USE OF FORCE IN INTERNATIONAL LAW. Tarun Sharma 1

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1 USE OF FORCE IN INTERNATIONAL LAW Tarun Sharma 1 ABSTRACT Through this essay my aim is to analyse the conditions in which a nation is allowed to use force in International Law and looking at scenarios where the use of force was allowed by the United Nations. The same analyses has been done through looking at various publications, articles and research papers of various authors, judgements of ICJ, UN resolutions etc. Changes in state policy post September 2001 attacks, the Cuban Missile Crisis as well as the current ongoing crisis in Ukraine have been understood, their legality founded. Developed social awareness has expanded the limits (and even led) to the right to resort to war. The widespread debate on the significance of the Article 2(4) on the use of the word force is far much from over. INTRODUCTION The Article 2(4) of the UN Charter prohibits the threat or the use of force against the territorial integrity or political independence of states or in any other manner inconsistent with the purposes of the Charter, these proscriptions also are part of customary international law. A state must satisfy two criteria in order to engage in acts of self-defence on the territory of another state. First, there must be an act or series of acts of sufficient gravity that they may be characterized as an armed attack. 2 Second, the armed attack must have a sufficient nexus to the state upon which the act of self-defence will be carried out. 3 Only the Security Council may authorize such use of force. 4 The critical provision relating to the other exception, self-defense, is Article 51, which provides in part: Nothing in the present Charter shall impair the inherent right of individual or collective selfdefense 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 1 Tarun Sharma, Symbiosis Law School, Noida, Symbiosis International University, Pune. 2 YoramDinstein, War, Aggression and Self-Defence, 3rd ed. (New York: Cambridge University Press, 2000) at The Charter of the United Nations: A Commentary, 2nd ed. (New York: Oxford University Press, 2002) at U.N. CHARTER arts

2 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. 5 Although the basic contours of Article 51 seem straightforward, its effect on the customary right of anticipatory self-defense is unclear. The new branch of issues being brought into the ambit of self defense is terrorism.in a series of binding resolutions adopted after the terrorist September 11 attacks in 2001 against the World Trade Center and the Pentagon in the United States, the Security Council emphasized that the right to self-defense also applies with regard to international terrorism. Preemptive strikes by countries that reasonably believe that an attack upon them is imminent are controversial but permissible under international law, provided that the criteria of necessity and proportionality are present. 6 A VALID SELF-DEFENSE Acts taken in self-defence must meet the customary legal requirements of necessity and proportionality. 7 The necessity requirement of turns on the existence of alternative means of meeting the threat posed by an armed attack 8 and the period of time between the armed attack and the act of self-defence. 9 To be considered proportional, a response must be limited to what is sufficient to secure the defender s rights and ensure its security including the restoration of security in the wake of terrorist attacks. 10 An evaluation of proportionality analyzes the reasonableness of an act of self-defence U.N. CHARTER Art (Accessed On 21st September 2014). 7 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] I.C.J. Rep. 226 at para. 38 [Nuclear Weapons]. 8 YoramDinstein, War, Aggression and Self-Defence, 3rd ed. (New York: Cambridge University Press, 2000) at Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, [1986] I.C.J. Rep. 14 at para.195 [Nicaragua]. 10 See Nicaragua, ibid at para See Dinstein, supra note 7 at p147.

3 The ICJ held in the Nicaragua case 12 that the specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it was a rule well established under customary international law, and re-affirmed this in itsadvisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996 ICJ Rep. 226) In its decision in the Oil Platforms 13 case the ICJ elaborated on the necessity criterion. It held that the requirement of international law that measures taken avowedly in self-defence must have been necessary for that purpose is strict and objective, leaving no room for any measure of discretion. Article 51 of the UN Charter expressly requires the occurrence of an armed attack as a condition for the exercise of self-defense. 14 In defining an armed attack in the Nicaragua case 15, the ICJ relied on the UN General Assembly s Definition of Aggression 16 which defines an armed attack as 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 forces. Further Article 51 states that the 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 17. PERMISSIVE APPRACH TO PREEMPTION In the wake of the tragic events of September 11, 2001, and a perceived threat from Iraq, the Bush administration promulgated a new national security strategy. 18 One critical element of this strategy is the concept of preemption the use of military force in advance of a first use of force by the enemy. Long a contentious doctrine under international law, the claim to use preemptive 12 Supra Note 8 at p Oil Platforms Case (Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America, 2003 ICJ Rep.) at para Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4; Nicaragua, 1986 I.C.J. at Nicaragua, 1986 I.C.J. at G.A. Res 3314(XXIX), U.N. GAOR, 29th Sess., Supp.No. 31, art.3(g), U.N. Doc.A/9631 (1974). 17 U.N. CHARTER art.51; Nicaragua, 1986 I.C.J. at International Law and the Preemptive Use of Military Force, Anthony Clark Arend,p. 94.

4 force has been taken to an even more controversial level by the administration. Although traditional international law required there to be an imminent danger of attack before preemption would be permissible, the administration argues in its 2002 National Security Strategy (NSS) that the United States must adapt the concept of imminent threat to the capabilities and objectives of today s adversaries. It contends that [t]he greater the threat, the greater is the risk of inaction and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy s attack. 19 Under the United Nations Charter paradigm for the use of force, unilateral preemptive force without an imminent threat is clearly unlawful. As the Permanent Court of International Justice, the predecessor of the current ICJ, noted in the Lotus case: International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed. 20 Even if UN Charter provisions are understood in light of customary international law allowing anticipatory self-defense, the charter s focus is still on states using force the conventional way. Neither WMD (Weapons of Mass Destruction) nor terrorist actors were envisioned in this framework. The three main WMD types chemical, biological, and nuclear could not have seriously been on the mind of the delegates while they were drafting the UN Charter. 21 Underlying international law dealing with the recourse to force is the principle that states have a right to use force to defend themselves effectively. When conventional troops prepare to commit an act of aggression, the basic criteria of Caroline Case would seem to make sense. The soon-tobe victim would still be able to mount an effective defense if it were required to wait for an 19 The National Security Strategy of the United States, September 2002, 20 The S.S. Lotus, Permanent Court of International Justice (1927), P.C.I.J. Ser. A, no. 10, reprinted in Damrosch et al., International Law: Cases and Materials (2001), pp Supra note 17.

5 armed attack to be imminent. The soon-to be aggressor would be taking enough overt actions, and the attack itself would require mobilization, which would give the victim enough lead time. 22 Both WMD and terrorism, however, are different. It can be very difficult to determine whether a state possesses WMD, and by the time its use is imminent, it could be extremely difficult for a state to mount an effective defense. Similarly, terrorists use tactics that may make it all but impossible to detect an action until it is well underway or even finished. As a consequence, it could be argued that it would make more sense to target known WMD facilities or known terrorist camps or training areas long in advance of an imminent attack if the goal is to preserve the state s right to effective self-defense. 23 Thus we can see that the authorized use of force is now not limited to only self defense of an armed attack but a preemptive attack is also now starting to be covered in the modern definitions of self defense in lieu of an armed attack, thereby expanding the horizon of the use of force in a legitimate manner. NECESSITY AND PROPORTIONALITY Under the regime of customary international law that developed long before the UN Charter was adopted, it was generally accepted that preemptive force was permissible in self-defense. There was, in other words, an accepted doctrine of anticipatory self-defense. The classic case that articulated this doctrine is the oft-cited Caroline 24 incident. The Caroline incident concerns a steamboat bearing that name used for revolutionary purposes in the rebellion of Upper Canada, a Province of the Dominion of Great Britain ; nowadays the Province of Ontario, Canada. The rebellion of 1837 was rooted in the political system of cronyism that pervaded colonial politics in the British colonies of the Canadas, both Lower and Upper. It flared because of insensitivities of the British authorities towards the complaints of the inhabitants of the Canada and the confrontationist attitude of the Crown Ibid 23 International Law and the Preemptive Use of Military Force, Anthony Clark Arend,p Caroline Case (1837) 2 Moore Digest of International Law, ii (1906) pp Miskolc Journal of International Law MiskolciNemzetköziJogiKözlemények Vol. 1.(2004) No. 2. pp

6 First, the state seeking to exercise force in self-defense would need to demonstrate necessity. As Webster explained in a letter to Lord Ashburton, a special British representative to Washington, the state would have to demonstrate that the necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment of deliberation. 26 In other words, the state would need to show that the use of force by the other state was imminent and that there was essentially nothing but forcible action that would forestall such attack. Second, the state using force in self-defense would be obliged to respond in a manner proportionate to the threat. In making the argument to the British, Webster explained that, in order for Canada s action to be permissible, it would be necessary to prove that the local authorities of Canada, even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it. 27 In the Advisory Opinion of the General Assembly on the Legality of the Threat or Use of Nuclear Weapon 28 it was emphasized that the submission of the exercise of the right of self defense to the conditions of necessity and proportionality is a rule of customary international law. It is essential to demonstrate that as a reasonable conclusion on the basis of facts reasonably known at the time, the armed attack was imminent and required the responses that were taken. 29 UN CHARTER STATE PRACTICE THE CUBAN MISSILE CRISIS (1962) During the Cuban missile crisis, the United States made a number of formal legal arguments in support of the institution of a defensive quarantine in advance of any actual Soviet or Cuban use of force. Most of these official arguments revolved around the role of regional organizations and their ability to authorize force absent a Security Council authorization. Nonetheless, during 26 Letter from Mr. Webster to Lord Ashburton, August 6, 1842, cited in Lori F. Damrosch et al., International Law: Cases and Materials (2001), p Letter from Mr. Webster to Mr. Fox, April 24, 1841, cited in Damrosch et al., International Law: Cases and Materials (2001). 28 ICJ Reports (1996), 48, pp Legality of the Threat or Use ofnuclear Weapon ICJ Reports (1996), 48, pp.246.

7 the course of council discussion of the quarantine, a number of Security Council representatives spoke about preemption. Although there was no clear consensus in support of such a doctrine, there was also no clear consensus opposing it. 30 THE SIX-DAY WAR (1967) On June 5, 1967, Israel launched military action against the United Arab Republic and quickly won what came to be called the Six-Day War. During the course of the Security Council debates, Israel ultimately argued that it was acting in anticipation of what it believed would be an imminent attack by Arab states. Not surprisingly, support for Israel tended to fall along predictable political lines. The Soviet Union, Syria, and Morocco all spoke against Israel. Interestingly enough, those states arguing against Israel tended to claim that the first use of force was decisive, seemingly rejecting any doctrine of anticipatory self-defense. Supporters of Israel, such as the United States and the United Kingdom, on the other hand, tended to refrain from asserting a doctrine of preemption. Unlike the Cuban missile crisis debates, there seemed to be more speakers who were negatively disposed to anticipatory self-defense; but again, there was no clear consensus opposed to the doctrine. 31 COLLECTIVE ACTION The UN Security Council is mandated to identify the existence of, and even take action to curb, any threat to peace and security among the member states. However, this power has not been used as expected since other measures such as the use of sanctions are taken short of the traditional armed forces by some of its members. The time that the UN used force was in 1950 to force North Korea to withdraw from South Korea. Initially it had been envisaged by the creators of the UN Charter that the organisation would have its own forces. However, much of the command of these forces has been from the United States. The UN Security Council for also authorized the use of armed forces in 1960 during the Iraq s invasion of Kuwait. During this time, the Council passed Resolution 678 which requested all members to support a forceful operation in collaboration with Kuwait to ensure Iraqi s withdrawal from Kuwait. This very resolution was never revoked until 2003, when the Council passed Resolution 1441 which 30 Supra Note International Law and the Preemptive Use of Military Force, Anthony Clark Arend,p. 94.

8 authorized the Iraq invasion due to its non-compliance with the manufacture of atomic weaponsa threat to global peace and security. The UN also authorized the use of force in countries like Sierra Leone, Yugoslavia and currently Somalia. ON GOING CRISIS IN SYRIA (2013) While the UN Security Council has unanimously adopted a resolution on Syria and the destruction of chemical weapons (res. 2118(2013)), civilians continue to be killed in large numbers. It may be that the adoption of Security Council resolution 2118 (2013) and the Syrian action on chemical weapons would not have taken place without the threat to use force by the United Kingdom, United States and others. It is important to note that humanitarian intervention is not dependent on the use of chemical weapons by a state: it applies where the aforementioned three conditions are met. The UK doctrine on humanitarian intervention followed from Iraq (1991) and Kosovo (1999) where it was expressly relied upon by the government. 33 ISLAMIC STATE (IS) IN IRAQ AND SYRIA (2014) The legal evaluation differs where operations against IS in Iraq on the one hand and in Syria on the other are concerned. The government in Baghdad has invited international forces to join in the fight against IS. Consequently, as long as this remained a campaign conducted within Iraqi territory, it may not have even been necessary to rely on an international right of collective selfdefence. In the exercise of its constitutional entitlements, the government of Iraq can use force internally to defeat an armed movement that has imposed itself forcibly upon a significant part of its territory. 34 It is true that a government is deprived of the entitlement to call in foreign military support where it has lost control over significant parts of territory and population due to a major public uprising against it. A government so disenfranchised by its own population is not entitled to maintain itself in power through external armed intervention. For instance, the call of Ukraine's President Viktor Yanukovych for Russian armed intervention earlier this year was Prohibited and Permissible Use of Force in International Relations Law Teacher (Accessed on 26 th September, 2014) 33 Syria and International Law: Use of Force and State Responsibility 30 September (Accessed on 27th September 2014)

9 without legal effect. It occurred after he had lost the power to represent the state due to the public uprising against his rule. 35 The situation relating to operations against IS targets in Syria is more complex. The Syrian government has not formally requested the assistance of the US. Washington asserts that it informed Syria ahead of the launch of the strikes. Syria has responded in a muted way, indicating that it too is committed to the struggle against IS. The failure to object more vigorously to the US action cannot in itself be taken to be equivalent to Syrian consent to the operation, although it is noteworthy when considered in the context of other developments. It is also interesting to note that Russia's objection to the operation has been unexpectedly moderate thus far. 36 Hence, under the doctrine of self-defence, the zone of operations of the campaign to defeat IS in Iraq can be extended to cover portions of Syria beyond the control of the Syrian government. In its letter to the UN Security Council of 20 September, Baghdad asserted that the IS infrastructure in Syria has made it impossible to defend Iraq's borders. It formally notified the Council that it had requested that "the United States of America to lead international efforts to strike Isil sites and military strongholds with our express consent". 37 CONCLUSION Thus we can see that the Use of Force in International Law has its horizon expanded. The widespread debate on the significance of the Article 2(4) on the use of the word force is far much from over. The strain in opinions is where by Article 51 uses the term armed attack while the use of the term force in Article 2(4) is meant to encompass economic or other forms of coercion that are non military. Such measures are banned by other provisions. However, it does not seem to accommodate the wider definition of force Ibid. 36 Supra Note Supra note Prohibited and Permissible Use of Force in International Relations Law Teacher (accessed on 17 th August,2014)

10 The new encompass of terrorism and WMD s have led to the expansion in the horizon of preemption also. Although it is true that contemporary international law dealing with the recourse to force in selfdefense does not adequately address the problem of WMD and terrorism, no clear legal standard has yet emerged to determine when preemptive force would be permissible in such cases. Some scholars have suggested standards, but it does not seem that either treaty law or custom has yet come to endorse one. 39 Thus the ongoing crisis with regards to the ISIS group does have a certain mixed legal validity and the recent use of force by the United States is also valid to some extent, yet the boundaries to this are not fully certain or established. Whenever I come across the word terrorist or terrorism, I am somehow always reminded of the famous saying One man s terrorist is another man s Freedom Fighter. So in a nutshell I believe that this new approach to combat terrorism by authenticating use of force is necessary but one must be careful on categorizing the recipients of this force as terrorist, their Intent behind their methods must also be judged carefully and judgment behind only the methods should not be the final call. BIBLIOGRAPHY Websites referred to: Prohibited and Permissible Use of Force in International Relations Law Teacher (accessed on 17 th August,2014) (Accessed on 27th September 2014) (Accessed On 21st September 2014) 39 International Law and the Preemptive Use of Military Force, Anthony Clark Arend,p94