When is the United Nations Charter authorize the use of force?

The United Nations is a body under International law and the prime purpose of
International law is to create the mutual relations between states whose social nature renders
them indispensable regulated with the greatest possible rationality and uniformity. 1 Thus, the
UN being an International body operates in regard to such principles. The United Nations
hereafter referred to as UN replaced the League of Nations (LON), which had failed in its
mandate of promoting International Peace and Security. It is also noteworthy that the major
role of the UN is stipulated in Article 1 of its charter as that of ‘maintaining international
peace and security which involves collective measures to prevent and remove threats to the
peace, the suppression of acts of aggression and the settlement or adjustment of international
disputes, or situations which might lead to a breach of the peace, by peaceful means as
emphasized by Article 2(3)2.

This averment initiates a presumption and a basic rule that the use of force in conflict
resolution is prohibited by the UN since force is a threat to international Peace and Security.
It is on the same note that Kofi Annan3during the Iraq conflict stated that no principle in the
Charter of the UN is more vital than that of the “non-use of force” as embodied in Article 2
(4)4which states: that

“All members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other
manner inconsistent with the purposes of the United Nations”. This therefore means that

1
Paton, Jurisprudence, 3rd edn, 1964, Oxford: Clarendon Press
2
UN Charter.
3
Former Secretary General of UN
4
R Zacklin, the UN Secretariat and the Use of force in the Unipolar World.
for as long as the use of force is consistent with the purpose of the UN, It is warranted and
can be Justified.

In the Locus Classicus case of Nicaragua Case (Merits) Nicaragua v United States. Court
held thatthe principles as to the use of force incorporated in the United Nations Charter
correspond to the essentials of those found in customary international law.

However, Despite the existence of international laws that basically evolved due to state
practice aka Customs and treaties5 which were expected to ensure peace and stability, it is
and was predicted and at a certain time, that their will always be states that will break the law
and thus warrant the use of force which force can only be obtained via international co-
operation because no state can exist without the help of the other and thus Grotius stated “:
Law is not founded on expediency alone. There is no state so powerful that it may not some
time need the help of others

outside itself, either for the purposes of trade or even to ward off the forces of may foreign
nations untied against it ... All things are uncertain the moment men depart from law” 6 and
this was among the key factors that justified the formation of the UN and the powers of the
Security Council to form and command a Joint Army.

Similarly, Schwarzenberger has written that the primary function of law is to assist in
maintaining the supremacy of force and the hierarchies established on the basis of power.
Similarly, Jurisprudence has also justified the use of force due to the existence and need to
implement the law since law is a system of relevance and this explains why even those states
that do violate the international law often try to justify their divergence from the laws for
instance: When Iraq invaded Kuwait in August 1990, Saddam Hussein did not argue that
there was no system of law preventing Iraq acting in the way it did. Rather he sought to
justify military action on the basis of compliance with the rules of international law.7

It is on this note that considering the conflicting and necessary resolutions on the use of force,
some scholars concluded that the UN Charter is intended to provide a watertight scheme for
the contemporary reality on the use of force. This is justified by Article 2(4), whichexplains
what is prohibited, Article 51 which enunciates what is permitted. Nevertheless, it is vital to

5
Brownlie, ‘The Reality and Efficacy of International Law’ (1981) LII BYIL 1.
6
See P Craig and G De Burca, EC Law – Texts, Cases and Materials, 1995, Oxford: Oxford University Press at pp 171–72.
7
SOURCEBOOK ON PUBLIC INTERNATIONAL LAW Tim Hillier, LLB, MA, Senior Lecturer in law, De Montfort University,
Leicester
note that almost every phrase in Article 2(4) and Article 51 is open to more than one
interpretation.8

One can therefore conclusively state that the United Nations can authorize the use of force
under various circumstances as will be discussed below:

Self - Defence

It is a fundamental rule in of international law that the first use of armed force is prohibited
but a right of self-defence does exist.9i.e. in the early days of international law the question of
a state’s right to resort to the use of force was judged in terms of the criteria for the just war
and thus the 16th century writers asserted that war could only be just when used as a defence
against attack or for the purpose of righting a great wrong10. Later on, a change in the attitude
of international law towards the use of force began with the advent of the League of Nations
in 1920 whose Convenant did not specifically prohibit the use of force but it did restrict its
use by placing a duty on states to try to reach peaceful settlement first.

However, Article 5111deliberates on the inherent right ie ‘droit naturel’which any state
possesses in the event of an armed attack. It is thus noteworthy that this covers both the
collective and individual self-defence. This denotes to the fact that the Charter itself testifies
to the existence of the right of collective self-defense in customary international law and thus
in Resolution (XXV)] the reference to the prohibition of force is followed by a paragraph
stating that: Nothing in the foregoing paragraphs shall be construed as enlarging or
diminishing in any way the scope of the provisions of the Charter concerning cases in
which the use of force is lawful. One can therefore conclusively state that the UN Charter
warrants the use of collective and individual force in circumstances of self -defence.12

Nevertheless, the right to self-defence In more modern parlance, arises where there is a
serious threat or actual danger, where there is no other means of averting it or bringing it to
an end, and that the action taken in self-defence must be limited to what is necessary and
what is proportionate.13 The same factors were parimateria in the Caroline case (1841)14.

9
Henkin, How Nations Behave, 2nd edn, 1979, New York: Columbia University Press at p 47
10

11
United Nations Charter
12
Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among states in accordance
with the Charter of the United Nations 1970.
13
Further Studies in International Law, 1990, Oxford: Oxford University Press at p 334.
14
British and Foreign State Papers 1137–38; 30 British and Foreign State Papers 195–96.
In the Caroline Case, it was also emphasized that a state must prove that self- defence was a
proportionate response to the threats and their was no better option. In the above case,
various factors were laid down to amount to warranting self-defence and among them are:

a)force is lawful in self-defence against an ongoing armed attack against state territory;

(b) force is lawful in anticipatory self-defence, so that a state may strike first, with force, to

neutralise an immediate but potential threat to its security;

(c) force is lawful in self-defence in response to an attack (threatened or actual) against state
interests, such as territory, nationals, property and rights guaranteed under international law.
If any such interests are threatened, then the state may use force to protect them;

(d) force is lawful in self-defence even if the ‘attack’ does not itself involve measures of
armed force, such as economic aggression and propaganda. All that is required is that there is
an instant and overwhelming necessity for forceful action.

However, self –defence may also be used against non state actors as was seen due to the
aftermath of the terrorist attack on the World Trade Centre on 11 September 2001 15where
the UN passed resolution 1373 of 28 septmeber 2013 whose language was interpreted to
suggest an almost unqualified mandate to use force against terrorist groups and this read in
part “ Acting under Chapter VII, all states shall take necessary steps to prevent commission
of terrorist acts.” However, it is vital to note that the ICJ has not commented on the use of
pre-emptive self defence or force against non-state actors although it is existent in practice.

As a result of the above Justifications, The use of force has justified the use of force via
Customary self-defence

Under Chapter VII of the Charter of the United Nations Charter, the UN Security Council
may take enforcement measures where it has determined the existence of a threat to the
peace, breach of the peace, or act of aggression. It is also noteworthy that the Security
Council’s main role is in maintaining international peace and security rather than in
enforcing international law,

The United Nations through its Security Council may also resort to the use of force through
the used of armed conflict as was seen in the case of the severance of air links with Libya as a

15
9/11 attacks
result of the Lockerbie bombing in 1992and similarly, economic sanctions could also be
applied simultaneously, as in the to the use of armed force in the case of Iraq.

Similarly, Article 5116permits states to use armed force to assist another state to assert its
rights to self-defence if an express request is made. Thus Kuwait was able to ask for
assistance from outside states in asserting its rights to self-defence against Iraq. The only
rationale for such organisations as NATO is that an attack on one member state constitutes an
attack on all members.

However, The UN has six principal organs ie the General Assembly, the Security Council,
the Economic and Social Council, the Trusteeship Council, the International Court of Justice
and the Secretariat.

The UN Security Council has primary responsibility for maintaining international peace and
security. It has five permanent members ieUSA,Russia, the UK, China, and France and 10
non-permanent members who are elected for a two-year term (five are elected each year).
Decisions of the Security Council must have the affirmative vote of nine members including
the permanent members, except on procedural matters where voting is by majority. Any
permanent member can therefore veto a decision; abstention, however, is not taken as a veto.
According to the Charter, no member should vote on a matter in which it is involved, but this
rule is not observed in practice.17

The UN through its Security Council is empowered in Chapter VII of the UN Charter to act
on behalf of all states, even if IT means using force, itself and the resolutions passed under
Chapter VII are binding on all states. This averment means that the decisions made by the
UN are binding on all members states.

Article 39 of the UN Charter provides that: The Security Council shall determine the
existence of any threat to the peace, breach of the peace, or act of aggression and shall make
recommendations, or decide what measures shall be taken in accordance with Articles 41
and 42 to maintain or restore international peace and security.

16
UN Charter

17
Source Book on Public International Law.
Similarly, under Article 40, the Security Council may indicate provisional measures pending
a determination under Article 39. It is therefore important to determine what type of
behaviour might fall within Article 39so as to justify the use of Force.

The use of force was defined as an express or implied promise by a government of a resort to
force conditional on non-acceptance of certain demands of that government. 18. Notably, in the
Nicaragua Case, the ICJ deciphered that the prohibition of use of force was a principle
customary law19thus meaning that it is binding upon all states whether members or non-
members of the UN.

However, there are well recognized exceptions to the Prohibition of the use of force as has
often been argued by state practice eg. Self-Defence. Victim states consent, humanitarian
intervention, reprisals, and the protection of nationals abroad.

Nevertheless, most of these are controversial and thus the most recognized exception is that
of self-defencethat is recognized as legal authority besides UN enforcement measures.

Article 39 states that the Security council shall determine the existence of one of the three
situations ie threat to peace, breach of peace and act of aggression and this means that the
Council has a wide discretion on when to apply force.

The Security Council of the United Nations may authorize the use of force where it deems the
existence of the following:

Breach of Peace:

It is noteworthy that Breach of Peace and Acts of aggression form the core of Chapter V11 of
the Charter. In most cases, the condition for breach of peace has been found where one state
caries out an action involving the use of arms against another. This has been applied in
various situations e.g. in Resolution 660, the council determined that the Iraqi invasion of
Kuwait was a breach of peace.20 Nevertheless, it has been very difficult for the Council to
draw a line between the breach of Peace and act of aggression and many scholars have argued
the same especially concerning the above resolution thereon.

Threat to Peace:

18
Brownlie (1963) page 364.
19
Nicaragua case ICJ reports 1986 P.14
20
S/ Res.660. 2 Aug.1990
This consists of a very wide conundrum of possibilities and thus is of a very wide definition.
Some scholars like Shaw have noted that it consists of “a safety net for the Security Council
where the conditions for the breach of peace or acts of aggression don’t appear to be easily
deciphered.”21. Similarly, Malanczuk claims that threats to peace seems to be whateverthe
Security Council deems to be22.

The UN has on several occasions considered certain situations to amount to a breach of peace
and thus warranted the use of force and these include:

a) Terrorism: This was declared a threat to peace in the famous case involving Libya and
Lockerbie where Libya refused to surrender terrorism suspects despite a formal request by
the Security Council which claimed that this was part of their elimination of international
terrorism and demanded extradiction of the suspects.

b) Democracy. The UN in its security council resolutions concerning Haiti in 1993-1996

where the democratically elected President was overthrown by guerillas noted that the
continuation of such a situation amounted to a threat to peace.

Act of Aggression: As already enunciated above, the contents of the conditions warranting
“acts of aggression” were very controversial and this prompted a General Assembly
discussion which later culminated into a definition in 1974 by adoption of Resolution 3314 23
and thus Aggression was defined as the use of armed force against the territorial integrity /
political independence of another state in a manner inconsistent with the charter of the UN
and thus any act of use of armed force constititutes prima facie evidence of aggression as
agreed in the Resolution. However, it is notably true that the security council has been very
reluctant to decipher existence of an act of aggression but it has always turned to breach of
peace and this has left many scholars criticizing the developments for instance in the above
case of the Iraq invasion of Kuwait Harris notes that it was clear that Iraq had committed
armed aggression without justification24 and thus the council has only determined acts of
aggression thrice and that is in relation to Israel, Southern Rhodesia and South Africa.

In a nutshell, The UN will authorize the use of force in circumstances where it discovers
that their has been an act of aggression committed against a state.

International Humanitarian Law.

21
Shaw 1998 page 885
22
Shaw 1988.
23
GA Res.3314 (xxix) 14 Dec.1974
24
Harris 1998 page 956
This law acts as lex specialis i.e. the law governing a specific subject and its major purpose is
to limit the detrimental effects of warfare by providing protection to those who don’t take
part in armed war fare. Humantarian intervention in international law covers two forms i.e.
rescuing nations by a state from abroad when a territorial state was unable to do so and
similarly, forceful intervention by a state to save people from their government’s actions. 25.
However, these have been faced major opposition mainly from the British government which
has often “created no fly zones” during humanitarian interventions such as that of Iraq 26 .
However, it is vital to note that a doctrine on Humanitarian intervention is “non-existent”27.

Remarkably, following the use of chemical weapons in Syria, the British Prime Minister
issued a statement of the Governments legal position in which he stated that if action in the
Security Council is blocked, the UK would still be permitted in the International Law to take
exceptional measures inorder to alleviate the scale of over whelming Humanitarian Crisis in
Syria by deterring or disrupting further use of Chemical Weapons by the Syria Regime and
thus such a legal basis is available for the UN to authorize the use of force. Britain stated 3
grounds for Humanitarian intervention and these included:

I) If there is convincing evidence internationally acceptable that extreme

humanitarian distress is on a large scale requiring immediate and urgent relief.
II) It must also be objectively clear that there is no practicable alternative to the use
of force if lives are to be saved and finally, the proposed use of force must be
necessary an proportionate,

This therefore means that the force used should be only that necessary to achieve that end and
not for any other purpose.28

In a nutshell, the existing rules of international law do allow the United Nations to resort to
the use of force whenever it deems necessary and it usually authorizes the use of force in the
circumstances as discussed above ie Humanitarian intervention, self- defence and this has
largely been possible as a result of a collective Security system established by the UN Charter

Written by Gukiina Patrick Musoke.

25
S Murphy Humanitarian Intervention. The UN in an evolving World Order 1996
26
Max Plank Encyclopedia of Public International Law.(2012)
27
Baroness Symons, Hansard HL Debs. WA 139-40 16 Nov.1988 Vol 69
28
NATO’S humanitarian war over Kosovo , survival vol.41 (1999) p.106
A legal scholar, writer, author and researcher.