Syarisa Rozlan

THE USE OF FORCE

The use of force by states.

 Article 2(4) of UN charter provision for the use of force is subjected to 2 interpretation:
i. Permissive view
ii. Restrictive view
 The last paragraph of this article stated that use of force is not allowed to territorial
integrity or political independence of any state or in any other manner inconsistent
with the purposes of the united nations.

Permissive view:
 Allow use of force if the aim was not to throw the government or seize the territory
of state [This is what they meant with territorial integrity or political independence].
Example:
US wanted to restore democracy in Panama. They ousted the president of Panama to restore the
government on the basis of democracy. US adopted the permissive view approach.
 The permissive view is subjected to several criticism where the court is not in favour
of the approach.
 Resolution 2625: In this resolution, the GA prohibits states from interfering domestic
affairs in another state either directly or indirectly.
Corfu Channel case
Involve dispute between Albania and UK. UK allowed to conduct military action to sweep
the mines. Albania contended that the mine sweeping is not allowed under IL. UK then
claim that the sweeping of the mine should be permissible because it does not intervene with
the political status of Albania. Court does not decide the contention on the part of UK. Court
declared that it can be abuse by the state if it were to be permissible.
Nicaragua case
The court also claimed that intervention should not be allowed. The court forbids any form
of intervention because this will include direct or indirect intervention.

Restrictive view: Established law

 Strict prohibition on the use of force. It is only allowed if justified by UN for self-
defence.
 This means that force may be allowed to use for reason of:

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 i. self-defence under Article 51 UNC (as far as unilateral use of force is
concerned)
ii. enforcement under Chapter VII of the charter (ie Collective use of force in
accordance with a resolution of the SC).
 This is because restrictive school sees the permissive view as favouring powerful
states and only encouraging abuse.
 Only Israel has relied primarily on the permissive view of Article 2(4) in relation to the
Entebbe raid.
 Thus, based on Article 2(4) UNC any use of force by a state for whatever reason is
banned unless explicitly allowed by the Charter.

Intervention by invitation
 Q: Can a state assist another state to put down an internal resurrection?
 There are several requirement to be satisfied for an intervention to be justifiable:
(1) Foreign government experiencing low level civil strife
(2) Consent of the foreign government
Example: Constitution of the African Union
Recognises the right of member states to request intervention from the African Union to
restore peace and security.

Armed Activities on the Territory of Congo case:

President of Congo consented to the presence of an army from Rwanda and Uganda to
prevent cross rebel raids by rebel forces. Congo then found out that the countries
backstabbed Congo as they were trying to overthrow Congo. The president then revoke
the consent. Court held that due to the consent have been withdrawn, on 8/8/1998
constitutes that the army from Rwanda and Uganda should have withdrawn themselves
from Congo territory.
 The action above was condemned by the SC. SC adopted resolution 1291 called
for the withdrawal of all foreign troops.
 SC adopted resolution 1304: Uganda and Rwanda have violated the sovereignty
and territorial integrity of DRC.

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 Exception for the use of force
i. Self-Defence under Art 51 of the UNC
ii. Authorisation by the Security Council

SELF_DEFENCE
 If a state is attacked it is entitled in circumstances of necessity, to use armed force
in order to defend itself against the attack, repel the attackers and expel them from
its territory. It is enshrined in Art 51.
 Article 51 of the UN charter: Requirement need to be satisfied for the use of force
under self-defence:
(1) State must be subjected to armed attack
(2) Necessity: as a response to the arm attack - not stated in Article 51
(3) Proportionality: Use necessary force to end the attack- not stated in Article 51

Nuclear Weapon Advisory Opinion

The submission of the exercise of the right of self-defence to the conditions of necessity
and proportionality is a rule of customary international law (sebab tu tak stated in
Article 51)
Essential elements of
a lawful self-defence:
1. Armed attack
2. Necessity
3. Proportionality

1. Armed Attack
What is an armed attack?
 Not defined or described in the UN charter. We refer to the practice of GA and
cases.
 Only serious forms of attack is considered an armed attack.
Nicaragua case:
Court held that armed attack included not only action by armed forces across a
territorial border but additionally the sending bands or groups which carry out acts of
armed force of such gravity. The court emphasizes on the intensity of the armed attack.

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 Eritrea Ethiopia case:
The court in this case affirmed that the level of intensity of the attack is necessary to
determine the amount of the attack. Ethiopia has a dispute with Eritrea on the
territorial jurisdiction of Badme. They used military forces to resolve the territorial
dispute. In this case, due to the action that happened in Badme. The court held that the
nature of the conflict here is not sufficient to invoke the exception of self-defence under
Article 51 and the use of force by Ethiopia is illegal.

What tantamount to armed attack?

 Resolution 3314 (XXIX): Defined Aggression
- Invasion by another state
- Bombardment by another state (Continuous attack with bombs, shells or
other missiles)
- Blockade (an act or means of sealing off a place to prevent goods or people
from entering)
Oil Platform case:
1. In order for the attack to tantamount attack, it must be of the most grave form of
the use of force. In this case, the incident happened during the Gulf war between
Iraq and Iran. However, the conflict has spread to the Persian Gulf and the Gulf is
used for international commercial hub. On that basis, it caused fear to Arab States
especially Kuwait. Kuwait asked the US and the UK to help them to take measures
to ensure the safety of their ship. Hence, some of the Kuwait ships used the US or
UK flag. Moreover, Kuwait asked the US to send their warships to protect the ships.
An incident occurred where a Kuwait ship was attacked. The US argued that the
attack was attributed to Iran. Due to the attack, the US attack oil platform of Iran.

2. The second attack alleged by the US happened when its warship had strucked a
mine near international waters of Bahrain. The US then initiate action to the oil
platform. Iran then argued that there is no clear evidence that the attack was from
Iran. The court held that the Burden of Proof is on the state that alleged the
exception of self-defence. Court held that the US failed to show any credible
evidence on their claims.

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3. In this case, the court also accessed several argument by the US to determine
whether the US could have justified their self-defence. The court held that even
taken cumulatively and reserving, cumulatively they do not tantamount to
armed attack.

The duty to report to Security Council: Authorisation by SC

 Article 51: Two principal aspects of the role of security council
i. Measure taken in self-defence shall be immediately reported to the SC
ii. The right of self-defence can be exercised until the SC has taken measures
necessary to maintain international peace and security.
 Thus, once they have embarked on a measure using force after being subjected to an
armed attack, they have the duty to report to the security council. This will act as a strong
evidence for the performance of the use of force for the purpose of self- defence.

Nicaragua case
The failure of the US to report on its use of force to the SC under Art 51 indicate that
US was not exercising the right of self-defence.

Enritrea-Enthopia Claims Commission

Failure to report could tantamount to evidence that the action was not self-defence.

2. Necessity
 The state attacked must not in the particular circumstances have had any means of
halting the attack other than recourse to armed force [If it had been able to achieve
the same result by measures not involving the use of armed force, it would have no
justification for using armed force in self-defence]
 However, once the armed attacked is over, the right of self-defence comes to an end
and states must then rely on the SC for assistance.
Caroline Incident case
It must be of instant, overwhelming, leaving no choice of means and no moment of
deliberation.

3. Proportionality
 The defensive action must be of proportionate one. No more than necessary to meet
the objectives of self-defence.

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 Whether the response is proportionate depends on the scale and effect of the attack.

Oil Platform case

US attack several vessels, aircrafts and brigades belonging to Iran. They claimed that
the attack was done due to self-defence because there was a prior attack by Iran through
mines at the Persian Gulf. The court held that the attack allegedly by Iran only cost
destruction without loss of life. The response of the US is not proportionate because
one warship and no loss of life is not proportional to the destruction of several vessels,
aircrafts and brigades belonging to Iran.
Nicaragua case
Whereby self-defence would warrant only measures which are proportional to the
armed attack and necessary respond to it as a rule well established in customary
international law.

Collective Self-Defence
 This occurs when a state has been subjected to an armed attack but the state is not
capable to counter the armed attack. The state is allowed to request and declare that
they are a victim of the armed attack.
 Requirement:
i. Armed attack
ii. State is the victim of the armed attack and must inform that it has been
attack
iii. Request by the state that regards itself as the victim of the armed attack
Nicaragua case
In this case, the court held that the intervention of the armed movement alleged done by
the government of Nicaragua to Salvador does not amount to intervention because there
is no clear evidence from the US that wanted to help Salvador.
Invasion of Kuwait
All the requirement has been satisfied, Kuwait has been subjected by an armed attack
by Iran and made a formal declaration that they were attack. Moreover, Kuwait made a
formal invitation for other states to help them fight Iraq.
Inherent rights of self-defence:

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Inherent rights of self-defence:
 This exceeds the ambit of Article 51. Can be divided into three:
(1) Anticipatory self defence
 Refers to the right of the state to protect itself by preventing a condition of affairs in
which it will be too late to protect itself. However, the threat must be imminent and
overwhelming.
Requirement:
- Military action must be used as a last resort.
- Necessary
- Proportionate

UN Secretary General High Level Panel On Threats Challenge and Change

Recognizes the state to take unilateral military action as long as the threatened attack is
imminent and no other means would deflect it and the action is proportionate.

What is an imminent attack?

 Daniel Bethelem: Imminent is defined as:
- nature and immediacy of the threat.
- the probability of the attack.
- whether the anticipated attack is part of a concerted pattern of continuing armed
activity.
- the likely scale of the attack and the injury, loss or damage likely to result from
the absence on mitigating action.
- The likelihood that there will be other opportunities to undertake effective
action in self-defence that may be expected to cause less serious collateral
injury, loss or damage.

Israel Destruction of Iraq’s Nuclear Reactor case:

Israel drop a bomb and claimed that they are acting on pre-emptive self-defence
towards Iran on their nuclear facilities which was meant for research and peaceful
purposes. In this incident, they claimed that the attack was proportionate because the
nuclear reactor would be used against it. The UNSC condemned the action and declared
it illegal. The condemnation declare that pre-emptive strike is not allowed. Thus such
military attack was a violation to Article 2(4).

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 US attack Iraq Intelligence Headquarter case
The US fired 23 cruise missile attacks in self defence against Al-Qaeda because they are
acting on self-defence due to the previous attempt of assassination. The attack was done
after 2 months. Due to the time period, it is an attempt not on the basis of self-defence but as
a punishment for Iraq.

(2) Defence of nationals abroad

 Whether it is justifiable for a state to conduct military intervention in a territory of
another state to save its own nationals?
Entebbe incident 1976:
This incident involves an Air France Jet left from Israel to France with 251 passengers and a
crew of 12 on board. Pro-Palestinian passengers hijack the jet and force to land it in Uganda.
They threaten that they would be killed. The Israel armed force storm the airplanes killed the
hijackers however some of Ugandan soldiers and aircrafts were destroyed. Israel claimed
that since Uganda has not consented on the military intervention, they should have the right
to do so.

The first resolution by the US and UK condemned the hijacking and suggested that
measures should be taken to punish all terrorist attack. However, this resolution did not get
the majority vote. The other resolution by several other countries. They condemn Israel
military action because it intervenes Uganda sovereignty and Israel should pay for the
damages. However, this resolution was never voted.

Anglo-French invasion of Egypt in 1956.

Belgian paratroopers landed in Congo to save their nationals. Hence, we can conclude that
the state has accepted the practice to provide defence for nationals abroad provided that it is
necessary and proportional.

(3) Self-defence against terrorism

 Declaration on Measures to Eliminate International Terrorism define terrorism as all acts
intended or calculated to provoke a state of terror in the general public.
 UN nation has adopted 13 international convention on regards to terrorism: States are
obliged to:
- Refrain from organising
- instigating and facilitating

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 - financing
- tolerating terrorist activities
- take practical measures to ensure that their territories are not used for:
a) territories installations, training camps
b) the preparation of terrorist acts against another state
- apprehend and prosecute terrorist
 We have to observe the provision before 9/11 and after 9/1.

Before 9/11

US attacks against Libya

Terrorist bomb exploded in a night club filled with US service men. 3 were killed and some
were wounded were nationals of US. US responded by bombing Tripoli where 15 people
were killed in this incident. The US claimed that the attack was justified but it was widely
rejected as it is not proportionate.
US against Sudan and Afghanistan
212 were killed and thousands were injured. The US responded firing 79 tomahawk missiles
towards the camp in Afghanistan.

After 9/11

 It seems that the US and the UK attack Afghanistan through the resolution of the SC on
global war on terrorism.
 Some international lawyers argued that there is a new species of self-defence which is a
self defence against terrorism based on the current resolutions. However, they must
adhere to the limitation but the scale of the threat must be in a bigger scale for a state to
rely on self-defence through a terrorist attack. State must show that when they conducted
the act, they could not wait for the SC.

Requirement of self defence against terrorism:

(1) Scale of the attack
(2) Comply with necessity requirement
(3) Attack immediately
 If the requirement above are not fulfilled, it is considered extrajudicial killing. This is
forbidden under international human rights law.

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 Humanitarian intervention:
 Does Art 2(4) of the UNC permits the use of force for unilateral humanitarian
intervention?
 Humanitarian intervention:
- Action taken to protect non-nationals
- A state or group of states use armed force to protect the inhabitants of the target
state from large scale human rights violations.

India invaded East Pakistan in December 1971

East Pakistan and West Pakistan is separated by 1000km in between them by India. East
Pakistan speaks different language and traditions, however their army is dominated by them.
West Pakistan initiated military action towards East Pakistan. India came to the picture and
wanted to help East Pakistan. Initially India wanted to act on military intervention but then
change to self-defence.
Vietnam invaded Cambodia 1978
Intervention by Vietnam invoke self-defence and not humanitarian intervention. In Vietnam
intervention from 1975-1978, the government of Cambodia murdered thousands of its own
civilians, it implemented policy through starvation and disease. It also launched some cross
border attack against Vietnam. Vietnam then invaded Cambodia. The troops establish
control on the territory of Cambodia. They argued under self-defence. Vietnam justified
their action claiming that it was humanitarian intervention. The Vietnamese intervention to
Cambodia shows that there is no support for humanitarian intervention

Self Defence against non-state entities:

Congo v Uganda case
The court in this case held that the right of self-defence could not be invoke against a non-
state entity. You can only invoke the right of self-defence towards state actors. Majority of
the judges believe in this view.

 The decision above subjected to several criticism:

- The decision rendered by the court is not acceptable as after 9/11, the international
communities sanction self-defence on non-state actors
 Daniel Bethelem:

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- The right of self-defence can be taken against non-state actors if the third state is
colluding with the non-state actor and the third state is unable to effectively restrain
the armed activities of the non-state actors.

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