CATEGORIES OF FORCE

RESEARCH PROJECT SUBMITTED IN FINAL FULFILMENT OF THE COURSE

INTERNATIONAL LAW
DURING THE ACADEMIC YEAR 2019-2020 FOR OBTAINING
THE DEGREE OF B.B.A. LL.B. (Hons.)

Submitted By: - Rahul Raj Submitted To: Mrs. Sugandha Sinha

Roll No: - 1845 Faculty of Law
5th Semester International Law
B.B.A.Ll.B.(Hons)

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR, PATNA – 800001
AUGUST, 2019

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 ACKNOWLEDGEMENT

The success of this final report is the outcome of Guidance and valuable suggestions provided
by all the concerned without whom the report could not fide on the right back. I would like to
express my sincere gratitude to Dr. for giving me an opportunity to do this project work. I also
express my sense of deep gratitude towards the other faculty members for introducing a
program which enables us to learn more. Finally, I will be failing in my duty, if I do not thank
my parents, friends and well-wishers for their enthusiastic support and who have directly or
indirectly helped in some way or the other in making this final report a success.

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 RESEARCH METHODOLOGY

In this project Doctrinal Method as well as Non-Doctrinal methods are used. Doctrinal Methods
refer to Library research, research or processes done upon some text’s writings or Documents,
legal propositions and Doctrines, Articles, Books as well as Online Research and Journals
relating to the subject.

SOURCES OF STUDY

• Primary sources: Case Law, Legal Sources, Acts, etc.

• Secondary Sources: Newspapers, journals, periodicals, etc.

LIMITATIONS OF THE STUDY

There are various hindrances which can be faced by the researcher during the formation of this
project such as scarcity of time, expensive legal materials for various research works, research
done by an individual

HYPOTHESIS

This researcher has presumed that is no relevance of categories of force in the International
Law.

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 TABLE OF CONTENTS

1. Introduction

2. The continuing validity of charter-based rules on the use of force in

today’s world
3. Criteria for the Lawful Use of Force in International Law

4. Different reasons for use of force

5. Conclusion
6. Bibliography

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 INTRODUCTION
Kofi Annan, Secretary-General of the United Nations at the time of the 2003 Iraq conflict, has
written: “No principle of the Charter is more important than the principle of the non-use of
force as embodied in Article 2, paragraph 4, Secretaries General confront many challenges in
the course of their tenures but the challenge that tests them and defines them inevitably involves
the use of force.”

Before 1945, the phrase “use of force” was synonymous with the term “war”. It was a time
when natural law thinkers believed that the exercise of force for avenging earlier atrocities and
punishing earlier wrong was to be a connoted as “just war”. Such concepts had theological
origins7 where such wars were fought in order to protect the sanctity and ensure the protection
of religious beliefs of individuals. The frailty of such religious vengeance began to show and
hence was slowly replaced by the newfound idea of the state. A strong belief existed that the
power of the sovereign state held no boundaries. The aftermath of such an extreme belief was
the First World War. After the dismal failure of the League of Nations, the Second World War
claimed peace and there was a dire need of a plausible solution. The United Nations Charter
was what could be seen as a viable option where independent states would become members
so as to ensure that such use of force as seen before did not take place in the future. It is
impossible to have a dispute free world. It was then decided that all member states would
refrain from threatening or using force against any other state and use peaceful means to settle
the dispute, thereby protecting international peace and security. The state practice of use of
force has undergone tremendous alteration from “just” use of force to the banning of war.

During the Hague Peace Conferences of 1899 and 1907 the first major diplomatic attempts
were made to restrict warfare. In case of serious disagreement or dispute, the parties agreed to
have recourse to the good offices or mediation of one of more friendly powers. However, from
the use of qualifying phrases, such as "before an appeal to arms" and "as far as circumstances
allow", we can infer that at the time warfare was still considered a common way to pursue
policies.2 In 1907, it was only agreed that war would never be launched for the collection of
public debts, the so-called Drago-Porter Convention. Moreover, it was agreed that hostilities
could only be initiated after a prior declaration of war (Hague Convention III relating to the
Opening of Hostilities).

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Furthermore, through the Hague Convention IV with Regulations Respecting the Laws and
Customs of War on Land parties sought to reduce the cruelty of war by limiting the ways of
warfare. After the Great War, the League of Nations was established, the very first
intergovernmental political organization in world history. This was one of the arrangements in
the series of peace treaties concluded at Versailles and elsewhere during 1919-1920.

One of the primary goals of the League was the maintenance of the status quo as it existed at
the time, but based on a collective system that guaranteed peace and security. Article 10 of the
League's Covenant provided: 'the members undertake and preserve as against external
aggression the territorial integrity and existing political independence of all members of the
League'. Moreover, Article 11 stated: 'any war, or threat of war, whether immediately affecting
any of the Members of the League or not, is hereby declared a matter of concern to the whole
League, and the League shall take any action that may be deemed wise and effectual to
safeguard the peace of nations.'

A cornerstone of this collective system was what at first glance appeared to be a unique ban
on war: The High Contracting Parties wanted to achieve international peace and security 'by
the acceptance of obligations not to resort to war' (preamble, see also Art. 10). However, this
ban on the use of war had been formulated in the League's Covenant rather loosely and certainly
not in an absolute way. In essence, it amounted to a cooling-off period, a moratorium, of three
months and an attempt to resolve disputes by peaceful methods, such as arbitration, a judicial
process or through the League's Council. But if parties did not cool off, or chose to put aside
arbitral or judicial decisions, then they still had the right 'to take such action as they shall
consider necessary for the maintenance of right and justice.

Obviously, this loophole provided more than merely the right to self-defence. Hence, warfare
under the Covenant of the League of Nations was only prohibited against a State that was
prepared to observe judicial or arbitral decisions or an unanimously adopted report of the
League's Council. During the time of the League of Nations various attempts were made to
close the loopholes in the new law. The most impressive attempt was the Kellog-Briand Pact
of August 1928, a joint initiative of the American Secretary of State and his French colleague.

In their view, the time was ripe for a "frank renunciation of war as an instrument of national
policy". The Parties declared solemnly that in the name of their populations they 'condemn
recourse to war for the solution of international controversies, and renounce it as an instrument
of national policy in their relations with one another' (Art. 1). Article 2 adds that a solution to

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disputes 'shall never be sought except by pacific means". A widely recognized, albeit not
explicitly formulated exception was the right to self-defence. While this Pact was not
watertight, it excluded at least the so-called aggressive war. As such it gave expression to the
increasing aversion to war. As early as July 25th 1929, this Pact entered into force and, quite
interestingly, is still in effect today. During the post-1945 international criminal war tribunals,
this Pact was invoked when accusing and convicting German and Japanese politicians of
waging an aggressive war. Earlier Japan had called its invasion of Manchuria not a war but 'an
incident' and Italy had called its annexation of Abyssinia/Ethiopia an 'expedition'. Obviously,
opinions differed considerably as to what constituted war and aggression under Article 1 of the
Pact.

What is “use of force” in international law?

The term “force” in general may be given a wide interpretation so as to include political,
economic, psychological coercion. But the Article 2(4) of the UN Charter has been interpreted
in a very limited manner to only cover only the use of armed forces. Nevertheless, states at
times engage in activities which may be considered as illegal or on violation of customary
international law. Releasing large quantities of water downstream or diverting a river thereby
adversely affecting the riparian rights of another state, cross-frontier expulsion of
populations19 are certain instances where states use physical force to undermine the rights of
another state. As we find no conclusive international treaty in this regard, we are left to interpret
customary international law and take aid from the opinion of eminent jurists who are of the
view that such physical non-military instances of force need not be covered under to scope of
Article 2(4) of the United Nations Charter. Thus in order to make an aggressor state liable for
instances of use of physical or indirect force , then the act or omission on the part of the state
must be interpreted to make it look like it was a instance of colourable use of military-force
thereby requiring the use of the self-defence mechanism as enshrined in Article 2(4) of the UN
Charter.

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 THE CONTINUING VALIDITY OF CHARTER-BASED RULES ON
THE USE OF FORCE IN TODAY’S WORLD

The rules of international law on the use of force are relatively easy to state, though they may
be difficult to apply in practice. The rules are to be found in the Charter and in customary
international law. The Charter contains, among the Principles of the United Nations, a
prohibition of the threat or use of force (Article 2, paragraph 4). The Charter refers to two not
unrelated circumstances in which the prohibition does not apply. First, forcible measures may
be taken or authorised by the Security Council, acting under Chapter VII of the Charter.
Second, force may be used in the exercise of the right of individual or collective self-defence,
as recognised in Article 51 of the Charter. A further possible exception that has been suggested,
chiefly it seems by UK Governments, is the use of force to avert an overwhelming humanitarian
catastrophe (sometimes referred to as ‘humanitarian intervention’). This is not mentioned in
the Charter, and so must be found, if at all, in customary international law. Force used at the
request or with the consent, duly given, of the government of the territorial State does not give
rise to an issue under the jus ad bellum.

The use of force in retaliation (punishment, revenge or reprisals) is illegal. Such terms are best
avoided, even in political rhetoric. It has occasionally been suggested, at least by certain
academics, that the rules of international law on the use of force are dead, or that there is some
fundamental gulf between the United States and other countries in this matter.1 The late Tom
Franck even referred to an emerging approach among American law professors and
practitioners: “that classifies international law as a disposable tool of diplomacy, its system of
rules merely one of many considerations to be taken into account by government .”2

This was an exaggeration, but it reflected a real concern at the time. Passages in the US
National Security Strategy of 2002 caused alarm, as did the United States claim to be engaged
in a ‘global war on terrorism.’ At the same time, there is growing concern at the failure to
respond adequately to modern security threats (not least, transnational terrorism and the
proliferation of weapons of mass destruction) and to humanitarian catastrophes (such as in
Rwanda, Darfur, and Syria). Such concerns have led some to push the boundaries of the law,
seeking to construct a unilateral right to use force preventively or for humanitarian purposes,

1
M. J. Glennon, “Why the Security Council Failed”, Foreign Affairs, no. 16 (May/June 2003); M. J. Glennon,
“How International Rules Die”, Geo. L.J., no. 93 (2005), p. 939.
2
T. M. Franck, “The Power of Legitimacy and the Legitimacy of Power: International Law in an Age of Power
Disequilibrium”, A.J.I.L., no. 100 (2006), p. 88 at p. 89

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and to argue for implied or retrospective authorisation by the Security Council for the use of
force. Recourse to armed force by the United Kingdom over a four-year period between 1999
and 2003 raised important issues. The Kosovo intervention in 1999 involved a major issue of
principle: was there a right of unilateral ‘humanitarian intervention’?

The use of force against Al Qaida in Afghanistan in 2001 (following the attacks on the United
States on 11 September 2001) also raised an important issue: the right of self-defence against
attacks by non-State actors. The use of force against Iraq in March 2003, though politically and
legally the most controversial, involved no great issue of legal principle. As the Attorney
General’s now public advice of 7 March 2003 indicates, for the United Kingdom, the legality
of the invasion turned solely on whether it had been authorised by the Security Council. It is
clear that the Security Council may authorise the use of force. The only question was: had it
done so? That turned on the interpretation of a series of Security Council resolutions.

Whatever one’s view on the merits, each of these cases illustrates that the United Kingdom
Government gives careful consideration to the relevant questions of the international law on
the use of force. This is confirmed by the careful legal advice given to the UK Government
over possible strikes on Syria, at least judging by the published summary. So suggestions of
‘the death of Article 2(4)’ were certainly wide of the mark. A more important question is
whether there are significant shortcomings in the traditional body of rules on the use of force
by States. Is the law as it is, the law as it ought to be?

Are existing rules adequate to meet current threats, especially from non-State actors and
weapons of mass destruction? The General Assembly of the United Nations, at the level of
Heads of State and Government, responded to this question in its 2005 World Summit Outcome
document. The Heads of State and Government reaffirmed: “that the relevant provisions of the
Charter are sufficient to address the full range of threats to international peace and security.

We further reaffirm the authority of the Security Council to mandate coercive action to
maintain and restore international peace and security. We stress the importance of acting in
accordance with the purposes and principles of the Charter”. It seems that, in the view of the
Heads of State and Government, the rules on the use of force in the Charter, when properly
interpreted and applied, are adequate to meet new challenges. What is needed are not new rules,
but political will on the part of States, including members of the Security Council and potential
troop contributors. The 2005 World Summit Outcome thus offered one response to a debate

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that took off after 9/11 questioning the effectiveness, the relevance, and even the existence of
rules of international law on the use of force.

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 DIFFERENT REASONS FOR USE OF FORCE

Self-defence, transnational terrorist groups and weapons of mass destruction

Article 51 of the Charter provides that: “Nothing in the present Charter shall impair the inherent
right of individual or collective self-defence if an armed attack occurs against a Member of the
United Nations.” Article 51 thus recognizes the inherent right of self-defence under customary
international law. It is sometimes suggested that the right of self-defence as recognized in the
Charter is too restrictive for the modern age. The US 2002 National Security Strategy, with its
references to preventive action, seemed to reflect such a view. Suggestions of this kind tend to
overlook, or downplay, the potential role of the Security Council in authorizing States to use
force preventively to avert terrorist threats. Three main questions arise in connection with self-
defence against terrorist attacks. Does the right of self-defence apply at all in response to attacks
by non-State actors, including transnational terrorist groups? Is there a right of ‘anticipatory’
self-defence? And, if these questions are answered in the affirmative, how does the requirement
of imminence apply in relation to attacks by terrorists or with weapons of mass destruction?

Some question whether the right of self-defence is at all available in response to attacks by
non-State actors, such as transnational terrorist groups. Yet in the immediate aftermath of the
terrorist attacks of 11 September 2001, the Security Council adopted resolutions 1368 (2001)
and 1373 (2001) reaffirming ‘the inherent right of individual and collective self-defence as
recognized by the Charter of the United Nations’. And State practice, including the practice of
the members of the North Atlantic Treaty Organization,32 the members of the Organization of
American States and others,34 supports such a right. This is notwithstanding the International
Court of Justice’s brief dictum in the Israeli Wall advisory opinion and its (possibly significant)
silence in Armed Activities on the Territory of the Congo case.

A subsequent Chatham House study, which developed a set of Principles on the Use of Force
in Self-Defence, concluded that necessary and proportionate action could be taken where the
territorial State is itself unable or unwilling to take the necessary action.37 The Leiden Policy
Recommendations on Counter-Terrorism and International Law of 1 April 2010 reached a
similar conclusion3, as did a set of principles published in 2012 by former FCO legal adviser

3
E Wilmshurst, “The Chatham House Principles of International Law on the Use of Force in Self-Defence”,
I.C.L.Q., vol. 55 (2006), p. 963. E. Wilmshurst, Principles of International Law on the Use of Force by States in
Self-Defence – Working Paper (The Royal Institute of International Affairs, October 2005).

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Daniel Bethlehem.4 The Chatham House and Leiden Principles were the outcome of collective
discussions among private individuals (though Leiden was an initiative of the Dutch
Government). The Bethlehem Principles may reflect a degree of intergovernmental
consultation though the extent to which they represent the views of governments is far from
clear. The question whether a right of anticipatory self-defence has survived the UN Charter
remains controversial, among States and among authors. During the Cold War, one side seemed
to take the position that action in self-defence was only lawful if an armed attack had actually
been launched. The United States, the United Kingdom and others maintained what might be
termed the ‘Caroline approach’, that is, that force may be used in self-defence in the face of an
imminent attack. The International Court of Justice has not yet addressed the matter; indeed, it
has expressly left the question open.

The end of the Cold War, and the new threats have not, yet, led to general agreement among
States on the question of anticipatory self-defence. The third question is the most difficult.
What constitutes an imminent attack in the context of transnational terrorist groups and
weapons of mass destruction? The Caroline language is familiar: ‘a necessity of self-defence,
instant, overwhelming, leaving no choice of means, and no moment for deliberation’.5

The Attorney General said in the House of Lords in April 2004: “The concept of what
constitutes an ‘imminent’ armed attack will develop to meet new circumstances and new
threats. It must be right that States are able to act in self-defence in circumstances where there
is evidence of further imminent attacks by terrorist groups, even if there is no specific evidence
of where such an attack will take place or of the precise nature of the attack.”4

In the same speech, however, Lord Goldsmith explicitly distanced the British Government
from an American doctrine of preventive action, as set out in the 2002 National Security
Strategy:

“It is the Government’s view that international law permits the use of force in self-defence
against an imminent attack but does not authorise the use of force to mount a pre-emptive attack
against a threat that is more remote”. The application of the imminence criterion can be difficult
in practice. A classic example is the Israeli attack on a nuclear plant in Iraq in 1981. On 7 June
1981, Israel bombed a research centre near Baghdad, destroying the Osirak nuclear reactor

4
D Bethlehem, “Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or
Actual Armed Attack by Nonstate Actors”, AJIL, no. 106 (2012), pp. 770- 777; for comment see AJIL, no. 107
(2013), pp. 378-395, 563-585.
5
C. Greenwood, “Caroline, The”, in Max Planck Encyclopedia of Public International Law (2012).

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which, it said, was developing nuclear bombs that would have been ready for use against Israel
in 1985. The Security Council, after extended debate, unanimously and strongly condemned
‘the military attack by Israel in clear violation of the Charter of the United Nations and the
norms of international conduct.’6

The debate focused on the necessity of Israel’s actions. It was agreed that Israel had failed to
exhaust all peaceful means for resolution of the matter. Israel had also failed to produce
evidence that it was threatened with an imminent attack. The Chatham House Principles have
something to say on the matter.47 Principle D says that ‘the criterion of imminence must be
interpreted so as to take into account current kinds of threat’ and that:

“Force may be used only when any further delay would result in an inability by the threatened
State effectively to defend against or avert the attack against it. In assessing the imminence of
the attack, reference may be made to the gravity of the attack [e.g. WMD], the capability of the
attacker [e.g. possession of WMD], and the nature of the threat, for example if the attack is
likely to come without warning.” The commentary, after referring to the Caroline formula,
notes that in the context of contemporary threats ‘imminence cannot be construed by reference
to a temporal criterion only, but must reflect the wider circumstances of the threat.’

A key element is whether ‘it is believed that any further delay in countering the intended attack
will result in the inability of the defending State effectively to defend itself against the attack.
In this sense necessity will determine imminence.’ The Leiden Policy Recommendations48 set
the matter is a wider context. They “recognize that the use of force is a measure of last resort
to be employed only where absolutely necessary” and that “States and the Security Council
should give priority, wherever possible, to law enforcement measures.” They emphasise the
need for as much transparency as possible. They give particular emphasis to the role of the
Security Council.7

On the requirement of imminence in the context of terrorist attacks, they say: “Whether an
attack may be regarded as imminent falls to be assessed by reference to the immediacy of the
attack, its nature and gravity. There must be a reasonable and objective basis for concluding
that at an attack will be launched, while bearing in mind that terrorists typically rely on the
unpredictability of attacks in order to spread terror among civilians. Armed force may only be

6
Security Council resolution 487 (1981) of 19 June 1981
7
“The Role of the UN Security Council in relation to the Use of Force against Terrorists” in L. van den Herik, N.
Schrijver, note 38; L. Sievers, S. Daws, The Procedure of the UN Security Council (4th ed., 2014)

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used when it is anticipated that delay would result in an inability by the threatened state
effectively to avert the attack.”8

8
E. Wilmshurst, “Anticipatory Self-Defence against Terrorists”, in L. van den Herik, N. Schrijver, note 38.

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Humanitarian intervention and ‘responsibility to protect’

The term ‘humanitarian intervention’ is used in two different ways in connection with the use
of force. In the past, it was used chiefly in the context of the rescue by a State of its nationals
abroad when the territorial State was unable or unwilling to do so. The more recent usage,
however, refers to forceful intervention by a third State or States to save people from their own
Government’s action or inaction. That is the subject of this section. Even in this context,
however, the term may be overly broad, since it hardly reflects the wholly exceptional
circumstances in which any such right might be exercised. Over the years, the British
Government has been a leading proponent of an exceptional and strictly limited right of States
to use force to avert an overwhelming humanitarian catastrophe - not, it was initially said, a
general doctrine of humanitarian intervention.9

The claim was first made in relation to the establishment of the safe havens in northern Iraq in
the spring of 1991. This was a strictly limited intervention, both in scale and in terms of the
use of force. The claim was, at least for the British Government, ‘the underlying justification
of the No-Fly Zones’ in northern and southern Iraq.10 And it was restated in the following terms
in 1998 in connection with the events then unfolding in Kosovo (even though the subsequent
attack on Serbia in 1999 was on a far larger scale, and involved much more force, than the safe
havens and the no-fly zones): “There is no general doctrine of humanitarian intervention in
international law. Cases have nevertheless arisen (as in northern Iraq in 1991) when, in the
light of all the circumstances, a limited use of force was justifiable in support of purposes laid
down by the Security Council but without the Council’s express authorisation when that was
the only means to avert an immediate and overwhelming humanitarian catastrophe. Such cases
would in the nature of things be exceptional and would depend on an objective assessment of
the factual circumstances at the time and on the terms of relevant decisions of the Security
Council bearing on the situation in question.”11

On 29 August 2013, following the use of chemical weapons in Syria, the British Prime
Minister’s Office issued a statement of the Government’s legal position, which included the
following: “If action in the Security Council is blocked, the UK would still be permitted under
international law to take exceptional measures in order to alleviate the scale of the

9
S. Murphy, Humanitarian Intervention: the United Nations in an Evolving World Order (1996); C. Greenwood,
“Humanitarian Intervention: The Case of Kosovo” , Finnish Y.B.I.L., vol. 10 (1999), p. 141; S. Chesterman, Just
War or Just Peace: Humanitarian Intervention and International Law (2001).
10
B.Y.I.L., vol. 63 (1992), pp. 827-828
11

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overwhelming humanitarian catastrophe in Syria by deterring and disrupting the further use of
chemical weapons by the Syrian regime.

Such a legal basis is available, under the doctrine of humanitarian intervention, provided three
conditions are met:

(i) there is convincing evidence, generally accepted by the international community as a

whole, of extreme humanitarian distress on a large scale, requiring immediate and
urgent relief;
(ii) it must be objectively clear that there is no practicable alternative to the use of force if
lives are to be saved; and
(iii) the proposed use of force must be necessary and proportionate to the aim of relief of
humanitarian need and must be strictly limited in time and scope to this aim (i.e. the
minimum necessary to achieve that end and for no other purpose).”

As is often the case, there was no comparable statement of the US legal justification for the
use of force. There is, however, an interesting piece by Michael Schmitt, Stockton Professor
at the US Naval War College, suggesting that the US Government should adopt the same legal
rationale as the British one.12 The Attorney General’s advice of 7 March 2003 had said that
‘[t]he doctrine [of a right to intervene to avert an overwhelming humanitarian catastrophe]
remains controversial.’ The question is whether State practice and opinio juris are by now
sufficient to establish as a matter of customary international law a right to intervene to avert
an overwhelming humanitarian catastrophe, despite the silence of the United Nations Charter
and in the face of the general prohibition on the use of force in the UN Charter.60 In 1991, the
United Kingdom’s legal position on intervention was a somewhat isolated one. In earlier cases
which might have been seen as humanitarian interventions (India-East Pakistan 1971;
Vietnam-Cambodia 1978; Tanzania-Uganda 1979; ECOWAS action in Liberia 199061), the
States concerned justified their actions on other grounds, primarily self-defence. NATO’s
Kosovo operation could have been an important piece of State practice and opinio juris.

In fact, it was less than clear-cut, especially as regards opinio juris since many participating
States were not at all explicit as to the legal basis for their actions. However much the
development of a right to intervene on humanitarian grounds may have been welcomed in
some quarters, it is difficult to demonstrate that State practice and opinio juris since the safe

12
M. N. Schmitt, “The Syrian Intervention: Assessing the Possible International Law Justifications”, International
Law Studies, no. 89 (2013), p. 744.

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havens in northern Iraq in 1991, or the Kosovo intervention in 1999, have moved in the
direction of those claiming the existence in customary international law of such a right. The
claim has not secured much ‘traction’ or, at least, had not done so until August/September
2013 in connection with Syria. Legal advice given to the UN Secretary-General in 2003 was
to the effect that the supposed right of humanitarian intervention, despite the events in Kosovo
and the debate that had followed, had not yet crystallized into a rule. The High-level Panel’s
report Our Common Future of 2004, and the Secretary-General’s report in larger freedom of
2005, did not mention any such right.

The ensuing General Assembly debate in April 2005 offered no support; on the contrary, those
who addressed the question of humanitarian intervention saw it as a matter to be decided upon
by the Security Council, not one where unilateral action was permitted. There is no hint of a
unilateral right in the 2005 World Summit Outcome. Deeds of course speak louder than words,
but these expressions of opinion by many States cannot simply be ignored. Perhaps for the
present, and absent further practice, claims such as those made in 1991 and 1999, and again in
2013, may have to rely on some exceptional defence or justification of necessity, such as is
found in domestic legal systems, rather than on positive law.

In 2001, the British Government sought to promote criteria for the circumstances in which the
Security Council should be ready to authorise the use of force in the face of an overwhelming
humanitarian crisis. This was an attempt to develop the underlying policy for Council action,
not the law. The initiative did not lead to immediate results. Other initiatives followed,
stimulated by concern at the unilateralism inherent in the Kosovo action. The most influential
was the International Commission on Intervention and State Sovereignty, set up by the
Canadian Government and co-chaired by the former Australian Foreign Minister, Gareth
Evans. The Commission’s 2001 report was entitled The Responsibility to Protect.

The Secretary-General’s High-level Panel likewise endorsed: “The emerging norm that there
is a collective international responsibility to protect, exercisable by the Security Council
authorizing military intervention as a last resort, in the event of genocide and other large-scale
killing, ethnic cleansing or serious violations of international humanitarian law which
sovereign Governments have proved powerless or unwilling to prevent.”

The Panel went on to propose that the Security Council adopt guidelines (not unlike those
suggested by the British Government in 2001) as to when it should act. This was proposed
expressly to ensure the legitimacy of the Security Council’s actions, not their legality. The

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Secretary-General’s report In larger freedom was in similar terms. In the event, however, the
Security Council did not adopt any such guidelines. Nor did the General Assembly support
their adoption. In paragraphs 138 and 139 of the 2005 World Summit Outcome – a General
Assembly resolution and as such not legally binding, the Heads of State and Government noted
that ‘[e]ach individual State has the responsibility to protect its populations from genocide,
war crimes, ethnic cleansing and crimes against humanity.’ They went on to say that ‘the
international community, through the United Nations’ also has the responsibility to use
appropriate peaceful means, in accordance with Chapters VI and VIII of the Charter, to help
protect populations.

The key sentence then follows: “In this context, we are prepared to take collective action, in
a timely and decisive manner, through the Security Council, in accordance with the Charter,
including Chapter VII, on a case-by-case basis and in cooperation with relevant regional
organizations as appropriate, should peaceful means be inadequate and national authorities are
manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and
crimes against humanity.” This sentence is complex, and merits careful analysis. The first
question is whether, by using the word ‘responsibility,’ the General Assembly was asserting
that ‘the international community, through the United Nations’ has an international legal
obligation to protect populations.

The answer, surely, is ‘no’. Although individual States have positive obligations under human
rights law that would be encompassed in the concept ‘responsibility to protect’, it does not
follow that ‘responsibility to protect’ amounts to a new international legal obligation, created
by General Assembly fiat. So to claim might limit acceptance of the important political
principle. States, particularly those who would bear the main burden of action, are unlikely to
be willing to agree to a legal obligation to act to achieve objectives that may require huge
resources and where, depending on the circumstances, success may be uncertain. In any event,
it is difficult to see how ‘the international community, through the United Nations’ could bear
a legal obligation. The ‘international community’ is not a legal person, capable of bearing
rights and obligations.

The United Nations is, but the language of the 2005 World Summit Outcome does not suggest
that the Assembly intended to recognise some new international legal obligation upon the
United Nations as an organization, as distinct from a political commitment. On the other hand,
as a political commitment, the passage on ‘responsibility to protect’ in the 2005 World Summit
Outcome is potentially significant, and suggests that States have come quite far. What is

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significant, legally as well as politically, is that in the 2005 World Summit Outcome the
General Assembly, that is to say, the membership of the United Nations as a whole, confirmed
that enforcement action to protect populations from genocide, war crimes, ethnic cleansing
and crimes against humanity is within the remit of the Security Council. It may be recalled
that as recently as 1993, one learned authority could write that “notwithstanding the risk that
unilateral intervention for humanitarian purposes is open to abuse, it is far from clear that such
action can properly be authorized by the United Nations.”13

By 2005 the power to authorize intervention for humanitarian purposes was well established
in the practice of the Security Council, and any remaining legal doubts have surely been
removed by the 2005 World Summit Outcome. In fact, the Assembly went further. It clearly
said that it expected the Security Council to take action in appropriate cases, and the Security
Council itself has acknowledged this.14

13
R. Higgins, Problems and Process: International Law and How We Use It (1994), p. 254.
14
Security Council resolution 1674 (2006) reaffirmed paragraphs 138 and 139 of the 2005 World Summit
Outcome Document. See also Security Council resolution 1706 (2006) on Darfur.

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CRITERIA FOR THE LAWFUL USE OF FORCE IN INTERNATIONAL
LAW

Law includes a system of authorized coercion in which force is used to maintain and enhance
public order objectives and in which unauthorized coercions are prohibited. Thus, law and
coercion are not dialectical opposites. On the contrary, formal legal arrangements are not made
when there is a spontaneous social uniformity; then there is no need for law. Law is made when
there is disagreement; the more effective members of the group concerned impose their vision
of common interest through the instrument of law with its program of sanctions. Law
acknowledges the utility and the inescapability of the use of coercion in social processes, but
seeks to organize, monopolize, and economize it.

The international legal system diverges from these general legal features only in terms of
degree of organization and centralization of the use of coercion. In national systems, coercion
is organized, relatively centralized, and, for the most part, monopolized by the apparatus of the
state. In the international system, it is not. Individual actors historically have reserved the right
to use force unilaterally to protect and vindicate legal entitlements. Political and jurisprudential
principles such as these must be kept in mind in an examination and rational interpretation of
Article 2(4) of the United Nations Charter. Its sweeping prohibition of the threat or use of force
in international politics was not an autonomous ethical affirmation of nonviolence any more
than were previous efforts to temper the savagery of international politics. Article 2(4) was
embedded in and made initially plausible by a complex security scheme, established and
spelled out in the United Nations Charter. If the scheme had operated, it would have obviated
the need for the unilateral use of force. States with a grievance could have repaired to the
Security Council, which could then apply the appropriate quantum and form of authoritative
coercion and thereby vindicate collectively the rights it found had been violated. Under these
circumstances, the need for and justification of a unilateral resort to force ceased. Even then,
as we will see, the Charter acknowledged the inherent limits of its structures in the prevailing
international politics by reserving to states the right of self-defence.

But the security system of the United Nations was premised on a consensus between the
permanent members of the Security Council. Lamentably, that consensus dissolved early in the
history of the organization. Thereafter, for almost all cases but those in which there was a short-
term interest in collaboration, the Security Council could not operate as originally planned. Part
of the systemic justification for the theory of Article 2(4) disappeared. At the same time, the

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Soviet Union announced, in effect, that it did not accept Article 2(4): "Wars of national
liberation," an open-textured conception essentially meaning wars the Soviets supported, were
not, in the Soviet conception, violations of Article 2(4). Arkady N. Shevehenko testified:

The refusal to abandon support for national liberation movements as a weapon against the
Western Powers, and persistent efforts by the Kremlin to penetrate the nations of the Third
World for the purpose of luring them into its orbit, imply a willingness to project Soviet military
power over the globe and risk, if necessary, conventional wars. Here again, the Soviets are
guided by Lenin's formulas, which state that "socialists cannot be opposed to all wars,"
particularly "revolutionary wars" or national wars by "colonial peoples for liberation" or civil
wars. Consequently, the Soviet leadership favours and instigates some local conventional wars.
In explaining the Soviet military doctrine in 1981, Défense Minister Dmitri Ustinov called
attempts to attribute to the U.S.S.R. a willingness to launch the "first nuclear strike" unfounded
nonsense, but he said nothing regarding conventional war15.

Thus the U.S.S.R. could continue to pay lip service to Article 2(4) while ignoring it in practice
whenever convenient. The international political system has largely accommodated itself to the
indispensability of coercion in a legal system, on the one hand, and the deterioration of the
Charter system, on the other, by developing a nuanced code for appraising the lawfulness of
individual unilateral uses of force. The net result is not the value sterility of nineteenth century
international legal conceptions of coercion, but neither is it Article 2(4). Some sense of the
complexity of the code can be gained by examining, in a single time period, 1979, forceful
unilateral interventions without the prior authorization of the United Nations.

In 1979, forces of Tanzania invaded Uganda, expelled the government of Idi Amin, and
ultimately restored the government of Milton Obote. In the same year, French forces, in a quick
and bloodless coup, expelled the government of Jean-Bedel Bokassa from the Central African
Republic and installed a different president. In the same year, forces of the government of
Vietnam entered Cambodia and sought to unseat the Pol Pot government and to replace it with
a Vietnamese-backed government led by Heng Samrin. And in the same year, Soviet forces
entered Afghanistan to support a government which, it seemed, would not have survived had
it not been for the timely intervention and continued presence and operation of a foreign
military force. This annus, to paraphrase Auden, was not mirabilis.

15
A. Shevchenko, Breaking with Moscow 288 (1985).

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Although efforts were made to arouse the United Nations to criticize the first two of these
interventions, the organization resisted. 'But the organization condemned the latter two. Since
all of these interventions, like all unilateral actions, were motivated in key part by the self-
interest of the actors concerned, we must assume that there were some additional ingredients
that rendered some of them internationally acceptable. I submit that it is in the identification of
those factors that one can begin to describe the contemporary international law on the use of
force.

The deterioration of the Charter security regime has stimulated a partial revival of a type of uni
lateral jus ad bellum. But in sharp contrast to the nineteenth century conception, which was
value-neutral and ultimately power-based, the contemporary doctrine relates only to the
vindication of rights which the international community recognizes but has, in general or in a
particular case, demonstrated an inability to secure or guarantee. Hence, appraisals of state
resort to coercion can no longer simply condemn them by invoking Article 2(4), but must test
permissibility or lawfulness by reference to a number of factors, including the objective and
the contingency for which coercion is being applied.

Nine basic categories appear to have emerged in which one finds varying support for unilateral
uses of force. They are self-defence, which has been construed quite broadly; self-
determination and decolonization; humanitarian intervention; intervention by the military
instrument to replace an elite in another state; uses of the military instrument within spheres of
influence and critical defence zones; treaty-sanctioned interventions within the territory of
another state; use of the military instrument for the gathering of evidence in international
proceedings; use of the military instrument to enforce international judgments; and counter-
measures such as reprisals and retorsions. The categories themselves, however, are not
determinative.

Merely locating an individual use of force in a particular category does not mean that it is
lawful. While practice varies with regard to each of these, it is significant that a number have
certain common factors. In the space allotted by the editors, it cannot develop a comprehensive
set of guidelines for assessing lawfulness or permissibility of coercion, but it can be suggested
what is believe are the major principles of the UN Charter in this regard and try to relate them
to this subject.

In the determination of any action, a key and constant factor-less a criterion of lawfulness and
more a sine qua non of survival-is the need for the maintenance of minimum order in a

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precarious international system. Will a particular use of force, whatever its justification
otherwise, enhance or undermine world order?

When this requirement is met, attention may be directed to the fundamental principle of
political legitimacy in contemporary international politics. It is, as anyone familiar with the UN
Charter and with such key constitutive decisions as Namibia16 and Western Sahara17 knows,
the enhancement of the ongoing right of peoples to determine their own political destinies. That
obvious point bears renewed emphasis, for it is, in my view, the main purpose of contemporary
international law: Article 2(4) is the means. The basic policy of contemporary international law
has been to maintain the political independence of territorial communities so that they can
continue to be able to express their ongoing desire for political organization in a form
appropriate to them. Article 2(4), like so much in the Charter and in contemporary international
politics, supports and must be interpreted in terms of this key postulate. Each application of
Article 2(4) must enhance opportunities for ongoing self-determination. Though all
interventions are lamentable, the fact is that some may serve, in terms of aggregate
consequences, to increase the probability of the free choice of peoples about their government
and political structure. Others have the manifest objective and consequence of doing exactly
the opposite.

There is, thus, neither need nor justification for treating in a mechanically equal fashion,
Tanzania's intervention in Uganda to overthrow the Amin despotism, on the one hand, and
Soviet intervention in Hungary or Czechoslovakia to overthrow popular governments and to
impose an undesired regime on a coerced population, on the other. Nor should the different
appraisal of these cases by the international legal system occasion any surprise.

It is important to remember that norms are instruments devised by human beings to precipitate
desired social consequences. One should not seek a point-for-point conformity to a rule without
constant regard for the policy or principle that animated its prescription, with appropriate
regard for the factual constellation in the minds of the drafters. Legal statements, like all others,
are made in a context whose features are part of the expectations of speaker and audience. The
expression of Article 2(4), in the form of a rule, is premised, I submit, on a political context
and a technological environment which has been changing inexorably since the end of the
nineteenth century. The rule assumes that the only threat to or usurpation of the right of political

16
1971 I.C.J. 16.
17
1971 I.C.J. 16.

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independence of a people within a particular territorial community is from external and overt
invasion.

It makes a historicist assumption as well: internal changes are deemed to be personnel changes
in the composition of an elite which do not bring about basic changes in systems of public order
within the country or in its external political alignments; governments come and go but the life
of the people continues in its traditional fashion. Most important, it does not presuppose
division, maintained by a precarious nuclear equipoise, between two contending public order
systems, either of which might find itself substantially disadvantaged and pressed to intense
coercion by the defection of a particular community from its own critical defence zone. The
rule-formulation of Article 2(4) is oblivious to these factors. Hence, its purpose
notwithstanding, it has been unable to provide would be strict appliers with a legal
characterization consistent with the relevant international policies for all-too-familiar
scenarios: In communities without established or durably institutionalized procedures for the
transfer of power, a group of military officers, without a base of popular support, seizes the
government.

In an equally familiar variation of this scenario, the putsch itself is externally inspired,
encouraged and/or financed. As their control is precarious, the officers immediately seek the
support of an outside Superpower; it responds by providing military and administrative
assistance within the country and material help and support in external political arenas. Because
of this foreign reinforcement, what would probably have been an evanescent violation of the
popular will persists.

Ironically, most of the sequences of this scenario are compatible with traditional international
law and Article 2(4) as it has been mechanically applied. The usurpers of power are entitled to
recognition as a government if they appear to have effective control, a doctrine established
clearly since Chief Justice Taft's holding in Tinoco. As such, the new "government" is entitled
to request assistance from abroad. Other governments responding to it are not deemed to be
"intervening," yet another foreign force, entering the country, putting the mutinous military
back in the barracks and reinstalling the ousted government and the former constitutional
procedures would violate the terms of Article 2(4).18 The net effect of a mechanical
interpretation of Article 2(4) may be to superimpose on an unwilling polity an elite, an
ideology, and an external alignment alien to its wishes. This may entail far-reaching social and

18
Reisman, Coercion and Self-Determination: Construing Charter Article 2(4), 78 AM. J. INT'L L. 642, 644-45
(1984).

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economic changes and grave deprivations of human rights for substantial numbers and strata
of the population. Recall that all of this occurs in a century whose politics are marked by
relentless mass mobilization, with frequent, radical, and far-reaching intervention by the
apparatus of the state.

In consequential terms, the scenarios we have rehearsed are as destructive of the political
independence of the community concerned as would be a massive invasion by the armed forces
of another state. To characterize the second form of intervention per se as impermissible or
unlawful and the first as permissible or lawful or at least not cognizable by international law
violates the basic policy which international law seeks to achieve. Coercion should not be
glorified. The promulgation of a norm such as Article 2(4), for all of its ineffectiveness, is a
major achievement. But it is naive and indeed subversive of public order to insist that coercion
never be used, for coercion is a ubiquitous feature of all social life and a characteristic and
indispensable component of law. In a contest with an adversary that does not accept the
prohibition, to forswear force is to disarm unilaterally.

The critical question, in a decentralized international security system such as ours, is not
whether coercion has been applied but whether it has been applied in support of or against
community order and basic policies, and whether it has been applied in ways whose net
consequences include increased congruence with community goals and minimum order. Given
the magnitude of destructive power of the weapons concerned and the violence and wickedness
of which human beings have demonstrated themselves capable, the notion of ineffective
international institutions and hence a decentralized security system is terrifying. But it is a fact.
We do not enhance security, minimum order, or the values of human dignity which require and
justify them by pretending otherwise, any more than does an ostrich enhance its security by
putting its head in the sand at the approach of danger.

The possibility of making the security functions of the United Nations effective in the near
future is slim. The effort to improve the organization is always important and justified. But in
the meanwhile, rational and responsible decisions will have to be made in the many cases that
continue to present themselves. For them, an important part of the control on impermissible
coercion will be a clear conception of the licit community objectives for which coercion may
be used: the basic and enduring values of contemporary world public order and human dignity.

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 CONCLUSION

It is suggested that the existing rules of international law on the use of force, in particular as
regards Security Council authorisation and self-defence, properly interpreted and applied, are
adequate to address current threats. Whilst by no means perfect, they are preferable to any
alternative rules that could be agreed. Efforts radically to amend or reinterpret the rules are
neither desirable, nor likely to succeed. One or a few States, however powerful, cannot change
established rules of international law, Charter-based ones at that.

The collective security system established by the United Nations Charter, supported by the
wider international system (including such bodies as the International Atomic Energy Agency
and regional organizations), is in principle capable of responding to current and future threats,
whether from overwhelming humanitarian catastrophes, so-called ‘rogue’ and ‘failed’ States,
transnational terrorist groups, weapons of mass destruction, or a combination thereof. This has
already been demonstrated by robust Council action in the face of aggression and terrorist
threats, as well as some effective action in the field of counter-proliferation. Where the Council
cannot or does not act swiftly enough, the right of individual or collective self-defence may
protect States’ direct interests.

If the Council fails to act to prevent an overwhelming humanitarian catastrophe, States willing
and able might exceptionally act anyway, perhaps with an argument based on necessity.
However, the conclusion that the existing rules on the use of force are adequate ultimately
depends on the effectiveness of the collective security system established by the Charter of the
United Nations, and in particular on the willingness of members of the Security Council and
others to respond in practice to current threats. The powers of the Council in relation to the
maintenance of international peace and security are clear. Both its broad interpretation of
threats to the peace, and its power to authorise others to use force, have equipped it to take
effective action against non-State actors and to counter humanitarian crises. This may be
thought to be an unduly optimistic view, even wishful thinking.

But experience suggests that collective decisions (whether for action or inaction) are almost
invariably better than unilateral ones. The alternative to reliance on the current rules would
likely be a reversion to pre-Charter unilateralism, even to a pre-Covenant era. What is needed
is a broader consensus on the existing rules of international law on the use of force and on their
application, as well as greater support for international institutions, and particularly for a
Security Council that is effective and seen to be legitimate. Effectiveness depends upon the

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political will of the Members of the United Nations. It does not depend upon new rules, or upon
Council reform. As for legitimacy, it is far from obvious that those whose constant refrain is to
criticize the Security Council would be satisfied with any reform proposal that has been on the
table. Considerable improvements – deserving of greater recognition - have been made over
the years in its working methods. Unjustified criticisms of the Security Council may have an
insidious impact on its perceived legitimacy. ‘Demonization’ of the Security Council is not an
obvious way to promote multilateralism.

And this is not just a case of reconciling the views of the developing countries with the
developed, or the countries of the Nonaligned Movement with others. There are important
differences among European countries, and between the United States and others. How can
such greater understanding be achieved? Not, it is believed, by abstract declarations at the
United Nations. Not by some new treaty. Greater common understanding will be built case-by-
case, through discussions among Governments, and through debate with and within civil
society and the academic world.

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BIBLIOGRAPHY

BOOKS

International Law. By Malcolm N. Shaw, Cambridge University Press, 2003 (5th edition)

Brownlie's Principles of Public International Law, Book by James Crawford

WEBSITES

https://www.un.org › charter-united-nations

http://legal.un.org

https://opil.ouplaw.com

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