Use of Force
Author: Dr Marko Svicevic
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§ 1 History of International Law
§ 6 Sources of International Law
§ 7.3 International Organizations
Learning objectives: Understanding XY.
Understand the historical development of the prohibition of the use of force
Understand the scope and extent of the prohibition of the use and threat of force in Article 2(4) of the UN Charter
Examine the prohibition of the use of force within regional and sub-regional treaties
Identify and explain exceptions to the prohibition both within and outside the UN Charter
Examine centralised and decentralised collective security (UN Security Council authorisation) as an exception to the prohibition
Examine the scope, content and requirements of individual and collective self-defence
Understand the nature of military assistance on request as an exception to the prohibition
One of the most important, and consequently, most controversial subjects in public international law, is the use of force. The use of force predominantly refers to military force; that is, where one or more State or international organisation uses military force against another State(s) or international organisation(s). Colloquially, the use of force refers to a State's permissibility to go to war (also known as ‘armed conflict’ or ‘armed force’), and the laws governing the use of force are those which regulate when and under what conditions a State may (legally) go to war. The Latin term ‘jus ad bellum’ is also frequently used to refer to the use of force; its literal interpretation being ‘right to war.’
It is first and foremost important to note that the rules governing the use of force (jus ad bellum) predominantly regulate States' behaviour prior to their engagement in war. When a State resorts to the use of force, it bases its actions on one or more rules on the use of force permitting it to go to war. In contrast, the laws of war (jus in bello) regulate the permissibility of a State's conduct during war time.
Crucial to the rules on the use of force are the scope and extent to which it is prohibited. The fact that a State has, under certain circumstances, a right to resort to the use of force presupposes that the use of force itself is, in one way or another, prohibited. Although this has not always been the case, the adoption of the UN Charter in 1945 saw the prohibition codified in Article 2(4). At the same time, the UN Charter also established and re-affirmed certain exceptions to the prohibition. These include the inherent right of self-defence in Article 51, and in cases where the United Nations Security Council (UN Security Council) authorises the use of force by States or regional arrangements or agencies for the maintenance of international peace and security.
B. Historical Assessment of the Use of Force in International LawEdit
I. The Just War doctrineEdit
It may be surprising to many new scholars of international law that war was not always prohibited. Morevoer, prior to the comprehensive prohibition of the use of armed force in the 20th century, states, empires and kingdoms regularly claimed a right to wage war. Such claims were usually based on religious or moral grounds; a right to wage war to restore the peace or punish a an enemy. As wars progressed, and Christianity expanded across Europe, a fundamental issue arose when two Christian states went to war with each other. On this basis, Thomas Aquinas formulated the most comprehensive work on what is considered the 'just war theory'. In principle, the just war theory puts forward a moral or ethical reasoning behind why and how states go to war. Acquinas detailed three conditions for waging a just war:
- War by the sovereign: only a sovereign or sovereign authority had the right to declare and subsequently wage a war. Private persons therefore had no right of their own to engage in war.
- Just cause: waging war must have been for a 'just' cause. In other words, going to war could have been undertaken in response to an grave injustice or crime which was committed by the other party.
- Just intention: the waging of the war must have been done with a 'just' intention by the sovereign, such as punishing a wrondoer, or bringing about a 'just' peace.
On this basis, the just war theory advocated for a moral basis to wage war. War fought for imperial reasons, self-interest, or the acquisition of territory could not reasonably fit into the just war theory. Of course, the very idea of a 'just' war was never as clear as imagined since it often involved at a matter of perspective and discretion. For obvious reasons, any number of wars for any number of purposes could be waged depending on ones construction of what is 'just'.
II. From jus ad bellum to jus contra belloEdit
Alghough the just war theory held for some four hundred years, the Peace Treaties of Westphalia of 1648 heralded a new right to wage war. State sovereignty, seen as absolute and above all else, considered the right to wage war as an extension of such sovereignty. More often that not therefore, the right to wage war not only materialised, but was enshrined in states' national policies.
Despite attempts in particular during the end of the 19th and begining of the 20th centuries to curtail means and methods of war, the most serious attempt at regulating the resort to war only came in 1919 after the end of World War I. The Treaty of Verailles, signed on 28 June 1919, declared an end to World War I and set in place the Covenant of the League of Nations. The League was meant to serve as an intergovernmental organisation of states which would seek to prevent war, increase international cooperation, accept not to resort to war, place limits on waging war including disarmament, submit disputes for arbitration and establish a Permanent Court of International Justice. Despite several commitments under the Covenant, it was only in 1928 with the adoption of the Kellogg-Briandt Pact on 27 August 1928 in which the first multilateral international commitment to renounce war was made. Surprisngly, the Pact consist only of three provisions. Article I expresses the parties condemneation of recourse to war to international issues and renouncement of war as an instrument of national policy. Article II declares the parties intention to resolve their disputes by pacific means, and Article III concerns the treaty's ratification and entering into force.
Despite the Kellogg-Briandt Pact's revolutionary renunciation of war in interntional relations, its success was limited. A decade later, the Pact's provisions were little more than empty promised and the commencement of World War II laid bare its inability to suppress armed conflict.
Although the development of the principle prohibiting the use of force was first taken under the Kellogg-Briandt Pact it was ultimately unable to prevent the occurrence of the second World War.
Nevertheless, some strengths of the Pact included: • Its innovativeness as the the first attempt at prohibiting the resort to war in international law • Prior to this, waging war was not per se prohibited • It is widely considered the predecessor to the prohibition of the use of force found in Article 2(4) of the UN Charter • The Pact was signed by over 50 states, meaning that the majority of established States at the time had agreed/consented to the Pact’s provisions
Nevertheless, the Pact had a number of major weakenesses, chief among them included:
• The lack of enforcement mechanisms (i.e., no penalties or sanctions for those who violate the Pact) • The use of the term war was very narrow; resort to war by reference to other means meant that States resorted to war without calling it war – the prohibition on ‘war’ was therefore a major weakness • The Pact was ultimately unable to prevent the outbreak of World War II
C. The Prohibition of the Use and Threat of ForceEdit
I. Scope of prohibition under Article 2(4) of the UN CharterEdit
One of the cornerstones of the UN Charter system of collective security involves the prohibition of the use of force. Article 2(4) of the UN Charter effectively prohibits States from going to war with one another. Article 2(4) reads:
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.
From the wording of Article 2(4) it is clear that both threats of force and the actual use of force are prohibited. In addition, it is worth noting that the prohibition in Article 2(4) is framed within the context of States 'international relations.' The threat or use of force may therefore not be employed between States in their engagements with one another. The threat or use of force may also not be directed against another States' territorial integrity or political independence, or, in any manner inconstant with the Purposes of the United Nations found in Article 1 of the UN Charter.
While there are some who argue that the threat or use of force which is not directed against the political independence, territorial integrity or the Purposes of the United Nations would not violate the prohibition, the predominant interpretation of Article 2(4) is that it is a blanket ban against the use of force.
II. Threats of forceEdit
In comparison to actual uses of force, literature and practice pertaining to threats of force remains far less prominent. What is clear however is that Article 2(4)'s inclusion of threats of force remains a necessary and important encompassment to the prohibition. Generally, threats of force are those actions which fall short of actual use of force. In practice, a number of different actions meet this criteria. For example, one of the clearest manifestations includes an ultimatum, whereby a State is given a choice to comply with certain requests or demands and failing which, it will face the use of force against it. Other forms in which a threat of force manifests include open verbal communication by one State against another threatening force, as well as demonstrations of force - such as military buildups or exercises.
In addition to their prohibition under the UN Charter, threats of force are also addressed by the Vienna Convention on the Law of Treaties. Article 52 states that a treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the UN Charter. Consequently, the conclusion of any treaty resulting from a threat of force will be void.
III. Regional and sub-regional organisations incorporating the prohibitionEdit
1. Continental organisationsEdit
Beyond the prohibition of the use or threat of force found in Article 2(4) of the UN Charter, a similar prohibition is also found in several regional and sub-regional organisations' constitutive treaties and protocols.
The Charter of the Organisation of American States (OAS), for example, contains a number of provision curtaining resort to force which also provide for the peaceful settlement of disputes.
Article 19, 21 and 22 state:
19. No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the personality of the State or against its political, economic, and cultural elements.
21. The territory of a State is inviolable; it may not be the object, even temporarily, of military occupation or of other measures of force taken by another State, directly or indirectly, on any grounds whatever. No territorial acquisitions or special advantages obtained either by force or by other means of coercion shall be recognized.
22. The American States bind themselves in their international relations not to have recourse to the use of force, except in the case of self-defense in accordance with existing treaties or in fulfillment thereof.
The Constitutive Act of the African Union (AU), successor to the Organisation of African Unity (OAU), contains a similar provision to Article 2(4) of the UN Charter. Article 4 of the Constitutive Act outlines the principles of the AU. More specifically, Article 4(f) reads:
4. The Union shall function in accordance with the following principles:
(f) prohibition of the use of force or threat to use force among Member States of the Union.
2. Sub-regional organisationsEdit
Finally, the prohibition of the threat or use of force is also expressed in numerous treaties of sub-regional organisations. For example, the Economic Community of West African States (ECOWAS) in Article 1 of its Protocol on Non-Aggression sets out that member states in their international relations 'refrain from the threat or use of force or aggression or from employing any other means inconsistent with the Charters of the United Nations and the Organisation of African Unity against the territorial integrity of political independence of other Member-States.'
Articles 3 and 4 of the International Conference on the Great Lakes Region (ICGLR) Protocol on Non-Aggression and Mutual Defence similarly requires member states to renounce the threat or use of force and includes a comprehensive prohibition on the threat or use of force.
Although the prohibition does not appear explicitly in several other regional-organisations; other principles on the jus ad bellum are prominently featured, such as the prevention and resolution of inter-state conflict, good neighbourliness, the resolution of disputes by peaceful means, and the use of force only as a last resort.
D. Exceptions to the ProhibitionEdit
I. Exceptions within the UN Charter system of collective securityEdit
Within the provisions of the UN Charter there exist two principal exceptions to the prohibition of the use of force; that is, two circumstances under which the use of military force is permitted. The first of these, which is discussed here and in sub-section 2 directly hereunder, concerns situations where the UN Security Council authorises the use of force by States or regional organisations. The second exception found within the UN Charter, discussed further blow, concerns individual or collective self-defence.
The system of collective security put in place following the end of the second World War and the creation of the UN remains largely in tact today. Not only does this system of collective security prohibit the use of force, but it also regulates it - to the extent that the UN Security Council may authorise a resort to force. The basis for the UN Security Council's competence is found in Article 24(1), which provides that '[i]n order to ensure prompt and effective action by the [UN], its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.' In principle therefore, member states, upon ratifying the UN Charter, agreed that the UN Security Council could act on their behalf.
Indeed, the UN Security Council has authorised the use of force on a number of occasions. The most notable of these include authorisation to member states during the Korean War (1950) and the Iraqi invasion of Kuwait (1990). An examination of UN Security Council practice in this shows a number of characteristics when it comes to authorising force. These characteristics largely conform to the provisions of the UN Charter and are supported broadly in scholarship.
Before authorising the use of force, the UN Security Council must first make an Article 39 determination on a given situation. In other words, the UN Security Council determines the existence of a threat to international peace and security. From its practice, the UN Security Council's wording of this determination varies: it has however consistently determined situations as (a) a threat to international peace and security, (b) a threat to peace and security in the region, (c) a threat to the peace, or (c) a breach of the peace.
Once the UN Security Council has made an Article 39 determination, it has a broad range of options available to it in order to restore international peace and security. These include both non-coercive (non-military) and coercive (military measures). The UN Security Council can, by way of non-coercive measures, call on the parties to a dispute to comply with provisional measures such as a ceasefire agreement. The UN Security Council may go a step further and impose additional measures, such as placing sanctions on individuals and organisations or subjecting them to travel bans and freezing their assets.
When non-coercive measures prove insufficient, the UN Security Council may decide on military measures under Article 42 of the UN Charter. Article 42 reads:
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
In practice, since the UN has no standing army, the UN Security Council authorises these military measures to UN Member States; in so doing, these Member States therefore act on behalf of the UN Security Council when employing force. This system of authorisation of the use of force has become known as delegated enforcement action. Since it first employed such a technique during the Korean War in 1950, the UN Security Council has continues this practice today, having authorised the use of force by Member States on over a dozen occasions.
Finally, when authorising the use of force by Member States, the UN Security Council has adopted of a relatively consistent practice of invoking Chapter VII in those resolutions authorising the use of such force. Not only is this understandable in so far as the UN Security Council is clearly acting under Chapter VII powers, but resolutions which invoke that chapter have consistently been interpreted with a greater gravity and sense of bindingness. To this end, most resolutions authorising the use of force contain, often in the final preambular paragraph, the UN Security Council's expression that it is 'acting under Chapter VII of the Charter of the United Nations.'
2. Decentralised collective security under Chapter VIIIEdit
As much as the UN Security Council may authorise the use of force by States, it may also, and regularly does, authorise the use of force by regional organisations. This system of authorisation is sometimes known as decentralised collective security in so far it is regional organisations which act on behalf of the UN Security Council.
Article 52 of the UN Charter recognises the important role that regional organisations could play in matters of peace and security. As such, it expressly provides that nothing in the UN Charter precludes 'the existence of [regional organisations] for dealing with such matters relating to the maintenance of international peace and security...' Regional organisations are of course obliged to make use of pacific settlement of disputes prior to their referral to the UN Security Council.
It is worth noting that the UN Charter consistently refers, not to 'regional organisations', but rather, to 'regional arrangements or agencies.' Nonetheless, this reference clearly speaks of regional organisations to the extent that such organisations are involved in matters of peace and security within a specific geographical region of operation and over such region as where its members are situated. Examples of regional organisations of such a nature include the African Union and its Regional Economic Communities, the European Union, and the Organisation of American States. One organisation which has evaded being considered as a 'regional arrangement or reginal agency' is the North Atlantic Treaty Organisation (NATO) - which resembles more of a collective defence alliance. Despite this, scholars have convincingly argued that it is not necessarily the nature of the organisation which would determine whether UN Security Council authorisation of the use of force is required, but rather, the nature of the action in question. In other words, an organisation which acts in collective self-defence, need not obtain UN Security Council authorisation. An organisation which resorts to force for other purposes however, such a maintaining peace and security, will require UN Security Council authorisation.
When peaceful means of resolving a dispute fail, the UN Security Council may authorise a regional organisation to use force. Article 53(1) of the UN Charter reads:
'The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council, with the exception of measures against any enemy state, as defined in paragraph 2 of this Article, provided for pursuant to Article 107 or in regional arrangements directed against renewal of aggressive policy on the part of any such state, until such time as the Organization may, on request of the Governments concerned, be charged with the responsibility for preventing further aggression by such a state.'
The wording of Article 53(1) has not been spared of debate surrounding its interpretation. Although the UN Security Council has authorised the use of force by regional organisations on numerous occasions, there remains some uncertainty among scholars as to whether regional organisations may use force without the approval of the UN Security Council. A further question which arises is whether UN Security Council for the use of force needs to be granted explicitly and prior to the actual use of force by the organisation in question. This debate becomes particularly relevant when considering that some regional organisations and defence alliances (such as NATO), have either developed their own treaty law seemingly allowing them to use force, or have resorted to the actual use of force, without UN Security Council approval. Examples often cited include the ECOWAS interventions in Sierra Leone and Liberia in the 1990s, and the NATO bombardment of Yugoslavia in 1999. Where the development of an organisation's institutional treaty law arises, one of the most widely cited examples is that of Article 4(h) of the Constitutive Act of the African Union. Article 4(h) allows the AU to intervene into its Member States when grave circumstances occur, which include war crimes, genocide, and crimes against humanity. The fact that the Constitutive Act makes no mention of whether the AU requires UN Security Council approval rightfully invokes uncertainty as to whether UN Security Council involvement is at all required.
Following from the Korean War in the 1950s and the paralysis of the permanent members of the UN Security Council at the time, the UN General Assembly adopted Resolution 377A on 3 November 1950. The resolution came to be known as the 'Uniting for Peace' resolution - aimed principally to allow the General Assembly to consider and take actions on matters of peace and security when the UN Security Council itself failed to discharge its responsibilities under the UN Charter. One of the most important provisions of the resolution is foudn in the first operative paragraph, which reads: '1. Resolves that if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security. If not in session at the time, the General Assembly may meet in emergency special session within twentyfour hours of the request therefor. Such emergency special session shall be called if requested by the Security Council on the vote of any seven members, or by a majority of the Members of the United Nations; '
Despite the resolution's strong wording, there remains debate today as to whether the General Assembly has the competence to consider and take actions with respect to breaches of the peace, acts of aggression and threats to peace and security.
It is worth noting however that to date, the resolution has been invoked 13 times (eight times by the Security Council and five times by the General Assembly). The most recent invokation of Uniting for Peace related to the Russian invasion of Ukraine on 24 February 2022 under UN Security Council Resolution 2623 (2022).
3. Individual and collective self-defenceEdit
a. Article 51 of the UN CharterEdit
One of the most relied upon exceptions to the prohibition of the use of force involves the right of individual and collective self-defence. Although this right has been codified in Article 51 of the UN Charter, it is well established that the right is inherent, and has been at the disposal of States even before the UN Charter was adopted. The International Court of Justice confirmed this position in its Nicaragua case when it stated that the right of self-defence is a 'natural' or 'inherent' right and its inclusion in the UN Charter 'does not go on to regulate directly all aspects of its content.' The right of self-defence means that all States may use military force when they are attacked by other States, or where such an attack is imminent. Article 51 of the UN Charter recognises this right in the following words:
'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.'
While States have resorted to this right historically on many occasions, the contemporary understanding of the right features a number of characteristics. These may either be preconditions to exercising self-defence, or they may be limitations to the right.
b. Preconditions to self-defence: 'armed attack'Edit
The first precondition to self-defence is the existence of an armed attack. That is, before a State may use armed force in self-defence, it must have been attacked (what in international law is referred to as an 'armed attack'). Armed attack is however difficult to define and has been a point of scrutiny and continuous to encounter divergent interpretations. Nonetheless, an armed attack involves military force by one State against another. Such an attack also needs to be of a certain gravity; therefore, not all uses of force are considered an armed attack. The ICJ in the Nicaragua case did give some insight into armed attack and its gravity. For example, an armed attack could be, not only a 'frontier incident', but a case where 'the sending by a State of armed bands to the territory of another State' and that such action was of a 'scale and effect' to be considered an armed attack. It is worth noting that the Court's position on outlining more grave and less grave incidents has come under considerable scrutiny over the years. In any case, what is clear is that not all unlawful uses of force are considered armed attacks and that armed attacks are narrower in scope.
c. Conditions (limitations) to the exercise of self-defenceEdit
As can be expected, the right to use force in self-defence is not unlimited. In this context, two conditions (limitations) need discussion: necessity and proportionality. These conditions are not spelled out in Article 51 of the UN Charter but are derived from customary international law (as reaffirmed by the ICJ in the Nicaragua case and the Oil Platforms case).
The first condition is necessity; that the use of force in self-defence is necessary. This entails for example, that only the resort to force could achieve a specific goal, such as countering an armed attack. By implication therefore, necessity of forceful measures means that other dispute resolution options were not available to State. It also means that that peaceful means of resolving a situation were unavailable to the State relying on self-defence.
The second condition attached to the lawful exercise of self-defence is proportionality. This condition regulates the gravity of the force used when a State repels an armed attack. The gravity of force should, in principle, be proportionate to counter or repel the armed attack, and only to counter it. Use of force in self-defence cannot, for example, both counter an armed attack and subsequently punish the attacking State or neutralise its armed forces entirely. Such counter measures would not only violate the proportionality requirement under self-defence but may also be a violation of the prohibition of the use of force.
d. The duration of the right of self-defence and the reporting requirementEdit
While both necessity and proportionality serve as conditions to the right of self-defence under customary international law, Article 51 of the UN Charter imposes two additional criteria. The first of these criteria impacts the duration of validity of self-defence; how long a State may resort to use force in self-defence lawfully. While not spared from debate itself, the wording of Article 51 suggests that the use of force in self-defence cannot continue in perpetuity. States may resort to self-defence 'until the Security Council has taken measures necessary to maintain international peace and security.' Once the UN Security Council has taken such measures, a State cannot continue to rely on self-defence any longer. The UN Security Council may take any number of measures, and it may well be that it authorises the use of force, in order to restore international peace and security. That however does of course not mean that the UN Security Council needs to authorise self-defence; this option remaining at the disposal of States without UN Security Council approval.
The second criteria concerns a procedural condition; when States resort to the use of armed force in self-defence, they are obliged to immediately inform the UN Security Council of this. In this way, the UN Security Council is kept abreast of latest developments and is able to assess situations as the primary organ responsible for international peace and security.
e. Anticipatory/pre-emptive self-defence and the ‘Caroline test’Edit
One aspect of the right to self-defence which has received more than its fair share of debate concerns whether a State may use force in self-defence where an armed attack has not yet taken place but is imminent. This debate is certainly not new and is often considered against the Caroline test. The Caroline test, so called, arose from a dispute between America and Britain in the context of a rebellion in Canada. The Caroline was a steamboat which was transporting supplies to Canada, aiding the uprising there. The British set out to halt this, captured the boat, set it alight and sent it over Niagara Falls. The British put forward that these actions amounted to self-defence. The Americans countered this explanation by putting forward the, now famously known, Caroline test. The Caroline test stipulates that a State claiming self-defence would need to show that the 'necessity of self-defense was instant, overwhelming, leaving no choice of means, and no moment of deliberation...'
This qualification of self-defence has lead to several arguments in favour of anticipatory or pre-emptive self-defence. The notion of anticipatory self-defence holds that a State may use armed force against another State even before an armed attack has taken place; such armed attack being however imminent. This line of thought has been furthered somewhat to include also 'preventive self-defence'; which postulates the use of force against another State even when an armed attack is not necessarily imminent.
Preemptive self-defence was used as one justification for the US invasion of Iraq in 2003. It was then argued by the US, together with Australia and the United Kingdom, that Iraq was attempting to acquire weapons of mass destruction and that this threat was too grave to avoid counter action. No armed attack took place against either of the States involved. Since then, preemptive self-defence has been widely criticized for violating Article 51 of the UN Charter and arguments in favour of such a notion have significantly decreased.
e. Self-defence against non-state actorsEdit
Traditionally, principal actors in international law have always been States. This has been true both for general international law and for the use of force. In contemporary times however, States as principal actors in the international system finds some challenge. No where is this more clear than when considering self-defence against non-state actors. Whereas only States were previously able to declare and wage war, there exists today (as has been the case for some time now), non-state actors which are sufficiently sophisticated and organised to wage both terrorist attacks and large scale conflicts against States. This is especially true of terrorist organisations such as Al Qaeda, Al Shabab, Boko Haram and the Islamic State. The terrorist attacks of 11 September 2001 against the United States and its corresponding 'war on terror' marked a turning point in the way international law, and more specifically, the use of force, was viewed.
The question posited ever since is whether States could rely on self-defence when using force against non-state actors. In turn, a further question which arises is whether non-state actors could at all mount an 'armed attack', to which a State could respond through the use of force in self-defence. Suffice it to say that both literature and State practice on this matter remains moot. Most recently, the UN Security Council held an Arria formula meeting convened by Mexico to provide States with an opportunity to make submissions on this matter. Submissions by States during this meeting broadly confirmed a divergent approach. While some States took the view that the use of force against non-state actors was acceptable even in the territory of third States, other conditions such use of force based on host State consent or where such State was unable to suppress a non-state actor.
II. Exceptions beyond the UN CharterEdit
1. Military assistance on requestEdit
The sending of military forces by one State to the territory of another remains a surprisingly frequent occurrence. These actions are regularly justified by the State sending the armed forces on the basis that it was requested to do so. International law in this regard recognises the principle of 'military assistance on request', often also termed as 'intervention by invitation'.
In other words, State A may request, for one or another reason, that State B send its armed forces to State A's territory. Such a course of action would not violate the Article 2(4) prohibition of the use of force since the armed deployment is undertaken with the consent of the 'host state'. Despite its lawful nature, there are however a number of conditions which need to be met for such a course of action to be legal under international law.
First, the consent expressed by the host state must be given validly. The State requesting the military assistance must therefore have given its consent freely, without coercion. As previously mentioned, Article 52 of the Vienna Convention on the Law of Treaties provides that a treaty concluded by coercion remains void. Similarly, consent given through coercive measures to deploy military troops would be unlawful.
Second, the authority of the host state giving the consent must be appropriate; that the entity consenting to or requesting military assistance in fact has the power to give such consent on make such request. Ordinarily, the authority entitled to request military assistance is the de jure government of a particular State (the internationally recognised government). In turn, the entities which are entitled to make such a request are those acting on behalf of the State (an organ of State), such as the head of state or head of government.
Finally, a State requesting military assistance may not receive it when it is under a state of civil war (the rule of non-intervention in civil wars). The general nature of this prohibition serves as a limitation to military assistance on request and regards that all people's have a right to self-determination and the right to choose the political, economic and social characteristics of the State, without external interference from, for example, military forces of another State. In so far as withdrawal of military forces concerns, it is worth noting that the ICJ in its DRC v Uganda case underlined that no particular formalities are required when a State wishes to withdraw its consent.
2. The use of force for humanitarian purposes: Humanitarian intervention and the Responsibility to ProtectEdit
One of the more controversial uses of force in international law concerns coercive measures taken within a state, with neither its consent nor the authorisation of the UN Security Council. One such example includes humanitarian intervention. The Danish Institute of International Affairs defines humanitarian intervention as 'coercive action by States involving the use of armed force in another State without the consent of its government, with or without authorisation from the United Nations Security Council, for the purpose of preventing or putting to a halt gross and massive violations of human rights or international humanitarian law.' The definition is useful for two reasons. First, it outlines that generally, humanitarian intervention is taken against a state without its consent, and specifically for the purposes mentioned. Second, humanitarian intervention may be undertaken with or without the authorisation of the UN Security Council.
When humanitarian intervention is undertaken with the authorisation of the UN Security Council, it is followed by far less controversy. This is because the UN Security Council indeed has the competence to authorise the use of force against a state and for such purposes. With the end of the Cold War and particularly from the 1990s onward, the UN Security Council has on several occassions authorised the use of force by states for humanitarian purposes. Resolution 794 (1992) addressing the situation in Somalia, Resolution 929 (1994) on Rwanda, and Resolution 1080 (1996) on the Great Lakes Region, all represent to a greater or lesser extent examples where the UN Security Council has authorised military intervention for humanitarian reasons.
Unilateral humanitarian intervention on the other hand is far more controversial. It contemplates the decision of one or more states to use force in another state without its consent and without the authorisation of the UN Security Council. The most notable example of unilateral humanitarian intervention involves the albeit controversial decision of the North Atlantic Treaty Organisation's use of force against Serbia in 1999,when it made use of military force to halt widespread crimes against humanity, war crimes and ethnic clensing of Kosovar Albanians by Serbian military forces. Kosovo however is not a solitary example. The ECOWAS interventions in Liberia and Sierra Leone in the 1990s, and the US-led no-fly zone in Northern Iraq in 1991 are equally noteworth in what has been argued as examples of humanitarian intervention.
One particular development of the concept of humanitarian intervention is the albeit distinct committment referred to as Responsibility to protect (R2P). The idea of R2P arose from the work of the International Commission on Intervention and State Sovereignty which first postulated that although state sovereignty entails the right of each state to regulate domestic affairs, such a right was accompanied by the responsibility of each state to protect populations living within its borders. Where the state fails to protect its population, the responsibility to protect then rests with the international community. The principles behind R2P were formally endorsed by the UN iGeneral Assembly under its 2005 World Summit Outcome Document. In princple, R2P is based on three pillars: Pillar I: that each state carries with it the responsibility to protect its populations from genocide, war crimes, ethnic cleansing, and crimes against humanity, Pillar II: that states support each other in their responsibility to protect, and Pillar III: where a state fails to protect its population, that responsibility turns to the international community to ensure effective collective action.
Although both the idea of humanitarian intervention and its extension under R2P have been around for some time, its exception to the prohibition of the use of force in Article 2(4) remain controversial. Much of the controversy surrounding the concepts concerns the authority of sates to intervene in each other affiars and whether existing institutions such as the UN Security Council should in fact always authorise military force even in cases of humanitarian intervention. It therefore suffices to say that despite some practice and the ironing out of certain principles on the international level, the broader idea of humanitarian intervention cannot be considered a well-established exception to the prohibition.
The use of force, its prohibition and exceptions to this prohibition have a long standing history in international law. While resort to armed force was not always regulated, nor was it always prohibited, the developments of the last century represent the greatest attempt to curtain armed force. Article 2(4) of the UN Charter and its prohibition of the threat or use of force remains a cornerstone not only of the UN Charter system of collective security but of the entire international legal order. Likewise, well established exceptions to the prohibition, most notably, self-defence under Article 51, and UN Security Council authorisation, are firmly established and widely accepted in practice. At the same time, the prohibition and corresponding exceptions are not without controversy. Emerging challenges, least of which include the terrorism and non-state actors, the continued proliferation of weapons of mass destruction, cybersecurity and cyberthreats, and abusive interpretations of self-defence, post significant challenges to the regulation of armed force. While the jus ad bellum has been resilient, the development of international law and of the use of force cannot be viewed in isolation. Its continued evolution will rest with its ability to meet the challenges of the 21st century, ever present and expanding as they may be.
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- International Instruments on the Use of Force
Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945)
North Atlantic Treaty (adopted 4 April 1949, entered into force 24 August 1949)
Constitutive Act of the African Union (adopted 11 July 2000, entered into force 26 May 2001)
UN General Assembly Resolution 3314 (XXIX) (Definition of Aggression)
UN General Assembly Resolution 2625 (XXV), The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States
UN General Assembly Resolution 377A (1950)
- Selected UN Security Council Resolutions
S/RES/83 and 84 (1950)
S/RES/1511 and 1546 (2003)
- ↑ International Committee of the Red Cross, What are jus ad bellum and jus in bello? (22 January 2015) https://shop.icrc.org/international-humanitarian-law-answers-to-your-questions-pdf-en 8-9.
- ↑ On the laws of war, see § 13 Law of Armed Conflict, Public International Law/Law of Armed Conflict
- ↑ Art. 2(4), United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, https://www.un.org/en/about-us/un-charter/chapter-1 Article 2(4) reads: 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.
- ↑ Art. 51, UN Charter (n 3). The United Nations Security Council may authorise the use of force by States under Chapter VII, and by regional arrangements or agencies under Chapter VIII.
- ↑ Alina Kaczorowska, Public International Law (Routledge, 2010) 695-696.
- ↑ Alina Kaczorowska, Public International Law (Routledge, 2010) 696.
- ↑ Arts. 8-16, League of Nations, The Covenant of the League of Nations, Including Amendments in Force (1 February 1938).
- ↑ Art. I, General Treaty for Renunciation of War as an Instrument of National Policy (Kellogg-Briandt Pact) (adopted 27 August 1928, entered into force 24 July 1929).
- ↑ Art. 2(4), Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945).
- ↑ These purposes include: To maintain international peace and security, to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace, to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character and to be a center for harmonizing the actions of nations in the attainment of these common ends.
- ↑ See also Ian Brownlie, 'Principles of Public International Law' (7th ed, 2008, OUP) 732.
- ↑ Nikolas Stürchler, The Threat of Force in International Law (Cambridge University Press, 2007) 1-4.
- ↑ Stürchler (n 8) 258-259.
- ↑ Art. 52, Vienna Convention on the Law of Treaties 1155 UNTS 331 (adopted 23 May 1969, entered into force 27 January 1980).
- ↑ Art. 1, Protocol on Non-Aggression (adopted 22 April 1978, entered into force 13 May 1982). See also the provisions of Art. 6(2) of the ECOWAS Convention on Small Arms and Light Weapons, their Ammunition and Other Related Matters (adopted 14 June 2006, entered into force 5 August 2009).
- ↑ Arts. 3-4, Protocol on Non-Aggression and Mutual Defence in the Great Lakes Region (adopted 30 November 2006, entered into force 21 June 2008).
- ↑ On the Korean War, see S/RES/82 (1950) and S/RES/83 (1950) which determined that the armed attack by North Korean forces constituted a breach of the peace and recommended Member States furnish the necessary assistance to the Republic of Korea in order repel the armed attack and restore international peace and security. On the Iraqi invasion of Kuwait, see S/RES/687 (1990), which gave Iraq one final opportunity to withdraw its forces from Kuwait, failing which, authorised the use of all necessary means by Member States to ensure withdrawal of Iraqi forces.
- ↑ Art. 39, UN Charter reads: 'The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.'
- ↑ On the nuanced nature of this determination, in particular by the five permanent Members of the UN Security Council, see Tamsin Phillipa Paige, Petulant and Contrary: Approaches by the Permanent Five Members of the UN Security Council to the Concept of ‘threat to the peace’ under Article 39 of the UN Charter (Brill | Nijhoff, 2019) 277-287.
- ↑ Art. 40, UN Charter.
- ↑ Art. 41, UN Charter.
- ↑ Article 43 of the UN Charter initially envisaged special agreements between Member States and the UN Security Council in relation to making troops available during the UN Security Council's exercise of powers. These agreements never materialized in practice and the UN Security Council has instead delegated the use of force to Member States by authorising its use.
- ↑ Erika de Wet, The Chapter VII Powers of the United Nations Security Council (Hart Publishing, 2004) 257; see also broadly, Niels Blokker, 'Is the Authorisaztion Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by "Coalitions of the Able and Willing"' (2000) 11(3) European Journal of International Law 541-568.
- ↑ In addition to the authorisation given during the Korean War, these situations include: the Gulf War (1990), the situation in Somalia (1992), the situation in Haiti (1993-1994), the situation in Rwanda (1994), the situation in the Great Lakes Region (1996) and the post-US invasion situation in Iraq (2003).
- ↑ See for example, fourth preambular paragraph, S/RES/678 (1990).
- ↑ Art. 52(1), UN Charter.
- ↑ Art. 52(2), (3), UN Charter.
- ↑ Erika de Wet, 'Regional Organizations and Arrangements: Authorization, Ratification, or Independent Action' in Marc Weller, The Oxford Handbook of the Use of Force in International Law (Oxford University Press, 2015) 315-316.
- ↑ The African Union has eight Regional Economic Communities. On a brief description of each, see Marko Svicevic, Compendium of documents relating to regional and sub-regional peace and security in Africa (2nd ed, Pretoria University Law Press, 2021).
- ↑ Ian Johnstone, 'When the Security Council is Divided: Imprecise Authorizations, Implied Mandates, and the ‘Unreasonable Veto’' in Marc Weller (ed), The Oxford Handbook of the Use of Force in International Law (Oxford University Press, 2015) 229-230.
- ↑ Johnstone (n) 231-232. UN Security Council resolutions often cited include: on the ECOWAS intervention in Sierra Leone, S/RES/1132 (1997) and S/RES/1181 (1998), on the ECOWAS intervention in Liberia, S/RES/788 (1992) and S/RES/866 (1993); on the NATO intervention in Yugoslavia, S/RES 1244 (1999), and also S/RES/1160 (1998), S/RES/1199 (1998) and S/RES/1203(1998).
- ↑ See for example, arguments raised by: Erika de Wet, 'Regional Organizations and Arrangements: Authorization, Ratification, or Independent Action' in Weller (n) 314-328; Suyasha Paliwal, 'The Primacy of Regional Organizations in International Peacekeeping: The African Example' (2010) 51(1) Virginia Journal of International Law 196-198; Marko Svicevic, 'Re-assessing the (Continued) Need for UN Security Council Authorisation of Regional Enforcement Action: The African Union Twenty Years On' (2020) 45 South African Yearbook of International Law .
- ↑ Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America). Merits, Judgment. I.C.J. Reports 1986, p. 14, para 176.
- ↑ Art. 51, UN Charter.
- ↑ Nicaragua (n above) para 195.
- ↑ Tom Ruys, 'Armed attack' and Article 51 of the UN Charter: Evolutions in Customary Law and Practice' (2010, Cambridge University Press) 143-145.
- ↑ Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America). Merits, Judgment. I.C.J. Reports 1986, p. 14, para 194.
- ↑ Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I. C. J. Reports 2003, p. 16, para 76
- ↑ Nicaragua (n above) para 176. See also the ICJ having reaffirmed this in Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1. C.J. Reports 1996, p. 226, para 41.
- ↑ Erika de Wet, The Chapter VII Powers p.262-263.
- ↑ On the distinction between self-defence and collective security (UN Security Council authorisation of the use of force), see Michael Wood, 'Self-defence and Collective Security: Key Distinctions' in Weller (n above) 649-660.
- ↑ See also Nick van der Steenhoven, 'Conduct and subsequent practice by states in the application of the requirement to report under UN Charter Article 51' (2019) 6(2) Journal on the Use of Force and International Law 247.
- ↑ For a more comprehensive discussion on the Caroline incident, see Michael Wood, 'The Caroline Incident - 1837' in Tom Ruys, Olivier Corten & Alexandra Hofer, The Use of Force in International Law: A Case-based Approach (2018, Oxford University Press) 5-14.
- ↑ Rajeesh Kumar, 'Iraq War 2003 and the Issue of Pre-emptive and Preventive Self-defence: Implications for the United Nations' (2014) 70(2) India Quarterly 124-125.
- ↑ Kumar (n above) 125.
- ↑ For example, then UN Secretary-General Kofi Annan in 2004 expressed his view that the Iraq war was 'not in conformity with the UN Charter...' and that 'from our point of view, and from the Charter point of view it was illegal.' See UN, 'Lessons of Iraq war underscore importance of UN Charter - Annan' (16 September 2004), https://news.un.org/en/story/2004/09/115352-lessons-iraq-war-underscore-importance-un-charter-annan.
- ↑ UN Security Council, 'Arria Formula Meeting "Upholding the collective security system of the UN Charter: the use of force in international law, non-state actors and legitimate self-defence' UNSC Doc. S/2021/247, available at https://undocs.org/S/2021/247
- ↑ See the discussions by Adil Ahmad Haque, 'The use of force against non-state actors: all over the map' (2021) 8(2) Journal on the Use of Force and International Law 278-290.
- ↑ See further on this, Gregory Fox, 'Intervention by Invitation' in Marc Weller (ed), The Oxford Handbook of the Use of Force in International Law (Oxford University Press, 2015) 816-817.
- ↑ See also, Martin Faix, Law of Armed Conflict and Use of Force: Part One: Securing International Peace and Security: International Law on the Use of Force (Univerzita Palackeho v Olomouci, 2013) 92.
- ↑ Erika de Wet, Military Assistance on Request and the Use of Force (Oxford University Press, 2020) 154.
- ↑ Art. 52, VCLT (n 10 above).
- ↑ See also Erika de Wet, Military Assistance on Request and the Use of Force (Oxford University Press, 2020) 154-155.
- ↑ Fox (n above) 819.
- ↑ See the 'Principle of equal rights and self-determination of peoples' in United Nations General Assembly Resolution 2625 (XXV). Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations'. However, some scholars have observed that post-Cold War State practice does not concretely suggest such a prohibition; see Erika de Wet, Military Assistance on Request and the Use of Force (Oxford University Press, 2020) 123-124.
- ↑ Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005,p.168 at para 47.
- ↑ Danish Institute of International Affairs, Humanitarian Intervention: Legal and Political Aspects (Gullanders Bogtrykkeri, 2000) 11.
- ↑ See S/RES/794 (1992); S/RES/929 (1994); S/RES/1080 (1996). On authorisation of humanitarian intervention, see Cristina G. Badescu, 'Authorizing Humanitarian Intervention: Hard Choices in Saving Strangers' (2007) 40(1) Canadian Journal of Political Science 51-78.
- ↑ See broadly, Louis Henkin, 'Kosovo and the Law of "Humanitarian Intervention"' (1999) 93(4) The American Journal of International Law 824-828.
- ↑ See for example, Sir Nigel Rodley, '35. "Humanitarian Intervention"' in Marc Weller (ed), The Oxford Handbook of the Use of Force in International Law (Oxford University Press, 2015) 780-788
- ↑ International Commission on Intervention and State Sovereignty, 'Report of the International Commission on Intervention and State Sovereignty: The Responsibility to Protect' (December 2001).
- ↑ UN, UN General Assembly Resolution 60/1. 2005 World Summit Outcome (24 October 2005) UN Doc. S/RES/60/1.