USE OF FORCE IN INTERNATIONAL LAW

INTRODUCTION 

The main aim of the United Nations (henceforth UN) is to ensure peace and security amongst  the States. Therefore, the use of force is prohibited by the Charter of the United Nations 1945  (henceforth UN Charter). The use of force by states is controlled by both treaties and  customary international law. 

This article provides the historical background of the use of force in international law. It goes  on to describe the areas wherein the use of force is prohibited as well as where it is allowed.  Then the article discusses the landmark cases which relate to the use of force and the right to  self-defence in international law. 

HISTORICAL BACKGROUND 

In ancient times, the Christianization of the Roman Empire in the thirteenth century led to the  development of the ‘Doctrine of Just War’. As per this doctrine, the use of force was allowed  by a State, as long as it complied with the divine will. St. Augustine and St. Thomas Aquinas  expanded the scope of the doctrine to call it subjective moral judgement (i.e. a just cause  must be accompanied by the right intention). With the changing position of States as  sovereign and equal entities, the concept of subjective moral judgement was removed and the  doctrine of ‘just war’ vanished from the scope of international law. The States were expected  to respect the political independence and integrity of other States and uphold the treaties in  place. 

After World War I in 1918, League of Nations was set up in 1919 to promote peace and  prevent war in the international community. However, the covenant of the League of Nations  only restricted itself to limit wars to tolerable levels, rather than prohibit them altogether. In  1928, the Kellog-Briand Pact, officially known as the General Treaty for Renunciation of  War 1928 was signed amongst the member states. According to the pact, the States  renounced and condemned the recourse to war. They mutually agreed to settle any disputes  arising between them through non-aggressive measures. It was signed by 63 State parties and  it is still in force. This pact played a significant role in various disputes that arose between the 

States (for example, in 1931 between China and Japan, in 1933 between Peru and Ecuador,  etc.). 

Post World War II, UN Charter was signed on June 26, 1945, which lays down the current  legal regime regulating the use of force in international law. 

PROHIBITION ON THE USE OF FORCE IN INTERNATIONAL LAW The prohibition on use of force is a part of treaty law as well as customary law. Article 2(4)  of the UN Charter prohibits the use of force by member states. It states that- 

“All 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.”[i] 

The threat or use of force under Article 2(4) is solely limited to use of armed force directly or  indirectly (for example use of force by irregulars, another State, mercenaries or rebels). It  does not include economic or political coercion. [ii] 

The UNSC has the power to determine whether there is any threat to the peace, breach of the  peace, or act of aggression. It shall make recommendations to decide the measures to be  taken to maintain international peace and security. [iii] 

The term ‘act of aggression’ has been defined by a resolution adopted by the General  Assembly in 1974. As per Article 1 of that resolution, aggression is “the use of armed force  by a state against the sovereignty, territorial integrity or political independence of another  State, or in any other manner inconsistent with the Charter of the United Nations.” [iv]  Moreover, Article 2 of the resolution states that the first use of armed force by any State  which is in contravention of the UN Charter shall constitute prima facie evidence of an act of  aggression. 

EXCEPTIONS TO PROHIBITIONS 

1.Self Defence- The States have a right to self-defence under Article 51 of the UN Charter.  The article states the following- 

“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. Measures taken by Members in the exercise of  this right of self-defence shall be immediately reported to the Security Council  and shall not in any way affect the authority and responsibility of the Security  Council under the present Charter to take at any time such action as it deems  necessary in order to maintain or restore international peace and security.”[v] 

The right to self-defence also exists under customary international law. The most important  case is the Nicaragua Case in this respect. 

a) Pre-emptive force- Pre-emptive self-defence or force refers to use of force to prevent a  non-imminent attack by a State. Pre-emptive self-defence is not within the ambit of self defence under Article 51 of the UN Charter and therefore prohibited. However, as per the  Caroline test, the States have the right to use Pre-emptive self-defence only where it is  "instant, overwhelming, and leaving no choice of means, and no moment for  deliberation.”[vi]This is also the test of necessity and proportionality. 

b) Protection of nationals- Some states have advocated for the right to safeguard their  nationals in other states by the use of force. For example, the UK in Suez (1956), Israel in  Entebbe (1976) and the USA in the Dominican Republic (1965), Grenada (1983) and  Panama (1989). However, such intervention is sometimes misused by the States to attain  certain political objectives. 

c) Against non-state actors- After 9/11 terror attacks, the then President Bush of the United  States stated that the USA would not make any distinction between terrorists and those  States who harboured such terrorists. It would treat all nations who give refuge to  terrorists as hostile.[vii] 

2. Humanitarian intervention- Humanitarian intervention in present times refers to the  intervention by third party states to save people from their own government’s actions or  inactions.[viii] There is no general principle with regards to humanitarian intervention in  international law. With the increase in terrorism, numerous countries have started  advocating for the right of humanitarian intervention without the UNSC. The action of  NATO in Yugoslavia was not condemned even though it had not obtained the UNSC’s  permission, as the intervention was considered necessary on humanitarian grounds.  However, many countries also oppose this unauthorized intervention in the fear of it  being misused by the more powerful nations. 5 factors must be present, in general, for an  act of aggression to be termed humanitarian intervention 

i) Imminent threat to victims.

ii) Consent of the sovereign persons who are the source of the victim’s suffering is not  necessary. 

iii) The intent of rescuers to be moral and ethical and not self-serving. iv) Such intervention must be approved by the UNSC. 

v) The basic humanitarian intervention must have a reasonable chance of success.[ix] 3. Collective security- The UNSC is obligated to identify and to take action to limit any  threat to peace and security amongst the member states. Initially, the UNSC was to have a  standing army to deal with acts of aggression as per the intent of the UN Charter.  However, the plan was not realized and the UNSC’s power to take effective actions was  limited by the veto power of the permanent members. The UNSC has authorized the use  of force to ‘force out’ North Korea from South Korea in 1950. It further authorized the  use of force during the Iraq’s invasion of Kuwait in 1960. It also authorized the use of  force in Sierra Leone, Yugoslavia and Somalia. 

LANDMARK CASE-LAWS ON USE OF FORCE IN INTERNATIONAL LAW 1. The United Kingdom v. Albania (Corfu Channel Case) (1949)[x]- It was the first case toconsider  threats of force in international law. In this case, two British destroyers were destroyed by the  mines off the Albanian Coast. The court held that though the ‘diamond formation’ which was  taken by the British destroyers and other supporting vessels was threatening, it was nonetheless  lawful. 

2. The Republic of Nicaragua v. The United States of America (1986)- The ICJ held that the U.S.  had violated international law by supporting the Contras in their rebellion against the Sandinistas  and by mining Nicaragua's harbours. It is the landmark case which lays down the principles  regarding the use of force and self-defence. It defines aggression as- “use of force by individuals  constituted an armed attack only when there had been sending by or on behalf of the state of  armed bands, groups, irregulars or mercenaries, which carry out acts of the armed force, against  another state of such gravity as to amount to acts of aggression.” [xi] The court also differentiated  between what will be termed as more or less serious armed aggression. It further held that the  right to self-defence of a State is inherent. 

3. Iran v. the United States of America (Oil Platforms case) (2003)[xii]- The Court held that in  order to use the right of self-defence, the State has to be able to show that it was the victim of  armed attack. The burden of proof lies on such state which claims the right to self-defence. It also  stated that ‘cumulation of events’ theory is applicable wherein individual attacks which do not  rise to the level of armed attacks can be grouped together to consider an armed attack.

4. The legality of the Threat or Use of Nuclear Weapons (1996)[xiii]- This judgement held that  there is no explicit prohibition on the possession or use of nuclear weapons in international  law(including treaties or customary law), as long as it is in conformity with the principles of self defence and international humanitarian law. 

CONCLUSION 

Article 2(4) of the UN Charter utilizes the term ‘threat or use of force’ which is wider while  Article 51 utilizes the term ‘armed attack’ which is much narrower in scope. There are many  ambiguities in the international customary laws which need to be addressed effectively. There  is a need to give wider powers to UNSC to ensure that the States do not indulge in using  force against other entities. 

Vanya Agarwal, 

University of Petroleum and Energy Studies