Public International Law: Chapter XIV - The Use of Force Short of War

 The Use of Force Short of War

The Use of Force.

• The general principle is that international law recognizes the autonomy of individual states and their right to freedom from coercion and to the integrity of their territory. 
• The basic principle is found in Article 2(4) of 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.”
• It is noteworthy that the text does not use the word “war.” 
• The word war is a technical term which does not include some uses of force. 
• The prohibition in the Charter therefore broader than the prohibition of war. 
• Similarly, it should be noted that the text does not merely prohibit the use of force “against the territorial integrity or political independence of any state.” 
• The text broadly prohibits the use of force “in any other manner inconsistent with the Purposes of the United Nations.” 
• It does yield the meaning of a very broad prohibition of the use of force because the purposes of the United Nations, as found in Article 1 of the Charter, go beyond merely the protection of the territorial integrity and political independence of states.
• It will be recalled that the Corfu Channel case dealt with British warships which had been struck by mines while exercising the right of innocent passage in Albanian territory. 
• Britain sent additional warships to sweep the minefields within Albanian territory. 
• The Court used language in support of a broad prohibition of force:
• The United Kingdom has stated that its object was to secure the mines as quickly as possible for fear lest they should be taken away by the authors of the mine laying or by the Albanian authorities: this was presented either as a new and special application of the theory of intervention, by means of which the intervening State was acting to facilitate the task of the international tribunal, or as a method of self-protection or self-help. The Court cannot accept these lines of defence. It can only regard the alleged right of intervention as the manifestation of a policy of force which cannot find a place in international law. As regards the notion of self-help, the Court is also unable to accept it: between independent States the respect for territorial sovereignty is an essential foundation for international relations...
• The prohibition of the use of force, however, is not just conventional law. 
• It is customary international law. 
• In Nicaragua v. US, the Court made this pronouncement:
• The Court finds that both Parties take the view that the principles as to the use of force incorporated in the United Nations Charter correspond, in essentials, to those found in customary international law. They therefore accept a treaty-law obligation to 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. 2, para. 4, of the Charter). The Court has however to be satisfied that there exists in customary law an opinio juris as to the binding character of such abstention. It considers that this opinio juris may be deduced from, inter alia, the attitude of the Parties and of States towards certain General Assembly resolutions, and particularly resolution 2625 (XXV) entitled “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations.” Consent to such resolutions is one of the forms of expression of an opinio juris with regard to the principle of nonuse of force, regarded as a principle of customary international law, independently of the provisions, especially those of an institutional kind, to which it is subject on the treaty-law plane of the Charter.
• A separate opinion was filed by Judge Sette-Camara: 
• Judge Sette-Camara fully concurs with the Judgment because he firmly believes that “the non-use of force as well as non-intervention — the latter as a corollary of equality of States and self-determination — are not only cardinal principles of customary international law but could in addition be recognized as peremptory rules of customary international law which impose obligations on all States.” 

The Threat of Force. 

• The Charter prohibits not just the use of force but also the threat of force. 
• The most typical form of this threat is the ultimatum in which the State to which it is addressed is given a time-limit within which to accept the demands made upon it and is told that, if it rejects the demands, war will be declared on it or certain coercive measures such as a naval blockade, bombardment, or occupation of a given territory, will be taken. 
• However, the threat to use force is not always made in so crude and open a form. 
• There are sometimes veiled threats that may be very effective, but are difficult to detect. 

• Threat of force was discussed by the ICJ in an advisory opinion on the Legality of the Threat or Use of Nuclear Weapons in the light of the provisions of the Charter: 
• In Article 2, paragraph 4, of the Charter the use of force against the territorial integrity or political independence of another State or in any other manner inconsistent with the purposes of the United Nations is prohibited. 
• This prohibition of the use of force is to be considered in the light of other relevant provisions of the Charter. In Article 51, the Charter recognizes the inherent right of individual or collective self-defence if an armed attack occurs. A further lawful use of force is envisaged in Article 42, whereby the Security Council may take military enforcement measures in conformity with Chapter VII of the Charter. These provisions do not refer to specific weapons. They apply to any use of force, regardless of the weapons employed. The Charter neither expressly prohibits, nor permits, the use of any specific weapon, including nuclear weapons
• The entitlement to resort to self-defence under Article 51 is subject to the conditions of necessity and proportionality. As the Court stated in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (I.CJ. Reports 1986,p. 94,para. 176): “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 customary international law.”
• The proportionality principle may thus not in itself exclude the use of nuclear weapons in self-defence in all circumstances. But at the same time, 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 which comprise in particular the principles and rules of humanitarian law. And the Court notes that the very nature of all nuclear weapons and the profound risks associated therewith are further considerations to be borne in mind by States believing they can exercise a nuclear response in self-defence in accordance with the requirements of proportionality.
• In order to lessen or eliminate the risk of unlawful attack, States sometimes signal that they possess certain weapons to use in self-defence against any State violating their territorial integrity or political independence. Whether a signaled intention to use force if certain events occur is or is not a “threat” within Article 2, paragraph 4, of the Charter depends upon various factors. The notions of “threat” and “use” of force under Article 2, paragraph 4, of the Charter stand together in the sense that if the use of force itself in a given case is illegal — for whatever reason — the threat to use such force will likewise be illegal. In short, if it is to be lawful, the declared readiness of a State to use force must be a use of force that is in conformity with the Charter. For the rest, no State — whether or not it defended the policy of deterrence — suggested to the Court that it would be lawful to threaten to use force if the use of force contemplated would be illegal.

Individual and Collective Self-defense. 

• The general prohibition of the use of force does not preclude the right to self-defense. 
• This is the subject of Article 51.

Article 51

• 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.

Nicaragua v. USA

• The general rule prohibiting force established in customary law allows for certain exceptions.
• The exception of the right of individual or collective self-defence is also, in the view of States, established in customary law, as is apparent for example from the terms of Article 51 of the United Nations Charter, which refers to an “inherent right,” and from the declaration in resolution 2625 (XXV). The Parties, who consider the existence of this right to be established as a matter of customary international law, agree in holding that whether the response to an attack is lawful depends on the observance of the criteria of the necessity and the proportionality of the measures taken in self-defence.
• Whether self-defence be individual or collective, it can only be exercised in response to an “armed attack.” In the view of the Court, this is to be understood as meaning not merely action by regular armed forces across an international border, but also the sending by a State of armed bands on to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack had it been carried out by regular armed forces. The Court quotes the definition of aggression annexed to General Assembly resolution 3314 (XXIX) as expressing customary law in this respect.
• The Court does not believe that the concept of “armed attack” includes assistance to rebels in the form of the provision of weapons or logistical or other support. Furthermore, the Court finds that in customary international law, whether of a general kind or that particular to the inter-American legal system, there is no rule permitting the exercise of collective self-defence in the absence of a request by the State which is a victim of the alleged attack, this being additional to the requirement that the State in question should have declared itself to have been attacked.

Anticipatory self- defense.

• The question has also been raised whether “anticipatory self- defense” is allowed. ... 
• The question is valid because of the possibility of instant attacks under present circumstances. 
• Opinion on the subject is divided. 
• Those who claim the existence of the right say that the phrase “if an armed attack occurs” is not exclusive. This is reminiscent of the view that protection of “vital interests” justifies the use of force. 
• In practical terms, however, states do not invoke the right because they are afraid that it might be used against them too. 
• Practice on the subject is inconclusive. 

1. It will be recalled that Israel launched a preemptive strike against its Arab neighbors in 1967 but the United Nations did not condemn the act. 
2. The Nicaragua case, even with its extensive discussion of self defense, did not mention anticipatory self-defense. 
3. In the case of the Gulf War against Iraq, the Allied forces came on invitation of Kuwait which was under invasion.
4. The right to use force to defend claimed territory was rejected in the Falkland war.

• An interesting development in the wake of the September 21 attack on the World Trade Center is that Article 51 seems to have been used to justify a response against a non-state aggressor. The coalition of forces which joined the United States in the attacks on Afghanistan had the blessing of the General Assembly, the Security Council, and of NATO.

Traditionally Allowable Coercive Measures. 

• Under international law, certain forms of coercive measures or “self help” have been traditionally allowed. 
• Since there is no obligation to maintain diplomatic relations, severance of diplomatic relations is not prohibited.
• However, this should not be resorted to unless truly necessary because severance might endanger peace. 
• Moreover, severance should be distinguished from suspension of diplomatic relations.
• Suspension involves withdrawal of diplomatic representation but not of consular representation.
• These include: 
1. Retorsion
2. Reprisal
3. Embargo
4. Boycott
5. Non-intercourse
6. Pacific blockade
• These measures, to the extent that they have not been outlawed by the Charter, may be employed by individual states or by collective action under the UN.

Retorsion

• It is any of the forms of counter-measures in response to an unfriendly act.
• Forms of retorsion include:
• shutting of ports to vessels of an unfriendly state
• revocation of tariff concessions not guaranteed by treaty, or 
• the display of naval forces near the waters of an unfriendly state

Reprisal

• It denotes any kind of forcible or coercive measures whereby one State seeks to exercise a deterrent effect or obtain redress or satisfaction, directly or indirectly, for the consequences of the illegal at of another state which has refused to make amends for such illegal acts. 
• Unlike retorsion, the acts, standing by themselves, would normally be illegal. 
• Moreover, reprisal must be preceded by an unsatisfied demand for reparation. 
• Under the Charter, however, reprisals have been narrowed down especially since situations likely to cause disruption of peace should be brought to the Security Council. 

Embargo

• It is another lawful measure. 
• This can consist of seizure of vessels even in the high seas. 
• Embargo might also be pacific, as when a state keeps its own vessels for fear that it might find their way in foreign territory. 
• Their can also be collective embargo, e.g., on import of drugs or of oil.

Boycott

• It is a form of reprisal which consists of suspension of trade or business relations with the nationals of an offending state. 
• Some claim that this is a form of economic aggression which should be prohibited by law. 

Non-intercourse 

• It consists of suspension of all commercial intercourse with a state. 

Pacific blockade

• It  is a naval operation carried out in time of peace whereby a state prevents access to or exit from particular ports or portions of the coast of another state for the purpose of compelling the latter to yield to demands made by the blockading state. 
• It is essentially a warlike act and therefore frowned upon by the UN Charter. 

Protection of Nationals Abroad. 

• Those who assert the right to defend nationals abroad argue that the right to protect nationals abroad can be defended as an aspect of the right to self-defense in Article 51 since population is an essential element of statehood. 
• Others argue that Article 2(4) does not prohibit it because it does not compromise the “territorial integrity or political independence” of a state. 
• Examples of forcible rescue of nationals are the raid of Entebee in Uganda and the US intrusion into Stanleyville to rescue American students. 
• But the legitimacy of such intervention is not firmly established in international law.

Humanitarian Intervention. 

• Discussion of armed humanitarian intervention by states in response to massive violation of human rights in another state begins with the prohibition of force in Article 2(4). 
• The prohibition is now considered jus cogens. 
• The prevailing opinion is that intervention without the authorization of the Security Council violates international law. 
• One author describes the circumstances allowing humanitarian intervention thus:
• The question of the legality versus the illegality of so-called “humanitarian intervention” must be answered in light of the foregoing. Thus, if the Security Council determines that massive violations of human rights occurring within a country constitute a threat to the peace, and then calls for or authorizes an enforcement action to put an end to these violations, a “humanitarian intervention” by military means is permissible. In the absence of such authorization, military coercion employed to have the target state return to a respect for human rights constitutes a breach of Article 2(4) of the Charter. Further, as long as humanitarian crises do not transcend borders, as it were, and lead to armed attacks against other states, recourse to Article 51 is not available. 
• For instance, a mass exodus of refugees does not qualify as an armed attack. In the absence of any justification unequivocally provided by the Charter “the use of force could not be the appropriate method to monitor or ensure ... respect [for human rights],” to use the words of the International Court of Justice in its 1986 Nicaragua judgment.
•  In the same year, the United Kingdom Foreign Office summed up the problems of unilateral, that is, unauthorized, humanitarian intervention as follows: 
• the overwhelming majority of contemporary legal opinion comes down against the existence of a right of humanitarian intervention, for three main reasons: 
1. firstly, the UN Charter and the corpus of modem international law do not seem to specifically incorporate such a right; 
2. secondly, State practice in the past two centuries, and especially since 1945, at best provides only a handful of genuine cases of humanitarian intervention, and, on most assessments, none at all; and
3. finally, on prudential grounds, that the scope for abusing such a right argues strongly against its creation.... 
• In essence, therefore, the case against making humanitarian intervention an exception to the principle of non-intervention is that its doubtful benefits would be heavily outweighed by its costs in terms of respect for international law.
• The same author, however, asks whether perhaps the law on the subject has changed under the shock of genocide and crimes against humanity. He concludes:
• By way of conclusion to this section: whether we regard the NATO threat employed in the Kosovo crisis as an ersatz Chapter VII measure, “humanitarian intervention,” or as a threat of collective countermeasures involving armed force, any attempt at legal justification will ultimately remain unsatisfactory. Hence, we would be well advised to adhere to the view emphasized and affirmed so strongly in the German debate, and regard the Kosovo crisis as a singular case in which NATO decided to act without Security Council authorization out of overwhelming humanitarian necessity, but from which no general conclusion ought to be drawn. What is involved here is not legalistic hair-splitting versus the pursuit of humanitarian imperatives. Rather, the decisive point is that we should not change the rules simply to follow our humanitarian impulses; we should not set new standards only to do the right thing in a single case. The legal issues presented by the Kosovo crisis are particularly impressive proof that hard cases make bad law.
• Another author, while basically adhering to the legal conclusion above, does not stop there. He says:
• Be that as it may, any person of common sense is justified in asking him or herself the following dramatic question: Faced with such an enormous human-made tragedy and given the inaction of the UN Security Council due to the refusal of Russia and China to countenance any significant involvement by the international community to stop the massacres and expulsions, should one sit idly by and watch thousands of human beings being slaughtered or brutally persecuted? Should one remain silent and inactive only because the existing body of international law proves incapable of remedying such a situation? Or, rather, should respect for the Rule of Law be sacrificed on the altar of human compassion?
• My answer is that from an ethical viewpoint resort to armed force was justified. Nevertheless, as a legal scholar I cannot avoid observing in the same breath that this moral action is contrary to current international law. 
• I contend, however, that as legal scholars we must stretch our minds further and ask ourselves two questions. First, was the NATO armed intervention at least rooted in and partially justified by contemporary trends of the international community? Second, were some parameters set, in this particular instance of use of force, that might lead to a gradual legitimation of forcible humanitarian countermeasures by a group of states outside any authorization by the Security Council?
• Based on these nascent trends in the world community, I submit that under certain strict conditions resort to armed force may gradually become justified, even absent any authorization by the Security Council. These conditions may be enumerated as follows:
1. gross and egregious breaches of human rights involving loss of life of hundreds or thousands of innocent people, and amounting to crimes against humanity, are carried out on the territory of a sovereign state, either by the central governmental authorities or with their connivance and support, or because the total collapse of such authorities cannot impede those atrocities; 
2. if the crimes against humanity result from anarchy in a sovereign state, proof is necessary that the central authorities are utterly unable to put an end to those crimes, while at the same time refusing to call upon or to allow other states or international organizations to enter the territory to assist in terminating the crimes. If, on the contrary, such crimes are the work of the central authorities, it must be shown that those authorities have consistently withheld their cooperation from the United Nations or other international organizations, or have systematically refused to comply with appeals, recommendations or decisions of such organizations;
3. the Security Council is unable to take any coercive action to stop the massacres because of disagreement among the Permanent Members or because one or more of them exercises its veto power. Consequently, the Security Council either refrains from any action or only confines itself to deploring or condemning the massacres, plus possibly terming the situation a threat to the peace;
4. all peaceful avenues which may be explored consistent with the urgency of the situation to achieve a solution based on negotiation, discussion and any other means short of force have been exhausted, notwithstanding which, no solution can be agreed upon by the parties to the conflict;
5. a group of states (not a single hegemonic Power, however strong its military, political and economic authority, nor such a Power with the support of a client state or an ally) decides to try to halt the atrocities, with the support or at least the nonopposition of the majority of Member States of the UN;
6. armed force is exclusively used for the limited purpose of stopping the atrocities and restoring respect for human rights, not for any goal going beyond this limited purpose. 
• Consequently, the use of force must be discontinued as soon as this purpose is attained. Moreover, it is axiomatic that use of force should be commensurate with and proportionate to the human rights exigencies on the ground. The more urgent the situation of killings and atrocities, the more intensive and immediate may be the military response thereto. Conversely, military action would not be warranted in the case of a crisis which is slowly unfolding and which still presents avenues for diplomatic resolution aside from armed confrontation.
• Despite all these possible shortcomings, I believe that it is our task as international lawyers to pinpoint the evolving trends as they emerge in the world community, while at the same time keeping a watchful eye on the actual behaviour of states. Standards of conduct designed to channel the action of states are necessary in the world community as in any human society. And it is not an exceptional occurrence that new standards emerge as a result of a breach of lex lata. To suggest realistic but prudent parameters in line with the present trends in the world community might serve the purpose of restraining as much as possible recourse to armed violence in a community that is increasingly bent on conflict and bloodshed.