Use of Force - Lecture notes 1 PDF

Preview

Summary

The Use of ForceThe Basic principle/Rule: Prohibition on the Use of Force: Article 2(4) UN Charter: 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 inconsisten...

Description

The Use of Force

PIL

25/03/2017

The Use of Force The Basic principle/Rule: Prohibition on the Use of Force: 

 

Article 2(4) UN Charter: 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. o Now affirmed as part of CIL in Nicaragua v USA case before the ICJ. 1970 Declaration on Principles of International Law: Indicates some of the means by which states are required to avoid using force. Definition of ‘Aggression’, United Nations General Assembly Resolution 3314 (XXIX); Article 1: Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this definition.

UNGA Res on Definition of Aggression (with special reference to Ukraine/Russia):  

 

Article 2: The First use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression. Article 3: Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression: o (a) The invasion or attack by the armed force of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof. o (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement. o (g) 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 the acts listed above, or its substantial involvement therein. Article 5.1: No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression. Article 7: Nothing in this Definition, and in particular Article 3, could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right and referred to in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, particularly peoples under colonial and racist regimes or other forms of alien domination: nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity with the abovementioned Declaration.

Elaboration of Prohibition against the Use of Force: 

Article 2(6) of the UN Charter: The organisation shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.

The Use of Force o o

PIL

25/03/2017

So UN Security Council may create resolutions that are directed at ‘All States’, including non-UN Members? Note: Duty not to use force does not apply to state exercising sovereignty within their territory to maintain order – Syria?

The meaning of ‘Force’:     

UN Charter preamble refers to ‘armed force’ and so does right to self-defence under Article 51 of the UN Charter: ‘Armed attack’ Legality of the Threat or Use of Nuclear Weapons ICJ Rep 1996 “A signalled intention to use force if certain events occur” where the envisaged force would be unlawful. What about other types of use of force, for example, ‘economic force’? Requirements/Conditions on the Use of Force under International Law: o Necessity o Proportionality

‘Against the territorial integrity or political independence of any state’: 

Corfu Channel Case ICJ Rep. 1949 o UK: Claimed Right of Intervention on behalf of international community. o ICJ: The ‘right of intervention’ claimed was in reality a form of force which had given rise to serious abuses in the past and therefore could not have a place in international law.

Exceptions to the Basic Principle/Rule:     

Collective measures by the UN under Chapter VII of the UN Charter Inherent right of Self-defence, under Article 51 of the UN Charter Protection of Citizens abroad? Israeli commando raid of hijacked airplane at Entebbe airport, Uganda Russian intervention in Georgia & Ukraine?

Forms of Force: 



Retorsion: o A phrase used in international law to describe retaliatory action taken by one foreign government against another for the stringent or harsh regulation or treatment of its citizens who are within the geographical boundaries of the foreign country. o The typical methods of Retorsion are the use of comparably severe measures against citizens of the foreign nation found within the borders of the retaliating nation. Reprisals: The Naulilaa Dispute, Portugal v Germany (1928) 2 RIAA: o Portuguese accidentally killed three Germans in Africa, so Germans attacked 5 posts. Held: Not a legitimate reprisal, because reprisals must:  Constitute retaliation for a breach of international law – Here, retaliation for an accident.  Be preceded by an unsuccessful demand for redress – none made here.

The Use of Force

PIL  

25/03/2017

Be reasonably proportionate to the injury suffered – German actions out of proportion. Arbitrators reasoned that since Portuguese officials had not taken any such action against German interests, the military action was unlawful. This ruling alone was asserted as sufficient to invalidate the German arguments. Forceful reprisals are only legitimate if they fall within the meaning of self-defence, including proportionality and necessity.

Self-Defence: 

UN Charter, Article 51: o “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, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right to self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Caroline Case, 29 BFSP 1137 (1837) 

Self-defence (esp Pre-emptive/Anticipatory Self-Defence) must be: o Necessary – meaning:  An instant  Overwhelming  No other choice or means  No moment for deliberation o Proportionate – meaning:  No more than necessary

Nicaragua Case, ICJ Rep. 1986:  

Re: The extent of the right of Self-Defence. Re: The meaning of ‘armed force’: does not include financing, arming or training (rebel) armed forces other than own army - US actions for the Contra rebels against Nicaraguan armed forces in this regard held not to constitute violation of international norm against the threat or use of force, although these actions were held to an illegal intervention in another State.

Oil Platforms Case, ICJ Rep. 2003 (Iran v US): 

This is a dispute “arising out of the attack on and destruction of three offshore oil production complexes, owned and operated for commercial purposes by the National Iranian Oil Company, by several warships of the United States Navy on 19 October 1987 and 18 April 1988, respectively.” The USA claimed its use of force against the Reshadat oil installation(s) was selfdefence for respectively, the missile attacks on a Kuwaiti vessel called the Sea Isle City,that had been re-flagged as a US flag State vessel.

The Use of Force











PIL

25/03/2017

Held: In order to establish that it was legally justified in attacking the Iranian platforms in exercise of the right of individual self-defence, the United States has to show that attacks had been made upon it for which Iran was responsible; and that those attacks were of such a nature as to be qualified as “armed attacks” within the meaning of that expression in Article 51 of the United Nations Charter, and as understood in customary law on the use of force. The United States must also show that its actions were necessary and proportional to the armed attack made on it, and that the platforms were a legitimate military target open to attack in the exercise of self-defence. Having examined with great care the evidence and arguments presented on each side, the Court finds that the evidence indicative of Iranian responsibility for the attack on the Sea Isle City, is not sufficient to support the contentions of the United States. The conclusion to which the Court has come on this aspect of the case is thus that the burden of proof of the existence of an armed attack by Iran on the United States, in the form of the missile attack on the Sea Isle City, has not been discharged. Further Held: In relation to the US attack on the Salman & Nasr oil installations, as in the case of the alleged Iranian attack on the Sea Isle City, the first question is whether the United States has discharged the burden of proof that the USS Samuel B. Roberts was the victim of a mine laid by Iran. In relation to the attack on the Reshadat oil installation, as in the case of the attack on the Sea Isle City, the first question is whether the United States has discharged the burden of proof that the USS Samuel B. Roberts was the victim of a mine laid by Iran. The Court notes that mines were being laid at the time by both belligerents in the Iran-Iraq war, so that evidence of other minelaying operations by Iran is not conclusive as to responsibility of Iran for this particular mine. The main evidence that the mine struck by the USS Samuel B. Roberts was laid by Iran was the discovery of moored mines in the same area, bearing serial numbers matching other Iranian mines, in particular those found aboard the vessel Iran Ajr. This evidence is highly suggestive, but not conclusive. Furthermore, no attacks on United States-flagged vessels (as distinct from United States-owned vessels), additional to those cited as justification for the earlier attacks on the Reshadat platforms, have been brought to the Court’s attention, other than the mining of the USS Samuel B. Roberts itself.

Does the right of self-defence extend to self-defence against groups or organisations (i.e. non-state entities)? 



The Nicaragua Case: o Majority: See Case Summary. o Dissenting Opinion of Judge Jennings: Conditions for SD are too restrictive. The line between assistance that gives rise to legitimate use of force in SD, and non-legitimate force, is vague. Construction of a Wall case, 85 ICJ Rep. 2004: o Article 51 is to be strictly interpreted. o But may extend to a non-state entity from another state. o Self-defence under Article 51 was inapplicable here.

The Use of Force

o

PIL

25/03/2017

It was really a matter of IHL – See Article 45 Hague Regs 1907.1

Terrorism and the use of force:  

Democratic Republic of the Congo v Uganda, ICJ Rep. 2005. 9/11 and the Security Council Resolution 1368 (2001); Also Resolution 1373 (2001); and 1701 (2006)

Chatham House Principles on International law on the Use of Force and SD: 

Right to SD against non-state actors will probably exist where: o Large scale attack o The related state is unable/unwilling to deal with the non-state actors o Necessary to use force where consent of state cannot be obtained o Can only be sued to the extend necessary to avert or end the attack.

1 Article 45: It is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile Power...