Published in the Journal of Public and International Law, Ahmadu Bello University, Zaria

(A.B.U.J.P.I.L), Vol. 1 No. 6 (2014), 287-304.

WAR AND ITS OUTLAWRY: AN EXAMINATION UNDER INTERNATIONAL

HUMANITARIAN LAW

I.O. Omoruyi* and A. I. Fenemigho**

Abstract

Generally, war means a situation of armed hostilities between two or more states. It used to
be accepted as a right of states under international law. However, war never was a pleasant
experience and the particularly heinous experience of the Second World War led to the
outlawry of war. The United Nations Charter prohibits the use of force under Article 2(4). It
however allows two exceptions to this prohibition in Article 42 relating to collective
measures taken for the maintenance of international peace and security, and under Article 51
relating to the right to self-defence. The purport of all these is that war is no longer legal
under international law. This paper examines the concept of war and its outlawry. It traces
the developments that eventually led to the outlawry of war and attempts to determine if the
outlawry of war has been a success.

1.1 Introduction

War is said to be a term which has “deep psychological and emotional impact.”1 This is so

because it necessarily invokes in the mind, images of death, suffering and destruction.

Etymologically, the word ‘war’ means to “bring into confusion.”2 The word thus rightly

portrays the chaos that occurs in a state of war. War used to be the system of enforcement of

international law between countries- states utilized it in the enforcement of their rights

against each other and it was seen as a right of sovereign states. However, as the world

developed and technological advancements grew, wars became deadlier than ever and

*Ikponmwonsa O. Omoruyi, Ph.D, B.L, Associate Professor, Department of Jurisprudence and International
Law, Faculty of Law, University of Benin, Benin City. Email address: sozo60@yahoo.co.uk. Phone no:
08023363101.
** Alero Itohan Fenemigho, LL.B, B.L (LL.M in view), Assistant Lecturer, Department of Jurisprudence and
International Law, Faculty of Law, University of Benin, Benin City. Email address: zeldafene@yahoo.com.
Phone no: 07030209296.
1
Josef Mrazek, “Armed Conflicts and the Use of Force”, (2010) CYIL, 99 < http://files.cyil.eu/200000012-
182a119241/CYIL_6_mrazek.pdf > accessed 6 February 2014
2
“War” was derived from the Old English “wyrre” or “werre”, itself from the Old North French “ werre”, now
“guerre” in Modern French, the latter being derived from the Old High German word “werran” which means to
“confuse, perplex”. Online Etymological Dictionary, , <http://www.etymonline.com/index.php?term=war>
accessed 8 February 2014
1
perceptions began to change. Eventually, developments led to restrictions being placed on the

use of force till it resulted in an outlawry of war under the United Nations Charter.

This paper seeks to examine the concept of war and its outlawry. It is divided into six parts.

The first part explains the concept of war. Part two deals with the origins of the restrictions

on the resort to war up until the Second World War. Part three talks about the outlawry of

war under the United Nations Charter. The success or otherwise of this outlawry of war is

discussed in Part four. Parts five and six, deal with the recommendations and conclusion.

1.2 The Concept of War

War has been defined as a “contestation between two or more states through their armed

forces, for the purpose of overpowering each other and imposing such conditions of peace as

the victor pleases.”3 It is also defined as a “forcible contention; an armed contest between

nations; a state of hostilities between two or more nations and states.”4 Defining war

ordinarily seems easy enough; it obviously connotes the use of armed force or hostilities

between two or more countries. However it is not so simple at law.

There is no one general definition of war in law, as the definition is not an easy one to reach.

This is because the “mere intention to wage a war, without a clear public manifestation of it,

does not necessarily lead to a state of war.”5 This means that without a declaration of war by

one or both parties to the war, portraying the clear intention to wage it, war in a legal sense

cannot be recognised in that situation. Recognition of a state of war legally depends on “one

or more of the parties to the conflict, admitting, confirming or declaring that war exists.”6

3
H Lauterpacht, (ed.), International Law: A Treatise by L. Oppenheim, (New York: 1952), David McKay Co.
Vol. II: Disputes, War and Neutrality, 202, cited in Mrazek (n 1) note 1.
4
The Law Dictionary, Featuring Black’s Law Dictionary Free Online Legal Dictionary 2nd. Ed., “What is
War?”, <http://thelawdictionary.org/war/> accessed 8 February 2014.
5
Mrazek (n 1) 97.
6
ibid, 98.
2
Thus, war in law is somewhat a subjective term, relative to the desires of the parties

involved.7

Establishing whether or not a state of armed hostilities between states amounted to war was

therefore always difficult. This is even more so considering that a state of war could exist

without actual hostilities.8 This can be so when there has been a declaration of war but

hostilities have not commenced. Since a state of war has legally come into existence at the

declaration, there is war even without hostilities. Again there could be armed hostilities

without a declaration of war from any of the parties. Legally however, there is no state of war

between them.9

Under classical international law, war was the “system’s enforcement mechanism.” 10 It was

used by states to enforce and protect their rights and waging war was an “essential attribute

of statehood.”11 Then, war could only breakout between sovereign states and thus the concept

of war did not include civil wars.12 War could be fought over territorial disputes, failure to

pay debts, retaliation for perceived insults, etc. The state of war involved the “termination of

commercial contracts, invalidation or suspension of international treaties, etc,”13 between the

warring parties. All peaceful relations ceased. Other states either took sides with any of the

parties or declared neutrality in relation to the hostilities i.e. supported neither party.

7
ibid, 97. Brownlie on this subject declared: “War became such a subjective concept in state practice that to
attempt a definition was to play with words”. Ian Brownlie, International Law and the Use of Force by States,
(Oxford: 1963), 27, cited in ibid, note 33.
8
Mrazek (n 1) 97.
9
ibid.
10
Mary Ellen O’Connell, “Enforcing the Prohibition on the Use of Force: The U.N.’s Response to Iraq’s
Invasion of Kuwait,”Notre Southern Illinois University Law Journal, 458,
<http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1308&context=law_faculty_scholarship> accessed 8
February 2014.
11
ibid.
12
Mrazek (n 1) 98.
13
ibid, 99.
3
A state of war between belligerent parties according to Lauterpacht, could be brought to an

end in three different ways: Abstinence from further acts of war and subsequent peaceful

relations between the belligerents without expressly declaring peace through a treaty; the

formal establishment of a state of peace through a special peace treaty; or the subjugation of

one of the belligerents by the other, hence victory.14

1.3 War, Use of Force and Armed Conflict: Differences?

The use of the term ‘war’ in reference to armed hostilities between states has gradually been

replaced either by the term ‘armed conflict’ or the term ‘use of force’.15 Thus, it is apt to

compare the concept of war with the two latter concepts and inquire if their scopes are same.

An armed conflict is said to be “the use of force by one or more states against another state or

several states (international armed conflict) or between one or more armed groups against

their own government or between armed groups themselves (internal) armed conflict.”16

Armed conflicts are of three types- international, internal or non-international, and

internationalized armed conflicts. An international armed conflict according to the Appeals

Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) exists

“whenever there is a resort to armed force between States.”17 Here, there is no requirement

for a 'declaration’ before the state of an armed conflict would be recognised. A non-

international armed conflict was defined by the Appeals Chamber as “protracted armed

violence between governmental authorities and organized armed groups or between such

groups within a State.”18An internationalized armed conflict or an armed conflict of mixed

14
H Lauterpacht, (Ed.), International Law: A Treatise by L. Oppenheim , 596, in Mrazek (n 1) 106.
15
This is especially so within the activities of the International Committee for the Red Cross (ICRC), Mrazek (n
1) 106. The United Nations Charter also barely mentions the tern ‘war’. It only mentions it in its preamble and
then in references to the Second World War.
16
Mrazek (n 1) 90.
17
Prosecutor v. Tadic, IT-94-1-AR72.
18
ibid.
4
character on the other hand, is said to be ‘internal hostilities that are rendered

international.”19The “internationalization” of the conflict may be as a result of intervention

by a state in support of one of the parties in the internal armed conflict or if some participants

in the internal armed conflict are acting on behalf of another state. 20

The Common Article 2 of the Four 1949 Geneva Conventions for the Protection of Victims

of War21 reads in part:

… the present Convention shall apply to all cases of declared war

or of any other armed conflicts (emphasis mine) which may
arise between two or more of the High Contracting Parties, even if
the state of war is not recognized by one of them.
This provision seems to treat ‘war’ as a form of armed conflict.22 Thus, ‘armed conflict’ is

seen to cover both instances of war in the legal sense and other armed hostilities falling short

of the technical requirements for war i.e. a declaration.

‘Use of force’ is the choice phrase used in the United Nations Charter regarding the outlawry

or prohibition of war, rather than the term ‘war’ itself. It is said that the reference to ‘force’23

is to circumvent the technical requirements of a legal state of war i.e. the need for a

declaration of war.24 ‘Use of force’ thus covers situations of ‘legal war’ and situations of

armed hostilities where no declaration of war is made.

19
James Stewart, “Towards a Single Definition of Armed Conflict in International Humanitarian Law: A
Critique of Internationalized Armed Conflict”,
<http://www.mkkk.org/eng/assets/files/other/irrc_850_stewart.pdf, 315> accessed 9 February 2014.
20
ibid. See Prosecutor v. Tadic, T-94-1-A, Judgement, 15 July 1999, paragraph 84.
21
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
Field, 75 UNTS 31 (Geneva Convention I); Geneva Convention for the Amelioration of the Condition of the
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 UNTS 85 (Geneva Convention II);
Geneva Convention relative to the Treatment of Prisoners of War , 75 UNTS 135(Geneva Convention III); and
the Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287 (Geneva
Convention IV).
22
Mrazek (n 1) 91.
23
The meaning of ‘force’ under the United Nations Charter would be further discussed in the course of the
paper. For sake of brevity here, force refers to military force.
24
Malcolm Shaw, International Law,(5th edn, Cambridge University Press 2003), 1018.
5
It is seen from the above, that the terms ‘armed conflict’ and ‘use of force’ recognise factual

situations of armed hostilities even where there is no declaration of war. Their scopes thus go

beyond the legal scope of ‘war’.

2.1 Restrictions on the Resort to War- The Origins.

For a long time, international law placed no restrictions on the resort to war. However, the

law had begun to place restrictions on how wars were conducted. These restrictions dated

from the middle ages and time of chivalry,25 and they heralded modern international

humanitarian law. They are said to have been observed partly because they had reciprocal

benefits and thus states had to respect them if they wanted to enjoy the benefits.26

The restrictions on the resort to war in international law began with the distinction of war into

‘just’ and ‘unjust’ war.27 According to Shaw, this doctrine of just war arose “as a

consequence of the Christianisation of the Roman Empire and the ensuing abandonment by

Christians of their pacifism.”28 Christian theology then began to explore the concept of a just

war.29Saint Augustine analysed the subject and had this to say:

Just wars are usually defined as those which avenge injuries, when
the nation or city against which war-like action is to be directed
has neglected either to punish wrongs committed by its citizens, or
to restore what has been unjustly taken by it. Further, that kind of
war is undoubtedly just which God Himself ordains.30

25
O’Connell (n 10) 458..
26
ibid.
27
Mrazek (n 1) 98.
28
Shaw (n 24) 1014.
29
Eustace Azubuike, “Probing the Scope of Self-Defense in International Law”, Annual Survey of International
and Comparative Law, 129, 134
<http://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1150&context=annlsurvey>, accessed
11February 2014.
30
ibid, 131.
6
The doctrine of just war however changed with the rise of sovereign states in Europe.31 The

doctrine became linked with the idea of sovereignty of states and thus each state began to

view the idea of a just war from its own perspective. There were no longer objective criteria

for ascertaining the justness or unjustness of a war. As a result, the modification of the

approach to the just war became inevitable. The requirement that serious attempts be made at

pursuing peaceful resolutions to disputes with war being a last resort began to appear.32

Eventually, the legality or justice of resorting to war was made dependent upon the processes

of law. Grotius tried to state a secular view of the basis of a just war excluding all ideological

and theological considerations.33 He attempted a redefinition of the just war in terms of a war

for self-defence, the protection of property and for the punishment of wrongs suffered by

citizens of the warring state. However, with the Westphalia treaties in 1648 leading to peace

in Europe and the establishment of a definitive balance of power there based on equality, the

concept of just war seemed to disappear from international law. This was because since all

states were equal, none had the authority to judge the justice of another’s cause. 34 The rise of

positivism also played a role in this as only natural law was concerned with the justness or

otherwise of the cause of wars.35 The idea of a just cause of war became irrelevant and war

was used as a last resort in dispute resolution after the exhaustion of peaceful means.

2.2. Subsequent Developments: The Hague Conferences of 1907, the League

Covenant and the Kellogg-Briand Pact.

31
Shaw (n 24) 1014.
32
See generally, ibid.
33
ibid, 1015.
34
ibid.
35
Azubuike (n 29) 133.
7
Moves to check the unrestricted resort to war were made during the Hague Conference of

1907.36 Though the Conference was mainly concerned with the rules regulating the conduct

of warfare, the Hague Convention II of 1907 outlawed the resort to war to recover

contractual debts on the condition of the debtor state’s obligation to accept the debt and

submit it to arbitrational settlement.37

In Europe, the balance of power system that existed there ended with the First World War

and this revived the questions of just and unjust wars. The end of the war also raised the

concern of how to balance the affairs of the international community in a way that it would

make for peaceful co-existence and at least put a check on the resort to war by states.38 The

First World War also known as “the Great War”39 is said to have changed the nature of

warfare or the perception of wars.40 The war is said to be “the first mass global war of the

industrial age, a demonstration of the prodigious strength, resilience and killing power of

modern states.”41 The enormous destructive power of war was seen clearly in this “Great

War” and it gave rise to a movement for prohibition of the resort to war.42

A solution was found for the problem of the resort to war in the creation of the League of

Nations. The principal purpose of the creation of the League was to prevent the occurrence of

war between states. This was to be achieved through restrictions placed on the resort to war

in the League Covenant. The restrictions however never constituted a prohibition of war or

an outlawry of war under international law. States could still resort to war but only after the

36
Sebastian Heselhuas, “International Law and the Use of Force”, <http://www.eolss.net/sample-
chapters/c14/e1-36-01-02.pdf> accessed 10 February 2014
37
ibid.
38
Shaw (n 24) 1016.
39
Gabriel Moran, “Outlawing War”, 2, <http://www.nyu.edu/classes/gmoran/OUTLAW.pdf> accessed 11
February 2014.
40
ibid.
41
It is said the First World War was the birth of total war. Stephen Badsey, “The Western Front and the Birth of
Total War”< http://www.bbc.co.uk/history/worldwars/wwone/total_war_01.shtml> accessed 8 February 2014.
42
It is said that the leaders of the movement recognised that an outlawry of war would not necessarily eliminate
war. They nonetheless thought an outlawry was a step in the right direction. Moran (n 39) 1.
8
peaceful means for resolution of disputes stated in the Covenant failed. By the Covenant,

members were to submit any dispute likely to cause a rupture of peace either to arbitration,

judicial settlement or to inquiry by the Council of the League. 43 Member states were also not

to go to war until a period of three months passed after the arbitral award, judicial decision or

report of the League Council.44 That period of three months before the resort to war was

intended to allow for tempers and passions to cool and to allow for further interventions to

avert the looming crisis. Members also agreed not to go to war with other members who

comply with any such arbitral award, judicial decision or report of the Council.45

Since the League Covenant did not succeed in outlawing war but only restricting a resort to

it, efforts continued to see to a total outlawry of war. This led to the Treaty Providing for the

Renunciation of War as an Instrument of General Policy, (also known as the Kellogg-

Briand46 Pact), signed in Paris on August 27, 1928. Article 1 of the treaty reads:

The High Contracting Parties solemnly declare in the names of

their respective peoples 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.47
The parties to the treaty thus totally renounced the resort to war, unlike just restricting it as

under the League Covenant. Only wars of aggression were prohibited as the right to self-

defence was retained in the treaty.48 Fifteen nations signed the pact in Paris and they include

ironically, Germany, Italy and Japan.49 By 1933, fifty more nations had acceded to it.50

43
Article 12, League Covenant.
44
ibid.
45
Article 13, League Covenant.
46
The pact is named after the French Foreign Minister of that time, Aristide Briand, and the United States
Secretary of State, Frank Kellogg, who were instrumental to the formulation of the Pact. Moran (n 39).
47
Text available at< http://www.iilj.org/courses/documents/kellogg-briandpact_000.pdf>
48
Encyclopedia.com, “Kellogg-Briand Pact”, < http://www.encyclopedia.com/topic/Kellogg-Briand_Pact.aspx>
accessed 12 February 2014
49
Other signatories include France, the United States of America, the United Kingdom, Belgium, Poland,
Ireland, Canada, Australia, New Zealand, South Africa, India and Czechoslovakia.
50
Encyclopedia.com (n 50).
9
Notwithstanding the restrictions on war in the League Covenant and the Kellogg-Briand

Pact, the Second World War, even more devastating than the so-called “Great War”, broke

out in Europe and was fought between 1939 and 1945. The purpose of the League of Nations

failed. The question then, is why the restrictions in the League Covenant and the prohibition

in the Kellogg-Briand Pact, failed to prevent the war being that the three aggressors in the

war, Germany, Italy and Japan were parties to both treaties.

The League of Nations had some inherent structural defects that proved fundamental to its

failure to prevent another World War. It had no enforcement organ. There existed in the

League a decentralised system of sanctions.51 Each member decided whether or not another

had breached a provision of the League Covenant and thereafter imposed sanctions on the

member in breach. The main system of sanctions under the League was economic.52 Military

sanctions could be recommended by the League Council but the decision on whether or not

to apply the recommended sanctions rested with each member.53 Also, the absence of the

United States of America as a member of the League of Nations was also a great blow which

led to the inability of the League to prevent the Second World War. The three aggressor

states were said to have simply withdrawn to “pursue their policy of aggression

unembarrassed by membership.”54

The Kellogg-Briand Pact on its part contained no sanctions for members who would breach

its provisions.55 It is stated that the treaty was based on the hope that “diplomacy and the

weight of world opinion would be enough to prevent nations from resulting to the use of

force.” This hope proved to be false as the provisions of the Pact did not deter the three

51
Philippe Sands and Pierre Klein, Bowett’s Law of International Institutions, (6th edn, Sweet and Maxwell
2009), 13.
52
See Article 16(1) of the League Covenant.
53
See Article 16 (2) of the League Covenant.
54
Sands and Klein (n 51) 13.
55
Encyclopedia.com (n 50).
10
aggressor states who were signatories from committing the acts of aggression that instigated

the Second World War. 56

From the above, it is seen that the restrictions to the resort to war in the League Covenant and

the prohibition of war in the Kellogg-Briand Pact were not effective because of the lack of a

strong enforcement system in the two treaties.

3.1 Developments under the United Nations Charter: The Outlawry of War.

The Second World War was even more horrifying than the “Great War.”57 The military and

civilian casualties of this war were far more than that of the First World War. The Second

World War also saw the use of more modern and devastating weapons of war including the

use of nuclear weapons (the atomic bomb). It was during this same war that the systematic

genocide against the Jews, gypsies and other minorities was perpetrated.58 This time, the

step taken after the war was not just a restriction on the resort to war, but states decided to go

one step further to totally outlaw war.59 States were determined this time to set up a total

safeguard against another world war. This was done with creation of the United Nations60

and a prohibition of the use of force. Article 2(4) of the United Nations Charter 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.

56
ibid.
57
Diffen.com, “World War I vs World War II”,
<http://www.diffen.com/difference/World_War_I_vs_World_War_II.> accessed 12 February 2014
58
ibid.
59
Part of the Preamble of the United Nations Charter reads: “We the peoples of the United Nations determined
to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow
to mankind…”, Preamble, United Nations Charter.
60
One of the purposes of the United Nations reads: “To maintain international peace and security, and to that
end: to take effective collective measures for the prevention and removal of threats to the peace, and for the
suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in
conformity with the principles of justice and international law, adjustment or settlement of international disputes
or situations which might lead to a breach of peace,” United Nations Charter, Article 1 (1) thereof.
11
This provision outlaws the use of force which includes war. The reason for the use of the

phrase “use of force” rather than war has already been explained earlier. This prohibition of

the use of force is now a rule of customary international law applying to all states.61 This

therefore means that law as a legal condition has been outlawed. It has as a result been stated

that under international law, “a state of war no longer exists as a legitimate state of affairs.”62

However, there are two exceptions to this prohibition of the use of force.63 The exceptions

will be discussed in due course.

3.2 Scope of the Prohibition of the Use of Force.

The scope of the prohibition of the use of force is examined below under as follows:

i. Meaning of ‘Force’ and ‘Threats to Force.’

‘Force’ as used in Article 2(4) refers to armed force. It does not include political or economic

pressure such as embargoes.64 Although the 1970 Declaration on Principles of International

Law65 proclaimed the duty of states to refrain from the use of economic measures among

others, to coerce another state “in order to obtain from it the subordination of the exercise of

its sovereign rights and to secure from it advantages of any kind;”66and the International

Covenant on Civil and Political Rights67 and the International Covenant on Economic, Social

and Cultural Rights68 both emphasize the right of peoples to freely pursue their economic

61
Shaw (n 24) 1018.
62
Mrazek (n 1) 100.
63
These are found in Articles 42 and 51 of the UN Charter.
64
Shaw (n 24) 1019.
65
Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States
in accordance with the Charter of the United Nations, Oct. 24, 1970, A/RES/2625 (XXV).
66
See paragraph 2 under the “principle concerning the duty not to intervene in matters within the domestic
jurisdiction of any state.”
67
999 UNTS 171.
68
993 UNTS 3.
12
development,69 it is dubious whether the use of economic coercion would be a breach of

Article 2(4).70 This is the case even though it could be interpreted as contrary to the United

Nations Charter.71

The scope of ‘threats to force’ was addressed by the ICJ in the Advisory Opinion to the

General Assembly on the Legality of the Threat or Use of Nuclear Weapons.72 In the opinion,

the Court stated that a “signalled intention to use force if certain events occur” could

constitute threat of force as prohibited under Article 2(4) where the envisaged force if used

would be unlawful.73 Examples give by the courts include ‘threats to secure territory from

another state’74 or causing it to ‘follow or not follow certain political or economic paths.’75

It is here noted that Article 2(4) only prohibits the threat or use of force by states in their

international relations thus the use of force is not outlawed in domestic situations. Thus, civil

wars are not outlawed under that provision.

ii. Meaning of ‘against the territorial integrity’ or ‘political independence.’

The debate here is whether the words “territorial integrity” and “political independence”

should be interpreted restrictively, i.e. a distinction drawn between “integrity” (relating to

annexation or control) and “inviolability” (relating to trespass).76 The ICJ rejected the

restrictive view in the Corfu Channel case,77 where Britain argued that the minesweeping of

Albanian territorial waters was not contrary to Article 2(4). The court held that “the alleged

69
See Article 1(1) of both Covenants.
70
Shaw (n 24) 1019.
71
ibid.
72
I.C.J Reports. 1996, 226.
73
Shaw (n 24) 1020.
74
ibid.
75
ibid.
76
David Harris, Cases and Materials on International Law, (7th edn, Sweet and Maxwell 2010), 725.
77
ICJ Reports, 1949, 4.
13
right to 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.”78

iii. Use of Force, Humanitarian Intervention and the Responsibility to Protect.

Humanitarian intervention is said to usually arise “where one state uses force in the territory

of another state not pursuant to the right of self-defence or under the authority of the UN but

with the aim of protecting against human rights violations in the latter state.” 79 Here, the

target state is the violator of the rights of its citizens and intervention is necessary to halt such

violations of human rights even though it would violate the sovereignty of the target state.

There are two types of humanitarian intervention, the unilateral one undertaken by states

without the authorisation of the UN Security Council, and the Security Council approved

intervention. The contentious one is the unilateral intervention and even though unilateral

humanitarian intervention might seem necessary in some circumstances especially when the

Security Council fails to act, it is hard to reconcile it with the wordings of Article 2(4) of the

UN Charter which prohibits the unilateral use of force by states, against the territorial

sovereignty of other states.

Practice has also been unfavourable to the subject because it could be seen as a justification

for more forceful states to intervene in weaker ones.80 It also is said to be tied to the political

interests of the intervening states and thus there is no permanent standard for intervention.

However, it could also be argued that the UN Charter accommodates the doctrine of

78
Brownlie in support of this wider interpretation states: “The phrase ‘political independence and territorial
integrity’ has been used on many occasions to epitomize the total of legal rights which a state has. Moreover, it
is difficult to accept a ‘plain meaning’ which permits evasion of obligations by means of a verbal profession that
there is a no intention to infringe territorial integrity and which was not intended by the many delegations which
approved the text.” Brownlie, International Law and the Use of Force by States, cited in Harris (n 76) 726.
79
Chris Wigwe, International Humanitarian Law, (Readwide Publishers, 2010), International Humanitarian
Law, 9.
80
Shaw (n 24) 1046.
14
humanitarian intervention since one of the purposes of the United Nations is encouraging

respect for human rights.81

Following the tragedies in Rwanda in 1994 and Kosovo in 1999, the debates on how other

states should react in the face of gross violations of human rights within the territory of a

state, became serious. The former Secretary-General of the United Nations, Kofi Annan in

his Millennium Report while recalling the failures of the Security Council to act during those

tragedies threw a challenge to member states on what could be done in such situations if

“humanitarian intervention was such an unacceptable assault on sovereignty.”82 The

Canadian government in response set up the International Commission on Intervention and

State Sovereignty (ICISS), which delivered a report titled “The Responsibility to Protect.”83

This report, from which the doctrine of responsibility to protect arose, found that although

sovereignty gives a state the power to control its own affairs to the exclusion of others, it

carries with it a responsibility on the state to protect its citizens. If the state fails to do so,

then the responsibility to protect such citizens falls to the international community. 84 In 2005

at the United Nations World Summit, member states formally accepted the responsibility to

protect their citizens from genocide, ethnic cleansing, war crimes and crimes against

humanity. They also agreed to collectively take up such responsibility to protect should any

state fail to so do, acting with force through the Security Council if need be.85 In practice, the

Security Council has utilised this doctrine of responsibility to protect in sending

peacekeeping troops to Darfur in 2006, and in authorising members to take measures in

81
See Article 1(3) of the UN Charter.
82
United Nations, “Outreach Programme on the Rwandan Genocide and the United Nations”,
<http://www.un.org/en/preventgenocide/rwanda/about/bgresponsibility.shtml> accessed 9 February 2014
83
ibid.
84
ibid.
85
ibid.
15
Libya for the protection of civilians in 2011.86 However, the world is still waiting for the

Council to intervene or give member states the go ahead to do so in Syria.

From all the above, it would seem that unilateral humanitarian intervention is still not legal,

though desirable in some situations. Even the doctrine of responsibility to protect as above

still contemplates a system of collective security under the aegis of the Security Council.

3.3 Exceptions to the Prohibition on the Use of Force

There are two recognised exception to the prohibition on the use of force under the UN

Charter. They are as contained in Articles 42 and 51, the former relating to collective action

through the Security Council and the latter, the inherent right to self-defence. These two

exceptions are considered hereunder.

i. Collective use of force through the Security Council.

Under Article 2(4), states gave away their right to unilaterally use force against another.

Provision was however made for a collective use of force by all states through the United

Nations enforcement’s organ, the Security Council87 under Chapter VII of the Charter which

deals with action with respect to threats to the peace, breaches of the peace and acts of

aggression. The relevant sections of the Charter read thus:

39) The Security Council shall determine the existence of any threat to
the peace, the breach of the peace or act of aggression and shall
make recommendations, or decide what measures shall be taken
in accordance with Articles 41 and 42, to maintain international
peace and security.

41) The Security Council may decide what measures not involving the
use of armed force are to be employed to give effect to its
decisions, and it may call upon Members of the United

86
ibid.
87
Article 24 of the UN Charter.
16
 Nations to apply such measures. These may include complete
or partial interruption of economic relations and of rail, sea, air,
postal, telegraphic, radio, and other means of
communication, and the severance of diplomatic relations.

42) Should the Security Council consider that measures provided for in
Article 41 would be inadequate or have proved to be inadequate, it
may take such action by air, sea, or land forces as may be
necessary to maintain or restore international peace and security.
Such action may include demonstrations, blockade, and other
operations by air, sea, or land forces of Members of the United
Nations.

The Security Council often times, relies on a ‘threat to peace’ as the basis for its jurisdiction

under Article 39. ‘Threat to peace’ is usually generously and broadly interpreted. Though it

traditionally may have referred to threats of “inter-state conflicts”, it is no longer so limited

and it is now widely accepted that extreme violence within a state can cause a ‘threat to

peace’.88 A ‘breach of peace’ which is said seems to include any use of armed force, has

rarely been found to occur.89 Aggression on its own part has been defined as the “use of

armed force by a State against the sovereignty, territorial integrity or political independence

of another State, or in a manner inconsistent with the Charter of the United Nations.90

When either of the three has been found to exist, i.e. threat to peace, breach of peace or an act

of aggression, the Security Council may decide on measures not involving the use of force as

in Article 41 above, to give effect to maintain or restore peace. However, where the Security

Council considers that such measures inadequate, measures involving armed force may be

employed to maintain or restore international peace and security under Article 42. This

constitutes the enforcement action of the Security Council under Chapter VII.

The enforcement action as contemplated under the UN Charter is to be effected using armed

forces of member states made available to the Security Council on the basis of bilateral

88
Harris (n 76) 798.
89
ibid, 799.
90
See the General Assembly resolution 3314 on the Definition of Aggression, 1974. ibid.
17
agreements reached between the Council and the states.91 However, because of the Cold War,

no such agreements were ever reached.92 In the post-Cold War climate, Article 42 has been

utilized by the Security Council to authorise a state or a group of states to use armed force to

maintain international peace and security in some situations.93 However, this cannot be said

to strictly constitute action by the United Nations per se. It is just authorised state action.

ii. The right to self-defence

The relevant article here is Article 51 and it reads as follows:

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 take measures necessary to maintain international peace and
security. Measures taken by Members in the exercise of this right
to self-defence shall be immediately reported to the Security
Council...

The right to self-defence existed in customary international law prior to Article 51 hence the

reference to it as ‘inherent’. The traditional definition was laid down in the Caroline case.94

The rule is that there has to exist “a necessity of self-defence, instant, overwhelming, leaving

no choice of means, and no moment for deliberation.”95 The action taken in pursuance of

self-defence must also not be unreasonable or excessive “since the act, justified by the

necessity of self-defence, must be limited by that necessity, and kept clearly within it.”96

The question as to what would constitute an “armed attack” under Article 51 arises. The

Court in the Nicaragua case97 held that an armed attack “included not only action by regular

armed forces across an international border, but additionally the sending by or on behalf of a

91
See Article 43, UN Charter.
92
Harris (n 76) 802.
93
Ibid.
94
29 B.F.S.P. 1137-1138; 30 B.F.S.P. 195-196.
95
See Shaw (n 24) 1025.
96
ibid.
97
ICJ Reports, 1986, 108.
18
state of armed bands or groups which carry out acts of armed force of such gravity as to

amount to an actual armed attack conducted by regular armed forces or its substantial

involvement therein.”98 The court rejected the view that the concept extended to assistance

given to rebels through provisions of weapons or logistical support though such support

could amount to a threat or use of force, or an intervention into internal affairs.99

The concepts of necessity and proportionality are stated to be at the heart of the right to self-

defence.100 In the Advisory Opinion on the Legality of the Threat or Use of Nuclear

Weapons,101 the ICJ emphasised that “the submission of the exercise of the right to self-

defence to the conditions of necessity and proportionality is a rule of customary international

law.”102 What would be necessary and proportionate would depend on the circumstances of

the case. Necessity as a criterion raises both evidential and substantive issues as it would be

important to show that from the facts reasonably known at the time, the armed attack that

occurred required the response proposed and executed.103 The proportionality criterion would

require the consideration of the type of weaponry used. The ICJ also in the Advisory Opinion

on the Legality of the Threat or Use of Nuclear Weapons,104 stated that proportionality may

not exclude the use of nuclear weapons in all circumstances, but that “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.” This thus requires an analysis of the

principles and rules of international humanitarian law.105

98
Shaw (n 24) 1026.
99
ibid.
100
Shaw (n 24) 1031.
101
ICJ Reports, 1996, 226.
102
ibid.
103
ibid.
104
ICJ Reports, 1996, 226.
105
Shaw (n 24) 1031.
19
Anticipatory self-defence is said to be the exercise by a state of the right of self-defence

towards an attack yet to be unleashed by another state on it, i.e. used to ward off the attack.106

The issue is whether such a right should exist in the face of modern weaponry that could

conclude a very devastating attack in a matter of seconds leaving little time for reaction.

Shaw states that the problem with the concept is that it involves “fine calculations of the

various moves by the other party”.107 The line to be drawn is difficult and could cause chaos.

A suggestion to cure this defect is to distinguish between anticipatory self-defence (where the

attack is foreseeable) from interceptive self-defence, (where an armed attack is imminent and

unavoidable).108 This is it said, would prevent the evidential problems and yet allow

threatened states to act without dooming them to actual attack. According to this approach,

self-defence is legitimate when an armed attack is imminent and thus it would be a question

of evidence as to whether there was an accurate assessment of the imminence of the attack.109

It is submitted that this would reduce the evidential problems; it also has a lot of fine

calculations involved. When can it really be said that an attack is imminent? How close does

an attack have to be, a second, an hour, a day, for it to be imminent? It would all still be

subject to the various perspectives of states and this could also lead to chaos.

Article 51 also permits collective self-defence and the question that arises is how far one

state may legally resort to force in the defence of an armed attack to another. 110 The ICJ in

the Nicaragua case111 cleared this up when it stated that the exercise of the right to

collective self-defence was dependent on both a prior declaration by the ‘victim state’ that it

was a victim of an armed attack, and a request by that state for assistance.

106
Azubuike (n 29) 164.
107
Shaw (n 24) 1029.
108
ibid.
109
ibid.
110
ibid,1035.
111
ICJ Reports, 1986, 14
20
4.0 The Outlawry of War- A Success?

The question to be answered at this stage is whether or not the UN Charter has really

succeeded in outlawing war considering the great number of armed conflicts that have

occurred in the world since 1945.112 Has it been able to change states’ behaviour concerning

the resort to war at all?

There is the view that the Charter has been successful in outlawing war and restraining the

use of force to a large extent. The evidence for this is said to be a comparison of the state of

affairs in the world today with the situation before the adoption of the Charter.113 It has been

pointed out that states now generally restrict the use of force to intervention in civil wars and

security issues, and have only in few instances since the adoption of the Charter, attempted to

take control of territories by armed force.114It has also been stated that Article 2(4) of the

Charter actually permits most of the contemporary armed conflict as it does not prohibit civil

war.115 Truly, most of the major armed conflicts occurring today such as in Syria, Sudan,

Central African Republic, Democratic Republic of Congo, etc, are civil wars. These

occurrences thus are not a result of the failure of the provisions of the Charter.

Again, it has been said that the states that violate the prohibition on the use of force, do not

do so as a matter of right, but often seek to justify their actions under the Charter either based

on the right to self-defence or Security Council authorization.116 This is used to support the

view that states now acknowledge that wars are illegal. This is why they seek to justify their

112
For example, the Korean War, Vietnam War, the Gulf Wars, the fairly recent Russia-Georgia War, etc.
113
O’ Connell (n 10) 462.
114
ibid. Some of these instances include Argentina in the Falklands, Iraq in Kuwait, the Arab States in Israel and
Pakistan in Kashmir, ibid.
115
ibid, 463.
116
The United Kingdom justified her invasion of Iraq on the basis of 1991 Security Council resolutions. The
United States also relied upon the resolutions for a justification but additionally invoked the right to self-
defence, though ‘pre-emptive self-defence.’ Harris (n 76) 821.
21
acts under the law. Thus, the prohibition it is said has actually changed how states use

force.117

There is a contrary view that holds that the Charter has not been successful in outlawing war.

One reason given is that the Charter has not been able to restrain powerful states from the use

of force which violates the provisions of Article 2 (4).118 Two cases used as examples and for

emphasis are the Second Gulf War119 and NATO’s intervention in Kosovo.120 It is said that

both are generally agreed to have occurred in contravention of Article 2(4)121 yet the Security

Council, the enforcement organ of the UN could do nothing to stop the unauthorized use of

force in those situations. Thus, even though the Charter has outlawed war, there is no real

enforcement of the outlawry.122 The major problem seems to be a lack of coercive

enforcement of the outlawry of war. O’Connell even while supporting the view that the

Charter has truly had success in outlawing war wrote as regards states thus:

They [states] do not “enjoy” violating the prohibition on force.

They observe it enough to support the conclusion that such a
prohibition exists. Yet, it is violated enough without adverse
response to conclude that it is not well enforced.123

The enforcement powers of the Security Council have been stated above. When the Council

determines the existence of any threat to peace, breach of peace or act of aggression, it is to

act to ensure the maintenance of international peace and security.124 However, such

determination by the Council requires a non-procedural vote and the unanimity of its

117
O’Connell (n 10) 466.
118
Yonatan Lupu, “Rules, Gaps, and Power: Assessing the Reform of the U.N. Charter”, (2006) 24(3) Berkeley
Journal of International Law, 881, 882,
<http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1324&context=bjil> accessed 10 February
2014
119
The United States and United Kingdom’s invasion in Iraq in 2002. See ibid, 886.
120
ibid, 890.
121
This is so even if the intervention in Kosovo was ostensibly for humanitarian purposes.
122
Lupu (n 118) 882.
123
O’Connell (n 10) 464.
124
Articles 39 to 42 of the UN Charter.
22
permanent members is required for the vote to be passed.125 Thus when the state in breach of

Article 2(4) is one of the permanent members or a state with close ties to one of them, such

determination is never reached. Such is the effect of the veto power in this regard.126

Even though the Security Council has been able to take enforcement actions such as against

Iraq in 1991, in Haiti in 1993 and in Somalia in 2007 after the fall of the USSR127 and the

end of the cold war, there are many incidents were there was unlawful use of force yet the

hands of the Council were tied by the use or threat of the use of the veto. 128 Even in the

instances enforcement action was taken, the Security Council authorised a state or states to

take the necessary action unlike as envisaged under the Charter where the Council is to have

a force contributed to by states for the maintenance of international peace and security. 129 In

all these, it is seen that indeed, there is a great problem of enforcement.

From the lessons of the League of Nations and the Kellogg-Briand Pact, it is seen that a

strong enforcement mechanism is needed to sustain any restriction or outlawry of war. The

enforcement mechanism under the UN system is stronger than that of the League but

unfortunately, world politics very often hinders its effectiveness.

5.0 Recommendations

Since the effectiveness of the enforcement mechanism under the UN system lies with the will

of its permanent members, it is recommended that those members as much as possible try to
125
Sands and Klein (n 51) 43. See also Article 27 of the UN Charter.
126
This veto power, it has been stated “…is for this reason, above all others, that the measures envisaged in Ch.
VII have been practically irrelevant in an age in which the threats to the peace, breaches of the peace or acts of
aggression occurred in situations in which there was a conflict of interests between, notably, the USA and the
USSR (Russia) and consequently, no unanimity amongst the permanent members.” The “age” referred to was
the period between 1945 and 1990 where the Security Council could take action regarding armed force only in
the Korean and South Rhodesia cases. Sands and Klein (n 51) 43.
127
Union of Soviet Socialist Republics.
128
See generally Sands and Klein (n 51) 43- 47. It is noted also that the Security Council could not take
enforcement action too during the Iraqi invasion in 2003 even though the use of force by the United States and
Britain was not authorised.
129
See Articles 45 – 51 of the United Nations Charter.
23
put aside national interests in the interest of international peace and security. Even though it

is acknowledged that the international community runs on a policy of national interests,

preventing a third world war should be a greater priority. Small conflicts unwatched can

quickly escalate into bigger problems. It would be wonderful if the veto power of the

permanent members of the UN could be removed, but that is very unlikely to happen anytime

soon. Its feasibility is very bleak.130 Be that as it may, the “Big Five”- the United States, the

United Kingdom, France, Russia and China, should be able to garner the political will to lead

the Security Council in enforcing the outlawry of war thus maintaining international peace

and security

6.0 Conclusion.

The concept of war and the developments leading to the outlawry of war under the UN

system have been examined above. The result of this is that ‘war’ as a legal relationship

cannot validly occur between two states. Any lawful use of force under the UN regime must

fall within the scope of the exceptions to the prohibition of the use of force. Though this

prohibition has modified states’ behaviour relating to use of force, it had been shown that the

enforcement mechanism is weak, its weakness mainly a reason of political considerations

among the permanent members of the UN. As a result, many conflicts utilizing prohibited

armed force have gone unchecked. The outlawry of war is a very laudable, but it needs the

cooperation of the international community to become a ‘factual reality’. It is hoped that the

world cooperates to make it so.

130
This is even more so when it is considered that per Article 108 of the UN Charter dealing with amendments
of the Charter, all the permanent members of the UN have ratify any such amendment before it can enter into
force. It is very difficult to believe that any of the permanent member states of the Security Council would
willingly let go of the veto power.
24