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Sources of the law on the use

Public International
of armed force
Law I
LAW 2310 • Customary international law
• General principles of law common to

The Use of Force nations, e.g. necessity, proportionality,

reasonableness, humanity.
• “Just war theory”

• The Kellogg/Briand Pact, 1928

Mrs. Alicia Elias-Roberts

• The United Nations Charter, 1945
Course Director
September 2015

The UN Charter, 1945 Collective Security

• Consists of three pillars:
•A new beginning: “to save succeeding 1. Prohibition of use of force (Article 2(4))
generations from the scourge of war” 2. Powers of the Security Council to deal
• Charter establishes a system of with breaches of the peace , threats to
collective security and forbids peace or acts of aggression (Art. 39-42)
unilateral resort to force 3. Reservation of the right of individual
• However, preserves the right of self- and collective self-defense until
defense Security Council can act effectively
(Article 51)

Article 2(4) Powers of the Security Council

• “All
Members shall refrain in their • Article 39
international relations from the “The Security Council shall determine
threat or use of force against the the existence of any threat to the
territorial integrity or political peace, breach of the peace, or act
of aggression and shall make
independence of any State, or in recommendations, or decide what
any other manner inconsistent measures shall be taken in accordance
with the Purposes of the United with articles 41 and 42, to maintain or
restore international peace and
Nations”. security.”

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Powers of the S.C. (cont’d) Powers of the S.C. (cont’d)

• Article 41 • Article 42
“The Security Council may decide what “Should the Security Council consider that
measures not involving the use of measures provided for in article 41 would
armed force are to be employed to give be inadequate or have proved to be
effect to its decisions, and it may call upon inadequate, it may take such action by
the Members of the United Nations to air, sea, or land forces as may be
apply such measures. These may include necessary to maintain or restore
complete or partial interruption of international peace and security.
economic relations and of rail, sea, air, Such action may include demonstrations,
postal, telegraphic, radio, and other means blockade, and other operations by air, sea,
of communication, and the severance of or land forces of Members of the United
diplomatic relations.” Nations.”

Self-defense Some Cases on the Use of Force

• Article51 • Caroline Incident, between US
“Nothing in the present Charter shall and Great Britain (1841)
impair the inherent right of • Corfu Channel Case, UK v.
individual or collective self- Albania (1949)
defence if an armed attack occurs • Nicaragua Case, Nicaragua v.
against a Member of the United
Nations, until the Security Council has US (1986)
taken measures necessary to maintain • Oil Platforms Case (Merits)
international peace and security….” Iran v. United States (2002)

Caroline Case 1841 Caroline Case 1841

• Mr. Webster to Mr. Fox • Itwas also necessary for the UK to show
• “…itwill be for Her Majesty's that the Canadian authorities had done
Government to show, upon what state of nothing “unreasonable or excessive;
facts, and what rules of national law, the since the act, justified by the necessity of
destruction of the "Caroline" is to be self defence, must be limited by that
defended. It will be for that Government necessity, and kept clearly within it.”
to show a necessity of self-defence,
instant, overwhelming, leaving no • The use of force must be commensurate
choice of means, and no moment with the attack – self defence must be
for deliberation.” proportionate.

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The Corfu Channel Corfu Channel Case (Merits)

U.K. v. Albania (1949)
• The UK sought compensation for damage
done to 2 ships during their passage in the
Corfu Channel.
• ICJ held it was sufficient basis for Albania
responsibility that it knew or must have
known about the presence of the mines in
its territorial waters and did nothing to
warn third States of their presence.

One of the mines being inspected after

Nicaragua Case (1986)
being swept
• Military and Paramilitary
Activities in and against
Nicaragua (Nicaragua v. United
States of America)
• Consider politics in the US at the time of
this decision
• Jurisdictional issues – the US refused to
argue on the merits of the case.
• See Harris p. 737.

12 December 1946

Nicaragua Case (1986) Oil Platforms Case (Merits)

Iran v. United States (2002)
• The ICJ found that the US violated
• Iran Claimed that the attacks on its
international law. platforms were in breach of the 1955 US-
• US claim of Self Defence rejected Iran Treaty of Amity, Economic
• Breach customary IL obligations of non- Relations and Consular Rights.
intervention, prohibition on the use of • The US alleged that the acts were

force, and territorial sovereignty. justified as self defence at customary

international law, and under Art. 20 of
• Indirect Use of Force – through rebels,
the Treaty as “necessary to protect its
but no evidence of imputation essential security interests.”

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The Wall Case

Security Council
Advisory Opinion (2004)
• 15 Members
• What are the legal consequences arising from the
construction of the wall being built by Israel, the •5 Permanent Members with Veto
occupying Power, in the Occupied Palestinian power:
Territory, including in and around East
• China, France, Russia, UK, USA
Jerusalem, as described in the report of the
Secretary General, considering rules and • Decisions made binding by Charter,
principles of international law, including the Article 25
Fourth Geneva Convention of 1949, and relevant
• How do you interpret the impact of
SC and GA resolutions?
the S.C. resolutions?

The S.C. in action: Iraq Security Council Res. 661

(6 August 1990)
• SECURITY COUNCIL RESOLUTION 660 (2
AUGUST 1990): • “The Security Council …decides that all states shall
prevent:
• “The Security Council…determining that • (A) the import…of all commodities …originating in
there is a breach of the peace by the Iraqi Iraq or Kuwait…
invasion of Kuwait… • (B) any activities by their nationals which …
promote the export or transshipment of any
• 1. Condemns the Iraqi invasion… commodities … from Iraq or Kuwait …
• (C) the sale or supply of any commodities
• 2. Demands that Iraq withdraw
…including weapons or any other military
immediately…” equipment …but not including supplies intended
• See Harris, p. 809
strictly for medical purposes, and in humanitarian
circumstances, foodstuffs, …to Iraq or Kuwait…”

Security Council Res. 665 Security Council Res. 678

(25 August 1990) (29 November 1990)
• “The Security Council:
• “The Security Council …1. Calls upon states
• Recalling and reaffirming its resolutions
…deploying maritime forces to the area to use
660, 661, 662, 664, 665, 666, 667, 669,
such measures commensurate to the specific 670, 674, and 667,
circumstances as may be necessary under the
• Noting that, despite all efforts by the
authority of the Security Council to halt all inward United Nations, Iraq refuses to comply
and outward maritime shipping … to inspect and with its obligations to implement
verify their cargoes and destinations to ensure resolution 660 (1990) and subsequent
strict implementation of Res. 661.” resolutions, in flagrant contempt of the
Council …”

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Security Council Res. 678 Security Council Res. 678

(29 November 1990) (29 November 1990)
• “Acting under Chapter VII of the Charter of the
United Nations, • “2. Authorizes Member States cooperating with
the Government of Kuwait, unless Iraq on or
• 1.Demands that Iraq comply fully with … before January 15, 1991, fully implements … the
all relevant resolutions and decides, foregoing resolutions, to use all necessary means
to uphold and implement Security Council
while maintaining all its decisions, to resolution 660 and all subsequent relevant
allow Iraq one final opportunity as a resolutions and to restore international peace and
pause of good will to do so; security in the area; …”

Security Council Res. 678

(29 November 1990)
Coalition Forces in the Gulf
• The scheme for a permanent UN force
“3. Requests all states to provide
(Charter, articles 43-47) has not been put
appropriate support for the actions
into effect.
undertaken in pursuance of paragraph 2 of
this Resolution …” • Forces must be assembled ad hoc from

[See also Charter, Article 49: “The Members of those states willing and able to provide
the UN shall join in affording mutual assistance armed forces personnel and equipment
in carrying out the measures decided upon by the • Coalition forces acting under Ch. VII or
Security Council.”]
the right of collective self defence?

The invasion of Iraq 2003 Iraq (cont’d)

• Absolutely illegal? • US justification as an act of pre-
• No prior Iraqi attack justifying emptive self-defence against the feared
immediate self-defence. future use by Iraq of WMDs, as well as
• No authorization by the UN Security S.C. resolutions.
Council. • The United Kingdom’s legal
• See S.C. Resolutions 687 (1991) and justification: authorized by the
1441 (2002) Security Council by implication from
• See Harris, p. 814 – 824. the wording of previous resolutions.

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Rescue of Nationals Humanitarian Intervention

• Do articles 2(4) and 51 allow for the • Does article 2(4) forbid a use of force
use of force to protect nationals as a to prevent gross abuses of human
last resort? E.g. Entebbe (1976); rights (the so-called right of
Grenada (1983). humanitarian intervention)?
- “Territorial integrity/political independence”: • See, The Armed Activities Case
does mere incidental violation matter? • Application of the Convention on the Prevention
- Customary law of self-defence applies to and Punishment of the Crime of Genocide, Bosnia
nationals, not article 51. and Herzegovina v. Serbia and Montenegro
(2007)

The Responsibility to Protect

• Doctrine developed by International Crisis
Group in 2001. G.A. Resolution 61/1 (2005)
• Aims to urge upon the Security Council its
responsibility to protect populations against
genocide and other gross abuses of human
rights, disregarding irrelevant differences of
opinion between the Permanent Members on
other matters.
• See Harris, p. 787