USE OF FORCE IN INTERNATIONAL LAW

PUBLIC INTERNATIONAL LAW

PROJECT ON

USE OF FORCE IN INTERNATIONAL LAW

TABLE OF CONTENTS

INTRODUCTION

OBJECTIVE

METHODOLOGY

BACKGROUND

TREATIES

THE LEAGUE OF NATIONS THE UNITED NATION

PROHIBITION

KELLOG BRIAND PACT ARTICLE 2(4) CHARTER OF THE UNITED NATIONS

EXCEPTIONS

SELF DEFENCE COLLECTIVE ACTION SECURITY COUNCIL ENFORCEMENT ACTIONS

PROBLEMATIC ISSUES AND RECENT DEVELOPMENTS

DEFINITION OF ARMED ATTACK ANTICIPATORY OR PRE-EMPTIVE

Anticipatory self-defence Pre-emptive self-defence

PASSING A RESOLUTION

CONCLUSION

SUGGESTION

BIBLIOGRAPHY

INTRODUCTION

The use of force is undoubtedly among the most debated topics within international law as well

as international relations. Indeed, the rules concerning the use of force form a central part of the

international legal system, and, together with other fundamental principles, they have for a long

time provided the framework for organized international intercourse and successful coexistence

of states. The circumstances in which the use of force might be justified concerned already the

earliest legal writers, for example, Aristotle and Cicero, and the topic has remained at the centre

of political and legal debates since those early times. Both domestic societies and the

international community need to limit and regulate the use of force in order to secure peaceful,

harmonious and mutually beneficial co-existence of individuals or states within the respective

societies or the international community. The domestic legal systems have generally managed to

monopolise the use of force in favour of the governmental institutions, which means that people

have given up their right to use force, save for self-defence, in return of the guarantee that the

mentioned institutions will instead protect their person and property. The international legal

system has attempted to move in the same direction since the end of the First World War, but,

due to its characteristic features, the task has proved quite difficult.

This is so, because the international legal system lacks an effective enforcement mechanism,

which can ensure the observance of international law if necessary. Unlike a domestic legal

system, which can utilize different law enforcement authorities, the international legal system

has to rely simply on such means as consent, good faith and reciprocity. Moreover, states do not

only follow international law when planning their conduct, but take into serious consideration

also their political preferences and vital interests. These considerations often tend to override the

obligations under international law, and therefore the armed forces of states are sometimes

engaged in real military operations in addition to numerous military training exercises.

Consequently, the use of force very often constitutes a clear violation of international law

because the official justifications for such actions are usually based on violent interpretations of

the relevant law or simply on political propaganda. Although the law itself is actually reasonably

clear on the question of the legality of the use of force and prescribes a very limited number of

exceptions to the general prohibition of the use of force, states and legal authors have for a long

time advocated additional exceptions in order to further their individual interests or to cope with

new developments and problems at the international level.

OBJECTIVE

As should be pretty clear by now, legally, it is not easy to use force against another state without

provocation. The law has evolved from allowing conflict except where specifically forbidden by

mutual agreement, to the current state of preventing the use of force in all but a select few

permitted circumstances.

Currently, there are two such circumstances: self defence, and collective action under Chapter

VII of the Charter of the United Nations in order to preserve international peace and security.

Peace treaties and cease fire agreements are still very important, but are usually treated with no

more respect than their historical counterparts. Also, to describe the current legal regulation of

the use of force and then to analyse the recent developments and their influence on the legality

of the use of force by states.

METHODOLOGY

The present study is mainly a doctrinal and analytical. Keeping this in view, the study has gone

through different books, journals, web references, E-journal, reports etc. The relevant material is

collected from the secondary sources, materials and information are collected both legal sources

like books.

BACKGROUND

The use of force by one country against another is one of the most ancient forms of international

action. Before states, even before geographic countries, tribal gatherings of humans would seek

to assert their will over other peoples through the use of violence. As time went by, diplomacy

developed, ambassadors were sent out, messengers carried treaties of peace, agreements were

signed, borders were defined, but still, when all was said and done, every country still felt that it

had an inherent right to use force against its neighbours if it so wished. Indeed, the history of

diplomacy is, albeit simplistically, the history of countries' attempts not to be attacked by others,

in many cases so that they might successfully launch attacks of their own.

TREATIES

Treaties are the oldest means of making conflict illegal1. Binding upon all parties, and backed up

by marriages, gifts, tributes and ultimately force of arms, their object was to avoid conflict by

simply agreeing not to fight; usually in return for some benefits. Of course, promises are made to

be broken and treaties were not very successful: the peaces they brokered were largely short

term, even those that were in name "universal and perpetual." The true use to which treaties

were put was strategic. They were a means of demonstrating friendship and brotherhood, and

although a nation that broke its word would not be so greatly trusted in the future, all states did

so often that it hardly mattered. Machiavellian rulers would delight in making peace only to

lower the enemy's guard, and those who placed their faith in the honesty of their fellow men

soon cursed their trusting nature.

The result of the diplomatic backstabbing was that war continued pretty much unabated, people

died for king and country, killed for scraps of land and cloth, celebrated great victories and

suffered terrible defeats. This was all well and good when warfare was looked at abstractly or

romantically; when poets and story tellers spoke of the glories of battle, the intellectual rigours

of strategy, of noble kings leading grand armies against nefarious and cowering enemies, it is

understandable that the leaders of the day became fired up with blood-lust. But entertaining

though war was for the nobility, it was becoming less so for the ordinary people. As centuries

wore on, the wars became more terrible, the battles less noble and the fighting more bloody. By

the turn of the twentieth century, the pacifist movement was taking hold of a considerable

minority and the atrocities of the First World War brought about the first serious international

attempt to end conflict between nations.

THE LEAGUE OF NATIONS

In 1920 the Paris Peace Conference concluded with the founding of the League of Nations. It

was to function on the basis of collective security – there were to be no more power blocs such

as those that had led so disastrously to war in 1914, but instead all nations were to be for each

other, and should one step out of line, all would act. Under the Covenant of the League of

1 The lectures of Professor R. Piotrowicz, Professor C Harding, and M. Odello and the Seminars of N. Szablewska

Nations – the originating treaty setting up the organisation – the member states agr eed to respect

each other's territorial sovereignty and submit any disputes that might lead to war to the

Permanent Court of International Justice for arbitration. They further agreed that if any state

should go to war, contravening the Covenant, then the members would break off all commercial

intercourse with that state and submit the matter to to the League to consider what military action

need be taken.

Ultimately though, the League was a weak organisation. The United States of America refused to

join it and Japan, the USSR, Italy and Germany all eventually resigned from it. The pacifist

attitudes that prevailed throughout the interwar period meant that the member states were

reluctant to consent to military action of any kind, and the League's dwindling membership

severely lessened the blow of any economic sanctions ordered. When Hitler invaded

Czechoslovakia in 1938, Britain and France decided to appease him, thus putting the last nail in

the coffin of the League of Nations and cementing the path to the Second World War.

The devastation caused by the Second World War was on a scale never seen before. Whole cities

were ruined, millions upon millions were dead, and once again it was the collective opinion of

the world that this must never happen again. The League had failed, and its failures would be

learned from. In 1945 the United Nations was formed and in 1946, the League was disbanded

and its functions turned over to the UN. High amongst these was the duty of preventing the use

of force by one state against another, unless it was absolutely necessary.

THE UNITED NATION

From the start2, the United Nations had a significant advantage over its predecessor: the major

powers of China, the USSR, and the USA had all become members. This did not mean, however,

that everything went smoothly. Whilst the United Nations sought to prevent aggressive war,

article 2(4) of its charter explicitly stating that all member states must refrain from the threat or

use of force against the territorial integrity or political independence of any state, it also

recognised that there were occasions when violence would erupt and attempted to make

provisions for them. Article 51 specifically allowed states to use force in self defence and the

Security Council was empowered under Chapter VII to sanction military action in certain 2 Shaw, M N International Law (5th Edition, Cambridge University Press, 2005)

circumstances in order to preserve international peace and security.

Problems emerged under both these exceptions. Self defence was subject to legal battles – was it

legal to act in pre-emptive self d efence? What exactly did self defence entitle a state to do?

What if both sides of a conflict claimed they were defending themselves against one another's

aggression? The Security Council found itself paralysed as East and West vetoed each other's

proposals, not due to the pacifism that rendered the League of Nations powerless, but due to the

ideological antagonism of the Cold War. However, over the sixty years that the law has been in

force cases before the International Court of Justice have refined the definitions, and the decades

since the collapse of communism in Europe have in some cases allowed the Security Council to

unify, as it did with Iraq in 1990 and the Kosovo crisis in 1999.

The upshot of these developments is not that war has been made a thing of the past; far from it.

What has happened is that conflicts between states now take place within a recognisable legal

framework - it is possible to say whether an individual conflict is permitted under international

law. This has a slight deterrent effect as states now feel that it is necessary to justify their actions

within the law or risk losing their international standing. More importantly however, it allows

those who feel that they have been wronged by an international conflict to seek compensation.

Furthermore, the difficulty of establishing a legal case for conflict encourages states to try

diplomatic methods of reconciliation first, before resorting to force of arms.

PROHIBITION

There are currently two separate prohibitions of the use of force in international law; the

Kellogg-Briand Pact of 1928 and Article 2(4) of the United Nations Charter. These are both

legally valid prohibitions, but only the latter is binding on all states.

• KELLOG BRIAND PACT

Signed by thirty two countries, including all the major European powers, and the major powers

of the American continent, this treaty agreed under Article I to renounce war as a solution to

international controversies that might arise between them and under Article II mandated that

pacific solutions must be found to all disputes. Of course, given the events that took place a

decade or so later, it was obviously not a very successful treaty. Nevertheless it has had a rather

profound effect on international law. Its prohibition on the use of force was implicitly (and

specifically in the case of the United States) taken as not including the use of force in self

defence, thus allowing the armed response of the Allies to Hitler's invasion of Poland. Perhaps

even more importantly, especially when it came to enforcing the law, the treaty was taken by the

Nuremberg tribunals as creating the war crime of Aggression – ending once and for all the right

of conquest.

One major criticism of the Pact is that whilst it prohibits the formation of a legal relationship of

war between two states, it does not define what war actually means. International law has long

recognised the existence of violent actions that do not amount to war (reprisals for example), and

it would appear that under the Pact these would still be considered to be legal. This problem has

been dealt with however by the Charter of the United Nations (1945) which is now considered to

be the foremost prohibition on the use of force in international law.

• ARTICLE 2(4) CHARTER OF THE UNITED NATIONS

The Charter is considered to be a part of Customary International Law, which, for reasons I will

go into in another writeup, is considered to be binding on all states. This effectively means that

even if they disagree with it, all states are bound by what it contains. Crucially, this includes

article 2(4) which states that:

"All Members shall refrain in their international relations from the threat or use of force

against the territorial integrity or political independence of any state, or in any other

manner inconsistent with the Purposes of the United Nations."3

The effect of this article is very simple. It makes it illegal under international law to use force

against another state. Once again however, there is a problem of definition; what exactly counts

as force? Violent invasion of territory certainly does, but what about an economic sanction such

as an embargo? The 1970 Declaration on Principles of International Law described the duty as

one to avoid "military, political, economic or any other form of coercion aimed against the

political independence or territorial integrity of any state." This appears to make it clear that any

form of punitive action is illegal, but largely due to the unwillingness of states to give up all their

3 http://www.un.org/aboutun/charter/chapter7.htm

influence over each other, the point remains disputed. It is also important to note that it is not just

the use of force that is prohibited, but the threat of force. This raises interesting questions as to

the legality of nuclear deterrents, though that is a complicated topic best dealt with in its own

writeup.

The above two measures are between them very restrictive. Were they absolutes, it is likely that

they could never be effectively enforced. All but the most ardent pacifists argue that in certain

limited circumstances the use of force by one or a collection of states against another is

legitimate. It is important to remember that the wish to avoid another world war was foremost in

the minds of those who drafted these provisions, and yet it is likely none of them would have

argued that Hitler's advance across Europe should have been countered by peaceful means alone.

Equally, it is difficult to imagine how an aggressive state could be brought back into line without

sanctioning some collective military action. For these reasons, International Law acknowledges

some exceptions to the general prohibition.

EXCEPTIONS

The use of force by one state against another is in fact quite rarely sanctioned. This does not

necessarily mean that it is always legal, it merely means that due to the international political

scene at the time, the international community was unable to successfully complete the

procedures necessary to condemn the violent action. Nevertheless, most states want to be seen as

acting within the law and will almost always attempt to justify their actions by reference to the

available framework. In particular, with regard to use of force, states will try and bring their

actions at least rhetorically within the existing exceptions to the prohibition.

As every rule, the prohibition of the use of force is not without exceptions. Although certain

states and legal authors have furthered several, and at least questionable, justifications for lawful

use of force, only two explicitly stated legal exceptions to the general prohibition of the use of

force exist under the United Nations Charter:

o individual and collective self-defence (Article 51);

o Security Council enforcement actions (Chapter VII).

SELF DEFENCE

Although the object of the Charter is to work towards a world in which self defence will be

unnecessary, it is universally accepted that despite the efforts of the international community,

wars will occur and state will find their territories under threat from invasion. It is held by almost

everyone that a state under attack has an inherent right to self defence, and even if they did not, it

is extremely unlikely that they would lie down and let the invaders in simply because to fight

them was against the law. Therefore, the Charter contains Article 51 which states:

"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”

Unfortunately, the law is not that simple. Although it is a point of common sense that if a state is

actually attacked, it should be allowed to defend itself, there remains the question of what it may

do in its defence. Is it legitimate, for example, for an invaded country to launch air strikes against

major enemy cities in response to a small skirmish on its borders? The answer, according to the

law, is no. It is required that all action be no more than necessary and proportionate in the face of

the invasion. The seminal case for this principle is The Caroline Case4 of 1837, the facts of

which are as follows:

Canadian rebels on Navy Island declared themselves the Republic of Canada and sought to wage

a war of independence against the United Kingdom and Upper Canada. Sympathetic Americans,

hoping for a British defeat, filled a boat, the SS Caroline, with armaments and sent it towards the

rebellious island. However, Canadian loyalists and the British Navy got wind of the enterprise

and sent a military across the border to capture the Caroline. They were successful and, having

evacuated the crew, set the boat on fire and cast it adrift over the Niagara falls.

Naturally this led to a decidedly tricky diplomatic situation. Britain and the United States were

still not on excellent terms, having fought a war only twenty five years earlier, and now Britain

had sent armed men into American territory, seized an American vessel and spectacularly

destroyed it. Ultimately however, the difficulties were resolved by the Webster-Ashburton

Treaty 1842. It was decided that the British were acting in self defence. This required the

"government to show a necessity of self-defense, instant, overwhelming, leaving no choice of

4 The Caroline Case 1837, 29 Brit & For St Papers 1137

means, no moment for deliberation." Applied to The Caroline Case it is apparent that had the

British not acted as they did the Caroline would have made it to the rebels, greatly increasing

their ability to threaten British interests, therefore, the British had to act immediately. Notably,

despite contemporary American propaganda reports of massive casualties, the boat was in fact

empty when it was sent over the falls. Had the British killed everyone aboard without offering

them the chance to leave, that would have been disproportionate and therefore an aggressive,

rather than defensive, action.

However that The Caroline Case significantly pre-dates the 1945 charter and as such it might be

argued that the rather stricter wording requires that an armed attack to actually be occurring

before self defence becomes a legal use of force. Although this reasoning would be sound in a

national common-law system, at an international level treaties do not necessarily overrule

previous "customary" law. The Webster-Ashburton Treaty merely codified these already existing

customs.

The Nicaragua Case5 elaborated further on the law of Self Defence, specifically by considering

exactly what constituted an "armed attack" for the purposes of the Charter. This was a

complicated case involving a lot of complicated and technical areas of international law, but

with regard to the Use of Force the relevant facts were as follows:

For some time the United States had been supporting Contra, a right-wing counter-revolutionary

movement within Nicaragua by supplying them with arms and training. The case centred on

whether or not the US had acted illegally and in particular whether or not their actions

constituted an illegal use of force. After lengthy discussion of technical issues of customary and

treaty law, the court gave its decision: by assisting Contra, the US was in breach of its legal

international obligation of non intervention and its actions were considered to be an illegal use

of force against another state.

This case, in conjunction with The Caroline Case raises further issues. In particular, it has been

argued, primarily by the United States that they give rise to a right of pre-emptive self defence,

particularly in today's post-9/11 climate. The argument is that if a state can be shown to be

sponsoring terrorists who have the objective of breaching the territorial integrity of, for example,

5 Nicaragua v. United States of America ICJ Reports, 1986 p.14

the US, the US may take aggressive action against that state as a matter of self defence. This line

of reasoning was used in part to justify the invasion of Afghanistan in 2001, and has been used

unofficially by some commentators to justify the invasion of Iraq, though the questions arising

out of that particular conflict are, once again, for another write-up.

Just as it is impractical to suggest that the use of force in self defence should be outlawed, it

would be naïve to suggest that without the threat of force, all states would become pacifist

overnight. Furthermore, the UN was at least partially founded on the grounds that the horrors

that were perpetrated in Nazi Germany should never be allowed to happen again. This meant that

the UN was tasked with preventing humanitarian disasters from occurring and putting a stop to

those that do. Although it is arguable that as a body, the international community acts in self

defence when it takes action against such atrocities, the practice is very different. What should be

done about a situation is debated by the Security Council and it is they that decide whether action

should be taken and if so, what form it should take. It is notable, however, that should the

Council wish, it may authorise the use of force against any country it chooses, in order to

maintain or restore international peace and security. The UN does not have an army of its own,

and so any fighting is conducted by the states themselves, in a process known as Collective

Action.

COLLECTIVE ACTION

The United Nations may take collective action under what are known as the Chapter VII

provisions. Article 39 briefly sets out how they operate:

"The Security Council shall determine the existence of any threat to the peace, breach

of the peace, or act of aggression and shall make recommendations, or decide what

measures shall be taken in accordance with Articles 41 and 42, to maintain or restore

international peace and security.”

The Security Council is therefore only empowered to authorise the use of collective action in

circumstances where there is a "threat to the peace" a "breach of the peace" or an "act of

aggression." It may determine when such circumstances have arisen on its own authority. It may

then determine what to do to rectify the situation. Article 41 refers to non violent coercive

measures, such as embargoes, withdrawal of diplomatic relations, cutting off of communications

and the like. Article 42 refers to the measures that may be taken should those under article 41

prove inadequate. They are:

"such action by air, sea, or land forces as may be necessary to maintain or restore

international peace and security.6 "

Therefore, provided the non-violent measures under Article 41 have failed, if there is still an

ongoing situation under Article 39, the Security Council is empowered to authorise the use of

force. It is notable however, that once again the requirement of necessity and proportionality is

present; the Council may only order such force as is required to "maintain or restore international

peace and security." This means that provided international peace and security have been

restored, further action would be illegal – even if there are other non-legal, but moral reasons for

continuing with the military action, such as an unpleasant regime.

The power to authorise the use of force against a sovereign state carries with it immense

responsibility. Although they must justify their decision within the above articles, the Security

Council is relatively free to authorise the use of force when it wants to, and it is by no means

certain that it will always do so fairly; partisan considerations may well play a part in deciding

whether or not to allow a war. Therefore, in order to ensure that the Council only ever sanctions

extreme actions in good faith, safeguards were put in place. The right to exercise self-defence

does not disappear as soon as the Security Council has simply passed on the matter; it continues

until the Security Council has taken effective measures rendering the armed responses by the

victim state unnecessary and inappropriate7. Otherwise, the self-defensive military actions must

stop when their purpose, repelling the armed attack, has been achieved.

SECURITY COUNCIL ENFORCEMENT ACTIONS

Taking into consideration the negative experience with the League of Nations, states decided to

establish a more advanced and effective collective security system in order to enforce

6 Article 51 of the Charter of the United Nations.7 Cf. Antonio Cassese, International Law, Oxford: Oxford University Press, 2001, p. 305. The British Commentary on the Charter reads that “it will be for the Security Council to decide whether these measures have been taken and whether they are adequate for the purpose”, but at the same “in the event of the Security Council failing to take any action, or if such action as it does take is clearly inadequate, the right of self-defence could be invoked by any Member or group of Members as justifying any action they thought fit to take”. Misc. 9 (1945), Cmd. 6666, p. 9.

international peace and security and punish the violators of the prohibition of the use of force.

The Security Council was conferred the primary responsibility for the maintenance of

international peace and security.8 The Security Council consists of fifteen members of which five

are permanent members (China, France, Russia, the United Kingdom and the United States) and

ten are non-permanent members (elected for two years by the General Assembly). Although the

Security Council is undoubtedly a political institution which does not necessarily adopt its

decisions on the basis of legal arguments, but rather on political arguments, its resolutions have a

legally binding effect on the members of the United Nations, and they are obliged to follow these

resolutions.9

When maintaining international peace and security, the Security Council acts under Chapter VII,

which has the promising title of Action with Respect to Threats to the Peace, Breaches of the

Peace, and Acts of Aggression. As a watch-dog, the Security Council shall determine, according

to Article 39, the existence of any threat to or breach of the peace and act of aggression, and shall

make recommendations or decide what measures shall be taken to maintain or restore

international peace and security. After determining any of those situations, the Security Council

may decide upon non-military action, for example, economic sanctions,10 or authorise military

action with “air, sea, or land forces as may be necessary to maintain or restore international

peace and security11. Such collective authorisation to use force should ensure that military

intervention is not arbitrary, but only what is necessary to further the interest of the whole

international community.

However, the Security Council cannot compel any state to participate in military operations; the

authorisation is more of a recommendation or justification to use force rather than a command,

and therefore the Security Council has to rely on the hope that there are states, which, for one

reason or another, wish to engage themselves in such operations. The authorisation also has

another aspect, namely that the target state is barred from legally invoking the right of self-

defence and later claiming reparations for damage caused by the military operations.

8 Article 24, paragraph 1 of the Charter of the United Nations.9 Ibid. Non-compliance with the obligations imposed by the resolutions of the Security Council, as with all other international obligations, may result in state responsibility under international law.10 Article 41 of the Charter of the United Nations.11 Article 42 of the Charter of the United Nations. See, for example, UN Doc. S/RES/678 (1990) with which the Security Council authorised all the members of the United Nations to use all necessary means to end the Iraqi occupation of Kuwait and restore international peace and security.

PROBLEMATIC ISSUES AND RECENT DEVELOPMENTS

As mentioned above, any specific use of force can be regarded lawful only if it can be based on

an exception to the general prohibition of the use of force, which is valid as a matter of law. The

Security Council authorisation to use force is usually clear enough and rarely results in

controversial interpretations12. But the right of self-defence has proved problematic and has been

used, through strange and violent interpretations, to justify a number of military operations

directed against another sovereign state. The majority of states and legal authors insists that the

right of self-defence must be interpreted narrowly so that it corresponds to an actual armed

attack. Another school prefers a wider interpretation and argues that states may exercise self-

defence in an anticipatory or even pre-emptive manner and that this right does not require an

actual armed attack. The proponents of this concept have so far been the minority, but the

question of whether international law permits or should permit the use of force not merely in

response to existing violence, but also to avert future attacks, have taken on added significance in

the aftermath of the 11 September 2001 events. Below we shall consider certain aspects relating

to the right of self-defence and we shall do that in the light of the events in New York,

Afghanistan and Iraq.

DEFINITION OF ARMED ATTACK

To be precise, Article 51 refers to the right of self-defence if an armed attack occurs. If this is

indeed a prerequisite of the right to exercise a lawful self-defence, then we have to establish the

scope of the term armed attack. First, according to the rules of the law of treaties, the

interpretation of a treaty must start with the ordinary meaning to be given to the terms of the

treaty13. The usual method to determine the ordinary meaning of a word is to refer to dictionaries.

12 However, the United Kingdom, the United States and their allies have argued that, although there was no explicit Security Council authorisation to use force against Iraq in 2003, such authorisation can be found if one interprets the Security Council resolutions 678, 687 and 1441 together. Such an approach is more than doubtful because no interpretation in good faith can result in the authorisation to use force twelve years after the First Iraqi War and because the members of the Security Council assured, while adopting resolution 1441, that it did not intentionally include any automatic or hidden trigger to authorise the use of force against Iraq.13 Article 31, paragraph 1 of the Vienna Convention on the Law of Treaties. It is true that the convention does not officially apply to the interpretation of the United Nations Charter because the latter was adopted before the convention entered into force, but the same rule exists in customary international law and that definitely applies.

In this case different English dictionaries suggest that an attack is an actual action, not merely a

threat. Furthermore, we should take into consideration other parts of the United Nations Charter,

namely Article 2, paragraph 4. This prohibits both the actual use of force as well as the threat of

force, and it is difficult to conceive that the drafter of the United Nations Charter, due to an

oversight, simply forgot to add the words or threatens”to Article 5114. Moreover, an

interpretation of Article 51, which excludes the threat of an armed attack, is more likely

compatible with the main purpose of the United Nations to restrain the unilateral use of force.

So, according to an overwhelming majority within the legal doctrine, the definition of armed

attack refers to an actual armed attack which has occurred, not simply to threats15. After the

events of 11 September 2001, it is necessary to ask whether the concept of armed attack is

capable of including a terrorist attack. Article 51 does not specify that the armed attack has to

originate from a state, but this condition may be taken as implicit. Self-defence is an exception to

the general prohibition of the use of force and Article 2, paragraph 4, which contains that

prohibition expressly concerns states16. However, if a state is actually involved to a sufficient

degree in a non-state armed attack, it is acceptable that such an involvement is equivalent to an

armed attack and may therefore entail the same consequences as an armed attack by a state. The

basis for such argument can be found from the Definition of Aggression, adopted by the General

Assembly, which defines as an act of aggression, inter alia, the sending by or on behalf of a State

of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against

another State of such gravity as to amount to an actual armed attack conducted by regular forces

or its substantial involvement therein17. The ICJ has accepted this provision as being an

expression of customary international law, although the General Assembly resolution itself is not

legally binding18. Such a situation can, in legal reasoning, be called a constructive armed attack

or a situation equivalent to an armed attack19.

14 Michael Bothe, Terrorism and the Legality of Pre-emptive Force” in European Journal of International Law, Vol. 14, 2003, p. 229.15 See for example Yoram Dinstein, War, Aggression and Self-defence, Third Edition, Cambridge: Cambridge University Press, 2001, pp. 165-169; Albrecht Randelzhofer, “Article 51” in Bruno Simma, supra note xiii, p. 803.16 26 Article 2, paragraph 4 demands that all members of the United Nations shall refrain from the threat or use of force and, according to Article 4, paragraph 1, only states can become members of the United Nations.17 Article 3, paragraph g, UN Doc. A/RES/3314 (XXIX) (1974).18 Military and Paramilitary in and against Nicaragua (The Merits), supra note iv, para. 195.19 Michael Bothe, supra note xxiv, p. 230.

Therefore, a non-state armed attack may trigger the right of self-defence if such an attack is of

sufficient gravity, and the involvement of a state is of a sufficient degree. The level of violence

used in the terrorist attacks of 11 September 2001 undoubtedly reached the level of sufficient

gravity, and if those attacks had been the work of a state, they would have been classified as an

armed attack for the purpose of Article 51. So, it would indeed be strange to regard the right of

self-defence to be dependent upon whether respective violent attacks were carried out by a state

or non-state actor. The constructive armed attack is not completely alien to international legal

reasoning, but whether such construction has actually become positive international law is

another question. It is worth mentioning that the famous Caroline dispute, which has been cited

to support the wider concept of self-defence, shows that an armed attack need not emanate from

a state. Indeed, in that situation the threat came from a non-state group of the kind most would

probably call terrorist today. Nowhere in the correspondence between the United Kingdom and

the United States or in the subsequent reliance on the Webster formula on self-defence has it

been hinted that the applicability of the Webster formula is dependent on the source of armed

attack. Nevertheless, the international reaction after the 11 September events confirms that the

concept of armed attack is not indeed limited to state acts. The Security Council expressly

recognised the right of self-defence in two resolutions adopted in the immediate aftermath of the

terrorist attacks20. The resolutions do not explicitly state that terrorist attacks equal to armed

attacks, but the recognition of the right of self-defence had to mean that the Security Council

considered those terrorist attacks as armed attacks for the purpose of Article 51. At that time, it

was already known that those attacks were most likely to be the work of a terrorist organisation

rather than a state. The position of the Security Council was widely accepted, and similar

positions were adopted by other international institutions. For example, the North Atlantic

Council agreed that if it is determined that this attack was directed from abroad against the

United States, it shall be regarded as an action covered by Article 5 of the Washington Treaty,

which states that an armed attack against one or more of the Allies in Europe or North America

shall be considered an attack against them all21.

ANTICIPATORY OR PRE-EMPTIVE

20 UN Doc. S/RES/1368 (2001); UN Doc. S/ RES/1373 (2001).21 Press Release (2001) 124, available at http:// www.nato.int/docu/pr/2001/p01-124e.htm (30 November 2003).

Although most authors and politicians use the terms anticipatory”and preemptive

interchangeably, the distinction between these two terms offers a useful precision. The

anticipatory military action refers to military action that is taken against an imminent attack. For

example, if one state has learnt that another state has assembled its armed forces at its border,

and the beginning of a military assault is just a matter of time, then, instead of waiting for the

actual assault to begin, it attacks first in order to protect its nationals and prevent possible

damages. The pre-emptive military action describes military action that is taken against a threat

which has not yet materialised and which is uncertain and remote in time. For example, if one

state has learnt that another state has acquired weapons of mass destruction and fears that these

weapons may be used against it in the future, then, instead of waiting for the assault to become

imminent, it attacks first the buildings where these weapons are kept and destroys the weapons in

order to prevent the threat or assault ever becoming even imminent. Now we shall consider both

of these concepts in relation to self-defence.

Anticipatory self-defence

Article 51 explicitly requires an armed attack as a pre-condition to the use of defensive force;

states have the right to exercise self-defence if an armed attack occurs. Thus the terms of Article

51 contrast with the terms of Article 4, paragraph 2, because the latter prohibits both the use of

force and the threat of force. All this permits to conclude that neither the threat of force nor an

imminent armed attack justifies the use of defensive force under the United Nations Charter22.

This interpretation corresponds to the predominant state practice, since a general right to

anticipatory self-defence has never been invoked under the United Nations Charter23. The intent

of the drafter and the purpose of the United Nations Charter were to minimise the unilateral use

of force in international relations, and to draw a line at the precise point of an armed attack, an

event the occurrence of which could be objectively established, served the purpose of eliminating

uncertainties24.

22 The majority of states and legal authors supports this position. For example, Louis Henkin has written that the fair reading of Article 51 is persuasive that the Charter intended to permit unilateral use of force only in a very narrow and clear circumstance, in self-defense if an armed attack occurs.23 Albrecht Randelzhofer, supra note xxv, p. 804.24 Michael J. Glennon, �The Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51of the United Nations Charter � in Harvard Journalof Law & Public Policy, Vol. 25, 2002, p. 546.

Indeed, the alleged imminence of an armed attack usually cannot be assessed by means of

objective criteria, and therefore any decision for anticipatory action would necessarily have to be

left to the discretion of the state concerned. Such discretion involves a mentionable possibility of

mistake, which may have devastating results, as well as a manifest risk of abuse, which can

seriously undermine the prohibition of the use of force. Moreover, the argument that an armed

attack begins with planning, organisation and logistical preparation is not plausible, because then

an armed attack would begin with pencil and paper rather than with bullets and bombs. Once

again, there is no reason to suggest that the plain language of Article 51 does not convey

precisely the meaning that was intended – an actual armed attack25.

Although the arguments that the United Nations Charter permits anticipatory self-defence are

unpersuasive, several states and legal authors have more plausibly and successfully defended the

right of anticipatory self-defence under customary international law. True enough, anticipatory

self-defence has some basis under customary international law, and in some limited cases it may

be seen as lawful. The proponents of anticipatory self-defence refer to the famous Caroline

incident26. The 1837 rebellion in the colonial Canada found active support from American

volunteers and private suppliers operating out of the border region in the United States. The

steamship Caroline was involved in the supply of both men and materials to rebel-occupied Navy

Island in the Cippewa Channel, which served as a base for the volunteers’ attacks on the

Canadian riverside and on British vessels. The Government of the United States knew about

these activities, but did little to prevent them. Therefore a British force from the Canadian side

crossed the border into the United States, seized the Caroline, set her on fire and cast the vessel

adrift so that she fell to her destruction over the Niagara Falls. Two citizens of the United States

were shot dead aboard the Caroline and one British officer was arrested and charged with murder

and arson27.

The British government justified its action as being necessary for self-defence and self-

preservation, since the United States did not hinder the threatening activities on its territory; it

also cited the perceived future threats posed by the operations of the Caroline. Reply of the U.S.

Secretary of State Daniel Webster to the British Government has long been regarded as a 25 Ian Brownlie, supra note xi, p. 278.26 See BFSP Vol. 26, 1937-1938, pp. 1372-1377; BFSP Vol. 29, 1840-1841, pp. 1126-1142; BFSP Vol. 30, 1841-1842, pp. 193-202 for the subsequent correspondence between the United Kingdom and the United States.27 Warner Meng, �The Caroline � in Rudolf Bernnhardt, supra note vii, pp. 537-538.

definitive statement of the right of self-defence in international law. Webster recognised that the

right of self-defence did not depend upon the United Kingdom having already been the subject of

an armed attack, but accepted that there was a right of anticipatory self-defence in the face of a

threatened armed attack, provided that there was “a necessity of self-defence, instant,

overwhelming, leaving no choice of means and no moment for deliberation”28. The Webster

formula has since then been used frequently by states and judicial institutions; even the

International Military Tribunals at Nuremberg and Tokyo referred to the formula when rejecting

the defence plea that the German invasion of Norway had been an act of anticipatory self-

defence.

This may suggest that the right of anticipatory self-defence against an imminent armed attack

was a part of customary international law at that time, but whether this is still true today is

another question. The restrictionist school – the supporters of a narrower right of self-defence –

argues that the customary international law, predating the United Nations, could not have

survived the adoption of the United Nations Charter, and hence Article 51 is the only, true and

adequate representation of the right of self-defence in the United Nations Charter era29. The

counter-restrictionist school the supporters of a wider right of self-defence claims that Article

51, by pledging not to impair the inherent right of self-defence, left intact and unchanged

customary international law on self-defence predating the adoption of the United Nations

Charter.

Pre-emptive self-defence

In September 2002, President George W. Bush submitted to the Congress a report on the national

security strategy, which asserted, among other things, an evolving right to use force pre-

emptively against threats coming from Rogue Statesand terrorists, possessing weapons of mass�

destruction30. The report stated that:

28 BFSP Vol. 29, 1840-1841, p. 1138.29 It is possible to argue that the application of the Webster formula by the International Military Tribunals at Nuremberg and Tokyo does not prove that the right of anticipatory self-defence was still alive after the creation of the United Nations. The tribunals simply had to apply the customary international law predating the United Nations because they considered state acts which also predated the United Nations.30 National Security Strategy of the United States of America, available at http:// www.whitehouse.gov/nsc/nss.pdf (30 November 2003).

’The United States has long maintained the option of preemptive actions to counter a sufficient�

threat to our national security. The greater the threat, the greater is the risk of inaction and the

more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty

remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts

by our adversaries, the United States will, if necessary, act preemptively. The United States will

not use force in all cases to preempt emerging threats, nor should nations use preemption as a

pretext for aggression. Yet in an age where the enemies of civilization openly and actively seek

the world’s most destructive technologies, the United States cannot remain idle while dangers

gather’31. �

There is nothing in contemporary state practice, case law or legal writing which would suggest

that such a broad, even overly broad, construction of a situation equivalent to an armed attack is

a part of current customary international law32. Such an approach is undoubtedly dangerous, and

the application of the precautionary principle is alarming and undesirable. In the field of

environmental law, the precautionary principle requires action to be taken to protect the

environment even in the case of uncertainty about the danger. Now, if one would apply the same

principle in connection with self-defence, the rule would read that in the case of uncertainty,�

strike.

Such a conclusion is somewhat weird and widely open to mistakes or abuses; it is also difficult

to understand how this can contribute to global stability and maintenance of international peace

and security. Pre-emptive self-defence is clearly unlawful under international law states may not

use force against another state when an armed attack is merely a hypothetical possibility, even in

the case of weapons of mass destruction. The International Military Tribunals at Nuremberg

rejected the argument of Germany that the invasion of Norway was a necessary act of

selfdefence in order to prevent a future Allied invasion and to pre-empt subsequent possible

Allied attack from there.

When Israel attacked the Iraqi nuclear reactor in 1981, Israel specifically argued that Article 51

allowed self-defence in order to pre-empt a threat to Israeli national security33. Israel explained

that it had been forced to defend itself against the construction of nuclear weapons in Iraq, which 31 Ibid., p. 15.32 Michael Bothe, supra note xxiv, p. 232.33 Stanimir A. Alexandrov, supra note xlvii, pp. 159-165.

would not have hesitated to use such weapons against Israel. The nuclear reactor, Israel argued,

was to become operational in a matter of weeks, and Israel decided to strike before the nuclear

reactor became an immediate and greater menace to Israel. So, Israel reacted neither to an actual

armed attack nor to a situation equivalent to an armed attack, but instead to a potential and

remote threat. All members of the Security Council disagreed with the Israeli interpretation of

Article 51 and supported without reservations the resolution which declared the military attack�

by Israel in clear violation of the Charter of the United Nations and the norms of international

conduct34. True, the Security Council did not reject anticipatory self-defence as such, but more

likely concluded that Israel failed to demonstrate the imminence of an armed attack from Iraq.

PASSING A RESOLUTION

Legally, passing a resolution authorising the use of force is not a complicated process.

Ideally it should be drafted in clear, unambiguous language and be agreed on by the entire

security council. Unfortunately, in both these respects, political problems have a tenancy to arise.

One of the controversies over the invasion of Iraq in 2003 was whether or not it was duly

authorised by Security Council Resolution 1441. France and Russia both claimed that it was not,

whereas some legal commentators in the United States and the United Kingdom claimed that it

was. The reason for this disagreement was down to the language used. In international

diplomatic speak, the phrase "all necessary measures" and very similar constructions are always

taken to mean an authorisation of military action. However, 1441 did not include that particular

phrase; instead, it referred to "serious consequences." It is accepted in academic circles that this

wording was deliberately ambiguous in order to make sure that both sides of the debate would

vote in favour of it – each believing their own interpretation was correct.

The reason it is important to ensure that all sides are happy with the wording of a potential

resolution is because of the system under which the Security Council operates. In order for a

resolution to be enacted it must be accepted not only by a majority of the countries on the council

but by all of the permanent members; that is the USA, Russia, France, the UK, and the People's

Republic of China. Due to the partisan and suspicious nature of international politics and the

tendency for opposing power-blocs to emerge, it can be extremely difficult for states proposing

34 UN Doc. S/RES/487 (1981).

resolutions to secure the agreement of the other members. This is dramatically illustrated by the

fact that during forty years of the cold war, only eight hundred or so resolutions were passed,

whereas since the fall of the Iron Curtain less than twenty years ago, the number is closer to one

thousand!

Once a resolution is passed, it must be enforced by the members of the United Nations. Under

Article 43, the Security Council may call upon any member state to contribute armed forces to

the action taking place. This is subject to a certain degree of negotiation with the Council and

any country called upon to contribute may under article 44 participate in any decisions the

Council makes regarding how their forces are to be used. Under Article 49, states can be asked to

make mutual contributions to the enforcement effort. Normally, this involves more passive

actions such as allowing aircraft to pass through their airspace or ships to resupply at their docks,

but in particular this article ensures that states do not actively send troops against those acting on

behalf of the United Nations.

CONCLUSION

Since the oldest times, the international legal system has been preoccupied with one important

question: When is the use of force legal? Legal regulation of the use of force has gone through a

considerable evolution; starting with the “just war” doctrine in the ancient times, continuing with

the complete liberty to use force from the seventeenth to the twentieth century and ending with

the general prohibition of the use of force in the United Nations Charter. The latter recognises

two explicit exceptions where states may legally use force, namely individual and collective self-

defence and Security Council enforcement actions. The scope of selfdefence has proved to be

very difficult to determine, but we can still reach certain conclusions. First, all states have the

right of self-defence against an actual armed attack. Second, states may have a limited right of

anticipatory self-defence against an imminent armed attack of sufficient gravity under customary

international law.

The arguments that the United Nations Charter permits anticipatory self-defence are

unpersuasive. Third, states do not have the right of pre-emptive self-defence against a threat

which has not yet materialised and which is uncertain and remote in time. It is the exclusive

responsibility of the Security Council to deal with the threats to international peace and security;

states do not have the right to exercise their own complementary or parallel responsibility.

Fourth, an armed attack need not emanate from a state actor; a non-state armed attack may

trigger the right of self-defence if such an attack is of sufficient gravity, and the involvement of a

state is of a sufficient degree.

There are other technical elements to the law of the Use of Force today. Complex questions over

humanitarian intervention abound. The legal nature of peace treaties and cease fires has not been

touched on. The use of nuclear weapons has not even been considered, nor have the numerous

war crimes that arguably come under this heading. Nevertheless it should be clear that

international law as it stands today has placed fetters on the prosecution of war, restricting it only

to those circumstances where it is necessary as a response to a threat to the peace. This is, it

cannot be denied, a significant step forward. There is still, however, a long way to go. The

United Nations was created to preserve the peace, and there is very apparent hypocrisy in its

seeking to enforce its will through violence.

SUGGESTION

It has been suggested that the progression of the international community has been similar to that

of nation states – moving from a free-for-all anarchic existence to a code of custom for blood

feuds and violent duel, which ultimately gave way to a system of courts with legal remedies and

sanctions. It may be hoped that in the future states' respect for international law may grow and

the problems that even today are solved through armies, navies and air forces will instead be

brought to the courtroom and dealt with not according to military might, but according to the

principles of justice and fairness.

BIBLIOGRAPHY

• http://www.un.org/aboutun/charter/chapter7.htm

• http://www.un.org/aboutun/charter/chapter1.htm

• http://www.un.org/aboutun/charter/chapter7.htm

• http://www.un.org/aboutun/charter/chapter1.htm

• www.eisil.org/index.php?

• Freeman, M D A Lloyd's Introduction to Jurisprudence

• Shaw, M N International Law (5th Edition, Cambridge University Press, 2005)

• The lectures of Professor R. Piotrowicz, Professor C Harding, and M. Odello and the

Seminars of N. Szablewska