a critically analysis of the doctrine of use of force by states under international law

A PRESENTATION ON USE OF FORCE UNDER

INTERNATIONAL LAWBY

ONYEKACHI DURU ESQ

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TOPIC

A Critically Analysis of the Doctrine of Use of Force by States under International

Law

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OUTLINE OF CONTENTS INTRODUCTION HISTORICAL ANALYSIS OF THE USE OF FORCE HISTORICAL BACKGROUND OF THE PROHIBITION OF USE OF

FORCE OVERVIEW OF USE OF FORCE RULE UNDER INTERNATIONAL

LAW THREAT OF FORCE UNDER INTERNATIONAL LAW THE MEANING OF “FORCE” FOR THE PURPOSES OF ARTICLE

2(4) ICJ ATTITUDE TOWARDS ‘USE OF FORCE’ IN INTERNATIONAL

LAW NATURE OF STATES’ OBLIGATION UNDER USE OF FORCE IN

INTERNATIONAL LAW EXCEPTIONS TO THE RULE PRINCIPLES OF INTERNATIONAL LAW ON SELF DEFENCE CONTEMPORARY EXAMPLES OF USE – BREACH EXAMPLE OF USE OF FORCE – COMPLIANCE CONCLUSION

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INTRODUCTION The purpose of this presentation is to provide

a clear statement, assessment and critical analysis of the rules of international law governing the use of force by states.

This study is significant because, in the light of global challenges, it is of importance that there be clarity and understanding about the relevance and application of international law to the use of force by states.

We have included several focusers and some short video clips so as to enable the reader have a good mental picture of the subject matter under consideration.

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Use of Force on Sea: Naval ForcesThe picture shows a Naval Warhead deploying marines for

ground action.


Amoured TankThis picture shows an Amoured Tank. This machine is one of

the deadliest weapons for use of force on land.


A Submarine WarheadThis picture shows a submarine warhead discharging

missiles for colossal damage to target.


Ground Troops This picture shows an ‘Infantry’ preparing for military action

on land


Fighter PlanesThis picture shows ‘Fighters’ discharging missiles to target

locations for colossal damage (mass destruction).


UN LogoThis is the official logo of the United Nations Organisation.


HISTORICAL ANALYSIS OF THE USE OF FORCE Historically, there existed the ‘Doctrine of Just War’ which

was a product of the Christianisation of the Roman Empire in the thirteenth century.

The doctrine clearly stipulated that force could be used by any state provided it complied with divine will.

St. Thomas Aquinas in the thirteenth century, expanded the scope of ‘Just War’ by stating that it was the subjective guilt of the wrongdoer that had to be punished rather than objectively punishing the wrong activity.

Later on, the concept of ‘Just War’ disappeared from the domain of international law as States were now regarded as sovereign and equal.

No state could presume to judge whether another’s cause was just or not. States were expected to honour treaties amongst them, respect the political independence and integrity of other states, and try to resolve differences by peaceful methods.


HISTORICAL BACKGROUND OF THE PROHIBITION OF USE OF FORCE

After the First World War in 1918, a general international institution to oversee the conduct of the world community to prevent war was created and called the League of Nations.

The Covenant of the League of Nations did not prohibit war or the use of force but instead set up procedures to restrict war to tolerable levels.

In a bid to remedy the above defect, the General Treaty for the Renunciation of War called Kellogg–Briand Pact of 1928 was eventually signed amongst the member states and in that pact, recourse to war was condemned and renounced.

The Pact of Paris, officially known as the General Treaty for Renunciation of War 1928 as an Instrument of National Policy was a 1928 international agreement in which signatory states promised not to use war to resolve “disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them”.


OVERVIEW OF USE OF FORCE UNDER INTERNATIONAL LAW

In international law, the notion of ‘use of force’ has always been concerned with the relationship between states, not regarding the purely domestic use of force by a state’s authority against its civilians.

It is at the core of international legal efforts to prevent war.

The prohibition of the use of force is first and foremost a treaty-based rule, inscribed both in the Charter of the United Nations (Article 2(4)) and in numerous other treaties of regional scope, (for example, Article 4(f) of the Constitutive Act of the African Union 2000).

It is at the same time a rule of customary international law.

It is also widely held to be peremptory in nature, and has often been described as the ‘cornerstone’ of the modern international system.


VIDEO SHOWING USE OF FORCE


THREAT OF FORCE UNDER INTERNATIONAL LAW The prohibition of the threat of force stands directly

alongside its loftier counterpart, the prohibition of the use of force, in Article 2(4) of the United Nations Charter.

The prohibition of the threat of force has also been restated, although in a soft law format, in subsequent international instruments, such as the 1970 Declaration on the Principles of International Law Concerning Friendly Relations and Cooperation Among States and the 1987 Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations.

The International Court of Justice in its Advisory Opinion to the General Assembly of the United Nations on the Legality of the Threat or Use of Force of the Nuclear Weapons Case (1997) noted that a signaled intention to use force if certain events occur could constitute a threat under article 2(4), where the envisaged use of force would itself be unlawful.


ICJ INTERPRETATION OF USE OR THREAT OF FORCE RULE IN INTERNATIONAL LAW

The Corfu Channel merits decision of 1949, which arose from the destruction of two British destroyers by mines off the Albanian coast is the first case to consider threats of force in international law. With regard to a claim by Albania alleging the threatening nature of the tactical “diamond formation” adopted by the British destroyers and other supporting vessels, the ICJ took the view, in light of the circumstances, that the British action was threatening but nonetheless lawful.

In Nicaragua v. United States, a 1986 case concerning support of the Contra guerillas by the United States, the Court deemed “assistance to rebels in the form of the provision of weapons or logistical or other support” be a “threat or use of force”.

In the Nuclear Weapons advisory opinion of 1996, the ICJ stated that “If the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2, paragraph 4 . . . . [equally] if it is to be lawful, the declared readiness of a State to use force must be a use of force that is in conformity with the Charter.


THE MEANING OF “FORCE” FOR THE PURPOSES OF ARTICLE 2(4)

The word ‘force’ has been defined as power, violence, pressure directed against a person or thing.

It is generally agreed among scholars that article 2(4) covers, in the first place, the threat or use of armed or military force—i.e., the employment by a State of its regular armed forces or of irregular armed groups and of means and methods of warfare against another State, its nationals, public or private property.

The reference to ‘force’ rather than ‘war’ in article 2(4) is beneficial and thus covers situations where violence is employed, so as not to fall short of the technical requirement of war.

The scope of Article 2(4) is indeed limited to the proscription of armed force but, notably, this proscription also embraces the concept of “indirect force.”

This notion of ‘Indirect Force’ generally stands for a State’s technical or organizational involvement in an international armed conflict ongoing between other States or in a non-international armed conflict occurring in another State - for example, by sending to that State armed bands, groups, irregulars or mercenaries.


NATURE OF STATES’ OBLIGATION UNDER USE OF FORCE IN INTERNATIONAL LAW

Article 2(4) of the United Nations Charter creates an obligation which was, from its inception, designed to be of a superior legal nature.

This obligation is now binding even for the few States which are not Members of the United Nations, given the customary international law and jus cogens character of the Charter.

Mention must be made of Article 103 of the Charter of the United Nations which states that “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail” and Article 52 of the Vienna Convention on the Law of Treaties 1969, which provides that “a treaty is void if its conclusion has been procured by the threat or use of force in the violation of the principles of international law embodied in the Charter of the United Nations”.


EXCEPTIONS TO THE RULE There is a general agreement that the use of force

(at least against a member of the United Nations) is allowed if authorized or undertaken by a competent organ of the United Nations.

In Articles 42, 43 and Article 51, the Charter recognizes two exceptions to the prohibition of the use of force rule: forcible enforcement measures within the framework of the organization’s collective security system, and the right of self-defence against armed attacks.

More specifically, Article 42 endows the Security Council with the authority to “take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security.”

In addition to the foregoing, the use of force may be permitted for purposes of self determination and Humanitarian intervention.


United Nations Security CouncilThe picture on the top right corner shows the Permanent Members of the United Nations

Security Council (United States of America, Britain, France, China and Russia) and the Secretary-General – Mr. Ban Ki Moon


PRINCIPLES OF INTERNATIONAL LAW ON SELF DEFENCE

In the Nicaragua Case, the international Court of Justice clearly establishes that the right of self defence exists as an inherent right under international law and the UN Charter.

Article 51 of the UN Charter preserves the right to use force in self-defence “if an armed attack occurs”, until the Security Council has taken the necessary measures to restore peace. Force may be used in self-defence only in relation to an ‘armed attack’ whether imminent or ongoing.

The ‘armed attack’ may include not only be an attack against a state’s territory; but also, an attack against emanations of the state such as embassies and armed forces.

The term ‘armed attack’ has been said to include attacks of regular armed force across an international border; sending armed personnel to carry out acts of armed attack and activities which are usually conducted by regular armed forces

Force in self-defence may be used only when: the attack consists of the threat or use of force (not mere economic coercion); when the attacker has the intention and the capability to attack; and the attack is directed from outside territory controlled by the state.

In the case of a threatened attack, there must be an actual threat of an attack against the defending state itself.


CONTEMPORARY EXAMPLES OF USE OF FORCE – BREACH

Saudi Arabia, spearheading a coalition of nine Arab states, began carrying out airstrikes in neighbouring Yemen on 25 March 2015, heralding the start of a military intervention codenamed Operation Decisive Storm.

The US led invasion of Iraq in 2003. The 2003 invasion of Iraq lasted from 19 March to 1 May 2003 and signaled the start of the conflict that later came to be known as the Iraq War, which was dubbed Operation Iraqi Freedom by the United States (prior to 19 March, the mission in Iraq was called Operation Enduring Freedom, a carryover from the conflict in Afghanistan).

The 2014–15 Russian military intervention in Ukraine. In 2014, Russia has made several incursions into Ukrainian territory, thus breaking the 1994 Budapest Memorandum.


EXAMPLE OF USE OF FORCE – COMPLIANCE

The use of force as self defence against terror attacks is permissible as this was utilized by the Charter States against Afghanistan for the Taliban Regime providing bases for Al Qaeda Organisation which bombed the World Trade Centre in New York on Sept. 11, 2001.

This they did with the support of the International Community and the North Atlantic Treaty Organisation (NATO) Alliance.


Conclusion It is evident that international law has been of great

influence on the use of force in both times of armed conflict and when armed conflict had not yet arisen.

It is hardly groundbreaking to suggest that the international legal order is enduring the corrosion of one of its most fundamental pillars: the prohibition on the use of force.

The law is under challenge from increasing demands for the use of force and for its legal validation.

We want to conclude by saying that within the framework of International Law, the use of force ought to be applied only as a last resort when a conflict threatens peace and international security.


END