LAW ON THE USE OF FORCE BY STATES

International law seeks to minimize and regulate the resort to force by states, without itself being
able to enforce its will.
The law must seek to provide mechanisms to restrain and punish the resort to violence.
Law and Force from The ‘Just War’ to The United Nations
The doctrine of the just war arose as a consequence of the Christianisation of the Roman Empire
Force could be used provided it complied with the divine will.
St Augustine (354–430) defined the just war in terms of avenging of injuries suffered where the
guilty party has refused to make amends.
War was to be embarked upon to punish wrongs and restore the peaceful status quo but no
further.
St Thomas Aquinas declared that in a just war it was the subjective guilt of the wrongdoer that
had to be punished rather than the objectively wrong activity.
He wrote that war could be justified provided it was waged by the sovereign authority, and it was
accompanied by a just cause (i.e. the punishment of wrongdoers).
With the rise European nation-states, the requirement that serious attempts at a peaceful
resolution of disputes became necessary.
After the Peace of Westphalia, 1648, the concept of the just war disappeared from international
law as such.
Emphasis in legal doctrine moved from the application of force to maintain the order by peaceful
means.
Spanish writer Vitoria ‘not every kind and degree of wrong can suffice for commencing war’
States were sovereign and equal, and therefore no one state could presume to judge whether
another’s cause was just or not.
States were bound to honor agreements and respect the independence and integrity of other
countries, and had to try and resolve differences by peaceful methods.
The laws of neutrality and war began to operate as between the parties and third states and a
variety of legal situations at once arose.
THE FIRST WORLD WAR: CREATION OF THE LEAGUE OF NATIONS
The Covenant of the League declared that members should submit disputes Council of the
League.
In no circumstances were members to resort to war until three months after the arbitral award or
judicial decision or report by the Council.
League members agreed not to go to war with members complying with such an arbitral award
or judicial decision or unanimous report by the Council.
The League system did not prohibit war or the use of force, but it did set up a procedure designed
to restrict it to tolerable levels.
It led to the signing in 1928 of the General Treaty for the Renunciation of War (the Kellogg–
Briand Pact). The parties condemned recourse to war and agreed to renounce it as an instrument
of national policy in their relations.
Prohibition of the resort to war is now a valid principle of international law though it does not
mean that the use of force in all circumstances is illegal.
Reservations to the treaty by some states made it apparent that the right to resort to force in self-
defense was still a recognized principle in international law.
THE UN CHARTER
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. Article 2(4).
Principles in the 1970 Declaration on Principles of International Law;
1. Prohibition of use of force is now a principle of customary international law and is binding
upon all states in the world community.
2. Wars of aggression constitute a crime against peace and there’s responsibility under
international law.
3. States must not threaten or use force to violate existing international frontier or to solve
international disputes.
4. Sates must not use force to deprive peoples of their right to self-determination and
independence.
5. States must refrain from organizing, instigating, assisting or participating in acts of civil
strife or terrorist acts in another state and must not encourage the formation of armed bands
for incursion into another state’s territory.
Important exceptions to Article 2(4) exist in relation to collective measures taken by the United
Nations and with regard to the right of self-defence.
The UN ‘shall ensure that states which are not members of the UN act in accordance with these
Principles so far as may be necessary for the maintenance of international peace and security’;
Article 2(6)
‘FORCE’
‘Force’ in article 2(4) includes not only armed force, but, for example, economic force.
The 1970 Declaration recalled the ‘duty of states to refrain . . . from military, political, economic
or any other form of coercion…’
The Charter of Economic Rights and Duties of States 1974, ‘no state may use or encourage
the use of economic, political or any other type of measures to coerce another state in order to
obtain from it the subordination of the exercise of its sovereign rights’.
Article 2(4) covers threats of force as well as use of force. ICJ in its Advisory Opinion to the
General Assembly on the Legality of the Threat or Use of Nuclear Weapons.
“A ‘signaled intention to use force if certain events occur’ could constitute a threat under article
2(4) where the envisaged use of force would itself be unlawful”
The Court appeared to accept that the mere possession of nuclear weapons did not of itself
constitute a threat ‘Against the territorial integrity or political independence of any state’
Article 2(4) of the Charter prohibits the 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’.
The International Court of Justice in the Corfu Channel case, declared that:
“the alleged right of intervention was the manifestation of a policy of force, such as has, in the
past, given rise to most serious abuses and such as cannot . . . find a place in international law.”
The essence of international relations, concluded the Court, lay in the respect by independent
states of each other’s territorial sovereignty.
CATEGORIES OF FORCE
There are three categories of compulsion open to states under international law. These are
retorsion, reprisal and self-defence.
Retorsion
Retorsion is the adoption by one state of an unfriendly and harmful act, which is nevertheless
lawful, as a method of retaliation against the injurious legal activities of another state.
Examples include the severance of diplomatic relations and the expulsion or restrictive control of
aliens, various economic and travel restrictions.
Retorsion is a legitimate method of showing displeasure in a way that hurts the other state while
remaining within the bounds of legality.
The Hickenlooper Amendments to the American Foreign Assistance Act required the United
States President to suspend foreign aid to any country nationalizing American property without
proper compensation.
Reprisals
Reprisals are acts which are in themselves illegal and have been adopted by one state in
retaliation for the commission of an earlier illegal act by another state.
They are thus distinguishable from acts of retorsion, which are in themselves lawful acts. The
classic case dealing with the law of reprisals is the Naulilaa dispute between Portugal and
Germany in 1928.
It concerned a German military raid on the colony of Angola, which destroyed property, in
retaliation for the mistaken killing of three Germans lawfully in the Portuguese territory.
Before reprisals could be undertaken, there had to be sufficient justification in the form of a
previous act contrary to international law.
Reprisals had to be preceded by an unsatisfied demand for reparation accompanied by a sense of
proportion between the offence and the reprisal.
The Right of Self-Defence
The definition of the right of self-defence in customary international law arose out of the
Caroline case.
The dispute revolved around an incident in 1837 in which British subjects seized and destroyed a
vessel in an American port.
This had taken place because the Caroline had been supplying groups of American nationals,
who had been conducting raids into Canadian territory.
In the correspondence with the British authorities which followed the incident, the US Secretary
of State laid down the essentials of self-defence to be;
1. A necessity of self-defence, instant, overwhelming, leaving no choice of means, and no
moment for deliberation’.
2. The action taken in pursuance of it must not be unreasonable or excessive
3. The act must be limited by the necessity of self-defense, and kept clearly within it’.
SELF-DEFENSE
Article 51 of the Charter provides that:
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 UN……….”
The ICJ in the Nicaragua case, clearly established that the right of self-defence existed as an
inherent right under customary international law as well as under the UN Charter.
An ‘armed attack also includes the sending by or on behalf of a state of armed bands or groups
which carry out acts of armed force of such gravity as to amount to an actual armed attack.
It is necessary to show that the state seeking to resort to force in self-defence has itself been
intentionally attacked. the Oil Platforms case,
The day after the 11 September 2001 attacks upon the World Trade Center in New York, the
Security Council adopted resolution 1368 in which it specifically referred to ‘the inherent right
of individual or collective self-defence in accordance with the Charter’.
On 7 October 2001, the US notified the Security Council that it was exercising its right of self-
defence in taking action in Afghanistan against the Al-Qaeda organisation deemed responsible
for the 11 September attacks and the Taliban regime in that country which was accused of
providing bases for the organization.
NATO invoked article 5 of the NATO Treaty. The provision refers specifically to an ‘armed
attack’ and to article 51 of the Charter.
ANTICIPATORY OR PRE-EMPTIVE SELF-DEFENCE
A further issue is whether a right to anticipatory or pre-emptive self-defence exists. This would
appear unlikely if one adopted the notion that self-defence is restricted to responses to actual
armed attacks.
The concept of anticipatory self-defence is of particular relevance in the light of modern
weaponry that can launch an attack with tremendous speed, which may allow the target state
little time to react.
States have employed pre-emptive strikes in self-defence. Israel, in 1967, launched a strike upon
its Arab neighbours, following the blocking of its southern port of Eilat and the conclusion of a
military pact between Jordan and Egypt.
This completed a chain of events precipitated by the mobilisation of Egyptian forces on Israel’s
border and the eviction of the United Nations peacekeeping forces from the area by the Egyptian
President.
A preemptive strike embarked upon too early might constitute an aggression.
States generally are not at ease with the concept of anticipatory self-defence, however, and one
possibility would be to concentrate upon the notion of ‘armed attack’.
According to this approach, self-defense is legitimate both under customary law and under article
51 of the Charter where an armed attack is imminent.
It would then be a question of evidence as to whether that were an accurate assessment of the
situation in the light of the information available at the relevant time.
Nevertheless, it is safe to conclude that the concept of self-defence extends to a response to an
attack that is reasonably and evidentially perceived to be imminent, however that is semantically
achieved. The Caroline criteria remain critical.
In DRC v. Uganda, Uganda captured towns and ports of DRC many kilometres away from the
border claiming transborder attacks from DRC, held, not proportional.
Proportionality may also require consideration of the type of weaponry to be used and the risks
associated with them.
A use of force that is proportionate under the law of self-defence, must, in order to be lawful,
also meet the requirements of the law applicable in armed conflict’.
It is also important to emphasise that article 51 requires that states report ‘immediately’ to the
Security Council on measures taken in the exercise of their right to self-defence
The Protection of Nationals Abroad
In 1964, Belgium and the United States sent forces to the Congo to rescue hostages (including
nationals of the states in question) from the hands of rebels, with the permission of the
Congolese government,
In 1975 the US used force to rescue an American cargo boat and its crew captured by Cambodia.
The most famous incident, however, was the rescue by Israel of hostages held by Palestinian and
other terrorists at Entebbe, following the hijack of an Air France airliner.
The US conducted a bombing raid on Libya on 15 April 1986 as a consequence of alleged
Libyan involvement in an attack on US servicemen in West Berlin.
the US launched missiles at the headquarters of the Iraqi military intelligence in Baghdad as a
consequence of an alleged Iraqi plot to assassinate former US President Bush in Kuwait.
On balance, and considering the opposing principles of saving the threatened lives of nationals
and the preservation of the territorial integrity of states, it would seem preferable to accept the
validity of the rule in carefully restricted situations consistent with the conditions laid down in
the Caroline case.
Collective Self-Defence
The right of states to take up arms to defend themselves from external force is well established as
a rule of customary international law.
Article 51, ‘the inherent right of . . . collective self-defence’
NATO and the Warsaw Pact after World War 2, specifically based upon the right of collective
self-defence. By such agreements, an attack upon one party is treated as an attack upon all.
This approach finds support in the Nicaragua case. The Court stressed that the right to collective
self-defence depended upon;
a) A prior declaration by the state concerned that it was the victim of an armed attack
b) A request by the victim state for assistance
c) Only when the wrongful act provoking the response was an armed attack’.
The invasion of Kuwait by Iraq on 2 August 1990 raised the issue of collective self-defence in
the context of the response of the states allied in the coalition to end that conquest and
occupation.
INTERVENTION
The principle of non-intervention is part of customary international law and founded upon the
concept of respect for the territorial sovereignty of states.
Intervention is prohibited where it bears upon matters in which each state is permitted to decide
freely. This includes, the choice of political, economic, social and cultural systems and the
formulation of foreign policy. ICJ in the Nicaragua case
Intervention becomes wrongful when it uses methods of coercion in regard to such choices,
which must be free ones.
Civil Wars
Charter prohibits the threat or use of force in international relations, not in domestic situations.
There is no rule against rebellion in international law. It is within the domestic jurisdiction of
states and is left to be dealt with by internal law.
Aid to The Authorities of a State
It would appear that in general outside aid to the government authorities to repress a revolt, is
perfectly legitimate, provided, of course, it was requested by the government.
Aid to recognised governmental authorities is legitimate, and it would be further reinforced
where it could be shown that other states were encouraging or directing the subversive operations
of the rebels.
In such cases, it appears that the doctrine of collective self-defence would allow other states to
intervene openly and lawfully on the side of the government authorities
Aid to rebels
The reverse side of the proposition is that aid to rebels is contrary to international law. The 1970
Declaration on Principles of International Law emphasized that:
No State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed
activities directed towards the violent overthrow of the regime of another state, or interfere in
civil strife in another state.
The Declaration also provided that:
Every state shall refrain from any action aimed at the partial or total disruption of the national
unity and territorial integrity of any other state or country.
In the Nicaragua case, the Court declared that the principle of nonintervention prohibits a state
‘to intervene, directly or indirectly, with or without armed force, in support of an internal
opposition in another state’
Further, the Court emphasised in DRC v. Uganda that where such an unlawful military
intervention reaches a certain magnitude and duration, it would amount to ‘a grave violation of
the prohibition on the use of force’.
In resolution 1291 (1999) the security council called for the orderly withdrawal of all foreign
forces from the Congo in accordance with the Lusaka Ceasefire Agreement.
Security Council resolution 1304 (2000) went further and, acting under Chapter VII, demanded
that ‘Uganda and Rwanda, which have violated the sovereignty and territorial integrity of the
DRC, withdraw all their forces from the territory of the DRC without delay’.
The situation demonstrates the UN approach, reflecting international law, to the effect that while
aid by foreign states to the government was acceptable, aid to rebels by foreign states was not.
Humanitarian Intervention
Is there a right of humanitarian intervention by individual states?
The international community might not condemn use of force where large numbers of lives have
been saved in circumstances of gross oppression by a state of its citizens due to an outside
intervention.
In addition, it is possible that such a right might evolve in cases of extreme humanitarian need.
Use of Western troops to secure a safe haven in northern Iraq after the Gulf War was that it was
taken in pursuance of the customary international law principle of humanitarian intervention in
an extreme situation.
Security Council resolution 688 (1991) condemned the widespread repression by Iraq of its Kurd
and Shia populations and, citing this, the US, UK and France proclaimed ‘no-fly zones’ in the
north and south of the country.
The Kosovo crisis of 1999; The Security Council supported and justified the NATO bombing
campaign, acting out of area and without UN authorization, in support of the repressed ethnic
Albanian population of that province of Yugoslavia, was that of humanitarian necessity.
The UK Secretary of State for Defence stated that, ‘In international law, to avoid a humanitarian
catastrophe, military action can be taken and it is on that legal basis that military action was
taken.’