INTERNATIONAL LAW AND THE USE OF FORCE BY STATES

1) THE USE OF FORCE

a. The Law before 1945
i. Attempts at prohibiting war before 1945
1. Covenant of the League of Nations 1919
2. General Treaty for the Renunciation of War (Pact of Paris)
Kellogg-Briand Pact) 1928
b. The just war doctrine
c. Positivism and sovereign right of states to resort to war

2) THE LAW AFTER 1945: PROHIBITION OF THE USE OF FORCE

a. 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 and
political independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations.
b. Basic rule: threat or use of force is prohibited
c. Meaning of force: Force means ‘armed force’, not other means of economic or
political pressure.
i. Nicaragua case – Indirect use of force is also prohibited.
d. Threat of force: Not only use but also threat of force is prohibited. ‘Threat of
force’ means an ultimatum announcing recourse to military measures it certain
demands are not accepted.

e. There are two different views on the interpretation of Article 2(4) of the Charter:
i. The permissive view
1. Article 2(4) does not lay down a total ban on the use of force and
States are still permitted to use force in quite a number of
situations, for example:
a. Use of force in anticipation of a future attack;
b. Use of force to rescue nationals abroad;
c. Humanitarian intervention;
d. Regime change (intervention for democracy).
ii. The restrictive view.
1. the Charter brought about a radical alteration in States’ right to use
force.
2. Article 2(4) lays down a total ban on the use of force save only
where explicit exceptions are made in the Charter itself.
3. The Charter allows only two exceptions to the principle of non-use
of force, namely:
a. Self-defence under Article 51; and
b. Enforcement action under Chapter VII of the Charter.
4. Restrictive view is the established law.
5. An analysis of authorities reveals that the overwhelming majority
of jurists accept the restrictive view that Article 2(4) of the Charter
contains a total prohibition of the use of force.
6. The State practice also favours this view.
7. Therefore, the correct interpretation of Article 2(4) is that any use
of force by a State for whatever reason is banned unless explicitly
allowed by the Charter of the United Nations.
a. MILITARY AND PARAMILITARY ACTIVITIES IN
AND AGAINST NICARAGUA (NICARAGUA V.
THE UNITED STATES)- Nicaragua alleged that the US
was responsible under international law for certain military
operations in Nicaraguan territory. It claimed that the US
had (i) used direct armed force against it by laying mines in
Nicaraguan waters, and attacking and damaging
Nicaraguan ports and oil installations, and (ii) given
assistance (by means of training, arming, financing, and
supporting) to the contras, Nicaraguan guerrillas fighting to
 overthrow the Nicaraguan Government. The US argued that
it activities against Nicaragua was justified because it was
acted in the exercise of collective self-defence in response
to Nicaragua’s support of arms to rebels in El Salvador, a
friendly country. As regards the issue of ‘multilateral treaty
reservation’ contained in the US declaration accepting
compulsory jurisdiction, it could not apply Art. 2(4) of the
Charter against the US. But the Court held that it could
apply rules of customary international law on the non use
of force and non-intervention.
8. Nicaragua case is quite significant because in this case the World
Court thoroughly examined and ruled on three important principles
of international law, namely:
a. Principle of non use of force;
i. On the issue of the use of Force
1. According to the facts of Nicaragua case,
while the arming and training of the contras
can certainly be said to involve the threat or
use of force against Nicaragua, this is not
necessarily so in respect of all the assistance
given by the US Government.
2. The Court considers that the mere supply of
funds to the contras, while undoubtedly an
act of intervention in the internal affairs of
Nicaragua, does not in itself amount to a use
of force.
b. Principle of non-intervention
i. On the issue of the intervention
1. The principle of non-intervention is part and
parcel of customary international law.
2. The principle forbids all States or group of
States to intervene directly or indirectly in
internal or external affairs of other States.
3. By virtue of the ‘doctrine of sovereignty’, a
State is free to choose any political,
economic, social and cultural system, or to
formulate whatever foreign policy, it likes
4. Intervention is wrongful when it uses
methods of coercion in regard to such
choices, which must remain free ones.
 5. The element of coercion is particularly
obvious in the case of an intervention which
uses force either in the direct form of
military action, or in the indirect form of
support for insurgent or terrorist armed
activities within another State
c. Collective self-defence.
i. On the issue of the Collective self-defence
1. The rule prohibiting force allows for certain
exceptions, the right of self-defence being
one among them.
2. Whether it is an individual or collective
selfdefence, three essential criteria must be
satisfied:
a. An armed attack by another State
(the State concerned, having been the
victim of an armed attack);
b. Necessity of self-defence; and
c. Proportionality.
3. The Court finds that in customary
international law, there is no rule permitting
the exercise of collective self-defence in the
absence of a “request” by the State which
regards itself as the victim of an armed
attack.
4. Therefore, in the case of a collective
selfdefence, the ‘request by the victim of
armed attack’ to come to its assistance is an
extra requirement.
d. Judgment of the Court
i. The world Court announced its judgment in favour
of Nicaragua.
ii. Held that the United States was under an obligation
to make reparation to Nicaragua for all injury
caused to Nicaragua by the breaches of obligations
under international law.

3) PRINCIPLE OF NON-INTERVENTION
a. The principle of non-intervention indicates the right of every sovereign State to
conduct its affairs without outside interference.
 b. Authorities:
i. Art. 2(7) of the Charter
ii. The 1970 GA Declaration on Principles of International Law, GA
Resolution 2625 (XXV).
iii. The 1965 GA Declaration on Inadmissibility of Intervention, GA
Resolution 2131 (XX), 1965.

4) HUMANITARIAN INTERVENTION
a. The essence of humanitarian intervention is: “When a State commits cruelties
against and persecution of its nationals in such a way as to deny their fundamental
human rights and to shock the conscience of mankind, intervention in the interest
of humanity is legally permissible.”
b. There appears to be no justification in the view that humanitarian intervention was
established in customary international law because there was no widespread and
consistent State practice in support of it.
c. Besides, the concept is open to abuse.
d. There is a particular concern that alleged humanitarian interventions usually result
in the overthrow of the incumbent government.
e. For instance:
i. Vietnamese intervention in Cambodia in 1979
ii. Indian intervention in East Pakistan (Bangladesh) in 1971
iii. US intervention in Iraq in 2003
f. Humanitarian intervention can, therefore, be unlawful on two grounds:
i. It can be a violation of the rule of non use of force in Art. 2(4), which is a
rule of jus cogens, the only exceptions to this prohibition being (a) self-
defence and (b) enforcement action.
ii. It can be a violation of the rule of non-intervention under Art. 2(7), even
the United Nations may not intervene in domestic matters of States, except
in the form of an enforcement action under Chapter VII.
g. However, we have to distinguish ‘unilateral humanitarian intervention’
(intervention by one State or a group of States against another State on
humanitarian grounds) from ‘collective humanitarian intervention’ in the form of
enforcement action under Chapter VII of the Charter.
h. While the former is a violation of Article 2(4) of the Charter and the rule of non-
intervention, and thus illegal, the latter is legal.

5) RIGHT OF SELF-DEFENCE OF STATES

a. Article 51 - Nothing in the present Charter shall impair the inherent right of
individual and 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.
b. Self-Defence as a Response to an Armed Attack
i. Article 51 prescribes that “nothing in the present Charter shall impair the
inherent right of individual and collective self-defence if an armed attack
occurs…”.
ii. The meaning is clear and unambiguous.
iii. The right of self-defence is restricted to a case where there is an actual
armed attack against the State.
iv. But here again there are two differing views: permissive and restrictive.
v. In the Nicaragua case, the World Court ruled that - “In the case of
individual self-defence, the exercise of this right is subject to the State
concerned having been the victim of an armed attack. Reliance on
collective self-defence, of course, does not remove the need of this.”
c. Legality of anticipatory self-defence
i. The most debatable and controversial attempt to widen the exceptional
right of self-defence is the argument that States have the right of
anticipatory self-defence whenever an attack is expected.
ii. This idea seems to be based on ‘military necessity’, according to which
‘the best defence is to attack first’.
iii. Bowett advocates anticipatory self-defence: “No State can be expected to
await an initial attack which, in the present state of armaments, may well
destroy the State’s capacity for further resistance and so jeopardize its
very existence”.
iv. McDougal argues that States faced with a perceived danger of immediate
attack cannot be expected to await the attack ‘like sitting duck’.
v. There are two major arguments held by them:
1. Anticipatory self-defence is allowed by customary international
law;
2. Nuclear weapons and modern sophisticated devices makes it
inadvisable to wait for the attack.
6) Does customary international law allow anticipatory self-defence?
a. Many Western writers are of the view that the Caroline case is a classic precedent
of anticipatory self-defence and a rule of customary international law has been
formed through subsequent State practice.
i. The Caroline Case - The case arose out of the Canadian rebellion of
1837. The Caroline was an American ship that had been used by Canadian
rebels to harass the British authorities in Canada. While it was moored in
an American port, a British force from Canada entered upon United States
 territory, seized the Caroline, fired her and sent her over Niagara Falls.
The legality of the attack was discussed in detail in correspondence
between UK and the US. Letter from Mr. Webster (the American
Secretary of State) to Mr. Fox (British Minister at Washington) [April 24,
1841] “It will be for …[Her Majesty’s] Government to show a necessity of
selfdefence, instant, overwhelming, leaving no choice of means, and no
moment for deliberation.”
ii. The permissive school regards the Caroline case as the classic formulation
of customary international law on selfdefence.
iii. In fact the Caroline case is just an instance of practice of two countries. To
be a customary law, it needs the support of subsequent consistent State
practice.
iv. Fear of creating a dangerous precedent is probably the reason why States
seldom invoke anticipatory self-defence in practice.
v. Out of the 193 UN Members, only Israel and the US invoked it.
vi. Israel invoked anticipatory self-defence in “Israeli destruction of Iraqi
nuclear reactor incident” in 1981. But the SC strongly condemned it and
declared it as a violation of international norms”.
vii. The US initially invoked it (or in particular pre-emptive self-defence) in
the “US invasion of Iraq (2003)” but received widespread condemnation
by the international community.
viii. The overwhelming practice of states after the emergence of the United
Nations never accepts the right of anticipatory self-defence.
ix. Therefore, anticipatory self-defence, as formulated in the Caroline case, is
not supported by subsequent State practice and cannot be said as forming
part of the customary law of the time.
b. Nuclear weapons and anticipatory self-defence
i. Most writers and Governments agree that it would be too dangerous for
the world community to allow anticipatory self-defence simply because
there were nuclear weapons with modern sophisticated devices.
ii. Intercontinental Ballistic Missiles (ICBMs) can be destroyed by an
effective Anti-Ballistic Missile (ABM) system.
iii. An ICBM normally takes 25 to 30 minutes to hit the target. Different
forms of interception can be used at different stages of the flight of the
ICBM.
iv. The above facts and figures clearly indicate the feasibility of defensive
measures even after a nuclear missile has been launched.
v. Therefore, the claim that the nuclear weapons have made the anticipatory
self-defence a necessity is obviously unfounded.
7) RIGHT OF SELF-DETERMINATION
a. The principle of self-determination refers to the right of a people living in a
territory to determine the political and legal status of that territory – for example,
by setting up a State of their own or by choosing to become part of another State.
b. One of the difficulties with the right of self-determination is lack of an
authoritative definition of the term ‘people’.
c. DEFINITION OF ‘PEOPLE’ (UNESCO)
i. A people for the [purpose of the]…the right to self-determination, has the
following characteristics:
1. (a) A group of individual human beings who enjoy some or all of
the following common features:
a. - A common historical tradition;
b. - Racial or ethnic identity;
c. - Cultural homogeneity;
d. - Linguistic unity;
e. - Religious or ideological affinity;
f. - Territorial connection;
g. - Common economic life;
2. (b) The group as a whole must have the will to be identified as a
people or the consciousness of being a people…
3. (c) Possibly the group must have institutions or other means of
expressing its common characteristics and will for identity.
ii. Common Article 1, International Covenants on human rights (ICCPR
& ICESCR) - “All peoples have the right of self-determination. By
virtue of that right they freely determine their political status and freely
pursue their economic, social and cultural development”.
iii. General Assembly Declaration on Principles of International Law,
1970 - “All peoples have the right freely to determine, without external
interference, their political status and to pursue their economic, social and
cultural development and every State has the duty to respect this right in
accordance with the provisions of the Charter….
iv. Every State has the duty to refrain from any forcible action which deprives
peoples of their right to self-determination and freedom and independence.
v. In their actions against and resistance to such forcible action in pursuit of
the exercise of their right of self-determination, such peoples are entitled
to seek and to receive support in accordance with the purposes and
principles of the Charter of the United Nations.
vi. Although the Declaration does not include any express indications as to
whether force can be used in the exercise of the right of self-
determination, it can clearly be implied.
 vii. Self-determination is recognized by State practice as a basic principle of
international law, to which even the status of jus cogens is attributed.
viii. East Timor case (Portugal v Australia) - The ICJ acknowledged the
erga omnes character of self-determination.

8) WARS OF NATIONAL LIBERATION

a. If the people of a particular territory are regarded by international law as
possessing a legal right of self-determination but the State administering that
territory refuses to let them exercise that right, they may need to fight a war of
national liberation in order to achieve self-determination in practice.
b. No rule in international law against rebellion.
c. The prevailing view is that (use of force in the exercise of) self-determination is
basically limited to the colonial context, that is to say, to the relationship between
colonies in Africa, Asia and Latin America vis-à-vis the colonial powers.
d. Whether it applies to cases beyond the colonial context is uncertain.
e. Right of secession
i. The effect of linking self-determination to decolonization seems to deny a
general right to secession of groups within a State.
ii. However, while international law does not acknowledge a general right to
secession, it is also generally agreed that it does not prohibit secession.
iii. International law is neutral in this respect, and, in other words, follows
reality and the principle of effectiveness.

9) INTERNATIONAL HUMANITARIAN LAW

a. Jus in bello, or rules governing the actual conduct of armed conflict, or the “laws
of war’.
b. The ‘laws of war’ consists of the limits set by international law within which the
force required to overpower the enemy may be used, and the principles governing
the treatment of individuals in the course of war.
c. In the absence of such rules, the barbarism and brutality of war would have
known no bounds.
d. These laws and customs of war have arisen from the long-standing practices of
belligerents.
e. The laws of war are based on respect for humanity and their main objective is
humane treatment of victims of war.
f. That is why in modern time they have come to be known as ‘International
Humanitarian Law’.
g. International humanitarian law can be defined as that branch of law regulating the
protection of the victims of armed conflict.
h. Sources of international humanitarian law
i. The laws and customs of war (international humanitarian law) have arisen
from long standing practices of belligerents.
ii. Since the nineteenth century, the majority of the rules have ceased to be
customary and are to be found in treaties and conventions.
iii. A number of conventions on the laws of war were done at the Hague and
many were adopted in Geneva.
iv. For the sake of convenience, these rules are classified into: the Hague law
and the Geneva law.
1. The Hague law: The Hague Conventions of 1899 and 1907 on the
Laws and Customs of War (also known as Hague Regulations).
2. The Geneva law: The Four Geneva Conventions of 1949, and the
two Additional Protocols of 1977.
a. Four Geneva Conventions 1949
i. (1) Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed
Forces in the Field;
ii. (2) Geneva Convention for the Amelioration of the
Wounded, Sick and Shipwrecked Members of the
Armed Forces at Sea;
iii. (3) Geneva Convention Relative to the Treatment of
Prisoners of War;
iv. (4) Geneva Convention relative to the Protection of
Civilian Persons in Time of War.
b. The Four Geneva Conventions of 1949: Common
Article 2
i. Application of the Convention
1. [T]he present Convention shall apply to all
cases of declared war or of any other armed
conflict which may arise between two or
more of the Contracting Parties, even if the
state of war is not recognized by one of
them…. [and] all cases of partial or total
occupation of the territory of a Contracting
Party, even if the said occupation meets with
no resistance.
ii. The Two Additional Protocols of 1977 The
Diplomatic Conference of 8 June 1977 adopted the
two Protocols additional to the four Geneva
Conventions of 1949. They are:
 1. Protocol Additional to the Geneva
Conventions of 12 August 1949, and
relating to the Protection of Victims of
International Armed Conflicts [Protocol I];
2. Protocol Additional to the Geneva
Conventions of 12 August 1949, and
relating to the Protection of Victims of Non-
International Armed Conflicts [Protocol II].

10) ENFORCEMENT OF INTERNATIONAL HUMANITARIAN LAW

a. Enforcement by national courts;
i. The enforcement of international humanitarian law rests primarily with
national authorities, who are under obligations to disseminate that law,
educate their armed forces in it, and to repress breaches through
prosecution before national tribunals….
b. Enforcement by international courts and tribunals.
i. Nuremberg and Tokyo International Military Tribunals, 1946
ii. The famous Nuremberg Judgment, which convicted major Nazi war
criminals, laid down the principle of ‘individual criminal liability’
“Crimes against international law are committed by men, not by abstract
entities and only by punishing individuals who commit such crimes can
the provisions of international law be enforces.”
iii. Ad hoc International Criminal Tribunals:
1. Mass killings, the policy of ethnic cleansing, organized torture and
rape in the former Yugoslavia shocked the international
community, and caused the SC to establish the International
Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993.
2. To deal with the massacre and genocide in Rwanda, the SC
established the International Criminal Tribunal for Rwanda (ICTR)
in 1994.
3. Some writers cast doubts on whether the Security Council has the
power to establish judicial bodies.
iv. The International Criminal Court (ICC)
1. The Statute of the International Criminal Court was adopted in
1998 by the UN Diplomatic Conference in Rome.
2. The Rome Statute entered into force on 1 July 2002. It creates the
ICC.
3. As of April May 2015, 139 States are Signatories and 123 States
are parties to the Rome Statute.
4. Parties include the United Kingdom and France.
5. Russian Federation has signed but not yet ratified the Statute.
China has not yet signed it.
6. The US Signed the Statute on 31-12-2000 but later declared that it
had no intention to become a party.
7. The US actually is openly opposing the establishment of the ICC.
8. It has entered into agreements with a number of States in order to
ensure that these States will not surrender any US national to the
ICC.
9. JURISDICTION OF ICC
a. The jurisdiction of the Court is limited to the most serious
crimes of concern to the international community as a
whole.
b. The Court has jurisdiction with respect to the following
crimes:
i. The crime of genocide;
ii. Crimes against humanity;
iii. War Crimes; and
iv. The crime of aggression.
c. Preconditions to the exercise of Jurisdiction
i. According to Article 12, in cases other than
Security Council referrals, the ICC can exercise
jurisdiction only when:
1. the State on the territory of which the crime
was committed is a Party to the Statute; or
2. the State of which the accused is a national
is a Party to the Statute. [Court’s jurisdiction
is based on territorial and nationality
principles.]
d. Referral of a situation to the Court
i. According to Article 13:
1. A situation in which a crime has been
committed may be referred to the Prosecutor
by a State Party;
2. A situation in which a crime has been
committed may be referred to the Prosecutor
by the Security Council; or
3. The Prosecutor himself initiates an
investigation and submit the situation to the
Trial Chamber.
e. Deferral of investigation or prosecution
i. Article 16: No investigation or prosecution may be
commenced or proceeded with for a period of 12
months after the Security Council, in a resolution
adopted under Chapter VII of the Charter, has
requested the Court to that effect; that request may
be renewed by the Council under the same
conditions.
ii. [It clearly indicates the important role of the
Security Council.]
f. Composition of the Court
g. The Court is composed of four organs, namely:
i. (1) the Presidency;
ii. (2) an Appeal Division, a Trial Division, and a Pre-
Trial Division;
iii. 3) the Office of the Prosecutor; and
iv. (4) the Registry.
h. The seat of the Court is at the Hague, Netherlands.
i. The Court consists of 18 judges.
j. Cooperation of States Parties
i. The success of the Court will entirely depend upon
cooperation of States Parties.
ii. State Parties have to cooperate with the Prosecutor
to use national police powers and facilities to
capture individuals, to surrender the accused
criminals to the Court, to imprison the convicted
criminals and to confiscate property.