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Legal Regulation of the Use of Force
 

Legal Regulation of the Use of Force

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    Legal Regulation of the Use of Force Legal Regulation of the Use of Force Presentation Transcript

    • CHAPTER 14CHAPTER 14LEGAL REGULATION OFLEGAL REGULATION OFTHE USE OF FORCETHE USE OF FORCEPROFESSORPROFESSORDR. 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 resortto 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 ofWar (Pact of Paris) Kellogg-BriandWar (Pact of Paris) Kellogg-BriandPact) , 1928Pact) , 1928
    • 7.17.1 THE LAW AFTER 1945:THE LAW AFTER 1945:PROHIBITION OF THE USEPROHIBITION OF THE USEOF FORCEOF FORCE [Textbook, p. 432][Textbook, p. 432]Article 2Article 24. All members shall refrain4. All members shall refrain in theirin theirinternational relationsinternational relations from thefrom the threat orthreat oruse of forceuse of force against the territorial integrityagainst the territorial integrityand political independence of any state, orand political independence of any state, orin any other manner inconsistent with thein any other manner inconsistent with thePurposes 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 politicalpressure.pressure.NicaraguaNicaragua case – Indirect use of force is alsocase – Indirect use of force is alsoprohibited.prohibited.Threat of forceThreat of force: Not only use but also threat of: Not only use but also threat offorce is prohibited. ‘Threat of force’ means anforce is prohibited. ‘Threat of force’ means anultimatum announcing recourse to militaryultimatum announcing recourse to militarymeasures it certain demands are not accepted.measures it certain demands are not accepted.
    • Views on Interpretation ofViews on Interpretation ofArticle 2 (4)Article 2 (4) [Textbook. p. 493][Textbook. p. 493]There are two different views on theThere are two different views on theinterpretation of Article 2(4) of theinterpretation of Article 2(4) of theCharter: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 laydown a total ban on the use of forcedown a total ban on the use of force andandStates are still permitted to use force in quite aStates are still permitted to use force in quite anumber 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[Textbook, p. 494][Textbook, p. 494] According to this view, the Charter broughtAccording to this view, the Charter broughtabout a radical alteration in States’ right to useabout a radical alteration in States’ right to useforce.force. Article 2(4) lays downArticle 2(4) lays down a total ban on the use ofa total ban on the use offorceforce save only where explicit exceptions aresave only where explicit exceptions aremade in the Charter itself.made in the Charter itself. The Charter allows only two exceptions to theThe Charter allows only two exceptions to theprinciple 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 theCharter.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 overwhelmingoverwhelmingmajority of juristsmajority of jurists accept the restrictive view that Articleaccept the restrictive view that Article2(4) of the Charter contains a total prohibition of the use2(4) of the Charter contains a total prohibition of the useof force.of force. TheThe State practiceState practice also favours this view. Out of the 192also favours this view. Out of the 192UN Members, only two States (US and Israel) rely on theUN Members, only two States (US and Israel) rely on thepermissive interpretation.permissive interpretation. Therefore, the correct interpretation of Article 2(4) is thatTherefore, the correct interpretation of Article 2(4) is thatany use of force by a State for whatever reason isany use of force by a State for whatever reason isbanned unless explicitly allowed by the Charter of thebanned unless explicitly allowed by the Charter of theUnited NationsUnited Nations..
    • Military and Paramilitary Activities in andMilitary and Paramilitary Activities in andagainst 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 wasresponsible under international law for certainresponsible under international law for certainmilitary 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) useddirect armed force against it by laying mines indirect armed force against it by laying mines inNicaraguan waters, and attacking and damagingNicaraguan waters, and attacking and damagingNicaraguan 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 theNicaraguan Government.Nicaraguan Government.
    • Nicaragua caseNicaragua case [Cont.][Cont.] The US argued that it activities againstThe US argued that it activities againstNicaragua was justified because it was acted inNicaragua was justified because it was acted inthe exercise ofthe exercise of collective self-defencecollective self-defence ininresponse to Nicaragua’s support of arms toresponse to Nicaragua’s support of arms torebels 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 treatyreservationreservation’ contained in the US declaration’ contained in the US declarationaccepting compulsory jurisdiction, whileaccepting compulsory jurisdiction, whileadmitting that it could not apply Art. 2(4) of theadmitting that it could not apply Art. 2(4) of theCharter against the US, the Court held that itCharter against the US, the Court held that itcould apply rules of customary international lawcould apply rules of customary international lawon the non use of force and non-intervention.on the non use of force and non-intervention.
    • Nicaragua caseNicaragua case [Cont.][Cont.]Nicaragua case is quite significantNicaragua case is quite significantbecause in this case the World Courtbecause in this case the World Courtthoroughly examined and ruled on threethoroughly examined and ruled on threeimportant 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.
    • Nicaragua caseNicaragua case [Cont.][Cont.](On use of force)(On use of force) According to the facts of Nicaragua case,According to the facts of Nicaragua case, whilewhilethethe arming and training of thearming and training of the contrascontras cancancertainly be said to involve the threat orcertainly be said to involve the threat or use ofuse offorce against Nicaraguaforce against Nicaragua, this is not necessarily, this is not necessarilyso in respect of all the assistance given by theso in respect of all the assistance given by theUS Government.US Government. The Court considers that theThe Court considers that the mere supply ofmere supply offundsfunds to theto the contrascontras, while undoubtedly, while undoubtedly an act ofan act ofinterventionintervention 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..
    • Nicaragua caseNicaragua case [Cont.][Cont.](On intervention)(On intervention) The principle of non-intervention is part andThe principle of non-intervention is part andparcel of customary international law.parcel of customary international law. The principleThe principle forbids all States or group of Statesforbids all States or group of Statesto intervene directly or indirectly in internal orto intervene directly or indirectly in internal orexternal affairs of other Statesexternal affairs of other States.. By virtue of the ‘By virtue of the ‘doctrine of sovereigntydoctrine of sovereignty’, a State’, a Stateis free to choose any political, economic, socialis free to choose any political, economic, socialand cultural system, or to formulate whateverand cultural system, or to formulate whateverforeign policy, it likes.foreign policy, it likes.
    • Nicaragua caseNicaragua case [Cont.][Cont.](On intervention)(On intervention) Intervention is wrongful when it uses methods ofIntervention is wrongful when it uses methods ofcoercioncoercion in regard to such choices, which mustin regard to such choices, which mustremain free ones.remain free ones. The element of coercion, is particularly obviousThe element of coercion, is particularly obviousin 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 inthethe indirect formindirect form of support for subversive orof support for subversive orterrorist armed activities within another State.terrorist armed activities within another State.
    • Nicaragua caseNicaragua case [Cont.][Cont.](On Collective self-defence)(On Collective self-defence) The rule prohibiting force allows for certainThe rule prohibiting force allows for certainexceptions, the right of self-defence being oneexceptions, the right of self-defence being oneamong 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 besatisfied:satisfied:(1)(1) An armed attackAn armed attack by another State (the Stateby another State (the Stateconcerned , having been the victim of anconcerned , having been the victim of anarmed attack);armed attack);(2)(2) NecessityNecessity of self-defence; andof self-defence; and(3)(3) ProportionalityProportionality..
    • Nicaragua caseNicaragua case [Cont.][Cont.](On Collective self-defence)(On Collective self-defence) The Court finds that in customary internationalThe Court finds that in customary internationallaw, there is no rule permitting the exercise oflaw, there is no rule permitting the exercise ofcollective 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 thevictim 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 armedattackattack’ to come to its assistance is an extra’ to come to its assistance is an extrarequirement.requirement.
    • Nicaragua caseNicaragua case [Cont.][Cont.](Judgment of the Court)(Judgment of the Court) The world Court announced its judgmentThe world Court announced its judgmentin favour of Nicaragua.in favour of Nicaragua. Held that the United States was under anHeld that the United States was under anobligation to make reparation toobligation to make reparation toNicaragua for all injury caused toNicaragua for all injury caused toNicaragua by the breaches of obligationsNicaragua by the breaches of obligationsunder international law.under international law.
    • 3.3. RIGHT OF SELF-DEFENCERIGHT OF SELF-DEFENCEOF STATESOF STATESArticle 51Article 51Nothing in the present Charter shall impair theNothing in the present Charter shall impair theinherent 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 aMember of the United Nations, until the SecurityMember of the United Nations, until the SecurityCouncil has taken measures necessary toCouncil has taken measures necessary tomaintain international peace and security.maintain international peace and security.Measures taken by Members in the exercise ofMeasures taken by Members in the exercise ofthis right of self-defence shall be immediatelythis right of self-defence shall be immediatelyreported to the Security Council….reported to the Security Council….
    • 3.13.1 Self-Defence as a Response to anSelf-Defence as a Response to anArmed AttackArmed Attack [Textbook, p. 497][Textbook, p. 497] Article 51 prescribes that “nothing in the presentArticle 51 prescribes that “nothing in the presentCharter shall impair the inherent right ofCharter shall impair the inherent right ofindividual and collective self-defenceindividual and collective self-defence if an armedif an armedattack occursattack occurs…”.…”. The meaning is clear and unambiguous. TheThe meaning is clear and unambiguous. Theright of self-defence is restricted to a case whereright of self-defence is restricted to a case wherethere isthere is an actual armed attack against thean actual armed attack against theStateState.. 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[Textbook, p. 497][Textbook, p. 497] The ‘The ‘permissive schoolpermissive school ’ maintains that Article’ maintains that Article51 does not restrict the right of self-defence to51 does not restrict the right of self-defence tocases of armed attack only and that States havecases of armed attack only and that States havewider rights of self-defence permitted bywider rights of self-defence permitted bycustomary international law.customary international law. BowettBowett, for example, argues that:, for example, argues that:““TheThe travaux pr`eparatoirestravaux pr`eparatoires suggests that thesuggests that theArticle 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 implicitlyexcepted was not confined to reaction to ‘armedexcepted was not confined to reaction to ‘armedattack’ but permitted of certain substantiveattack’ but permitted of certain substantiverights.”rights.”
    • Restrictive schoolRestrictive school[Textbook, pp. 217-218][Textbook, pp. 217-218] The ‘The ‘restrictive schoolrestrictive school ’ maintains that Article’ maintains that Article51 restricts the right of self-defence to cases of51 restricts the right of self-defence to cases ofarmed 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 furtherlimitation on the right of self-defence: it may belimitation on the right of self-defence: it may beexercisedexercised only ‘if an armed attack occurs’only ‘if an armed attack occurs’. This. Thisrestriction in Article 51 very definitely narrowsrestriction in Article 51 very definitely narrowsthe freedom of action which States had underthe freedom of action which States had undertraditional international law.”traditional international law.”
    • Restrictive view is the established law.Restrictive view is the established law. A treaty is as a general rule to be interpreted inA treaty is as a general rule to be interpreted inaccordance with theaccordance with the ordinary meaning to beordinary meaning to begiven 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 attackoccurs’ is very clear and unambiguous. Theoccurs’ is very clear and unambiguous. Thetextual interpretation, therefore, shall prevail andtextual interpretation, therefore, shall prevail andtravaux 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 theUN: non use of force: Article 2(4).UN: non use of force: Article 2(4).
    • Restrictive view is the established law.Restrictive view is the established law.[Cont.][Cont.] It is also accepted by the overwhelming majorityIt is also accepted by the overwhelming majorityof 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 ruledthatthat““In the case of individual self-defence, theIn the case of individual self-defence, theexercise of this right isexercise of this right is subject to the Statesubject to the Stateconcernedconcerned having been the victim of an armedhaving been the victim of an armedattackattack. Reliance on collective self-defence of. Reliance on collective self-defence ofcourse 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 ‘armedattack’ [attack’ [NicaraguaNicaragua case]case] ““An armed attack must be understood asAn armed attack must be understood asincluding not merely action byincluding not merely action by regular armedregular armedforces 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 armedbands, groups, irregulars or mercenariesbands, groups, irregulars or mercenaries, which, whichcarry out acts of armed forces against anothercarry out acts of armed forces against anotherStateState 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 regularforces, 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 conceptof armed attack includes not only acts by armedof armed attack includes not only acts by armedbands where such acts occur on a significantbands where such acts occur on a significantscale but alsoscale but also assistance to rebels in theassistance to rebels in the form ofform ofprovisions of weapons or logistical or otherprovisions of weapons or logistical or othersupportsupport. Such assistance may be regarded as a. Such assistance may be regarded as athreat or use of force, or amount to interventionthreat or use of force, or amount to interventionin 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 towiden the exceptional right of self-defence is thewiden the exceptional right of self-defence is theargument that States have the right ofargument that States have the right ofanticipatory self-defence whenever an attack isanticipatory self-defence whenever an attack isexpected.expected. This idea seems to be based on ‘This idea seems to be based on ‘militarymilitarynecessitynecessity’, according to which ‘the best defence’, according to which ‘the best defenceis 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 initialattack 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 furtherresistance and so jeopardize its very existenceresistance and so jeopardize its very existence.”.” McDougalMcDougal argues that States faced with aargues that States faced with aperceived danger of immediate attack cannot beperceived danger of immediate attack cannot beexpected 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 bycustomary international law;customary international law;(2) Nuclear weapons and modern sophisticated(2) Nuclear weapons and modern sophisticateddevices makes it inadvisable to wait for thedevices makes it inadvisable to wait for theattack.attack.
    • (2)(2) Does customary international lawDoes customary international lawallow anticipatory self-defenceallow anticipatory self-defence ??Many Western writers are of the view thatMany Western writers are of the view thatthethe Caroline caseCaroline case is a classic precedent ofis a classic precedent ofanticipatory self-defence and a rule ofanticipatory self-defence and a rule ofcustomary international law has beencustomary international law has beenformed through subsequent Stateformed through subsequent Statepractice.practice.
    • The Caroline CaseThe Caroline Case3030 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 of1837. The Caroline was an American ship that1837. The Caroline was an American ship thathad been used by Canadian rebels to harass thehad been used by Canadian rebels to harass theBritish authorities in Canada.British authorities in Canada. While it was moored in an American port, aWhile it was moored in an American port, aBritish force from Canada entered upon UnitedBritish force from Canada entered upon UnitedStates territory, seized the Caroline, fired herStates territory, seized the Caroline, fired herand 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 detailin correspondence between Great Britain andin correspondence between Great Britain andthe United States.the United States.
    • The Caroline CaseThe Caroline Case [Cont.][Cont.]Letter fromLetter from Mr. WebsterMr. Webster ((the Americanthe AmericanSecretary of State)Secretary of State) to Mr. Foxto Mr. Fox (British(BritishMinister 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 nochoice of means, and no moment forchoice of means, and no moment fordeliberationdeliberation.”.”
    • The Caroline CaseThe Caroline Case [Cont.][Cont.]The permissive school regards theThe permissive school regards theCaroline caseCaroline case as the classic formulation ofas the classic formulation ofcustomary international law on self-customary international law on self-defence.defence.In fact theIn fact the Caroline caseCaroline case is just anis just aninstance ofinstance of practice of two countriespractice of two countries.. ToTobe a customary law, it needs the supportbe a customary law, it needs the supportof subsequent consistent State practice.of subsequent consistent State practice.
    •  Fear ofFear of creating a dangerous precedentcreating a dangerous precedent isisprobably the reason why States seldom invokeprobably the reason why States seldom invokeanticipatory 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 theUS 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 reactorincidentincident” in 1981. But the SC strongly” in 1981. But the SC stronglycondemned it and declared it as a violation ofcondemned it and declared it as a violation ofinternational norms.”international norms.”
    •  The US initially invoked it (or in particularThe US initially invoked it (or in particularpreemptive self-defence) in the “preemptive self-defence) in the “US invasion ofUS invasion ofIraq (2003)Iraq (2003)” but received widespread” but received widespreadcondemnation by the international community.condemnation by the international community. The overwhelming practice of states after theThe overwhelming practice of states after theemergence of the United Nations never acceptsemergence of the United Nations never acceptsthe right of anticipatory self-defence.the right of anticipatory self-defence. Therefore, anticipatory self-defence, asTherefore, anticipatory self-defence, asformulated in theformulated in the Caroline caseCaroline case, is not supported, is not supportedby subsequent State practice and cannot beby subsequent State practice and cannot besaid as forming part of the customary law of thesaid as forming part of the customary law of thetime.time.
    • Nuclear weapons and anticipatoryNuclear weapons and anticipatoryself-defenceself-defenceMost writers and Governments agree thatMost writers and Governments agree thatit would beit would be too dangerous for the worldtoo dangerous for the worldcommunity to allow anticipatory self-community to allow anticipatory self-defencedefence simply because there weresimply because there werenuclear weapons with modernnuclear weapons with modernsophisticated devices.sophisticated devices.
    •  Intercontinental Ballistic MissilesIntercontinental Ballistic Missiles (ICBMs) can be(ICBMs) can bedestroyed 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 hitthe target. Different forms of interception can bethe target. Different forms of interception can beused 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 thefeasibility of defensive measures even after afeasibility of defensive measures even after anuclear missile has been launchednuclear missile has been launched..
    •  In practice, however, the main nuclear policy ofIn practice, however, the main nuclear policy ofthe nuclear power States is the doctrine ofthe nuclear power States is the doctrine of‘‘nuclear deterrencenuclear deterrence ’. They primarily rely on’. They primarily rely onthethe 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) oneach other whichever side attacks firsteach other whichever side attacks first.. Therefore, the claim that the nuclear weaponsTherefore, the claim that the nuclear weaponshave made the anticipatory self-defence ahave made the anticipatory self-defence anecessity is obviously unfounded.necessity is obviously unfounded.
    • Individual Self-DefenceIndividual Self-DefenceIt is generally accepted under customaryIt is generally accepted under customaryinternational 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 theICJ 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 armedattack occurs’ against that State. Therefore, theattack occurs’ against that State. Therefore, therequirement of ‘necessity’ appears to be mainly therequirement of ‘necessity’ appears to be mainly therequirement for ascertaining whether there is an actualrequirement for ascertaining whether there is an actualarmed 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 ofhalting 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 bymeasures not involving the use of armed force, it wouldmeasures not involving the use of armed force, it wouldhave 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 thedefensive action must be commensurate withdefensive action must be commensurate withand in proportion toand in proportion to the armed attackthe armed attack which gavewhich gaverise 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, theICJ in the ‘ICJ in the ‘NicaraguaNicaragua casecase’ stated that “the Court’ stated that “the Courtcannot regard the US activities … those relatingcannot regard the US activities … those relatingto the mining of the Nicaraguan ports and theto the mining of the Nicaraguan ports and theattacks on ports, oil installations, etc. asattacks on ports, oil installations, etc. assatisfying that criterionsatisfying that criterion..
    • Cessation of self-defence; when theCessation of self-defence; when theObjectives 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 attackswhich constitute an integral part of thewhich constitute an integral part of thecontinuum of hostilities; andcontinuum of hostilities; and(iii) the restoration of the territorial(iii) the restoration of the territorial statusstatus quoquoante 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 inrespect 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 immediatelyreported 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 theSecurity Council has taken measures necessary toSecurity Council has taken measures necessary tomaintain international peace and security (maintain international peace and security (only aonly atemporary 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 theright of a people living in a territory to determineright of a people living in a territory to determinethe political and legal status of that territorythe political and legal status of that territory – for– forexample, byexample, by setting up a State of their ownsetting up a State of their own or byor bychoosing 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 authoritativedefinition 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 toself-determination, has the followingself-determination, has the followingcharacteristics:characteristics: (a)    A group of individual human beings who(a)    A group of individual human beings whoenjoy some or all of the following commonenjoy some or all of the following commonfeatures: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 totobe identified as a people or the consciousnessbe identified as a people or the consciousnessof being a people…of being a people…(c) Possibly the group must(c) Possibly the group must have institutions orhave institutions orother means of expressing its commonother means of expressing its commoncharacteristicscharacteristics and will for identity.and will for identity.
    •  Common Article 1,Common Article 1, International Covenants onInternational Covenants onHuman 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 theirpolitical 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 ofInternational 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 politicalstatus and to pursue their economic, social andstatus and to pursue their economic, social andcultural development and every State has thecultural development and every State has theduty toduty to
    • respect this right in accordance with therespect this right in accordance with theprovisions of the Charter….provisions of the Charter…. Every State has the duty to refrain from anyEvery State has the duty to refrain from anyforcible action which deprives peoples of theirforcible action which deprives peoples of theirright to self-determination and freedom andright to self-determination and freedom andindependence. In their actions against andindependence. In their actions against andresistance to such forcible action in pursuit ofresistance to such forcible action in pursuit ofthe 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 receivesupport in accordance with the purposes andsupport in accordance with the purposes andprinciples 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 includeany express indications as to whetherany express indications as to whetherforce can be used in the exercise of theforce can be used in the exercise of theright of self-determination, it can clearly beright of self-determination, it can clearly beimplied.implied.Self-determination is recognized by StateSelf-determination is recognized by Statepractice as a basic principle ofpractice as a basic principle ofinternational law, to which even the statusinternational law, to which even the statusofof 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 omnescharacter 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 areregarded by international law asregarded by international law aspossessing a legal right of self-possessing a legal right of self-determination but the State administeringdetermination but the State administeringthat territory refuses to let them exercisethat territory refuses to let them exercisethat right, they may need to fight a war ofthat right, they may need to fight a war ofnational 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 rulein 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 inthe exercise of) self-determination isthe exercise of) self-determination isbasically 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 betweencolonies in Africa, Asia and Latin Americacolonies in Africa, Asia and Latin Americavis-à-visvis-à-vis the colonial powers. Whether itthe colonial powers. Whether itapplies to cases beyond the colonialapplies to cases beyond the colonialcontext is uncertain.context is uncertain.
    • Right of secessionRight of secession The effect of linking self-determination toThe effect of linking self-determination todecolonization seems to deny a general right todecolonization seems to deny a general right tosecession 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 ageneral right to secession, it is also generallygeneral right to secession, it is also generallyagreed 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 ofeffectiveness.effectiveness.
    • 4.4. INTERNATIONALINTERNATIONALHUMANITARIAN LAWHUMANITARIAN LAW We now turn toWe now turn to Jus inJus in bello, or rules governingbello, or rules governingthe actual conduct of armed conflict, or the “lawsthe actual conduct of armed conflict, or the “lawsof war’.of war’. The ‘laws of war’ consists of the limits set byThe ‘laws of war’ consists of the limits set byinternational law within which the force requiredinternational law within which the force requiredto overpower the enemy may be used, and theto overpower the enemy may be used, and theprinciples thereunder governing the treatment ofprinciples thereunder governing the treatment ofindividuals 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 andbrutality 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 arisenfrom 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 forhumanityhumanity and their main objective isand their main objective is humanehumanetreatment 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 tobe known as ‘be known as ‘International Humanitarian LawInternational Humanitarian Law’.’. International humanitarian law can be defined asInternational humanitarian law can be defined asthat branch ofthat branch of law regulating the protection oflaw regulating the protection ofthe victims of armed conflictthe victims of armed conflict..
    • 4.14.1 Sources of internationalSources of internationalhumanitarian lawhumanitarian law The laws and customs of war (internationalThe laws and customs of war (internationalhumanitarian law) have arisen from longhumanitarian law) have arisen from longstanding practices of belligerents.standing practices of belligerents. Since the nineteenth century, the majority of theSince the nineteenth century, the majority of therules have ceased to be customary and are torules have ceased to be customary and are tobe 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 warwere done at the Hague and many werewere done at the Hague and many wereadopted in Geneva.adopted in Geneva. For the sake of convenience, these rules areFor the sake of convenience, these rules areclassified into: theclassified into: the Hague lawHague law and theand the GenevaGenevalawlaw..
    • The Hague lawThe Hague law::The Hague Conventions of 1899 and 1907The Hague Conventions of 1899 and 1907on the Laws and Customs of War (alsoon the Laws and Customs of War (alsoknown 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 ofthe Condition of the Wounded and Sick inthe Condition of the Wounded and Sick inArmed 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 ofCivilian PersonsCivilian Persons in Time of War.in Time of War.
    • The Four GenevaThe Four Geneva Conventions of 1949Conventions of 1949Common Article 2Common Article 2Application of the ConventionApplication of the Convention ……[T]he present Convention shall apply to all[T]he present Convention shall apply to allcases of declared war or of any othercases of declared war or of any other armedarmedconflictconflict which may arisewhich may arise between two or more ofbetween two or more ofthe High Contracting Partiesthe High Contracting Parties, even if the state of, even if the state ofwar is not recognized by one of them…. [and] allwar is not recognized by one of them…. [and] allcases ofcases of partial or total occupation of thepartial or total occupation of theterritoryterritory of a High Contracting Party, even if theof a High Contracting Party, even if thesaid occupation meets with no resistance.said occupation meets with no resistance.
    • Common Article 3Common Article 3Conflicts 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 aninternational character… each Party to theinternational character… each Party to theconflict 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 whohave laid down their arms and those placedhave laid down their arms and those placed horshorsde combatde combat by sickness, wounds, detention, orby sickness, wounds, detention, orany other cause, shall in all circumstances beany other cause, shall in all circumstances betreated humanely, …treated humanely, …
    • To this end, the following acts are andTo this end, the following acts are andshall remain prohibited at any time and inshall remain prohibited at any time and inany place whatsoever with respect to theany place whatsoever with respect to theabove mentioned persons:above mentioned persons:(a) violence to life and person, in particular(a) violence to life and person, in particularmurder of all kinds, mutilation, cruelmurder of all kinds, mutilation, crueltreatment 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 1977adopted the two Protocols additional to the fouradopted the two Protocols additional to the fourGeneva Conventions of 1949. They are:Geneva Conventions of 1949. They are:(1)  Protocol Additional to the Geneva Conventions(1)  Protocol Additional to the Geneva Conventionsof 12 August 1949, and relating to the Protectionof 12 August 1949, and relating to the Protectionofof Victims of International Armed ConflictsVictims of International Armed Conflicts[Protocol I];[Protocol I];(2) Protocol Additional to the Geneva(2) Protocol Additional to the GenevaConventions of 12 August 1949, and relating toConventions of 12 August 1949, and relating tothe Protection ofthe Protection of Victims of Non-InternationalVictims of Non-InternationalArmed ConflictsArmed Conflicts [Protocol II].[Protocol II].
    • 4.24.2 Enforcement of internationalEnforcement of internationalhumanitarian lawhumanitarian law(1) Enforcement by national courts;(1) Enforcement by national courts;(2) Enforcement by international courts and(2) Enforcement by international courts andtribunals.tribunals.
    • Enforcement by national courtsEnforcement by national courts The enforcement of international humanitarianThe enforcement of international humanitarianlaw restslaw rests primarily with national authoritiesprimarily with national authorities, who, whoare 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 repressbreaches throughbreaches through prosecution before nationalprosecution before nationaltribunalstribunals….…. The Rome Statute establishing the ICC reaffirmsThe Rome Statute establishing the ICC reaffirmsthe principle of ‘the principle of ‘complementaritycomplementarity’. [Art. 17].’. [Art. 17].
    • Enforcement by international courts andEnforcement by international courts andtribunalstribunals Nuremberg and Tokyo International MilitaryNuremberg and Tokyo International MilitaryTribunalsTribunals, 1946, 1946 The famousThe famous Nuremberg JudgmentNuremberg Judgment, which, whichconvicted major Nazi war criminals, laid downconvicted major Nazi war criminals, laid downthe principle of ‘individual criminal liability’:the principle of ‘individual criminal liability’:““Crimes against international law are committed byCrimes against international law are committed bymen, not by abstract entities and only bymen, not by abstract entities and only bypunishing individuals who commit such crimespunishing individuals who commit such crimescan the provisions of international law becan the provisions of international law beenforces.”enforces.”
    • Ad hocAd hoc International Criminal Tribunals: TheInternational Criminal Tribunals: TheICTY 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 formerYugoslavia shocked the internationalYugoslavia shocked the internationalcommunity, and caused the SC to establish thecommunity, and caused the SC to establish theInternational Criminal Tribunal for the FormerInternational Criminal Tribunal for the FormerYugoslaviaYugoslavia (ICTY) in 1993.(ICTY) in 1993. To deal with the massacre and genocide inTo deal with the massacre and genocide inRwanda, the SC established theRwanda, the SC established the InternationalInternationalCriminal Tribunal for RwandaCriminal Tribunal for Rwanda (ICTR) in 1994.(ICTR) in 1994. Some writers cast doubts on whether theSome writers cast doubts on whether theSecurity Council has the power to establishSecurity Council has the power to establishjudicial 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 Courtwas adopted in 1998 by the UN Diplomaticwas adopted in 1998 by the UN DiplomaticConference in Rome.Conference in Rome. The Rome Statute entered into force on 1 JulyThe Rome Statute entered into force on 1 July2002. It creates the ICC.2002. It creates the ICC. As of 29-09-2004,As of 29-09-2004, 139 States139 States areare SignatoriesSignatoriesandand 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 yetratified 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 butlater declared that it had no intention to becomelater declared that it had no intention to becomea party.a party. The US actually is openly opposing theThe US actually is openly opposing theestablishment of the ICC.establishment of the ICC. It has entered into Article 98(2) Agreements withIt has entered into Article 98(2) Agreements witha number of States in order to ensure that thesea number of States in order to ensure that theseStates will not surrender any US national to theStates will not surrender any US national to theICC.ICC.
    • Jurisdiction regarding subject matterJurisdiction regarding subject matter TheThe jurisdictionjurisdiction of the Court is limited to the mostof the Court is limited to the mostserious crimes of concern to the internationalserious crimes of concern to the internationalcommunity as a whole. The Court hascommunity as a whole. The Court hasjurisdiction 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 thansecurity Council referrals, the ICC can exercisesecurity Council referrals, the ICC can exercisejurisdiction only when:jurisdiction only when:(1) the State on the territory of which the crime(1) the State on the territory of which the crimewas 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 isa Party to the Statute.a Party to the Statute.[Court’s jurisdiction is based on territorial and[Court’s jurisdiction is based on territorial andnationality 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 beencommitted may be referred to the Prosecutor bycommitted may be referred to the Prosecutor byaa State PartyState Party;;(2) A situation in which a crime has been(2) A situation in which a crime has beencommitted may be referred to the Prosecutor bycommitted may be referred to the Prosecutor bythethe Security CouncilSecurity Council; or; or(3) The(3) The Prosecutor himselfProsecutor himself initiates aninitiates aninvestigation and submit the situation to the Trialinvestigation and submit the situation to the TrialChamber.Chamber.
    • Deferral of investigation or prosecutionDeferral of investigation or prosecution Article 16Article 16::No investigation or prosecution may beNo investigation or prosecution may becommenced or proceeded with for a period ofcommenced or proceeded with for a period of 1212monthsmonths after the Security Council, in a resolutionafter the Security Council, in a resolutionadopted underadopted under Chapter VII of the CharterChapter VII of the Charter, has, hasrequested the Court to that effect; that requestrequested the Court to that effect; that requestmay be renewedmay be renewed by the Council under the sameby the Council under the sameconditions.conditions.[It clearly indicates the important role of the[It clearly indicates the important role of theSecurity Council.]Security Council.]
    • Composition of the CourtComposition of the CourtThe 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 aPre-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 aredivided 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 entirelydepend upon cooperation of Statesdepend upon cooperation of Statesparties.parties.State parties have to cooperate with theState parties have to cooperate with theProsecutor to use national police powersProsecutor to use national police powersand facilities to capture individuals, toand facilities to capture individuals, tosurrender the accused criminals to thesurrender the accused criminals to theCourt, to imprison the convicted criminalsCourt, to imprison the convicted criminalsand to confiscate property.and to confiscate property.