of the territory of another state

Any military occupation however temporary, resulting from such invasion / attack

Bombardment by the armed force of a state against the territory of another state/ the use of any weapon by a state against the territory of another state

Needs to be of a sufficient gravity

ii) Indirect armed attack (armed attack by non state actors which is attributable to a state)

Sending of armed bands / irregulars which carry out acts of armed force against another state in a large scale

Close link exist between the sending state and the private group – so that nay effect carried out by the group is justified to hold the sending state responsible for the action taken

Sending state must be proven to provide substantial involvement (Nicaragua case ; mere assistance to rebels in the form of provision of weapons / logistical or other support might create responsibility under international la but would not constitute an armed attack for purpose of self defence

Armed attack must be in progressing or on going

For a self defence to be justified – SF must be actual, on going, the victim state must be under an armed attack

Retaliation for a prior completed attack is not self defence but reprisal

State that has been a victim of a completed attact may not use armed force in retaliation and claim self defence

The target of an armed attack

The following are the established target or armed force which may justify the use of self defence

1) the territory of a state

include – land, water, air, persons, property

invasion or attack by the armed force of a state against another state as well as the cross border use of weapon / bombardment of foreign territory

provided, military actions are on a certain scale and have a major effect

2) external position of a state

attack by a state’s armed force on the land, sear, or air force or marine and air fleets of another state – which are outside the national territory – constitute armed attack (provided that it is significant)

individual nationals cannot be considered as external position of a state

The beginning of an armed attack

Important to determine when armed attack takes place ; the moment when self defence measures become legitimate

1974 Definition of Aggression refers to the first use of armed force as prima facie evidence of aggression

An invasion constitute the foremost case of aggression enumerated in the Definition ; when large armed formation of State A cross an international frontier of State B without consent of State B – they must be deemed to have unleashed an armed attack

But a state may exercise self defence even before its territory is penetrated by another state (taking into account the nuclear age that we’re in now, pressing a single button or pulling a trigger to launch Inter-Continental Ballistic Missiles may be treated as the beginning of an armed attack)

b) necessity

first aspect to ascertain necessity is whether there is an armed attack directed against the state intended to exercise self defence

Second aspect ; the state attacked must not have had any means of halting the attack other than to recourse to armed force.

Instancy and immediacy is another aspect of necessity of self defence

In the context of Article 51, a strict application of the requirement of immediacy would be – when the armed attack is accomplished, damage suffered and danger passed, then the incidents of self defence cease

If a small scale armed attack occurs, the respond would be ‘on the spot reaction’, cannot be after some time - if not, requirement of immediacy will not be satisfied

Falkland conflict and the Gulf War – some writers conclude that state practice allowed a leeway of time in which to initiate their defensive action

c) Proportionality

Whether the response is proportionate depends on the scale and effect of the attack (Oil Platform case)

Also depends on the nature of the armed attack – the best measure is to examine whether measure of self defence go beyond its legitimate objectives

Legitimate objectives of self defence

o Resistance to an on going armed attacko Expulsion of an invader o Restoration of the territorial status quo ante bellum

Once these objectives have been achieved, there is a duty to end defensive measures

But the practical implementation is far from straightforward

Gulf war – question were raised as to the proportionality of the action taken to dislodge the invading force, in particular, the destruction of the infrastructure of Iraq and the impact on the civilian population.

3.2 Enforcement Action under Chapter VII of the Charter

Collective security – use of force on behalf of the international community as a whole against the delinquent state

Article 39 UNC – the Security Council has the power to determine whether there is a threat to international peace, a breach of the peace or an act of aggression and to decide what measure should be taken to maintain or restore international peace and security

Article 42 UNC – the SC may take measure involving the use of armed force

SC is the enforcement arm of the UN – has the power to take military action or to use force against a delinquent state

4.0 Controversial use of force

4.1 Anticipatory self defence

Most debatable issue – the right of a state to exercise anticipatory self defence

Idea based on military necessity ; the best defence is to attack first and break up the enemy force before they have time to move

The arguments made by the leading advocates of the ASD can be summed up into two

i) anticipatory self defence is allowed by customary international law

Caroline incident ; precedent of ASD and a rule of customary international law has been formed through state practice. The Caroline, was an American ship that had been used by Canadian rebels to harass the British Authorities in Canada. When it was moored in an American port, a British force entered US territory, seized the Caroline, fired her and sent her over Niagara Falls

Holding ; even if one accepted that the Caroline incident actually formulated the right of anticipatory self defence, it would be merely a practice between two states, the US and Britain . To be considered as customary international law, it must be followed by widespread practice accompanied by opinion juris

ASD could not survive the UN Charter

Article 2 (4) – prohibition of use of force unless explicit exceptions are provided

The requirement of ‘armed attack’ abolished the possibility of preventive action in self defence

ii) Nuclear weapons and modern sophisticated device make it inadvisable to wait for the attack

Too dangerous to allow ASD on the ground of there were nuclear weapons ith modern sophisticated device – but not to say that state has to be a ‘sitting duck’ and just wait for the attack

When attack is initiated and under way, even though the fighter plane or missile has not actually arrived in the victim state – defensive measure can still be taken

Example ; Intercontinental Ballistic Missiles (ICBMs) can be destroyed by an effective Anti-Ballistic Missile (ABM) system

4.2 Claim of self defence against a terrorist attack

1) can there be a right of self defence against a terrorist as such?

Argument that terrorist attack can be regarded as armed attack within the ambit of Article 51

This is due to the wording of the provision that does not specifically state that the perpetrator of the armed attack must be a state

However, it is widely agreed that though it is not specifically stated in the provision, the armed attack must come from a state – ‘an act of a state or must be directly imputable to a state’

International law remains state centred despite the terrorist situation – Article 2 (4) governed only inter state use of force

2) Is a terrorist attack an armed attack under Article 51?

Nicaragua case

Nicaragua case decision on the meaning of armed attack can be adapted to modern day terrorist situation

But to be regarded as armed attack under Article 51, non state actors such as armed bands, irregulars / terrorist must be sent by or on behalf of a state.

Two essential element for a terrorist attack to be regarded as armed attack

Attribution ; terrorist must be either state organ / agent of the state – there must be a linkage of state responsibility

This is reaffirmed by the World Court in the Nicaragua case, the Oil Platform case (where the court is unable to hold that the attacks on the platforms have been shown to have been justifiably made) and in the Palestinian Wall Advisory Opinion

Scale and effects ; the attack must be of such gravity as to amount to an actual armed attack conducted by regular armed forces.

Issue on the Security Council Resolution 1368 and 1373 – unequivocally decide that a terrorist attack is an armed attack under Article 51?

There is an argument set forth by many writers that the SC Resolutions decide once and for all that terrorist attack constitutes armed attack under Article 51 – thus rendering the interpretation that armed attacks to be restricted as to that by state and imputable by state to be wrong

But – reading of the natural and ordinary meaning of the resolution suggests otherwise

There is nothing in the resolution which expressly says that September 11 terrorist attack – constitutes an armed attack within the meaning of Article 51

The resolution just affirmed that September 11 terrorist attack constitute a threat to international peace and security – may trigger the SC enforcement measure under Chapter VII of the charter but not- unilateral use of force in self defence

4.3 Armed Reprisals

An act of retaliation of a state for an illegal act committed against itself

Two types – 1) those involving the use of armed force and 2) not involving

No formal prohibition but no longer lawful under the UNC

State practice – some states use force in the name of self defence but in fact, they were acts of armed reprisals – thin line between reprisals and self defence

Distinction – lies in their aim and purpose of both action. Self defence (purpose of protecting territorial integrity and political independence – never in the form of punishment and saction. Reprisal (seek to impose reparation for the harm done / compel the wrongdoer to abide by the law in the future)

Condemnation of reprisals by the SC ; Article 2 (4) – self defence is the only permissible use of force and the use of force by way of reprisals is illegal (but Israel, UK, US use force by way of reprisal - based their action on accumulative of events theory – past incidents against their territory/people/property = the use of force for self defence is justified)

SC condemned the act of reprisal on number of cases

The Beirut Raid

28th December 1968 – 13 aero planes were destroyed at Beirut airport in Lebanon by Israeli commandos. The raid was in retaliation for an attack on 26th December on El Al aero plane at Athens by Palestine guerillas. SC condemned Israel for the military action and considered Lebanon was entitled to appropriate redress.

Bombing of PLO headquarters ; act of reprisal by Israel following the killing of Israeli tourist in Cyprus by Palestinian guerrillas.

4.4 Humanitarian Intervention

When a state commits cruelties against its nationals and deny fundamental human rights – intervention in the interest of humanity is permissible – but often mixed with other motives

Example

India’s intervention in East Pakistan (Now Bangladesh) and Tanzania’s humanitarian invasion of Uganda

Khmer Rouge regime in Cambodia – worst violation of human rights took place – 1978, Vietnam invaded Cambodia on the ground of exercising its right to self defence after it alleged to have been attacked by Cambodia

The Kurdish Crisis.

Unilateral intervention is not lawful, but collective humanitarian intervention is permissible.