Use of Force Including War

An Introduction
 Use of Force Including War
Rules Governing Inter-state Warfare:
Two categories:
Jus ad bellum
Jus in bello
 Modern Era
Coercive Measures
Restorsions
Unfriendly, but not illegal, retaliatory actions taken y a state
against another state in response to actions that are regarded
as hostile, unfriendly or not in keeping with the policy aims of
the responding states.
Breaking off trade/diplomatic religions
Imposing embargoes
Deny entry visas
Vessels denied entry into ports
Deny aircraft overflight
Station troops near other state’s borders
Reprisals not Involving the use of Armed Force
Reprisals:
Illegal acts taken as a measure of self help in
response to a prior illegal act. Acts not
involving armed force are counter-measures.
 Pre-1945 Law on Use of Armed Force
The experience of WWI led to the Covenant of the League
of Nations 1919, established a process for states to
pursue before going to war:
The Members of the League agree that, if there should
arise between them any dispute likely to lead to a
rupture they will submit the matter either to arbitration
or judicial settlement or to enquiry by the Council, and
they agree in no case to resort to war until three months
after the award by the arbitrators or the judicial
decision, or the report by the Council. In any case under
this Article the award of the arbitrators or the judicial
decision shall be made within a reasonable time, and the
report of the Council shall be made within six months
after the submission of the dispute.
Art. 12
 Pre-1945 Law on Use of Armed Force
Covenant of the League of Nations 1919
Establishing a cooling off period to allow outside
body to resolve the dispute.
Members acting contrary to the Covenant could
be subject to severance of trade, financial
relations.
The League of Nations failed to have an
influence when Italy invaded Ethiopia in1935.
 Pre-1945 Law on Use of Armed Force
Outlawing War
General Treaty for the Renunciation of War 1928
Known as the Kellogg-Briand Pact, parties to the treaty
condemned recourse to war for the solution of
international controversies, and renounce it, as an
instrument of national policy in their relations with
one another.
Pledge the settlement or solution of all disputes or
conflicts of whatever nature or of whatever origin
they may be, which may arise among them, shall
never be sought except by pacific means.
 Post-1945 Law
After WWII, allied powers established a general framework to
ensure peaceful means to resolve disputes.
UN Charter, main purpose:
• to practice tolerance and live together in peace with one
another as good neighbors, and
• to unite our strength to maintain international peace and
security, and
• to ensure, by the acceptance of principles and the
institution of methods, that armed force shall not be used,
save in the common interest, and
• to employ international machinery for the promotion of
the economic and social advancement of all peoples,
Preamble
 UN Charter
Art. 2(4)
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.
Binding on all states by customary international
law.
 Meaning of Force
Use of force less than warfare is anticipated by the UN
Charter :
Political
Economic
Ideological/psychological force
 Meaning of Force
UN Charter expects a state to use force if attacked:
Nothing in the present Charter shall impair the inherent right
of individual or collective self-defense 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-defense 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.
 Meaning of Force
Declaration on Principles of International Law
Concerning Friendly Relations & Co-operation among
States in Accord with the UN Charter
Adopted by General Assembly resolution 2625 (XXV) of
24 October 1970.
Nothing in the Declaration enlarged or diminished in
any way the scope of the provisions of the Charter
concerning cases in which the use of force is lawful.
 Meaning of Force
Declaration on Principles of International Law
Concerning Friendly Relations did prohibit some
types of armed and non-armed intervention:
No State or group of States has the right to
intervene, directly or indirectly, for any reason
whatever, in the internal or external affairs of any
other State. Consequently, armed intervention
and all other forms of interference or attempted
threats against the personality of the State or
against its political, economic and cultural
elements, are in violation of international law.
 Threat of Force
What can be considered a threat of force can be
a subjective interpretation:
A blatant and direct threat of force to compel
another state to yield territory or make
substantial political concessions (not required
by law) would have to be seen as illegal under
UN Charter, Art. 2(4) if the words “threat of
force” are to have any meaning.
 Threat of Force
The UN Charter prohibits force when used in any manner
inconsistent with the purpose of the United Nations.

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 the peace; Art. 1(1).
 Exceptions to Un Charter Art. 2(4)
Self defense
Nothing in the present Charter shall impair the inherent right
of individual or collective self-defense 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-defense 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.
Art. 51
 Exceptions to Un Charter Art. 2(4)
The right of individual and collective self defense are
part of customary international law pre-dating the
UN Charter, and the Charter recognize the inherent
right to of self defense which any state possesses in
the event of an armed attack.

Nicaragua v. US, 1986, ICJ 14, at para. 193.

 Preemption
United States initiated armed force against Iraq
in March 2003. The Bush Administration tried
to assert a new doctrine to use force
preemptively, and subsequently Iraq was in
violation of Security Council resolutions.
Theory of preemption is based on imminent
threat of an attack. Any future attack, remote
or speculative, justifies self defense.
 Reprisals using Force
Reprisals using force in a time of peace are considered
to be unlawful.
On the question of belligerent reprisals, … that in any
case any right of recourse to such reprisals would,
like self-defense, be governed inter alia by the
principle of proportionality.
Reprisals taking place during a time of war are also
governed by the four Geneva Conventions of 1949.
 The Rule of Non-intervention
UN Charter Art. 2 makes clear “The Organization is
based on the principle of the sovereign equality of all
its Members.
All Members shall settle their international disputes by
peaceful means in such a manner that international
peace and security, and justice, are not endangered.
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.
 Declaration on the Inadmissibility of Intervention in
the Domestic Affairs of States & Protection of Their
Independence Sovereignty

The UN General Assembly pass resolutions that are

non-binding , but the ICJ ruled that the Declaration is
an “expression” of customary international law.
Nicaragua v. US, 1986 I.C. J. 14
Among its provision:
1. No State or group of States has the right to intervene
or interfere in any form or for any reason
whatsoever in the internal and external affairs of
other States.
 Continued …

2. The principle of non-intervention and non-

interference in the internal and external affairs of
States comprehends the following rights and duties:
(a) Sovereignty, political independence, territorial
integrity, national unity and security of all States, as
well as national identity and cultural heritage of their
peoples; (b) The sovereign and inalienable right of a
State freely to determine its own political, economic,
cultural and social system,…
 Continued …
The duty of a State to ensure that its territory is
not used in any manner which would violate
the sovereignty, political independence,
territorial integrity and national unity or
disrupt the political, economic and social
stability of another State; this obligation
applies also to States entrusted with
responsibility for territories yet to attain self-
determination and national independence;
 Continued …
The duty of a State to refrain from armed
intervention, subversion, military occupation
or any other form of intervention and
interference, overt or covert, directed at
another State or group of States, or any act of
military, political or economic interference in
the internal affairs of another State, including
acts of reprisal involving the use of force;
 Continued …
The duty of a State to refrain from any action or
attempt in whatever form or under whatever pretext
to destabilize or to undermine the stability of
another State or of any of its institutions;
duty of a State to refrain from using terrorist practices
as state policy against another State or against
peoples under colonial domination, foreign
occupation or racist regimes and to prevent any
assistance to or use of or tolerance of terrorist
groups, saboteurs or subversive agents against third
States;
 Continued …
The duty of a State to refrain from any economic,
political or military activity in the territory of another
State without its consent;
The right and duty of States to observe, promote and
defend all human rights and fundamental freedoms
within their own national territories and to work or
the elimination of massive and flagrant violations of
the rights of nations and peoples, and in particular,
for the elimination of apartheid and all forms of
racism and racial discrimination;
 Continued …
The right and duties set out in this Declaration are interrelated
and are in accordance with the Charter of the United Nations.
Nothing in this Declaration shall prejudice in any manner the
right to self-determination, freedom and independence of
peoples under colonial domination, foreign occupation or
racist regimes, and the right to seek and receive support in
accordance with the purposes and principles of the Charter of
the United Nations.
Nothing in this Declaration shall prejudice in any manner the
provisions of the Charter of the United Nations, or action
taken by the United Nations under Chapters VI and VII of the
Charter of the United Nations.
 Civil Wars and the Rule of Non-intervention
A state has no right to support a rebel group in another
state even if convinced the cause is justified. The
prohibition applies to humanitarian aid.
International law does not prohibit civil wars, the UN
Charter and customary laws of war do not apply to
the conduct of civil wars in certain instances.
A state may support a foreign government threaten by
rebel forces to restore internal order.
 Intervention in Particular Circumstances
Intervening to Protect Nationals
A state has the right to protect its citizens, but
there is no definitive rule that recognizes the
authority of a state to intervene with force
within a foreign nation to protect its citizens
or their property.
 Intervention in Particular Circumstances
Humanitarian Intervention
Military intervention has been a practice used to
protect populations as a central part of international
law. Justification is based on preserving human
rights, democracy or peace and security. Customary
international law does not recognize a right to
intervene. The practice of intervention has
contributed to the development of an accepted state
practice.
 Responsibility to Protect
The legal concept of responsibility to protect has
some basis as a result of Security Council
actions. In some cases, the responses are
categorized as humanitarian intervention.
Presently, the concept is not characterized as
customary international law.
 UN Security Council’s Power to Intervene
UN Charter, Art. 24:
In order to ensure prompt and effective action by the United
Nations, its Members confer on the Security Council primary
responsibility for the maintenance of international peace and
security, and agree that in carrying out its duties under this
responsibility the Security Council acts on their behalf.
In discharging these duties the Security Council shall act in
accordance with the Purposes and Principles of the United
Nations. The specific powers granted to the Security Council
for the discharge of these duties are laid down in Chapters VI,
VII, VIII, and XII.
 UN Security Council’s Power to Intervene
UN Charter, Art. 25:
The Members of the United Nations agree to accept and carry
out the decisions of the Security Council in accordance with
the present Charter.
Exception, Art. 2(7):
Nothing contained in the present Charter shall authorize the
United Nations to intervene in matters which are essentially
within the domestic jurisdiction of any state or shall require
the Members to submit such matters to settlement under the
present Charter; but this principle shall not prejudice the
application of enforcement measures under Chapter VII.
 UN Security Council’s Power to Intervene
Pacific Settlement Disputes
Chapter VI: The Security Council has the power to investigate and
recommend settlement procedures disputes between states.
Solutions:
negotiation, enquiry, mediation, conciliation, arbitration, judicial
settlement, resort to regional agencies or arrangements, or
other peaceful means of their own choice.
The Security Council may, if all the parties to any dispute so
request, make recommendations to the parties with a view to a
pacific settlement of the dispute.
 UN Security Council’s Power to Intervene
Art. 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
the Members of the United 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.
 UN Security Council’s Power to Intervene
Art. 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.
 UN Security Council’s Power to Intervene
Art. 43(1): All Members of the United Nations, in order
to contribute to the maintenance of international
peace and security, undertake to make available to
the Security Council, on its call and in accordance
with a special agreement or agreements, armed
forces, assistance, and facilities, including rights of
passage, necessary for the purpose of maintaining
international peace and security.
 UN Peacekeeping Forces
The UN Security Council authorizes the use of
peacekeeping forces with the consent of the host
nation.
Opposition by some UN Members not supporting these
missions resulted in an advisory opinion by the ICJ,
ruling that such expenses were legitimate in relation
to fulfilling the overall purposes of the United
Nations, promoting and to maintain a peaceful
settlement of disputes.
 Jus In Bello
The general rule prohibits inter-state force under
international law. While armed conflicts take place,
other rules apply to regulate the conduct of war and
protect victims of armed conflict, applicable to
military personnel and civilians.
Humanitarian law regulates the types of force used,
applicable in various conventions and customary
international law to restrict use of certain weapons.
Humanitarian law is the principal body of law
applying in armed conflicts.
Regulating Conduct of Hostilities & Humanitarian Law
Force may be used only to military advantage, requiring
unnecessary force be avoided, and disproportionate
suffering to military advantage is prohibited.
Forbidden practices include:
Torture
Taking hostages
Extra judicial executions
Deportations
Wanton destruction of property
Regulating Conduct of Hostilities & Humanitarian Law
Common Art. 3, International Hostilities
In the case of armed conflict not of an international character
occurring in the territory of one of the High Contracting Parties,
each Party to the conflict shall be bound to apply, as a minimum,
the following provisions:

(1) Persons taking no active part in the hostilities, including

members of armed forces who have laid down their arms and
those placed ' hors de combat ' by sickness, wounds, detention, or
any other cause, shall in all circumstances be treated humanely,
without any adverse distinction founded on race, color, religion or
faith, sex, birth or wealth, or any other similar criteria.
Regulating Conduct of Hostilities & Humanitarian Law
To this end, the following acts are and shall remain prohibited at any
time and in any place whatsoever with respect to the above-
mentioned persons:

(a) violence to life and person, in particular murder of all kinds,

mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and

degrading treatment;
Regulating Conduct of Hostilities & Humanitarian Law
(d) the passing of sentences and the carrying out of executions
without previous judgment pronounced by a regularly
constituted court, affording all the judicial guarantees which are
recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International

Committee of the Red Cross, may offer its services to the Parties
to the conflict.
The Parties to the conflict should further endeavor to bring into
force, by means of special agreements, all or part of the other
provisions of the present Convention.
The application of the preceding provisions shall not affect the
legal status of the Parties to the conflict.
Regulating Conduct of Hostilities & Humanitarian Law
Results:
A standard of treatment for noncombatants, wounded
and prisoners in non-international armed conflicts.
The rules do not apply to internal disturbances and
tensions such as riots, isolated acts of violence not
considered armed conflicts.
Activities prohibited are: torture, collective
punishment, rape, enforced prostitution and pillage,
humane treatment of prisoners.
 Weapons Control
General rule is that force is only permissible to achieve
military advantage and all unnecessary suffering is
prohibited.
The rules distinguish between combatants and
noncombatants, prohibiting states from attacking
civilians and prohibiting the use of weapons that do
not distinguish between military and civilian targets.
 Weapons Control
Restrictions of Weapons
Asphyxiating, poisonous and other gases during war time
Bacteriological methods of warfare
Chemical weapons
Mines, booby-traps and other devices
Incendiary weapons
Blinding laser weapons
 Weapons Control
Nuclear Weapons
Several conventions address the following use of
nuclear weapons:
1. Use of nuclear weapons
2. The spread of nuclear weapons
3. Reduction of these weapons
4. Nuclear free zones
5. Prohibit testing of nuclear weapons