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6. Use of Force
As discussed in the topic above (dispute resolution), there is an international obligation to settle disputes peacefully under the UN Charter Art 3. The negative of this is, obviously, that states should refrain from the use of force, either in the resolution of disputes, or anything else. Before the
Charter, the use of force used to be governed by the Just War doctrine, which held that war was illegal unless undertaken for a just cause, but the doctrine later evolved to legally allow the use of force where the state believed it had a just cause. Of course this was quite an easy threshold to satisfy. And later, state practice got rid of even this lenient version, ending up with 'a sovereign right to resort to war', with every state having a perfect legal right to resort to war for any reason.
Now, a general prohibition on the use of force is embodied in Art 2(4) of the Charter (before that,
under Kellogg-Briand pact). 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'. (See the permissive and restrictive doctrines on this later — but restrictive makes more sense in light of the drafting history). It has also achieved customary law status (confirmed in Nicaragua v USA), so it applies to non-UN members also, and it is a jus cogens rule. However, this prohibition on the use of force is not absolute; two exceptions exist:
- use of force in self-defence under Art 51 (unilateral use of force)
- use of force authorised by the Security Council under Chapter VII (collective use of force)
UNILATERAL USE OF FORCE BY STATES
The customary right of self-defence (predating the Charter) was articulated by US Secretary of
State Webster in the aftermath of the Caroline incident, as being acceptable where there is a
'necessity that is instant, overwhelming and leaving no choice of means and no moment for deliberation', and that the use of force in SD should be kept within the confines of that necessity. In that case, British forces seized the Caroline, commanded by Canadian rebels, while it was in an
American port. They killed an American and then burned the ship and sent it over the Niagara falls.
The British claimed that they attacked the ship in self-defence (the ship was in a piratical war against HM Gov), and thus, the test for self-defence was formulated in Webster's response. This allows for a customary right of self-defence in response to an armed attack, in anticipation of an armed attack, and even where the 'attack' does not involve measures of an armed force — the customary right is therefore quite wide. This probably goes beyond the right embodied in the
Charter — has the customary right survived the Charter? The restrictive approach argues that this wider right is no longer available after Art 51 — reading Arts 2(4) and 51 together shows that the only instance where SD is allowed is when an 'armed attack occurs' and nothing else. However,
some argue that looking at the travaux-preparatoires at the San Francisco Conference, that Art 51 was intended only to indicate when states may take action without SC authorisation, that the
'inherent right' refers to this right in customary law, and that Art 51 does not state that the occurrance of an armed attack is the only instance where the right to self-defence arises. These are all convincing. However, state practice shows that states have tended to interpret the right to SD
more strictly. The precise ambit of the right to SD is thus debatable. Below, the key points of contention are addressed.
What amounts to an 'armed attack'? Case law shows that not all armed activities qualify as armed attacks which trigger the right to self-defence under Art 51. This is also illustrated by the different wording of Art 2(4) and Art 51 — "use of force" vs "armed attack". In Ethiopia's Claims
Case, the Claims Commission said that 'localised border encounters between small infantry units,
even those involving the loss of life, do not constitute an armed attack for the purposes of the
Charter'. In the Nicaragua case, the Court distinguished between 'the most grave uses of force'
which do constitute an armed attack, and other less grave forms, such as the Nicaraguan assistance to rebels — which was relied on by the US as allegedly triggering its right to SD. The Court in that case introduced the 'scale and effects' test, and gave examples of acts not constituting an armed attack, such as the provision of weapons and logistical support.
Comment by me: Such limitation of the concept of an 'armed attack' may be beneficial in achieving overall reduction in legally allowed uses of force as a response. However, how realistic is it to expect states to respond to unlawful uses of force, albeit less serious than what qualifies as 'armed attacks' , with measures less than those involving the use of force (countermeasures)? The ICJ's narrow interpretation of an armed attack most likely stems from utilitarian considerations in reducing the overall resort to the use of force: the narrower the concept of an armed attack is, the less the right of SD can be invoked. Apart from being unrealistic and unclear, another concern is that it may have harmful effects: Higgins says that the Court's approach may be seen as an
'encouragement for low grade terrorism', as the victim state, against this 'low grade' action, cannot use force against it as SD.
The accumulation doctrine — It has been suggested that a series of events that by themselves do not constitute an 'armed attack' may, viewed together, qualify as an 'armed attack'. This argument was presented by the USA in the Oil Platforms Case (Iran v US). The Court did not consider the point, as it found the attacks to be not attributable to Iran, however some argue that the phrase
'these attacks … even taken cumulatively' used by the Court shows that there will be certain cases where taken cumulatively, events will amount to armed attacks. The SC has rejected such an approach, regarding such action as reprisals rather than self defence. Again, this may not be very realistic in certain cases, but may also work to prevent abuse by powerful states in the majority of cases.
State/non state actors — Art 51 mentions an 'inherent right of self-defence if an armed attack occurs against a Member of the United Nations'; there is no reference to who the armed attack must come from. However, some argue that the Charter is an inter-state Convention, and therefore regulates relationships between states only. Furthermore, the ICJ in its judgments has said numerous times that Art 51 was intended to only cover armed attacks by states on other states — Palestinian Wall Advisory Opinion. In the Armed Activities Case (Congo v Uganda), the Court concluded that there was not enough evidence to show that the government of DR Congo were involved in the attacks against Uganda, against which SD was claimed. The court did NOT later consider whether the use of force could be justified as SD if the rebel attacks were of a scale to reach the threshold of an armed attack, notwithstanding the fact that they were not by state forces.
Judge Simma addressed this in his dissenting opinion, and said that the Palestinian Wall Opinion's decision that SD could not be claimed against non-state actors could have been suitable/correct in its own time, but it should be reconsidered in light of the current state of international politics/atmosphere. He referred to an upsurge in violent forces of non-State actors, particularly terrorist groups.
Comment by me: The personality of the actor should not be determinative of whether the activities complained of actually constitute 'armed attacks': if the actions are of a magnitude that would have qualified as an armed attack had they been taken by a State actor, so they should be even if taken by irregular forces.
This approach is now embodied in customary international law, especially post 9/11. The response by the SC and other states to the Operation Enduring Freedom by the USA, relying on Art 51 as a basis for the use of force against Afghanistan, recognised a right to use force in SD in the context of terrorist action (also the pre-emptive use of force; see later for this). This indicates to a change in state practice, and one to be welcomed, as the majority of armed force in the world today is being used by non-state actors that States may, quite literally, have to defend themselves against.
However, it must be remembered that criteria such as the absence of governmental authority, or lack of due diligence on part of the state whose territory has been used to launch the attack, etc. may be required (authority for this?).
Pre-emptive // anticipatory use of force — When does an armed attack occur? Does Art 51 allow for the use of force in self-defence in anticipation of an attack? The Charter says that an armed attack has to 'occur' — this seems to prevent the pre-emptive use of force in self defence; the state, in order to invoke SD, must wait to be actually attacked. However, this is criticised by some:
Bowett points to the drafting history of the Charter, and says that they show that the Article was enacted to safeguard, rather than restrict, the right of self-defence. If one takes a wider approach to the question 'when does an armed attack begin to occur', then the debate loses its significance: this is the reason behind the presentation of the accumulation theory by the USA in the Oil Platforms
Case — instead of being seen as individual events against which the USA took pre-emptive action,
they could be seen as amounting to an armed attack when put together, thus not pre-emptive in nature. The fact that the USA felt the need to construct such argument hints to the expectation that the Court would not approve of the pre-emptive use of force in self-defence, before an armed attack actually occurred. It has been suggested above also that the accumulation doctrine is not a part of international law as of yet.
However, a limited circumstance in which the use of force in SD is allowed before the occurrence of an armed attack is where the treat is imminent, or where the 'instant, overwhelming, and leaving no choice of means and no moment for deliberation' test in the Caroline case is satisfied — under
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