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

A Critically Analysis of the
Doctrine of Use of Force by
States under International Law
1/8/2016 www.legalemperors.com 2

 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
1/8/2016
www.legalemperors.com 3

 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.

The picture shows a Naval Warhead deploying marines for ground
action.

This picture shows an Amoured Tank. This machine is one of the
deadliest weapons for use of force on land.

This picture shows a submarine warhead discharging missiles for
colossal damage to target.

This picture shows an ‘Infantry’ preparing for military action on
land

This picture shows ‘Fighters’ discharging missiles to target locations
for colossal damage (mass destruction).

This is the official logo of the United Nations Organisation.

 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.

 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”.

 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.

 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.1/8/2016 www.legalemperors.com 17

 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 in1/8/2016 www.legalemperors.com 18

 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.1/8/2016 www.legalemperors.com 19

 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”.1/8/2016 www.legalemperors.com 20

 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 and1/8/2016 www.legalemperors.com 21

The 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

 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.

 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 19941/8/2016 www.legalemperors.com 24

 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.

 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.

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

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