use of force

CHAPTER 14CHAPTER 14
LEGAL REGULATION OFLEGAL REGULATION OF
THE USE OF FORCETHE USE OF FORCE
PROFESSORPROFESSOR
DR. ABDUL GHAFUR HAMIDDR. ABDUL GHAFUR HAMID

Classification of lawClassification of law [p. 487][p. 487]

The Law before 1945The Law before 1945
[pp. 488-90][pp. 488-90]
 The just war doctrineThe just war doctrine
 Positivism and sovereign right of states to resortPositivism and sovereign right of states to resort
to warto war
 Attempts at prohibiting war before 1945Attempts at prohibiting war before 1945
(i) Covenant of the League of Nations(i) Covenant of the League of Nations
(ii) General Treaty for the Renunciation of(ii) General Treaty for the Renunciation of
War (Pact of Paris) Kellogg-BriandWar (Pact of Paris) Kellogg-Briand
Pact) , 1928Pact) , 1928

7.17.1 THE LAW AFTER 1945:THE LAW AFTER 1945:
PROHIBITION OF THE USEPROHIBITION OF THE USE
OF FORCEOF FORCE [Textbook, p. 432][Textbook, p. 432]Article 2Article 2
4. All members shall refrain4. All members shall refrain in theirin their
international relationsinternational relations from thefrom the threat orthreat or
use of forceuse of force against the territorial integrityagainst the territorial integrity
and political independence of any state, orand political independence of any state, or
in any other manner inconsistent with thein any other manner inconsistent with the
Purposes of the United Nations.Purposes of the United Nations.

Basic rule: threat or use of force is prohibitedBasic rule: threat or use of force is prohibited [p.[p.
491]491]
 Meaning of forceMeaning of force: Force means ‘armed force’,: Force means ‘armed force’,
not other means of economic or politicalnot other means of economic or political
pressure.pressure.
NicaraguaNicaragua case – Indirect use of force is alsocase – Indirect use of force is also
prohibited.prohibited.
Threat of forceThreat of force: Not only use but also threat of: Not only use but also threat of
force is prohibited. ‘Threat of force’ means anforce is prohibited. ‘Threat of force’ means an
ultimatum announcing recourse to militaryultimatum announcing recourse to military
measures it certain demands are not accepted.measures it certain demands are not accepted.

Views on Interpretation ofViews on Interpretation of
Article 2 (4)Article 2 (4) [Textbook. p. 493][Textbook. p. 493]
There are two different views on theThere are two different views on the
interpretation of Article 2(4) of theinterpretation of Article 2(4) of the
Charter:Charter:
(1) The(1) The permissive view;permissive view; andand
(2) The(2) The restrictive viewrestrictive view ..

Permissive viewPermissive view
[Textbook, p. 493][Textbook, p. 493]
According to this view, Article 2(4) doesAccording to this view, Article 2(4) does not laynot lay
down a total ban on the use of forcedown a total ban on the use of force andand
States are still permitted to use force in quite aStates are still permitted to use force in quite a
number of situations, for example:number of situations, for example:
(1) Use of force in anticipation of a future attack;(1) Use of force in anticipation of a future attack;
(2) Use of force to rescue nationals abroad [See,(2) Use of force to rescue nationals abroad [See,
Entebbe incident];Entebbe incident];
(3) Humanitarian intervention;(3) Humanitarian intervention;
(4) Regime change (intervention for democracy).(4) Regime change (intervention for democracy).

Restrictive viewRestrictive view
 According to this view, the Charter broughtAccording to this view, the Charter brought
about a radical alteration in States’ right to useabout a radical alteration in States’ right to use
force.force.
 Article 2(4) lays downArticle 2(4) lays down a total ban on the use ofa total ban on the use of
forceforce save only where explicit exceptions aresave only where explicit exceptions are
made in the Charter itself.made in the Charter itself.
 The Charter allows only two exceptions to theThe Charter allows only two exceptions to the
principle of non-use of force, namely:principle of non-use of force, namely:
(1)(1) Self-defenceSelf-defence under Article 51; andunder Article 51; and
(2)(2) Enforcement actionEnforcement action under Chapter VII of theunder Chapter VII of the
Charter.Charter.

Restrictive view is the established law.Restrictive view is the established law.
[Textbook, pp. 494-95][Textbook, pp. 494-95]
 AAn analysis of authorities reveals that then analysis of authorities reveals that the overwhelmingoverwhelming
majority of juristsmajority of jurists accept the restrictive view that Articleaccept the restrictive view that Article
2(4) of the Charter contains a total prohibition of the use2(4) of the Charter contains a total prohibition of the use
of force.of force.
 TheThe State practiceState practice also favours this view. Out of the 192also favours this view. Out of the 192
UN Members, only two States (US and Israel) rely on theUN Members, only two States (US and Israel) rely on the
permissive interpretation.permissive interpretation.
 Therefore, the correct interpretation of Article 2(4) is thatTherefore, the correct interpretation of Article 2(4) is that
any use of force by a State for whatever reason isany use of force by a State for whatever reason is
banned unless explicitly allowed by the Charter of thebanned unless explicitly allowed by the Charter of the
United NationsUnited Nations..

Military and Paramilitary Activities in andMilitary and Paramilitary Activities in and
against Nicaraguaagainst Nicaragua (Nicaragua v the US)(Nicaragua v the US) [Cases @[Cases @
Materials pp. 199-204]Materials pp. 199-204]
 Nicaragua alleged that the United States wasNicaragua alleged that the United States was
responsible under international law for certainresponsible under international law for certain
military operations in Nicaraguan territory.military operations in Nicaraguan territory.
 It claimed that the United States had (i) usedIt claimed that the United States had (i) used
direct armed force against it by laying mines indirect armed force against it by laying mines in
Nicaraguan waters, and attacking and damagingNicaraguan waters, and attacking and damaging
Nicaraguan ports and oil installations, and (ii)Nicaraguan ports and oil installations, and (ii)
given assistance (by means of training, arming,given assistance (by means of training, arming,
financing, and supporting) to thefinancing, and supporting) to the contrascontras,,
Nicaraguan guerrillas fighting to overthrow theNicaraguan guerrillas fighting to overthrow the
Nicaraguan Government.Nicaraguan Government.

Nicaragua caseNicaragua case [Cont.][Cont.]
 The US argued that it activities againstThe US argued that it activities against
Nicaragua was justified because it was acted inNicaragua was justified because it was acted in
the exercise ofthe exercise of collective self-defencecollective self-defence inin
response to Nicaragua’s support of arms toresponse to Nicaragua’s support of arms to
rebels in El Salvador, a friendly country.rebels in El Salvador, a friendly country.
 As regards the issue of ‘As regards the issue of ‘multilateral treatymultilateral treaty
reservationreservation’ contained in the US declaration’ contained in the US declaration
accepting compulsory jurisdiction, whileaccepting compulsory jurisdiction, while
admitting that it could not apply Art. 2(4) of theadmitting that it could not apply Art. 2(4) of the
Charter against the US, the Court held that itCharter against the US, the Court held that it
could apply rules of customary international lawcould apply rules of customary international law
on the non use of force and non-intervention.on the non use of force and non-intervention.

Nicaragua case is quite significantNicaragua case is quite significant
because in this case the World Courtbecause in this case the World Court
thoroughly examined and ruled on threethoroughly examined and ruled on three
important principles of international law,important principles of international law,
namely:namely:
(1) Principle of non use of force;(1) Principle of non use of force;
(2) principle of non-intervention; and(2) principle of non-intervention; and
(3) Collective self-defence.(3) Collective self-defence.

(On use of force)(On use of force)
 According to the facts of Nicaragua case,According to the facts of Nicaragua case, whilewhile
thethe arming and training of thearming and training of the contrascontras cancan
certainly be said to involve the threat orcertainly be said to involve the threat or use ofuse of
force against Nicaraguaforce against Nicaragua, this is not necessarily, this is not necessarily
so in respect of all the assistance given by theso in respect of all the assistance given by the
US Government.US Government.
 The Court considers that theThe Court considers that the mere supply ofmere supply of
fundsfunds to theto the contrascontras, while undoubtedly, while undoubtedly an act ofan act of
interventionintervention in the internal affairs of Nicaragua,in the internal affairs of Nicaragua,
doesdoes not in itself amount to a use of forcenot in itself amount to a use of force..

(On intervention)(On intervention)
 The principle of non-intervention is part andThe principle of non-intervention is part and
parcel of customary international law.parcel of customary international law.
 The principleThe principle forbids all States or group of Statesforbids all States or group of States
to intervene directly or indirectly in internal orto intervene directly or indirectly in internal or
external affairs of other Statesexternal affairs of other States..
 By virtue of the ‘By virtue of the ‘doctrine of sovereigntydoctrine of sovereignty’, a State’, a State
is free to choose any political, economic, socialis free to choose any political, economic, social
and cultural system, or to formulate whateverand cultural system, or to formulate whatever
foreign policy, it likes.foreign policy, it likes.

(On intervention)(On intervention)
 Intervention is wrongful when it uses methods ofIntervention is wrongful when it uses methods of
coercioncoercion in regard to such choices, which mustin regard to such choices, which must
remain free ones.remain free ones.
 The element of coercion, is particularly obviousThe element of coercion, is particularly obvious
in the case ofin the case of an intervention which uses forcean intervention which uses force,,
either in theeither in the direct formdirect form of military action, or inof military action, or in
thethe indirect formindirect form of support for subversive orof support for subversive or
terrorist armed activities within another State.terrorist armed activities within another State.

(On Collective self-defence)(On Collective self-defence)
 The rule prohibiting force allows for certainThe rule prohibiting force allows for certain
exceptions, the right of self-defence being oneexceptions, the right of self-defence being one
among them.among them.
 Whether it is anWhether it is an individualindividual oror collective self-collective self-
defencedefence, three essential criteria must be, three essential criteria must be
satisfied:satisfied:
(1)(1) An armed attackAn armed attack by another State (the Stateby another State (the State
concerned , having been the victim of anconcerned , having been the victim of an
armed attack);armed attack);
(2)(2) NecessityNecessity of self-defence; andof self-defence; and
(3)(3) ProportionalityProportionality..

(On Collective self-defence)(On Collective self-defence)
 The Court finds that in customary internationalThe Court finds that in customary international
law, there is no rule permitting the exercise oflaw, there is no rule permitting the exercise of
collective self-defence in the absence of acollective self-defence in the absence of a
““requestrequest” by the State which regards itself as the” by the State which regards itself as the
victim of an armed attack.victim of an armed attack.
 Therefore, in the case of a collective self-Therefore, in the case of a collective self-
defence, the ‘defence, the ‘request by the victim of armedrequest by the victim of armed
attackattack’ to come to its assistance is an extra’ to come to its assistance is an extra
requirement.requirement.

(Judgment of the Court)(Judgment of the Court)
 The world Court announced its judgmentThe world Court announced its judgment
in favour of Nicaragua.in favour of Nicaragua.
 Held that the United States was under anHeld that the United States was under an
obligation to make reparation toobligation to make reparation to
Nicaragua for all injury caused toNicaragua for all injury caused to
Nicaragua by the breaches of obligationsNicaragua by the breaches of obligations
under international law.under international law.

3.3. RIGHT OF SELF-DEFENCERIGHT OF SELF-DEFENCE
OF STATESOF STATES
Article 51Article 51
Nothing in the present Charter shall impair theNothing in the present Charter shall impair the
inherent right of individual and collective self-inherent right of individual and collective self-
defencedefence if an armed attack occursif an armed attack occurs against aagainst a
Member of the United Nations, until the SecurityMember of the United Nations, until the Security
Council has taken measures necessary toCouncil has taken measures necessary to
maintain international peace and security.maintain international peace and security.
Measures taken by Members in the exercise ofMeasures taken by Members in the exercise of
this right of self-defence shall be immediatelythis right of self-defence shall be immediately
reported to the Security Council….reported to the Security Council….

3.13.1 Self-Defence as a Response to anSelf-Defence as a Response to an
Armed AttackArmed Attack [Textbook, p. 497][Textbook, p. 497]
 Article 51 prescribes that “nothing in the presentArticle 51 prescribes that “nothing in the present
Charter shall impair the inherent right ofCharter shall impair the inherent right of
individual and collective self-defenceindividual and collective self-defence if an armedif an armed
attack occursattack occurs…”.…”.
 The meaning is clear and unambiguous. TheThe meaning is clear and unambiguous. The
right of self-defence is restricted to a case whereright of self-defence is restricted to a case where
there isthere is an actual armed attack against thean actual armed attack against the
StateState..
 But here again there are two differing views:But here again there are two differing views:
permissive and restrictive.permissive and restrictive.

Permissive schoolPermissive school
 The ‘The ‘permissive schoolpermissive school ’ maintains that Article’ maintains that Article
51 does not restrict the right of self-defence to51 does not restrict the right of self-defence to
cases of armed attack only and that States havecases of armed attack only and that States have
wider rights of self-defence permitted bywider rights of self-defence permitted by
customary international law.customary international law.
 BowettBowett, for example, argues that:, for example, argues that:
““TheThe travaux pr`eparatoirestravaux pr`eparatoires suggests that thesuggests that the
Article should safeguard the right of self-Article should safeguard the right of self-
defence, not restrict it. …The right implicitlydefence, not restrict it. …The right implicitly
excepted was not confined to reaction to ‘armedexcepted was not confined to reaction to ‘armed
attack’ but permitted of certain substantiveattack’ but permitted of certain substantive
rights.”rights.”

Restrictive schoolRestrictive school
[Textbook, pp. 217-218][Textbook, pp. 217-218]
 The ‘The ‘restrictive schoolrestrictive school ’ maintains that Article’ maintains that Article
51 restricts the right of self-defence to cases of51 restricts the right of self-defence to cases of
armed attack only.armed attack only.
 Philip C. JessupPhilip C. Jessup writes:writes:
““Article 51 of the Charter suggests a furtherArticle 51 of the Charter suggests a further
limitation on the right of self-defence: it may belimitation on the right of self-defence: it may be
exercisedexercised only ‘if an armed attack occurs’only ‘if an armed attack occurs’. This. This
restriction in Article 51 very definitely narrowsrestriction in Article 51 very definitely narrows
the freedom of action which States had underthe freedom of action which States had under
traditional international law.”traditional international law.”

 A treaty is as a general rule to be interpreted inA treaty is as a general rule to be interpreted in
accordance with theaccordance with the ordinary meaning to beordinary meaning to be
given to the terms of the treaty in their contextgiven to the terms of the treaty in their context
(Art. 31).(Art. 31).
 In Article 51, the expression ‘if an armed attackIn Article 51, the expression ‘if an armed attack
occurs’ is very clear and unambiguous. Theoccurs’ is very clear and unambiguous. The
textual interpretation, therefore, shall prevail andtextual interpretation, therefore, shall prevail and
travaux preparatoriestravaux preparatories has no relevance here.has no relevance here.
 It is in conformity with the main purpose of theIt is in conformity with the main purpose of the
UN: non use of force: Article 2(4).UN: non use of force: Article 2(4).

[Cont.][Cont.]
 It is also accepted by the overwhelming majorityIt is also accepted by the overwhelming majority
of jurists and supported by state practice.of jurists and supported by state practice.
 In theIn the Nicaragua caseNicaragua case,, the World Court ruledthe World Court ruled
thatthat
““In the case of individual self-defence, theIn the case of individual self-defence, the
exercise of this right isexercise of this right is subject to the Statesubject to the State
concernedconcerned having been the victim of an armedhaving been the victim of an armed
attackattack. Reliance on collective self-defence of. Reliance on collective self-defence of
course does not remove the need of this.”course does not remove the need of this.”

The ruling of the World Court on the meaning of ‘armedThe ruling of the World Court on the meaning of ‘armed
attack’ [attack’ [NicaraguaNicaragua case]case]
 ““An armed attack must be understood asAn armed attack must be understood as
including not merely action byincluding not merely action by regular armedregular armed
forces across an international borderforces across an international border, but also, but also
‘‘the sending by or on behalf of a State of armedthe sending by or on behalf of a State of armed
bands, groups, irregulars or mercenariesbands, groups, irregulars or mercenaries, which, which
carry out acts of armed forces against anothercarry out acts of armed forces against another
StateState of such gravityof such gravity as to amount to (as to amount to (inter aliainter alia))
an actual armed attack conducted by regularan actual armed attack conducted by regular
forces, or its substantial involvement therein…forces, or its substantial involvement therein…

The ruling of the World Court on the meaning ofThe ruling of the World Court on the meaning of
‘armed attack’ [‘armed attack’ [NicaraguaNicaragua case] Cont.case] Cont.
 But the CourtBut the Court does not believedoes not believe that the conceptthat the concept
of armed attack includes not only acts by armedof armed attack includes not only acts by armed
bands where such acts occur on a significantbands where such acts occur on a significant
scale but alsoscale but also assistance to rebels in theassistance to rebels in the form ofform of
provisions of weapons or logistical or otherprovisions of weapons or logistical or other
supportsupport. Such assistance may be regarded as a. Such assistance may be regarded as a
threat or use of force, or amount to interventionthreat or use of force, or amount to intervention
in the internal or external affairs of other States.”in the internal or external affairs of other States.”

3.23.2 Legality of anticipatory self-Legality of anticipatory self-
defencedefence [Textbook, p. 502][Textbook, p. 502]
 The most debatable and controversial attempt toThe most debatable and controversial attempt to
widen the exceptional right of self-defence is thewiden the exceptional right of self-defence is the
argument that States have the right ofargument that States have the right of
anticipatory self-defence whenever an attack isanticipatory self-defence whenever an attack is
expected.expected.
 This idea seems to be based on ‘This idea seems to be based on ‘militarymilitary
necessitynecessity’, according to which ‘the best defence’, according to which ‘the best defence
is to attack first.is to attack first.
 BowettBowett advocates anticipatory self-defence:advocates anticipatory self-defence:
“No State can be expected to await an initial“No State can be expected to await an initial
attack which, in the present state of armaments,attack which, in the present state of armaments,
maymay

well destroy the State’s capacity for furtherwell destroy the State’s capacity for further
resistance and so jeopardize its very existenceresistance and so jeopardize its very existence.”.”
 McDougalMcDougal argues that States faced with aargues that States faced with a
perceived danger of immediate attack cannot beperceived danger of immediate attack cannot be
expected to await the attack ‘expected to await the attack ‘like sitting ducklike sitting duck’.’.
 There are two major arguments held by them:There are two major arguments held by them:
(1) Anticipatory self-defence is allowed by(1) Anticipatory self-defence is allowed by
customary international law;customary international law;
(2) Nuclear weapons and modern sophisticated(2) Nuclear weapons and modern sophisticated
devices makes it inadvisable to wait for thedevices makes it inadvisable to wait for the
attack.attack.

(2)(2) Does customary international lawDoes customary international law
allow anticipatory self-defenceallow anticipatory self-defence ??
Many Western writers are of the view thatMany Western writers are of the view that
thethe Caroline caseCaroline case is a classic precedent ofis a classic precedent of
anticipatory self-defence and a rule ofanticipatory self-defence and a rule of
customary international law has beencustomary international law has been
formed through subsequent Stateformed through subsequent State
practice.practice.

The Caroline CaseThe Caroline Case
3030 B.F.S.P.B.F.S.P. 195-196195-196
 The case arose out of the Canadian rebellion ofThe case arose out of the Canadian rebellion of
1837. The Caroline was an American ship that1837. The Caroline was an American ship that
had been used by Canadian rebels to harass thehad been used by Canadian rebels to harass the
British authorities in Canada.British authorities in Canada.
 While it was moored in an American port, aWhile it was moored in an American port, a
British force from Canada entered upon UnitedBritish force from Canada entered upon United
States territory, seized the Caroline, fired herStates territory, seized the Caroline, fired her
and sent her over Niagara Falls.and sent her over Niagara Falls.
 The legality of the attack was discussed in detailThe legality of the attack was discussed in detail
in correspondence between Great Britain andin correspondence between Great Britain and
the United States.the United States.

The Caroline CaseThe Caroline Case [Cont.][Cont.]
Letter fromLetter from Mr. WebsterMr. Webster ((the Americanthe American
Secretary of State)Secretary of State) to Mr. Foxto Mr. Fox (British(British
Minister at Washington)Minister at Washington) [April 24, 1841][April 24, 1841]
““It will be for …[Her Majesty’s]It will be for …[Her Majesty’s]
Government to show aGovernment to show a necessity of self-necessity of self-
defence, instant, overwhelming, leaving nodefence, instant, overwhelming, leaving no
choice of means, and no moment forchoice of means, and no moment for
deliberationdeliberation.”.”

The Caroline CaseThe Caroline Case [Cont.][Cont.]
The permissive school regards theThe permissive school regards the
Caroline caseCaroline case as the classic formulation ofas the classic formulation of
customary international law on self-customary international law on self-
defence.defence.
In fact theIn fact the Caroline caseCaroline case is just anis just an
instance ofinstance of practice of two countriespractice of two countries.. ToTo
be a customary law, it needs the supportbe a customary law, it needs the support
of subsequent consistent State practice.of subsequent consistent State practice.

 Fear ofFear of creating a dangerous precedentcreating a dangerous precedent isis
probably the reason why States seldom invokeprobably the reason why States seldom invoke
anticipatory self-defence in practice.anticipatory self-defence in practice.
 Out of the 192 UN Members, only Israel and theOut of the 192 UN Members, only Israel and the
US invoked it.US invoked it.
 Israel invoked anticipatory self-defence inIsrael invoked anticipatory self-defence in
““Israeli destruction of Iraqi nuclear reactorIsraeli destruction of Iraqi nuclear reactor
incidentincident” in 1981. But the SC strongly” in 1981. But the SC strongly
condemned it and declared it as a violation ofcondemned it and declared it as a violation of
international norms.”international norms.”

 The US initially invoked it (or in particularThe US initially invoked it (or in particular
preemptive self-defence) in the “preemptive self-defence) in the “US invasion ofUS invasion of
Iraq (2003)Iraq (2003)” but received widespread” but received widespread
condemnation by the international community.condemnation by the international community.
 The overwhelming practice of states after theThe overwhelming practice of states after the
emergence of the United Nations never acceptsemergence of the United Nations never accepts
the right of anticipatory self-defence.the right of anticipatory self-defence.
 Therefore, anticipatory self-defence, asTherefore, anticipatory self-defence, as
formulated in theformulated in the Caroline caseCaroline case, is not supported, is not supported
by subsequent State practice and cannot beby subsequent State practice and cannot be
said as forming part of the customary law of thesaid as forming part of the customary law of the
time.time.

Nuclear weapons and anticipatoryNuclear weapons and anticipatory
self-defenceself-defence
Most writers and Governments agree thatMost writers and Governments agree that
it would beit would be too dangerous for the worldtoo dangerous for the world
community to allow anticipatory self-community to allow anticipatory self-
defencedefence simply because there weresimply because there were
nuclear weapons with modernnuclear weapons with modern
sophisticated devices.sophisticated devices.

 Intercontinental Ballistic MissilesIntercontinental Ballistic Missiles (ICBMs) can be(ICBMs) can be
destroyed by an effectivedestroyed by an effective Anti-Ballistic MissileAnti-Ballistic Missile
(ABM) system.(ABM) system.
 An ICBM normally takes 25 to 30 minutes to hitAn ICBM normally takes 25 to 30 minutes to hit
the target. Different forms of interception can bethe target. Different forms of interception can be
used at different stages of the flight of the ICBM.used at different stages of the flight of the ICBM.
 The above facts and figures clearly indicate theThe above facts and figures clearly indicate the
feasibility of defensive measures even after afeasibility of defensive measures even after a
nuclear missile has been launchednuclear missile has been launched..

 In practice, however, the main nuclear policy ofIn practice, however, the main nuclear policy of
the nuclear power States is the doctrine ofthe nuclear power States is the doctrine of
‘‘nuclear deterrencenuclear deterrence ’. They primarily rely on’. They primarily rely on
thethe second strike capabilitysecond strike capability..
 In this way, both sides are able to inflictIn this way, both sides are able to inflict
‘‘mutuallymutually assured destructionassured destruction ’ (’ (MADMAD) on) on
each other whichever side attacks firsteach other whichever side attacks first..
 Therefore, the claim that the nuclear weaponsTherefore, the claim that the nuclear weapons
have made the anticipatory self-defence ahave made the anticipatory self-defence a
necessity is obviously unfounded.necessity is obviously unfounded.

Individual Self-DefenceIndividual Self-Defence
It is generally accepted under customaryIt is generally accepted under customary
international law that the right of self-international law that the right of self-
defence is subject to limitations ofdefence is subject to limitations of
‘necessity’ and ‘proportionality’.‘necessity’ and ‘proportionality’.
This is reaffirmed in the Judgment of theThis is reaffirmed in the Judgment of the
ICJ in the ‘ICJ in the ‘NicaraguNicaragua case’.a case’.

NecessityNecessity
 A State can use force in self-defence ‘only if an armedA State can use force in self-defence ‘only if an armed
attack occurs’ against that State. Therefore, theattack occurs’ against that State. Therefore, the
requirement of ‘necessity’ appears to be mainly therequirement of ‘necessity’ appears to be mainly the
requirement for ascertaining whether there is an actualrequirement for ascertaining whether there is an actual
armed attack against a Statearmed attack against a State..
 The State attackedThe State attacked must not have had any means ofmust not have had any means of
halting the attack other than recourse to armed forcehalting the attack other than recourse to armed force..
(No other choice)(No other choice)
 If it had been able to achieve the same result byIf it had been able to achieve the same result by
measures not involving the use of armed force, it wouldmeasures not involving the use of armed force, it would
have no justification for using armed force in self-have no justification for using armed force in self-
defence.defence.

ProportionalityProportionality
 It is theIt is the general principle of lawgeneral principle of law that thethat the
defensive action must be commensurate withdefensive action must be commensurate with
and in proportion toand in proportion to the armed attackthe armed attack which gavewhich gave
rise to the exercise of the right of self-defence.rise to the exercise of the right of self-defence.
 Regarding the principle of proportionality, theRegarding the principle of proportionality, the
ICJ in the ‘ICJ in the ‘NicaraguaNicaragua casecase’ stated that “the Court’ stated that “the Court
cannot regard the US activities … those relatingcannot regard the US activities … those relating
to the mining of the Nicaraguan ports and theto the mining of the Nicaraguan ports and the
attacks on ports, oil installations, etc. asattacks on ports, oil installations, etc. as
satisfying that criterionsatisfying that criterion..

Cessation of self-defence; when theCessation of self-defence; when the
Objectives of Self-Defence have been metObjectives of Self-Defence have been met
 The objectives of self-defence are threefold:The objectives of self-defence are threefold:
(I) fending off current, persistent attacks;(I) fending off current, persistent attacks;
(ii) fending off and protection from further attacks(ii) fending off and protection from further attacks
which constitute an integral part of thewhich constitute an integral part of the
continuum of hostilities; andcontinuum of hostilities; and
(iii) the restoration of the territorial(iii) the restoration of the territorial statusstatus quoquo
ante bellum.ante bellum.
Once the above objectives have been achieved,Once the above objectives have been achieved,
there is a duty to end defensive measures.there is a duty to end defensive measures.

The Role of the Security CouncilThe Role of the Security Council
 Article 51 provides a vital role for the Security Council inArticle 51 provides a vital role for the Security Council in
respect of the exercise of self-defence.respect of the exercise of self-defence.
 There are two principal aspects of the role of the SC:There are two principal aspects of the role of the SC:
(1) Measures taken in self-defence shall be immediately(1) Measures taken in self-defence shall be immediately
reported to the Security Council (reported to the Security Council (Reporting dutyReporting duty); and); and
(2) The right of self-defence can be exercised until the(2) The right of self-defence can be exercised until the
Security Council has taken measures necessary toSecurity Council has taken measures necessary to
maintain international peace and security (maintain international peace and security (only aonly a
temporary measuretemporary measure).).

RIGHT OF SELF-DETERMINATIONRIGHT OF SELF-DETERMINATION [p.[p.
520] Definition [p. 521]520] Definition [p. 521]
 The principle of self-determination refers to theThe principle of self-determination refers to the
right of a people living in a territory to determineright of a people living in a territory to determine
the political and legal status of that territorythe political and legal status of that territory – for– for
example, byexample, by setting up a State of their ownsetting up a State of their own or byor by
choosing to become part of another Statechoosing to become part of another State..
 One of the difficulties with the right of self-One of the difficulties with the right of self-
determination is lack of an authoritativedetermination is lack of an authoritative
definition of the term ‘people’.definition of the term ‘people’.

Definition of ‘people’ (UNESCO)Definition of ‘people’ (UNESCO)
 A people for the [purpose of the]…the right toA people for the [purpose of the]…the right to
self-determination, has the followingself-determination, has the following
characteristics:characteristics:
 (a) A group of individual human beings who(a) A group of individual human beings who
enjoy some or all of the following commonenjoy some or all of the following common
features:features:
- A common historical tradition;- A common historical tradition;
- Racial or ethnic identity;- Racial or ethnic identity;
- Cultural homogeneity;- Cultural homogeneity;
- Linguistic unity;- Linguistic unity;

- Religious or ideological affinity;- Religious or ideological affinity;
- Territorial connection;- Territorial connection;
- Common economic life;- Common economic life;
 (b) (b) The group as a whole must have the willThe group as a whole must have the will toto
be identified as a people or the consciousnessbe identified as a people or the consciousness
of being a people…of being a people…
(c) Possibly the group must(c) Possibly the group must have institutions orhave institutions or
other means of expressing its commonother means of expressing its common
characteristicscharacteristics and will for identity.and will for identity.

 Common Article 1,Common Article 1, International Covenants onInternational Covenants on
Human Rights of 1966Human Rights of 1966::
““All peoples have the right of self-determination.All peoples have the right of self-determination.
By virtue of that right they freely determine theirBy virtue of that right they freely determine their
political status and freely pursue their economic,political status and freely pursue their economic,
social and cultural development”social and cultural development”
 General Assembly Declaration on Principles ofGeneral Assembly Declaration on Principles of
International Law, 1970International Law, 1970 ::
““All peoples have the right freely to determine,All peoples have the right freely to determine,
without external interference, their politicalwithout external interference, their political
status and to pursue their economic, social andstatus and to pursue their economic, social and
cultural development and every State has thecultural development and every State has the
duty toduty to

respect this right in accordance with therespect this right in accordance with the
provisions of the Charter….provisions of the Charter….
 Every State has the duty to refrain from anyEvery State has the duty to refrain from any
forcible action which deprives peoples of theirforcible action which deprives peoples of their
right to self-determination and freedom andright to self-determination and freedom and
independence. In their actions against andindependence. In their actions against and
resistance to such forcible action in pursuit ofresistance to such forcible action in pursuit of
the exercise of their right of self-determination,the exercise of their right of self-determination,
such peoples are entitled to seek and to receivesuch peoples are entitled to seek and to receive
support in accordance with the purposes andsupport in accordance with the purposes and
principles of the Charter of the United Nations.principles of the Charter of the United Nations.

Although the Declaration does not includeAlthough the Declaration does not include
any express indications as to whetherany express indications as to whether
force can be used in the exercise of theforce can be used in the exercise of the
right of self-determination, it can clearly beright of self-determination, it can clearly be
implied.implied.
Self-determination is recognized by StateSelf-determination is recognized by State
practice as a basic principle ofpractice as a basic principle of
international law, to which even the statusinternational law, to which even the status
ofof jus cogensjus cogens is attributed.is attributed.

East Timor caseEast Timor case (Portugal v Australia(Portugal v Australia ))
(1995) IC J Rep. 95(1995) IC J Rep. 95 [p. 522-23][p. 522-23]
The ICJ acknowledged theThe ICJ acknowledged the erga omneserga omnes
character of self-determination.character of self-determination.

Wars of national liberationWars of national liberation
If the people of a particular territory areIf the people of a particular territory are
regarded by international law asregarded by international law as
possessing a legal right of self-possessing a legal right of self-
determination but the State administeringdetermination but the State administering
that territory refuses to let them exercisethat territory refuses to let them exercise
that right, they may need to fight a war ofthat right, they may need to fight a war of
national liberation in order to achieve self-national liberation in order to achieve self-
determination in practice. There is no ruledetermination in practice. There is no rule
in international law against rebellion.in international law against rebellion.

The prevailing view is that (use of force inThe prevailing view is that (use of force in
the exercise of) self-determination isthe exercise of) self-determination is
basically limited to the colonial context,basically limited to the colonial context,
that is to say, to the relationship betweenthat is to say, to the relationship between
colonies in Africa, Asia and Latin Americacolonies in Africa, Asia and Latin America
vis-à-visvis-à-vis the colonial powers. Whether itthe colonial powers. Whether it
applies to cases beyond the colonialapplies to cases beyond the colonial
context is uncertain.context is uncertain.

Right of secessionRight of secession
 The effect of linking self-determination toThe effect of linking self-determination to
decolonization seems to deny a general right todecolonization seems to deny a general right to
secession of groups within a State. However,secession of groups within a State. However,
while international law does not acknowledge awhile international law does not acknowledge a
general right to secession, it is also generallygeneral right to secession, it is also generally
agreed that it does not prohibit secession.agreed that it does not prohibit secession.
International law is neutral in this respect, and,International law is neutral in this respect, and,
in other words, follows reality and the principle ofin other words, follows reality and the principle of
effectiveness.effectiveness.

4.4. INTERNATIONALINTERNATIONAL
HUMANITARIAN LAWHUMANITARIAN LAW
 We now turn toWe now turn to Jus inJus in bello, or rules governingbello, or rules governing
the actual conduct of armed conflict, or the “lawsthe actual conduct of armed conflict, or the “laws
of war’.of war’.
 The ‘laws of war’ consists of the limits set byThe ‘laws of war’ consists of the limits set by
international law within which the force requiredinternational law within which the force required
to overpower the enemy may be used, and theto overpower the enemy may be used, and the
principles thereunder governing the treatment ofprinciples thereunder governing the treatment of
individuals in the course of war.individuals in the course of war.
 In the absence of such rules, the barbarism andIn the absence of such rules, the barbarism and
brutality of war would have known no bounds.brutality of war would have known no bounds.

 These laws and customs of war have arisenThese laws and customs of war have arisen
from the long-standing practices of belligerents.from the long-standing practices of belligerents.
 The laws of war are based onThe laws of war are based on respect forrespect for
humanityhumanity and their main objective isand their main objective is humanehumane
treatment of victims of war.treatment of victims of war.
 That is why in modern time they have come toThat is why in modern time they have come to
be known as ‘be known as ‘International Humanitarian LawInternational Humanitarian Law’.’.
 International humanitarian law can be defined asInternational humanitarian law can be defined as
that branch ofthat branch of law regulating the protection oflaw regulating the protection of
the victims of armed conflictthe victims of armed conflict..

4.14.1 Sources of internationalSources of international
humanitarian lawhumanitarian law
 The laws and customs of war (internationalThe laws and customs of war (international
humanitarian law) have arisen from longhumanitarian law) have arisen from long
standing practices of belligerents.standing practices of belligerents.
 Since the nineteenth century, the majority of theSince the nineteenth century, the majority of the
rules have ceased to be customary and are torules have ceased to be customary and are to
be found in treaties and conventions.be found in treaties and conventions.
 A number of conventions on the laws of warA number of conventions on the laws of war
were done at the Hague and many werewere done at the Hague and many were
adopted in Geneva.adopted in Geneva.
 For the sake of convenience, these rules areFor the sake of convenience, these rules are
classified into: theclassified into: the Hague lawHague law and theand the GenevaGeneva
lawlaw..

The Hague lawThe Hague law::
The Hague Conventions of 1899 and 1907The Hague Conventions of 1899 and 1907
on the Laws and Customs of War (alsoon the Laws and Customs of War (also
known as Hague Regulations).known as Hague Regulations).
The Geneva lawThe Geneva law::
The Four Geneva Conventions of 1949,The Four Geneva Conventions of 1949,
and the two Additional Protocols of 1977.and the two Additional Protocols of 1977.

Four Geneva Conventions, 1949Four Geneva Conventions, 1949
(1) Geneva Convention for the Amelioration of(1) Geneva Convention for the Amelioration of
the Condition of the Wounded and Sick inthe Condition of the Wounded and Sick in
Armed Forces in the FieldArmed Forces in the Field;;
(2) Geneva Convention for the Amelioration of(2) Geneva Convention for the Amelioration of
 …… the Wounded, Sick and Shipwreckedthe Wounded, Sick and Shipwrecked
 Members of theMembers of the Armed Forces at SeaArmed Forces at Sea;;
(3) Geneva Convention Relative to the(3) Geneva Convention Relative to the TreatmentTreatment
 of Prisoners of Warof Prisoners of War;;
(4)(4) Geneva Convention relative to theGeneva Convention relative to the Protection ofProtection of
Civilian PersonsCivilian Persons in Time of War.in Time of War.

The Four GenevaThe Four Geneva Conventions of 1949Conventions of 1949
Common Article 2Common Article 2
Application of the ConventionApplication of the Convention
 ……[T]he present Convention shall apply to all[T]he present Convention shall apply to all
cases of declared war or of any othercases of declared war or of any other armedarmed
conflictconflict which may arisewhich may arise between two or more ofbetween two or more of
the High Contracting Partiesthe High Contracting Parties, even if the state of, even if the state of
war is not recognized by one of them…. [and] allwar is not recognized by one of them…. [and] all
cases ofcases of partial or total occupation of thepartial or total occupation of the
territoryterritory of a High Contracting Party, even if theof a High Contracting Party, even if the
said occupation meets with no resistance.said occupation meets with no resistance.

Common Article 3Common Article 3
Conflicts not of an International CharacterConflicts not of an International Character
 In the case of armed conflict not of anIn the case of armed conflict not of an
international character… each Party to theinternational character… each Party to the
conflict shall be bound to apply, as a minimum,conflict shall be bound to apply, as a minimum,
the following provisions:the following provisions:
(1)(1)Persons taking no active part in the hostilitiesPersons taking no active part in the hostilities,,
including members of the armed forces whoincluding members of the armed forces who
have laid down their arms and those placedhave laid down their arms and those placed horshors
de combatde combat by sickness, wounds, detention, orby sickness, wounds, detention, or
any other cause, shall in all circumstances beany other cause, shall in all circumstances be
treated humanely, …treated humanely, …

To this end, the following acts are andTo this end, the following acts are and
shall remain prohibited at any time and inshall remain prohibited at any time and in
any place whatsoever with respect to theany place whatsoever with respect to the
above mentioned persons:above mentioned persons:
(a) violence to life and person, in particular(a) violence to life and person, in particular
murder of all kinds, mutilation, cruelmurder of all kinds, mutilation, cruel
treatment and torture;treatment and torture;
(b) taking of hostage;…(b) taking of hostage;…

The Two Additional Protocols of 1977The Two Additional Protocols of 1977
 The Diplomatic Conference of 8 June 1977The Diplomatic Conference of 8 June 1977
adopted the two Protocols additional to the fouradopted the two Protocols additional to the four
Geneva Conventions of 1949. They are:Geneva Conventions of 1949. They are:
(1) Protocol Additional to the Geneva Conventions(1) Protocol Additional to the Geneva Conventions
of 12 August 1949, and relating to the Protectionof 12 August 1949, and relating to the Protection
ofof Victims of International Armed ConflictsVictims of International Armed Conflicts
[Protocol I];[Protocol I];
(2) Protocol Additional to the Geneva(2) Protocol Additional to the Geneva
Conventions of 12 August 1949, and relating toConventions of 12 August 1949, and relating to
the Protection ofthe Protection of Victims of Non-InternationalVictims of Non-International
Armed ConflictsArmed Conflicts [Protocol II].[Protocol II].

4.24.2 Enforcement of internationalEnforcement of international
humanitarian lawhumanitarian law
(1) Enforcement by national courts;(1) Enforcement by national courts;
(2) Enforcement by international courts and(2) Enforcement by international courts and
tribunals.tribunals.

Enforcement by national courtsEnforcement by national courts
 The enforcement of international humanitarianThe enforcement of international humanitarian
law restslaw rests primarily with national authoritiesprimarily with national authorities, who, who
are under obligations to disseminate that law,are under obligations to disseminate that law,
educate their armed forces in it, and to represseducate their armed forces in it, and to repress
breaches throughbreaches through prosecution before nationalprosecution before national
tribunalstribunals….….
 The Rome Statute establishing the ICC reaffirmsThe Rome Statute establishing the ICC reaffirms
the principle of ‘the principle of ‘complementaritycomplementarity’. [Art. 17].’. [Art. 17].

Enforcement by international courts andEnforcement by international courts and
tribunalstribunals
 Nuremberg and Tokyo International MilitaryNuremberg and Tokyo International Military
TribunalsTribunals, 1946, 1946
 The famousThe famous Nuremberg JudgmentNuremberg Judgment, which, which
convicted major Nazi war criminals, laid downconvicted major Nazi war criminals, laid down
the principle of ‘individual criminal liability’:the principle of ‘individual criminal liability’:
““Crimes against international law are committed byCrimes against international law are committed by
men, not by abstract entities and only bymen, not by abstract entities and only by
punishing individuals who commit such crimespunishing individuals who commit such crimes
can the provisions of international law becan the provisions of international law be
enforces.”enforces.”

Ad hocAd hoc International Criminal Tribunals: TheInternational Criminal Tribunals: The
ICTY and the ICTRICTY and the ICTR
 Mass killings, the policy of ethnic cleansing,Mass killings, the policy of ethnic cleansing,
organized torture and rape in the formerorganized torture and rape in the former
Yugoslavia shocked the internationalYugoslavia shocked the international
community, and caused the SC to establish thecommunity, and caused the SC to establish the
International Criminal Tribunal for the FormerInternational Criminal Tribunal for the Former
YugoslaviaYugoslavia (ICTY) in 1993.(ICTY) in 1993.
 To deal with the massacre and genocide inTo deal with the massacre and genocide in
Rwanda, the SC established theRwanda, the SC established the InternationalInternational
Criminal Tribunal for RwandaCriminal Tribunal for Rwanda (ICTR) in 1994.(ICTR) in 1994.
 Some writers cast doubts on whether theSome writers cast doubts on whether the
Security Council has the power to establishSecurity Council has the power to establish
judicial bodies.judicial bodies.

The International Criminal Court (ICC)The International Criminal Court (ICC)
 The Statute of the International Criminal CourtThe Statute of the International Criminal Court
was adopted in 1998 by the UN Diplomaticwas adopted in 1998 by the UN Diplomatic
Conference in Rome.Conference in Rome.
 The Rome Statute entered into force on 1 JulyThe Rome Statute entered into force on 1 July
2002. It creates the ICC.2002. It creates the ICC.
 As of 29-09-2004,As of 29-09-2004, 139 States139 States areare SignatoriesSignatories
andand 97 States97 States areare partiesparties to the Rome Statute.to the Rome Statute.
 Parties include the United Kingdom and France.Parties include the United Kingdom and France.
Russian Federation has signed but not yetRussian Federation has signed but not yet
ratified the Statute. China has not yet signed it.ratified the Statute. China has not yet signed it.

 The US Signed the Statute on 31-12-2000 butThe US Signed the Statute on 31-12-2000 but
later declared that it had no intention to becomelater declared that it had no intention to become
a party.a party.
 The US actually is openly opposing theThe US actually is openly opposing the
establishment of the ICC.establishment of the ICC.
 It has entered into Article 98(2) Agreements withIt has entered into Article 98(2) Agreements with
a number of States in order to ensure that thesea number of States in order to ensure that these
States will not surrender any US national to theStates will not surrender any US national to the
ICC.ICC.

Jurisdiction regarding subject matterJurisdiction regarding subject matter
 TheThe jurisdictionjurisdiction of the Court is limited to the mostof the Court is limited to the most
serious crimes of concern to the internationalserious crimes of concern to the international
community as a whole. The Court hascommunity as a whole. The Court has
jurisdiction with respect to the following crimes:jurisdiction with respect to the following crimes:
(a) The crime of genocide;(a) The crime of genocide;
(b) Crimes against humanity;(b) Crimes against humanity;
(c) War Crimes; and(c) War Crimes; and
(d) The crime of aggression.(d) The crime of aggression.

Preconditions to the exercise of JurisdictionPreconditions to the exercise of Jurisdiction
 According toAccording to Article 12Article 12, in cases other than, in cases other than
security Council referrals, the ICC can exercisesecurity Council referrals, the ICC can exercise
jurisdiction only when:jurisdiction only when:
(1) the State on the territory of which the crime(1) the State on the territory of which the crime
was committed is a Party to the Statute; orwas committed is a Party to the Statute; or
(2) the State of which the accused is a national is(2) the State of which the accused is a national is
a Party to the Statute.a Party to the Statute.
[Court’s jurisdiction is based on territorial and[Court’s jurisdiction is based on territorial and
nationality principles.]nationality principles.]

Referral of a situation to the CourtReferral of a situation to the Court
 According to Article 13:According to Article 13:
(1) A situation in which a crime has been(1) A situation in which a crime has been
committed may be referred to the Prosecutor bycommitted may be referred to the Prosecutor by
aa State PartyState Party;;
(2) A situation in which a crime has been(2) A situation in which a crime has been
committed may be referred to the Prosecutor bycommitted may be referred to the Prosecutor by
thethe Security CouncilSecurity Council; or; or
(3) The(3) The Prosecutor himselfProsecutor himself initiates aninitiates an
investigation and submit the situation to the Trialinvestigation and submit the situation to the Trial
Chamber.Chamber.

Deferral of investigation or prosecutionDeferral of investigation or prosecution
 Article 16Article 16::
No investigation or prosecution may beNo investigation or prosecution may be
commenced or proceeded with for a period ofcommenced or proceeded with for a period of 1212
monthsmonths after the Security Council, in a resolutionafter the Security Council, in a resolution
adopted underadopted under Chapter VII of the CharterChapter VII of the Charter, has, has
requested the Court to that effect; that requestrequested the Court to that effect; that request
may be renewedmay be renewed by the Council under the sameby the Council under the same
conditions.conditions.
[It clearly indicates the important role of the[It clearly indicates the important role of the
Security Council.]Security Council.]

Composition of the CourtComposition of the Court
The Court is composed of four organs, namely:The Court is composed of four organs, namely:
(1) the Presidency;(1) the Presidency;
(2) an Appeal Division, a Trial Division, and a(2) an Appeal Division, a Trial Division, and a
Pre-Pre-
Trial Division;Trial Division;
(3) the Office of the Prosecutor; and(3) the Office of the Prosecutor; and
(4) the Registry.(4) the Registry.
The seat of the Court is at the Hague,The seat of the Court is at the Hague,
Netherlands.Netherlands.
The Court consists of 18 judges. The Judges areThe Court consists of 18 judges. The Judges are
divided into three Divisions.divided into three Divisions.

Cooperation of States partiesCooperation of States parties
The success of the Court will entirelyThe success of the Court will entirely
depend upon cooperation of Statesdepend upon cooperation of States
parties.parties.
State parties have to cooperate with theState parties have to cooperate with the
Prosecutor to use national police powersProsecutor to use national police powers
and facilities to capture individuals, toand facilities to capture individuals, to
surrender the accused criminals to thesurrender the accused criminals to the
Court, to imprison the convicted criminalsCourt, to imprison the convicted criminals
and to confiscate property.and to confiscate property.

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