The Practices Regulating the Use of Force

Bloodshed is as endemic to man as any other instinct. It is not surprising therefore, that the long history of man is filled with strife and conflict and there is no indication yet that use of force for resolution of disputes will be a matter of the past any time soon. Side by side however, nations and states have made great progress in scientific, economic, social and cultural fields. Throughout history theologians, philosophers and indeed jurists have attempted to establish causes which have prompted man to use force. Mainly these have been establishment of rule over others, conquests, control of resources, matters of faith and religion, and race related issues. As human society evolved, it felt the necessity to have what can be termed as a framework to decide whether force used or its anticipated use was justified or otherwise.

This study will cover both customary law and United Nations based law. The real import of these laws will be better understood by an examination of some instances of use of force from past history as well as recent times. Customary law and UN based law being intertwined will be discussed together. As the issue raises the question of law being “illusory”, the discussion will be focused on clarity and enforceability of these laws. A critical and comprehensive analysis of the subject will be followed by a short conclusion.

A Brief Historic Perspective

Historically the law regulating the use of force has evolved in a manner which has suited the peculiar trends and norms of that particular period. In Roman era, Western Christian theologians like St Augustine envisaged the principle of “just war”. This was the first substantial attempt to provide goal-oriented and moral perspective to waging war. War was to be waged to punish wrongs and restore peaceful status quo but no further. [1] In words of Murray Rothbard, a just war exists “when a people try to ward off the threat of coercive domination by another people or to overthrow an already-existing domination”. [2] Peace of Westphalia in 1648 was a watershed event when the sovereignty of nation states was recognized. This coincided with the declining power of the Church and the rise of statehood based on race and language and the emergence of the concept of resolution of disputes through peaceful means before resorting to force. Ian Brownlie finds the post Westphalian system as being based on legal positivism. [3] The earth shaking events of the Second World War and the failure of the League of Nations to prevent it resulted in the creation of the United Nations. Immediately after the cessation of hostilities, this organization was formed. Article 2(4) which covers aspects concerning use of force was included in the United Nations Charter. This provision was in complete conformity with customary international law and was made binding on all states. [4] It is pertinent to refer to General Assembly Resolution 2625 (XXV) 1970 Declaration on Principles of International Law which elaborated upon Article 2(4). It held that International Law places a general prohibition on the use of force; in order for use of force to be legitimate, it must fall under one of the exceptions. These are right of self defence and enforcement actions mandated by the United Nations Security Council. The relevant United Nations provision is contained in Article 51 of the UN Charter. The ICJ decided in Nicaragua case that the right of self-defence exists as an inherent right both under customary law and the UN Charter. [5] That is why we shall be discussing customary law on self defence and UN provisions together.

The Right of Self Defence

The first pertinent mention of the right of self-defence in customary international law came in the Caroline Affair. [6] In 1837, British subjects destroyed a vessel docked in an American port. The vessel was being used for transporting American nationals to aid the Canadian rebellion. The US Secretary of State Daniel Webster laid down the essentials of self-defence in a series of letters exchanged with British authorities. [7] He maintained that the need to resort to self-defence must be ‘instant”, “overwhelming”, “immediate” and when there is no viable alternative action possible. Another extremely important concept emerging out of these letters was the issue of proportionality i.e. the response must not be excessive or unreasonable, “since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it”. [8] Majority of the subsequent evolution of customary law around self defence traces its roots to the Caroline Affair.

A state has to demonstrate that it has been targeted by an armed attack and it bears the burden of proof for it to rely on the right of self-defence. In general there are three kinds of self-defence, anticipatory, pre-emptive and preventive. Christian Henderson explains these terms succinctly. [9] According to him, anticipatory self-defence is immediate, taken in response to a threat, where the armed attack has not yet taken place but is “imminent”. Pre-emptive self-defence refers to action taken against perceived threat of “temporally remote nature”. [10] Henderson describes preventive self-defence as a general hybrid term which refers to either anticipatory or pre-emptive self-defence. Perhaps, pre-emptive self defence remains the most debated and controversial issue in contemporary law of use of force along with humanitarian intervention. It is actually its usage which has aroused reservations because its justification relies upon assertions which can be argued to be highly subjective.

Israel’s lightening strikes against Egypt and later Jordan and Syria in June 1967 are the most pertinent examples of reliance on pre-emptive self-defence. Israel argued, successfully that it was forced to resort to armed force because the Arab military build-up on its borders had reached a phase where it was “imminent” that it would most surely be a victim of armed attack. The Security Council Resolutions 233, 234, 235, 236, 237 and 242 [11] did not apportion any blame to Israel for resorting to armed force primarily because of the fact that Arab military build-up had reached a critical phase. Even though Israel “fired the first shot”, which contravened the requirement under Article 51 that there must be an armed attack before a state can respond, Israel’s actions were not deemed illegitimate. In fact, two decades later in the case of Nicaragua [12] there was an affirmation of the idea that customary law on self-defence remains slightly different from Article 51 which means that Israel’s actions were legitimate under customary international law as well. The Six Day war is an example of the system (both the UN Charter and customary law) adapting to the requirements of modern pre-emptive military necessities. This was evident in the case of US actions against Afghanistan after the shocking events of September 11th 2001. The US notified the Security Council that it would be taking action in Afghanistan against Al Qaeda organisation held responsible for the attacks and the Taliban regime which provided bases and sanctuary for the organisation. Article 5 of the NATO Treaty was invoked under which an armed attack against the US was deemed as an armed attack against US and its NATO allies as well, thereby allowing them to undertake measures for collective self-defence. As the events of 11th September 2001 were accepted as “armed attack” under Article 51, the US and its allies relied on self-defence with the support and acquiescence of the international community. This was the extent to which the legality of the action in Afghanistan was without any controversy.

The US indeed targeted Al Qaeda in Afghanistan but in reality, it targeted the Taliban regime more. The legal justification for this measure is contained in the National Security Strategy of the United States (17th September 2002) commonly known as the Bush Doctrine. President Bush put forward the idea that there would be no distinction between terrorists and those entities which harbour them, in this case the Taliban regime in Afghanistan. According to Henderson, this proposition is yet to become part of jus ad bellum because the widespread support that the US got for its actions in Afghanistan post 9/11 were out of shock and sympathy for the US owing to the tragic events in New York and Washington DC. There is no evidence of further use of this principle which means that there is very little state practice. [13] For such an action to be permissible, Henderson contends that the notion of “effective control” would have to be satisfied and it is extremely difficult to establish a link between the Taliban influencing Al Qaeda to act on its behalf and carry out attacks. The present law therefore does not support the “harbouring principle” even though President Obama endorsed it in “Obama Doctrine”. [14] But this did not prevent the US from following the principle and it continues to this day. This explains the prime problem with international law as whole, the problem of effective enforcement. Illegality of an action has not stopped states from resorting to armed force. This shows that while the law itself is not “illusory” because its position has not changed to accommodate these actions, its enforcement has no certainty about it.

A slightly different series of events occurred in 1998 when the US launched cruise missile strikes against Al Qaeda in Afghanistan and Sudan in response to bombing of its embassies in Kenya and Tanzania. The US targeted only Al Qaeda bases and did not target any state institutions in either country. While the attacks did violate the sovereignty of Afghanistan and Sudan, the US could justify the strikes as actions taken as a last resort against a non-state entity. As it used cruise missiles to target specific bases, it could be concluded that the actions constituted legitimate self-defence.

The US-led invasion of Iraq in 2003 is perhaps the biggest single event which places doubts on the credibility of the law around use of force, particularly, the UN provisions. The legal basis used were the material breach of Security Council Resolution 1441 (2002) and pre-emptive self defence.

The United Nations Security Council passed two resolutions, 678 (1990) (before the First Gulf War) and 687 (1991) (immediately after the First Gulf War). Resolution 678 (1990) essentially gave Iraq a chance to comply with an earlier Resolution 660 (1990) calling for Iraq to withdraw from Kuwait and restore peace and security in the region. According to the Legal Department of the Ministry of Foreign Affairs of the Russian Federation, the mandate to use force against Iraq applied only during the period requiring Iraq to conform with earlier resolutions and cease annexation of Kuwait under Resolution 678 (1990). [15] Resolution 687 (1991) imposed some new obligations on Iraq, particularly those related to disarmament. According to the Russian assessment of these provisions, it was only for the Security Council to decide which actions to take regarding Iraq’s potential breaches. [16] Furthermore, Resolution 1441 (2002) did not change the legal situation because it also gave the discretion to decide actions on the Security Council as well. Though the Security Council did accept that Iraq had committed “material breaches”, it did not authorise military action against Iraq but instead gave it one last chance to allow inspectors. As the Security Council refused to authorise military action, the subsequent invasion was illegal. But then again the question arises as to the futility of enforcement mechanisms of the law that coalition states resorted to force in disregard of law. Before passing a judgment we should take into account the views of academics like Thomas Iwanek who explained how the system failed in this instance. [17] According to him, both legal bases used against Iraq i.e. the Security Council Resolutions and pre-emptive self-defence, are closely related and should be treated as “single, but complex, legal argument”. [18] He opines that the meanings of “material breach” and “serious consequences” need to be understood within the context of international law not politics. [19] This means that the “material breach” by Iraq “does not abolish the cease-fire and reactivate the provisions of Resolution 678″ implying that the coalition forces of the First Gulf War could not use force against Iraq. Iwanek’s primary objection to the US point of view is based upon their interpretation of “material breach” and “serious consequences”. He states that lifting a cease-fire via “legal loopholes” is not compatible with the whole system of prohibition on the use of force and it would even nullify Article 2(4) of the UN Charter. [20]

Now we shall analyse the pre-emptive self-defence argument. Only the US relied upon this defence, the UK and Australia did not. Iwanek takes a rather strict approach and holds that only a “narrowly understood right to anticipatory self-defence is accepted” and that preventive self-defence is in breach of international law owing to the presence of UN system. [21] He justifies this by stating that what the US was in fact relying upon was preventive self-defence and in process it stretched pre-emptive self-defence “beyond recognition”. Christian Henderson puts forward a similar point of view when he states that the concept of “imminence” (taken from Webster based doctrine of pre-emptive self-defence) has been stretched to a breaking point. [22] Secondly, as there was no evidence of presence of stockpiles of weapons of mass destruction before invasion (Mr Hans Blix and Mr El Baradei’s statements to Security Council) and post-invasion, the legitimacy of the invasion is further weakened. This shows the apparent weaknesses within the system as states can use stretched legal basis to resort to use of force. Even though the legal basis used by US and its allies have not become part of jus ad bellum, the fact that invasion did take place shows that the law has a great degree of scope for adaptation to changing situations but still suffers from an exceedingly inept enforcement mechanism.

Inciting Rebellion – The UN Provisions and Exceptions under Customary Law

The General Assembly Resolution 2625 (XXV) 1970 Declaration on Principles of International Law while elaborating upon Article 2(4) of the UN Charter prohibited the states from “organising, instigating, assisting or participating” in acts of civil strife or terrorist acts in other states as well as refraining from forming armed bands for incursion. The ICJ went further in Nicaragua case and held that acts which breach principles of non-intervention will also breach principles of use of force if they “directly or indirectly” involve use of force. [23] As the General Assembly’s interpretation of Article 2(4) explains, use of force also includes inciting rebellion or instigating acts which result in civil strife.

State practice is at times different and presents an unclear picture. A major exception from the position of law was expounded in the case of Soviet invasion of Afghanistan when the US, Pakistan and a number of Middle Eastern states aided the rebels in their fight against the Soviet forces. It was held that where a prior illegal act from a state has occurred (invasion) then aid to rebels is acceptable. [24] The legal base used in this situation used can be classified inherently as an exception from the general prohibition of interference. But this leaves some questions unanswered because the scope of this type of state practice remains unclear.

Humanitarian Intervention

While actions arising out of UN Security Council authorisation or in self-defence have been accepted as examples of modern, legitimate conflicts, the status of humanitarian intervention is subject to considerable debate. We have seen that in some situations there have been instances of illegitimate actions under cover of self-defence. This shows that the law itself maybe correct and adaptable but its enforcement is weak or “illusory”. Humanitarian intervention is one of those issues which adds further fuel to this fire because of state practice.

Support for humanitarian intervention relating to suffering of persons (not necessarily nationals of the intervening) residing in another state is permissible in “strictly defined situations”. [25] But it is found more in the purview of customary law and not within the traditional interpretations of Article 2(4) of the UN Charter. Two most pertinent examples of state practice are Iraq and the Kosovo crisis. Immediately after the First Gulf War, Saddam Hussein turned his forces on the Kurdish and Shiite populations. The gravity of the situation was noted by the Security Council in Resolution 688 (1991). [26] Even though there was no clear authorization from the UN, the US along with UK and France imposed “no-fly zones” over the country citing this Resolution. UK argued that such measures were justified because of “overwhelming humanitarian necessity”.

The Kosovo conflict is cited as the first real humanitarian war. [27] The justification used by NATO to intervene was humanitarian intervention even though there was no UN backing. In 1999, the UK Secretary of State for Defence George Robertson commented that in exceptional circumstances, military action can be taken to avoid “a humanitarian catastrophe”. As Malcolm Shaw opines that it is not entirely possible to fully characterise the legal situation owing to the fact that the NATO actions were neither endorsed nor condemned. The status of humanitarian intervention with regards to use of force is still unclear. [28] But Carlo Focarelli states that there are far too many ambiguities at the present moment to formally incorporate humanitarian intervention alongside self-defence and UN provisions. [29] Furthermore, he lends credence to the oft-cited view that Responsibility to Protect Doctrine is furthered essentially by powerful states and there is increasing resentment over this among developing nations; he points to the fact that countries like Egypt, Iran, Algeria, Venezuela, Tanzania have asserted that this doctrine favours more powerful states while countries like France, Japan, Australia, Canada, Norway have upheld the doctrine. [30] It can be concluded that the concerns of developing nations demonstrate the fear that acceptance of this doctrine may possibly make the law overly “illusory”.

The current intervention in Libya can be termed as the first UN Security Council backed humanitarian intervention. Resolution 1973 (2011) authorises “a no-fly zone over Libya and to use all means necessary short of foreign occupation to protect civilians”. [31] Due to this the NATO members are employing air forces. Empirical scholarly opinion with regards to international law is yet to emerge but the situation has certainly changed because the UN Security Council sanctioned this intervention. This does make the intervention legitimate and the legal status of humanitarian intervention with regards to use of force has surely moved towards greater acceptance.

Other Possible Issues and Future Outlook

Ian Brownlie points to the question that under what conditions would the “obligations of the United Nations Charter cease to bind all members”? This is because he actually sees this as a weakness within the legal regime. [32] The very credibility and functioning of the UN legal regime depends upon existence of widespread membership. So what will the legal situation be like in the case on of non-members freely resorting to force? That would ultimately lead to the collapse of the organisation. Brownlie also states that these provisions should not be read in isolation from customary law. [33] This would ensure that even in complete non-conformation of UN provisions, there will be customary law relating to use of force, so the law in itself will not collapse completely. But the unclear position as to the limits of UN provisions general acceptance does lend more credence to the assertion that the law is “illusory”.

We will rely on the 2010 US National Security Strategy commonly known as the Obama Doctrine of “Necessary Force” to evaluate the kind of framework we can expect for the future. As noted earlier, it is ultimately state practice which dictates the trends in international legal enforcement. Christian Henderson notes that President Obama feels that the current framework is buckling under pressure from new kinds of threats to world peace in form of non-state entities. [34] President Obama, while criticising the Bush Doctrine holds that the US has always had a right to pre-emptive defence and sometimes this kind of defence would be necessary. Somehow, he gave no indication as to type of scenarios where the action would be necessary. Henderson feels that President Obama’s doctrine tilts towards the customary legal position emerging out of Caroline Affair [35] but by not actually defining what would constitute as “necessary” or “proportional”, the doctrine is relying on “sophisticated evasion”. This shows that if the existing law has to adapt to the contemporary needs as set out by the politicians, it might have to compromise on several of its cardinal principles, which as a consequence would make the law more futile.

Conclusion

On a concluding note, it can be said that the law around use of force still has an intact structure and ability to adapt to changing situations. Importantly, it also has the ability to withstand serious breaches and maintain its position. It has displayed a marked ability to repel its breaches from entering its fold (as displayed by Iraq invasion). But one facet which consistently makes the law seem as “illusory” is its general lack of enforcement and the history of inconsistent state practice. It was in the backdrop of the Second World War that the United Nations was created and the world has luckily not seen a conflict of that magnitude ever since. However, despite the law being quite comprehensive it still does not deter states from resorting to blatant use of force as the invasion of Iraq occurred without any UN authorisation or credible justification under pre-emptive self defence. As state practice continues contrary to the law, it will lend further credibility to the argument that the law itself is “illusory” because the states’ respect and acceptance of it is decreasing. Furthermore, the recent NATO action in Libya also seems to widen the scope of armed intervention by bringing the seemingly unclear concept of humanitarian intervention under the UN framework. While this may eventually be pointed out as an evolution within the law to meet modern demands, the earlier malaise of effective enforcement still plagues its sanctity.

(3997 words)