Use of force by states
Encyclopedia
The use of force by states is controlled by both customary international law and by treaty law. The UN Charter reads in article 2(4):
This rule was "enshrined in the United Nations Charter in 1945 for a good reason: to prevent states from using force as they felt so inclined", said Louise Doswald-Beck, Secretary-General
International Commission of Jurists
.
Although some commentators interpret Article 2(4) as banning only the use of force directed at the territorial integrity or political independence of a state, the more widely held opinion is that these are merely intensifiers, and that the article constitutes a general prohibition, subject only to the exceptions stated in the Charter (self-defence and Chapter VII action by the Security Council). The latter interpretation is also supported by the historic context in which the Charter was drafted, the preamble specifically states that "to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind" is a principal aim of the UN as such. This principle is now considered to be a part of customary international law
, and has the effect of banning the use of armed force except for two situations authorized by the UN Charter. Firstly, the Security Council, under powers granted in articles 24 and 25, and Chapter VII of the Charter, may authorize collective action
to maintain or enforce international peace and security. Secondly, Article 51 also states that: "Nothing in the present Charter shall impair the inherent right to individual or collective self-defence if an armed attack occurs against a state." There are also more controversial claims by some states of a right of humanitarian intervention
, reprisals and the protection of nationals abroad.
. Although it was originally envisaged by the framers of the UN Charter that the UN would have its own designated forces to use for enforcement, the intervention was effectively controlled by forces under United States
command. The weaknesses of the system are also notable in that the fact that the resolution was only passed because of a Soviet boycott and the occupation of China
's seat by the Nationalist Chinese of Taiwan
.
The Security Council did not authorize the use of significant armed force again until the invasion of Kuwait
by Iraq
in 1990. After passing resolutions demanding a withdrawal, the Council passed Resolution 678
, which authorized the use of force and requested all member states to provide the necessary support to a force operating in cooperation with Kuwait to ensure the withdrawal of Iraqi forces. This resolution was never revoked, and in 2003, the Security Council passed Resolution 1441
, which both recognized that Iraq's non-compliance with other resolutions on weapons constituted a threat to international peace and security, and recalled that resolution 678 authorized the use of force to restore peace and security. Thus it is arguable that 1441 impliedly authorized the use of force.
The UN has also authorized the use of force in peacekeeping
or humanitarian interventions, notably in the former Yugoslavia
, Somalia
, and Sierra Leone
.
Thus there is still a right of self-defence under customary international law, as the International Court of Justice
(ICJ) affirmed in the Nicaragua Case on the use of force. Some commentators believe that the effect of Article 51 is only to preserve this right when an armed attack occurs, and that other acts of self-defence are banned by article 2(4). The more widely held opinion is that article 51 acknowledges this general right, and proceeds to lay down procedures for the specific situation when an armed attack does occur. Under the latter interpretation, the legitimate use of self-defence in situations when an armed attack has not actually occurred is still permitted. It is also to be noted that not every act of violence will constitute an armed attack. The ICJ has tried to clarify, in the Nicaragua case, what level of force is necessary to qualify as an armed attack.
The traditional customary rules on self-defence derive from an early diplomatic incident between the United States and the United Kingdom over the killing on some US citizens engaged in an attack on Canada, then a British colony. The so-called Caroline case established that there had to exist "a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment of deliberation,' and furthermore that any action taken must be proportional, "since the act justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it." These statements by the US Secretary of State to the British authorities are accepted as an accurate description of the customary right of self-defence.
crisis in 1999, the UK Foreign Secretary asserted that, "In international law, in exceptional circumstances and to avoid a humanitarian catastrophe, military action can be taken and it is on that legal basis that military action was taken." It is very difficult to reconcile this statement with the UN Charter, as it is clearly not any kind of self-defence. When NATO used military force against the Yugoslav state, it did not have authorization from the Security Council, but it was not condemned either. This is because veto-wielding countries held strong positions on both sides of the dispute.
Many countries oppose such unauthorized humanitarian interventions on the formal ground that they are simply illegal, or on the practical ground that such a right would only be ever used against weaker states by stronger states. This was specifically shown in the Ministerial Declaration of G-77 countries, in which 134 states condemned such intervention. Proponents have typically resorted to a claim that the right has developed as a new part of customary law.
“The Use of Force: Israeli Public Opinion on Military Options.”
Armed Forces & Society, Oct 1996; vol. 23: pp. 49–80.
http://afs.sagepub.com/cgi/content/abstract/23/1/49
Hendrickson, Ryan C.
“Clinton’s Military Strikes in 1998: Diversionary Uses of Force?”
Armed Forces & Society, Jan 2002; vol. 28: pp. 309–332.
http://afs.sagepub.com/cgi/content/abstract/28/2/309
Stevenson, Charles A.
“The Evolving Clinton Doctrine on the Use of Force.”
Armed Forces & Society, Jul 1996; vol. 22: pp. 511–535.
http://afs.sagepub.com/cgi/content/abstract/22/4/511
Hendrickson, Ryan C.
“NATO’s Secretary General and the Use of Force: Willy Claes and the Air Strikes in Bosnia.”
Armed Forces & Society, Oct 2004; vol. 31: pp. 95–117.
http://afs.sagepub.com/cgi/content/abstract/31/1/95
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 NationsUnited NationsThe United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
.
This rule was "enshrined in the United Nations Charter in 1945 for a good reason: to prevent states from using force as they felt so inclined", said Louise Doswald-Beck, Secretary-General
Secretary-General
-International intergovernmental organizations:-International nongovernmental organizations:-Sports governing bodies:...
International Commission of Jurists
International Commission of Jurists
The International Commission of Jurists is an international human rights non-governmental organization. The Commission itself is a standing group of 60 eminent jurists , including members of the senior judiciary in Australia, Canada, and South Africa and the former UN High Commissioner for Human...
.
Although some commentators interpret Article 2(4) as banning only the use of force directed at the territorial integrity or political independence of a state, the more widely held opinion is that these are merely intensifiers, and that the article constitutes a general prohibition, subject only to the exceptions stated in the Charter (self-defence and Chapter VII action by the Security Council). The latter interpretation is also supported by the historic context in which the Charter was drafted, the preamble specifically states that "to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind" is a principal aim of the UN as such. This principle is now considered to be a part of customary international law
Customary international law
Customary international law are those aspects of international law that derive from custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of...
, and has the effect of banning the use of armed force except for two situations authorized by the UN Charter. Firstly, the Security Council, under powers granted in articles 24 and 25, and Chapter VII of the Charter, may authorize collective action
Collective action
Collective action is the pursuit of a goal or set of goals by more than one person. It is a term which has formulations and theories in many areas of the social sciences.-In sociology:...
to maintain or enforce international peace and security. Secondly, Article 51 also states that: "Nothing in the present Charter shall impair the inherent right to individual or collective self-defence if an armed attack occurs against a state." There are also more controversial claims by some states of a right of humanitarian intervention
Humanitarian intervention
Humanitarian intervention "refers to a state using military force against another state when the chief publicly declared aim of that military action is ending human-rights violations being perpetrated by the state against which it is directed."...
, reprisals and the protection of nationals abroad.
Collective action
The Security Council is authorized to determine the existence of, and take action to address, any threat to international peace and security. In practice this power has been relatively little-used because of the presence of five veto-wielding permanent members with interests in a given issue. Typically measures short of armed force are taken before armed force, such as the imposition of sanctions. The first time the Security Council authorized the use of force was in 1950 to secure a North Korean withdrawal from South KoreaSouth Korea
The Republic of Korea , , is a sovereign state in East Asia, located on the southern portion of the Korean Peninsula. It is neighbored by the People's Republic of China to the west, Japan to the east, North Korea to the north, and the East China Sea and Republic of China to the south...
. Although it was originally envisaged by the framers of the UN Charter that the UN would have its own designated forces to use for enforcement, the intervention was effectively controlled by forces under United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
command. The weaknesses of the system are also notable in that the fact that the resolution was only passed because of a Soviet boycott and the occupation of China
China
Chinese civilization may refer to:* China for more general discussion of the country.* Chinese culture* Greater China, the transnational community of ethnic Chinese.* History of China* Sinosphere, the area historically affected by Chinese culture...
's seat by the Nationalist Chinese of Taiwan
Taiwan
Taiwan , also known, especially in the past, as Formosa , is the largest island of the same-named island group of East Asia in the western Pacific Ocean and located off the southeastern coast of mainland China. The island forms over 99% of the current territory of the Republic of China following...
.
The Security Council did not authorize the use of significant armed force again until the invasion of Kuwait
Kuwait
The State of Kuwait is a sovereign Arab state situated in the north-east of the Arabian Peninsula in Western Asia. It is bordered by Saudi Arabia to the south at Khafji, and Iraq to the north at Basra. It lies on the north-western shore of the Persian Gulf. The name Kuwait is derived from the...
by Iraq
Iraq
Iraq ; officially the Republic of Iraq is a country in Western Asia spanning most of the northwestern end of the Zagros mountain range, the eastern part of the Syrian Desert and the northern part of the Arabian Desert....
in 1990. After passing resolutions demanding a withdrawal, the Council passed Resolution 678
United Nations Security Council Resolution
A United Nations Security Council resolution is a UN resolution adopted by the fifteen members of the Security Council; the UN body charged with "primary responsibility for the maintenance of international peace and security"....
, which authorized the use of force and requested all member states to provide the necessary support to a force operating in cooperation with Kuwait to ensure the withdrawal of Iraqi forces. This resolution was never revoked, and in 2003, the Security Council passed Resolution 1441
United Nations Security Council Resolution 1441
United Nations Security Council Resolution 1441 is a United Nations Security Council resolution adopted unanimously by the United Nations Security Council on November 8, 2002, offering Iraq under Saddam Hussein "a final opportunity to comply with its disarmament obligations" that had been set out...
, which both recognized that Iraq's non-compliance with other resolutions on weapons constituted a threat to international peace and security, and recalled that resolution 678 authorized the use of force to restore peace and security. Thus it is arguable that 1441 impliedly authorized the use of force.
The UN has also authorized the use of force in peacekeeping
Peacekeeping
Peacekeeping is an activity that aims to create the conditions for lasting peace. It is distinguished from both peacebuilding and peacemaking....
or humanitarian interventions, notably in the former Yugoslavia
Yugoslavia
Yugoslavia refers to three political entities that existed successively on the western part of the Balkans during most of the 20th century....
, Somalia
Somalia
Somalia , officially the Somali Republic and formerly known as the Somali Democratic Republic under Socialist rule, is a country located in the Horn of Africa. Since the outbreak of the Somali Civil War in 1991 there has been no central government control over most of the country's territory...
, and Sierra Leone
Sierra Leone
Sierra Leone , officially the Republic of Sierra Leone, is a country in West Africa. It is bordered by Guinea to the north and east, Liberia to the southeast, and the Atlantic Ocean to the west and southwest. Sierra Leone covers a total area of and has an estimated population between 5.4 and 6.4...
.
Self-defence
Article 51:
Nothing in the present Charter shall impair the inherent right of collective or individual self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by members in exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
Thus there is still a right of self-defence under customary international law, as the International Court of Justice
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
(ICJ) affirmed in the Nicaragua Case on the use of force. Some commentators believe that the effect of Article 51 is only to preserve this right when an armed attack occurs, and that other acts of self-defence are banned by article 2(4). The more widely held opinion is that article 51 acknowledges this general right, and proceeds to lay down procedures for the specific situation when an armed attack does occur. Under the latter interpretation, the legitimate use of self-defence in situations when an armed attack has not actually occurred is still permitted. It is also to be noted that not every act of violence will constitute an armed attack. The ICJ has tried to clarify, in the Nicaragua case, what level of force is necessary to qualify as an armed attack.
The traditional customary rules on self-defence derive from an early diplomatic incident between the United States and the United Kingdom over the killing on some US citizens engaged in an attack on Canada, then a British colony. The so-called Caroline case established that there had to exist "a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment of deliberation,' and furthermore that any action taken must be proportional, "since the act justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it." These statements by the US Secretary of State to the British authorities are accepted as an accurate description of the customary right of self-defence.
Pre-emptive force
There is a limited right of pre-emptive self-defence under customary law. Its continuing permissibility under the Charter hinges on the interpretation of article 51. If it permits self-defence only when an armed attack has occurred, then there can be no right to pre-emptive self defence. However, few observers really think that a state must wait for an armed attack to actually begin before taking action. A distinction can be drawn between "preventive" self-defence, which takes place when an attack is merely possible or foreseeable, and a permitted "interventionary" or "anticipatory" self-defence, which takes place when an armed attack is imminent and inevitable. The right to use interventionary, pre-emptive armed force in the face of an imminent attack has not been ruled out by the ICJ. But state practice and opinio juris overwhelmingly suggests that there is no right of preventive self-defence under international law.Protection of nationals
The controversial claim to a right to use force in order to protect nationals abroad has been asserted by some States. Examples include intervention by the UK in Suez (1956), Israel in Entebbe (1976) and the USA in the Dominican Republic (1965), Grenada (1983) and Panama (1989). The majority of States are doubtful about the existence of such a right. It is often claimed alongside other rights and reasons for using force. For example, the USA intervention in Grenada was widely considered to be in response to the rise to power of a socialist government. The danger that this posed to US nationals was doubtful and resulted in condemnation by the General Assembly. As with the above examples (except the Entebbe incident), the protection of nationals is often used as an excuse for other political objectives.Humanitarian intervention
In recent years several countries have begun to argue for the existence of a right of humanitarian intervention without Security Council authorization. In the aftermath of the KosovoKosovo
Kosovo is a region in southeastern Europe. Part of the Ottoman Empire for more than five centuries, later the Autonomous Province of Kosovo and Metohija within Serbia...
crisis in 1999, the UK Foreign Secretary asserted that, "In international law, in exceptional circumstances and to avoid a humanitarian catastrophe, military action can be taken and it is on that legal basis that military action was taken." It is very difficult to reconcile this statement with the UN Charter, as it is clearly not any kind of self-defence. When NATO used military force against the Yugoslav state, it did not have authorization from the Security Council, but it was not condemned either. This is because veto-wielding countries held strong positions on both sides of the dispute.
Many countries oppose such unauthorized humanitarian interventions on the formal ground that they are simply illegal, or on the practical ground that such a right would only be ever used against weaker states by stronger states. This was specifically shown in the Ministerial Declaration of G-77 countries, in which 134 states condemned such intervention. Proponents have typically resorted to a claim that the right has developed as a new part of customary law.
The use of non-military force
There has been widespread debate about the significance of the phrasing of article 2(4), specifically about the use of the solitary word "force." There is a strain of opinion holding that whereas "armed attack" is referred to in article 51, the use of the word "force" in 2(4) holds a wider meaning, encompassing economic force or other methods of non-military coercion. Although such measures may be banned by certain other provisions of the Charter, it does not seem possible to justify such a wide non-military interpretation of 2(4) in the light of subsequent state practice. It must also be noted that this article covers the threat of force, which is not permissible in a situation where the use of actual armed force would not be.For Further Reading
Barzilai, Gad and Efraim Inbar.“The Use of Force: Israeli Public Opinion on Military Options.”
Armed Forces & Society, Oct 1996; vol. 23: pp. 49–80.
http://afs.sagepub.com/cgi/content/abstract/23/1/49
Hendrickson, Ryan C.
“Clinton’s Military Strikes in 1998: Diversionary Uses of Force?”
Armed Forces & Society, Jan 2002; vol. 28: pp. 309–332.
http://afs.sagepub.com/cgi/content/abstract/28/2/309
Stevenson, Charles A.
“The Evolving Clinton Doctrine on the Use of Force.”
Armed Forces & Society, Jul 1996; vol. 22: pp. 511–535.
http://afs.sagepub.com/cgi/content/abstract/22/4/511
Hendrickson, Ryan C.
“NATO’s Secretary General and the Use of Force: Willy Claes and the Air Strikes in Bosnia.”
Armed Forces & Society, Oct 2004; vol. 31: pp. 95–117.
http://afs.sagepub.com/cgi/content/abstract/31/1/95