USE OF FORCE- PIL AKEHURST SUMMARY

Intro
Ius ad bellum- rules governing the resort to armed conflict
Ius in bello – rules governing the actual conduct of armed conflict, also known as
'International Humanitarian Law applicable to armed conflict'
Ius in bello is applicable to any armed conflict, regardless of whether the conflict is
legal/illegal under the Ius ad bellum
Pre-1945 developments
 Early on, conception of war was based on teachings of the Catholic Church. St.
Augustine- said that wars are just if done as reparations for wrongs committed by
other states or if that state has failed to punish its citizens (has to be proportional
though), or if it is ordered by God (war against heretics).
 From 16th century onwards, the distinction between just and unjust war broke down.
 Doctrine of probabilism- if both sides believe that their war is right, then both are
blameless, even if they are both objectively wrong
 18th and 19th centuries- no distinction between legal and illegal wars. Any war for
state's vital interests was regarded as just- but every state has own conception of what
their vital interests were, so there was no clear definition of a just or unjust war.
 But overall, there was a balance of power between states which made war avoidable
in that era.
 Balance-of-power system could be supplemented by law (in the form of treaties), to
deal with special cases. For instance, treaties of 1815 and 1839 guaranteed
Switzerland and Belgium against attack. Later, the Latin American states persuaded
several other states to sign the second Hague Convention of 1907, which prohibited
the use of force to recover contract debts, unless the debtor state refused to go to
arbitration or refused to carry out the arbitral award. The third Hague Convention of
1907 required war to be preceded by a formal declaration of war or by an ultimatum
containing a conditional declaration of war.
 The unprecedented suffering of the First World War caused a revolutionary change in
attitudes towards war. Started regarding war as evil.
 The Covenant of the League of Nations, signed in 1919, did not prohibit war
altogether; instead, Article 12(1) provided: The Members of the League agree that, If
there should arise between them any dispute, they will submit the matter either to
arbitration or judicial settlement or to inquiry by the Council, and they agree in no
case to resort to war until three months after the award by the arbitrators or the
judicial decision, or the report by the Council.
 The three-month period of delay was intended to allow time for passions to die down;
if states had observed a three-month delay after the assassination of the Archduke
Franz Ferdinand in 1914, it is possible that the First World War could have been
averted.
 In addition, members of the League agreed not to go to war with members complying
with an arbitral award or judicial decision.
  During the 1920s - efforts were made to fill the ‘gaps in the Covenant’ —to transform
the Covenant’s partial prohibition of war into a total prohibition of war. These efforts
culminated in the General Treaty for the Renunciation of War (otherwise known as the
Kellogg-Briand Pact, or the Pact of Paris), signed in 1928. Almost all the states in the
world became parties to this treaty, which provided:
The High Contracting Parties solemnly declare…that they condemn recourse to war for the
solution of international controversies, and renounce it as an instrument of national policy in
their relations with one another. The High Contracting Parties agree that the settlement or
solution of all disputes or conflicts of whatever nature or of whatever origin they may be,
which may arise among them, shall never be sought except by pacific means.
Prohibition of Use of Force as per UN Charter
Article 2(4) - 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.
 This is under CIL as well- covers those states which are also not part of the UN.
 Broad definition- covers both threat and actual use of force.
 This states 'use of force' and not 'war'- use of force is broader, covers things like
border skirmishes etc and not just a technical state of war. Important because states
can be using force against each other without being in technical state of war. This
article applies to all use of force whether it constitutes war or not.
 Also important because war has consequences- they may terminate some treaties if
stipulated so, or can have consequences under the municipal law – for eg ceasing of
trade.
 Article prohibits use of force against political independence or territorial integrity of
the state- which implies using force for enforcing a legal right of the state or
protecting human rights is legal.
 This interpretation can be complicated by use of the phrase "or in any other manner
inconsistent with purposes of the UN"
 Why? Because as per Article 1 of the UN Charter, one of its purposes is international
peace and security- this means that use of force which disturbs this should be
prohibited in all circumstances. This is the broad view, supported by Corfu channel
case.
 Corfu channel case- UK ships were passing by Albanian waters (right of innocent
passage), got blown up due to mines. UK sent more ships to remove the minefields-
this is not covered under innocent passage. UK said we are doing this so as to produce
the mines as evidence before the international tribunal, but the Court said that you
cannot do such interventions, it is a manifestation of the use of force. International
law cannot be enforced at the cost of peace and security.
 This view also supported by Friendly Relations Declaration, 1970.
 But Article 1 of the UN Charter says UN purpose is also international justice- implies
force can be used for protecting human rights and ensuring legal rights.
 prevailing view is that the Charter has enacted a comprehensive rule on the
prohibition of the use of force, which has become recognized as ius cogens, and still
admits only narrow exceptions to this prohibition.
  Two exceptions to prohibition of use of force- Art 51 of UN Charter (self-defence)
and Ch 7- use of force by UNSC
Article 51
 States that there is an inherent right of individual and collective self defence against
an armed attack on UN member, until UNSC has taken necessary measures to restore
peace and security.
 These measures of self defence by the states have to be reported to the UNSC and will
not affect the authority of UNSC to take action at any time towards maintenance of
int. peace and security.
 Collective self defence concept- this article became the basis for NATO and Warsaw
Pact.

Pre-emptive self defence

 Art 51 states that self defence can be used 'if an armed attack occurs'- implying
literally that it can be used only if armed attack actually occurs, negating possibility
of a pre-emptive self-defence.
 Supporters of pre-emptive self defence state that 'if an armed attack occurs' cannot
mean 'if and only if'.
 Two arguments by these supporters as to why this condition stipulated is not an
exhaustive one- first that it states 'if an armed attack occurs against a member state'
which excludes the possibility of members protecting non-member states- for eg
whole reason NATO was formed was to protect West Germany which was not a
member of UN then. But counter is that when article was being drafted, it was
expected that every state would end up becoming a UN member anyway- thus this
condition of attack against a member only was probably an oversight.
 Second argument is that if self defence is an inherent right, how can you be
restricting it by imposing conditions?
In refuting this argument, we should keep in mind that art 51 is an exception to Art 2(4) – it is
a general principle that exceptions to a doctrine are to be interpreted restrictively and not
expanded.
There are also dangers in allowing self defence as an exception- whether an attack is
imminent to occur is a question of degree and opinion, a lot of subjectivity is involved, but
whether an armed attack has occurred or not is just verifiable.
The trouble about anticipatory self-defence is that a state can seldom be absolutely certain
about the other side’s intentions; in moments of crisis, there is seldom time to check
information suggesting that an attack is imminent.
State Practise-
- States have seldom actually relied on the concept of anticipatory self defence to
justify attacks, and thus state practise is inconclusive
- In general, anticipatory attacks merely because of build up of weapons in another state
etc would be too extreme to be admitted. For eg when israel bombed iraq's nuclear
 reactors, UNSC condemned it stating that there was no proof its going to be used for a
nuclear bomb or against israel.
- But a state cannot be expected to be a sitting duck either. Thus if an attack is very
much imminent, anticipatory self defence can be used. It would still be a very limited
exception, after all the conditions of the Caroline case have been met and the
diplomatic means exhausted.
Caroline case
- Facts- During the rebellion in Canada in 1837, preparations for subversive action
against the British authorities were made in United States territory. Although the
Government of the United States took measures against the organization of armed
forces upon its soil, there was no time to halt the activities of the steamer Caroline,
which reinforced and supplied the rebels in Canada from ports in the United States. A
British force from Canada crossed the border to the United States, seized the Caroline,
set her on fire. Two citizens of the United States were killed during the attack on the
steamer. American authorities arrested one of the British subjects involved in the
action and charged him with murder and arson.
- In the correspondence following Great Britain’s protest, the conditions under which
self-defence could be invoked to invade foreign territory were formulated by
Daniel Webster in a manner that became to be treated as classic. There must be a
‘necessity of self-defence, instant, overwhelming, leaving no choice of means, and
no moment for deliberation’ and the action taken must not be ‘unreasonable or
excessive’, and it must be ‘limited by that necessity and kept clearly within it’.
- In many subsequent occasions the Caroline case was invoked and also employed by
the Nuremberg Tribunal in handling the plea of self-defence raised to the charge of
waging aggressive war.
Tokyo Tribunal- (not taught in class)
Tokyo Tribunal, for example, decided that the Dutch declaration of war upon Japan in
December 1941 was justified on the grounds of self-defence, although at that time Japan
had not attacked Dutch territories in the Far East. It sufficed that Japan had made its war
aims, including the seizure of those territories, known and which had been decided upon at
the Imperial Conference of 1941.
(Not taught in class- self defence and claims of territory, self defence of the ships and planes,
self defence and protection of civillians abroad- see this from book if u want)
Self-Defence and Armed Reprisals
Self-defence does not include a right of armed reprisal, if terrorists enter one state from another,
the first state may use force to arrest or expel the terrorists, but, having done so, it is not entitled to
retaliate by attacking the other state.
In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996), the ICJ
did not examine the question of armed reprisals in times of peace. But it noted that such reprisals
‘are considered to be unlawful’. The Court also refrained from discussing the different issue of
belligerent reprisals (during times of armed conflict); however, it did observe: ‘in any case any
right of recourse to such reprisals would, like self-defence, be governed inter alia by the principle
of proportionality.
Immediacy and Proportionality
 Use of force in self-defence must be necessary, immediate, and proportional to
the use of force.
 Immediacy principle- the self defence must be immediate to the armed attack
taking place, otherwise aggression can take place under the pretext of self
defence even long after the hostilities have really ceased.
 Proportionality and Necessity- Nicaragua case the ICJ stated that ‘there is a
specific rule whereby self-defence would warrant only measures which are
proportional to the armed attack and necessary to respond to it, a rule
well established in international law. The Court confirmed that this dual
condition applies equally to Article 51 of the Charter, in its advisory opinion in
the Legality of Nuclear Weapons Case.
 The permissible use of force under Article 51 is restricted to the necessary
minimum required to repulse an attack because retaliation and punitive
measures are forbidden.
 proportionality seems to refer to what is proportionate to repel the attack
without requiring symmetry between the mode of the initial attack and the
mode of response.
(collective self defence she just touched upon, read from book if you want to)
(she has not taught use of force in civil wars or for self determination at all. Please read that
shit on your own because is too long to summarise, a good 20 pages)