Use of Force and Right of Self Defense in International Law: With Special Reference to State Responsibility


Summary

The purpose of this report is to write about two major topics -“Use of force and right of collective self defense” and “State actors and the law of international responsibility.”

Use of force was a part of international policy before the formation of League of Nations in 1920 after World War 1. In 1928 Kellogg Briand pact was signed by the nations, which was an international agreement in which signatory states promised not to use war to resolve “disputes or conflicts of whatever nature or of whatever origin they may be, which may arise.” But even after this World War 2 took place from 1939-45 due to certain flaws in the agreement. After which United Nations formed in 1945 and laid down several Articles which were to be adhered by the member nations. Article 2(4)[1] is of major relevance to Use of force and right of collective self defense, along with several other statutes, discussed further in the report’s body. Anticipatory self defense rights have been discussed with reference to the cases such as Caroline ship case and Israel v. Arab countries war.

The State actors and the law of international responsibility was further discussed in the colloquium with reference to the Nicaragua Case and how it helped in evolution of the relation between Non state actors actions and the responsibility of the state as was held in the above case- “Non State actors action can be attributed to the state” and “The State can do a wrong but cannot commit a crime.” This colloquium also dealt with Individual Criminal responsibility and Human rights framework.

Body

In Article 2(4) of the Unite Nation (UN) Charter states-“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.” has refrained using the word war in the context of international law and hence denied that war exists. According to this Article Use of force is prohibited for members in the cases where there is a threat to political independence, territorial integrity of other nations, but it was silent in respect to the humanitarian rights.

Article 1[2] of UN charter states- “one of the objectives of the UN as: ‘promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion’ thus encouraging friendly relations, promoting human rights and Peaceful resolution of international dispute as stated under

Article 41[3] and Chapter VII[4] which includes “Enforcement action taken by the Security Council with respect to threats to the peace, breaches of the peace or acts of aggression” opines that War of independence are an act of self determination and not an act of aggression thus not excluding use of aggression or force, to decide whether an act is an act of aggression is a task ofUnited Nation.

The Council determined the existence of new threats under Article 39[5]– (Determination of a threat to the peace, breach of the peace or act of aggression.) of the Charter in relation to the situations in Yemen and in Libya. However United Nations failed to invoke Article 39 in North Korea v. South Korea war for significant time period. Though during Iraq war 2003- There was an enforcement action by United Nation of Article 39 and declared it a threat to peace and thus allowed collective force agreement which included a coalition force of United States, United Kingdom, Poland and Australia against Sadam Hussain’s regime. There were no United Nations forces deployed in the above case.

Article 2(7)[6] grants the right to self defense to all the nations stating- “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.” However Article 2(6)[7] states that all the above mentioned statutes are applicable to member and non-member states of the United Nations.

Nicaragua v. United States[8] In 1986 was decided in which United States was held liable for violation of International laws for supporting rebellion in Nicaragua by the International court of Justice. The court said- “Not only using regular force but irregular use of force such as using non state actors and sending mercenaries or armed groups will be considered as act of aggression or armed attack. Article 51[9]’s purpose is to store legal status quo of party, it is not remedial or repressive said the court. Thus right to self defense is ill defined under Article 51. Also in Nicaragua case Article 2(4) wasn’t invoked instead customary law was followed.

However Right to use of force was very clearly outlined in The Caroline[10], where a ship named Caroline docked in United States water was being used by some non state actors to supply weapons to an armed mercenary group which attacked Canadian and United Kingdom’s ship in their territory which was intercepted and followed back to United State’s waters by the Canadian forces headed by United Kingdom’s army personnel which then attacked  the docked ship in the US waters, causing it to plunge into Niagara falls strong current. Following which there erupted border tensions between Canada, UK and the US.

The question raised was-

1. What quantum of force could be used to repel an armed attack by a nation?

To which several observations were made:

1. Self defense necessity should be instant with no moment of deliberation.

2. And for the legal use of force – large scale use of force by border country must be present.

3. There should be government or terrorist activity inside the nation’s border.

Kosovo Case, Advisory Opinion[11] has also been quite famous for the appreciable defense seeked by Belgium in favor of NATO countries for bombing Federal Republic of Yugoslavia for 78 days without intervention of United Nation’s Security Council. After which the matter was brought in front of International Court of Justice by Federal Republic of Yugoslavia for “violation of Article 2(4), 24 and 53 of UN charter” which NATO’s Belgium contended wasn’t violated as- “The bombings were done not against political integrity of Yugoslavia, but was for the protection of population and an act of “self defense”.

However there have been several cases of misuse of Right to self defense, the most recent example of which can be- United States operation- “Enduring freedom” in Afghanistan-  where United states has labeled it as an act against terrorism and taken the plea of humanitarian ground for not only it’s own citizens but for the citizen’s of Afghanistan and the world but even after a democratic government being established in Afghanistan in today led by president Hamid Karzai US still hasn’t left the country. “The concept of preventive war, which for so many years served as justification for the abuses of powerful states …was definitively abolished by the Charter of the United Nations.”[12]

 Further discussing Anticipatory Self defense rights there is a basic principle which states- “ If     there has been no attack there is no right of anticipatory self defense so the question asked is whether armed attack occurred or not?

For example in

Israeli- Iranian Crisis[13] A complaint was made by Iraq for “bombings in its OSIRAK Nuclear reactor” against Israel, where Israel took the plea of “Anticipatory Self defense” which wasn’t accepted and the test of “whether there is an armed attack?” was invoked and since there was no armed attack, the right to self defense doesn’t arise.

Anticipatory self defense as a concept was very old but it started being implemented after the 09/11 attack on United States.

In Israel v. Arab nations:

“United Nations recognizes the legitimacy of anticipatory self-defense when Israel launched a preemptory airstrike against Egypt, precipitating the 1967 Six Day War. Many countries supported Israel’s right to conduct defensive strikes prior to armed attack and draft resolutions condemning the Israeli action were soundly defeated in the Security Council and the General Assembly. Further, in the cases in which anticipatory self-defense justifications were rejected, the condemnation focused on the lack of evidence of necessity rather than rejection of the principle of anticipatory self-defense itself. Even if anticipatory self-defense is permissible, it must be in anticipation of an armed attack.”[14]

War between Israel and Arab Countries was due to right of passage being denied to the Israel due to which it filed a complaint in Security Council of UN which asked Egypt to grant passage but this right was denied and therefore Israel attacked Egypt and took the plea of Anticipatory Self defense which was denied on the grounds that for this plea and attack has to be present. However if Israel took the plea of Right of passage by Security Council it would have been accepted as a valid reason for attack.

Moving on to the Territorial integrity and political independence as a right to self defense is available only till the time the Security council acts or intervenes but only on paper as the Power of Veto makes the right to self defense practically permanent for the one’s invoking it.

For example in Israel’s case U.S. has vetoed the most times.

Talking about the Collective National Self defense- A treaty has to be signed between the Nations for the Collective Self Defense to be legal. For example- NATO which is still functional and WARSAW which has been defunct and in cases of conflicting self interest Collective Self defense takes place for example- Cuban quarantine.

In Nicaragua Case- 1986[15], Justice Robert Jennings said- “collective self defense by a nation shouldn’t be extended until its Security is interfered with.”

United Nation’s Security Council can direct collective National defense. However in case Security Council is unable to meet/ take decision, then in that case power as to whether to dispatch United Nation’s peace keeping force can be delegated to the General Assembly. Absence from meeting of Security Council doesn’t count as a negative vote by the nation.

2001 Resolution isn’t clear.

“State actors and the law of International responsibility”

International law commission and Nicaragua case states that Pre dominant purpose of International law is to maintain International relations. A Non State actor’s actions can be attributed to the state for which International Court of Justice came up with “Effective Control test[16].” for State responsibility. A non state actor’s responsibility is looked through State’s responsibility.

Individual Criminal responsibility– Punishing Individual criminals for certain acts which were criminalized by the statute for example act against humanity such as war crimes and genocides. But the question lies with how to punish individual perpetrators whether State or Non state actors?-

The answer to this question lies in the statement- “State can commit wrongs but not a crime.” Which means a state itself can’t be criminally tried as International law commission discussed Crime of states and denied it’s existence. However Non state actors whether acting or not acting on behalf of state can be held criminally liable for their acts.

So far there are no specific laws against Non state actors for violation of Human Rights, however in absence of International legal framework there are certain domestic laws for example- United state’s “Alien Tort’s statute[17].” which after being dormant started being invoked since 1980’s. It is a State’s responsibility to uphold human rights which are always victim centric and not perpetrator centric.

Conclusion and Recommendations

So in short at present there is a strong International legal framework which deals with A sate’s right to self defense in case of armed attacks by either Sate actors or Non State actors. But the practical scenario as can be inferred from the cases around the world suggest that implementation of the laws is rather slow and many areas of law are still undefined and left unattended to such as laws against Human rights violation etc.

Also It can be clearly seen that Veto power usage can be arbitrary and statute bending as has been seen in Israel and United States case. Execution of Criminal proceedings against state and safeguarding human rights is still under development. However the dealing methods adopted by United Nation’s bodies are-

1. State responsibility legal framework.

2. Individual Criminal Responsibility framework

3. Human Rights framework.

Much work still needs to be done for uplifting and upholding the status of current legal framework where laws need to be more specific for situations and there should be quick and speedy actions for the nations by the United Nation’s respective bodies for the nations which continue suffering and in my opinion the Power of Veto is strictly outdated and misused and it causes difference in the status of Nations which have the Veto power and the Nations which don’t. It is as if there are different values of life of people living in these nations and hence is against humanitarian principles.


[1] United Nations, Charter of the United Nations, 1945, 1 UNTS XVI, available at: http://www.un.org/en/about-us/un-charter [accessed 29 May 2021]

[2] Id. At 1

[3] Id.

[4] Id.

[5] Id.

[6] Id. At 2

[7] Id.

[8] 1986 ICJ REP. 14, 94.

[9] Charter, supra note 1, at 1.

[10] Moore, 2 Digest of International Law 412 (1906).

[11] 2010 I.C.J.Rep. 403 ………. 31, 32, 33

[12] Security Council Provisional Verbatim Records, U.N. Doc.S/PV. 2288 (June 29, 1981) (statement of P. Ledo), reprinted in 20 I.L.M. 991 (1981).

[13] 19 June 1981 (2288th meeting): resolution 487 (1981)

[14] Memorandum of Law and Authority for Judges, 2001 Philip C. Jessup Int’l L. Moot Ct. Comp. Compendium [i] (2001).

[15]  “Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Merits, Judgment, I.C.J. Reports 1986, p. 14” (PDF). International Court of Justice. Retrieved 2021-05-29.
“Summary of the Judgment of 27 June 1986”. International Court of Justice. 2021-05-29.

[16] Id.

[17] The Alien Tort Statute – Federation of American Scientists

Author: Nalin Kumar (Vivekananda Institute of Professional Studies)

Law Library LawBhoomi

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