CHAPTER 14CHAPTER 14

LEGAL REGULATION OF LEGAL REGULATION OF THE USE OF FORCETHE USE OF FORCE

PROFESSOR PROFESSOR

DR. ABDUL GHAFUR HAMIDDR. ABDUL GHAFUR HAMID

Classification of lawClassification of law [p. 487][p. 487]

The Law before 1945The Law before 1945[pp. 488-90][pp. 488-90]

The just war doctrineThe just war doctrine Positivism and sovereign right of states to Positivism and sovereign right of states to

resort to warresort to war Attempts at prohibiting war before 1945Attempts at prohibiting war before 1945

(i) Covenant of the League of Nations(i) Covenant of the League of Nations

(ii) General Treaty for the Renunciation of(ii) General Treaty for the Renunciation of

War (Pact of Paris) Kellogg-Briand War (Pact of Paris) Kellogg-Briand

Pact) , 1928Pact) , 1928

7.1 7.1 THE LAW AFTER 1945: THE LAW AFTER 1945: PROHIBITION OF THE USE PROHIBITION OF THE USE OF FORCEOF FORCE [Textbook, p. 432] [Textbook, p. 432]Article 2Article 2

4. All members shall refrain 4. All members shall refrain in their in their international relationsinternational relations from the from the threat or use of forcethreat or use of force against the against the territorial integrity and political territorial integrity and political independence of any state, or in any independence of any state, or in any other manner inconsistent with the other manner inconsistent with the Purposes of the United Nations.Purposes of the United Nations.

Basic rule: threat or use of force is Basic rule: threat or use of force is prohibited prohibited [p. 491][p. 491]

Meaning of forceMeaning of force: Force means ‘armed : Force means ‘armed force’, not other means of economic or force’, not other means of economic or political pressure. political pressure.

Nicaragua Nicaragua case – Indirect use of force is case – Indirect use of force is also prohibited.also prohibited.

Threat of forceThreat of force: Not only use but also : Not only use but also threat of force is prohibited. ‘Threat of threat of force is prohibited. ‘Threat of force’ means an ultimatum announcing force’ means an ultimatum announcing recourse to military measures it certain recourse to military measures it certain demands are not accepted.demands are not accepted.

Views on Interpretation of Views on Interpretation of Article 2 (4)Article 2 (4) [Textbook. p. 493] [Textbook. p. 493]

There are two different views on There are two different views on the interpretation of Article 2(4) of the interpretation of Article 2(4) of the Charter: the Charter:

(1) The (1) The permissive view;permissive view; and and

(2) The (2) The restrictive viewrestrictive view. .

Permissive viewPermissive view [Textbook, p. 493][Textbook, p. 493]

According to this view, Article 2(4) does According to this view, Article 2(4) does not not lay down a total ban on the use of forcelay down a total ban on the use of force and and States are still permitted to use force in States are still permitted to use force in quite a number of situations, for example:quite a number of situations, for example:

(1) Use of force in anticipation of a future (1) Use of force in anticipation of a future attack;attack;

(2) Use of force to rescue nationals abroad (2) Use of force to rescue nationals abroad [See, Entebbe incident];[See, Entebbe incident];

(3) Humanitarian intervention;(3) Humanitarian intervention;(4) Regime change (intervention for (4) Regime change (intervention for

democracy).democracy).

Restrictive viewRestrictive view[Textbook, p. 494][Textbook, p. 494]

According to this view, the Charter According to this view, the Charter brought about a radical alteration in brought about a radical alteration in States’ right to use force.States’ right to use force.

Article 2(4) lays down Article 2(4) lays down a total ban on the a total ban on the use of forceuse of force save only where explicit save only where explicit exceptions are made in the Charter itself.exceptions are made in the Charter itself.

The Charter allows only two exceptions to The Charter allows only two exceptions to the principle of non-use of force, namely:the principle of non-use of force, namely:

(1) (1) Self-defenceSelf-defence under Article 51; and under Article 51; and (2) (2) Enforcement actionEnforcement action under Chapter VII under Chapter VII

of the Charter.of the Charter.

Restrictive view is the established Restrictive view is the established law.law.

[Textbook, pp. 494-95][Textbook, pp. 494-95]

AAn analysis of authorities reveals that the n analysis of authorities reveals that the overwhelming majority of juristsoverwhelming majority of jurists accept the accept the restrictive view that Article 2(4) of the Charter restrictive view that Article 2(4) of the Charter contains a total prohibition of the use of force.contains a total prohibition of the use of force.

The The State practiceState practice also favours this view. Out of also favours this view. Out of the 192 UN Members, only two States (US and the 192 UN Members, only two States (US and Israel) rely on the permissive interpretation.Israel) rely on the permissive interpretation.

Therefore, the correct interpretation of Article Therefore, the correct interpretation of Article 2(4) is that 2(4) is that any use of force by a State for any use of force by a State for whatever reason is banned unless explicitly whatever reason is banned unless explicitly allowed by the Charter of the United Nationsallowed by the Charter of the United Nations..

Military and Paramilitary Activities in and Military and Paramilitary Activities in and

against Nicaraguaagainst Nicaragua (Nicaragua v the US) (Nicaragua v the US) [Cases [Cases @ Materials pp. 199-204]@ Materials pp. 199-204]

Nicaragua alleged that the United States was Nicaragua alleged that the United States was responsible under international law for certain responsible under international law for certain military operations in Nicaraguan territory.military operations in Nicaraguan territory.

It claimed that the United States had (i) used It claimed that the United States had (i) used direct armed force against it by laying mines direct armed force against it by laying mines in Nicaraguan waters, and attacking and in Nicaraguan waters, and attacking and damaging Nicaraguan ports and oil damaging Nicaraguan ports and oil installations, and (ii) given assistance (by installations, and (ii) given assistance (by means of training, arming, financing, and means of training, arming, financing, and supporting) to the supporting) to the contrascontras, Nicaraguan , Nicaraguan guerrillas fighting to overthrow the guerrillas fighting to overthrow the Nicaraguan Government.Nicaraguan Government.

Nicaragua caseNicaragua case [Cont.][Cont.]

The US argued that it activities against The US argued that it activities against Nicaragua was justified because it was acted in Nicaragua was justified because it was acted in the exercise of the exercise of collective self-defencecollective self-defence in in response to Nicaragua’s support of arms to response to Nicaragua’s support of arms to rebels in El Salvador, a friendly country.rebels in El Salvador, a friendly country.

As regards the issue of ‘As regards the issue of ‘multilateral treaty multilateral treaty reservationreservation’ contained in the US declaration ’ contained in the US declaration accepting compulsory jurisdiction, while accepting compulsory jurisdiction, while admitting that it could not apply Art. 2(4) of the admitting that it could not apply Art. 2(4) of the Charter against the US, the Court held that it Charter against the US, the Court held that it could apply rules of customary international law could apply rules of customary international law on the non use of force and non-intervention.on the non use of force and non-intervention.

Nicaragua caseNicaragua case [Cont.][Cont.]

Nicaragua case is quite significant Nicaragua case is quite significant because in this case the World Court because in this case the World Court thoroughly examined and ruled on thoroughly examined and ruled on three important principles of three important principles of international law, namely:international law, namely:

(1) Principle of non use of force; (1) Principle of non use of force;

(2) principle of non-intervention; and(2) principle of non-intervention; and

(3) Collective self-defence.(3) Collective self-defence.

Nicaragua caseNicaragua case [Cont.][Cont.] (On use of force)(On use of force)

According to the facts of Nicaragua case, According to the facts of Nicaragua case, while the while the arming and training of the arming and training of the contrascontras can certainly be said to involve the threat can certainly be said to involve the threat or or use of force against Nicaraguause of force against Nicaragua, this is not , this is not necessarily so in respect of all the necessarily so in respect of all the assistance given by the US Government. assistance given by the US Government.

The Court considers that the The Court considers that the mere supply of mere supply of fundsfunds to the to the contrascontras, while undoubtedly , while undoubtedly an an act of interventionact of intervention in the internal affairs of in the internal affairs of Nicaragua, does Nicaragua, does not in itself amount to a not in itself amount to a use of forceuse of force..

Nicaragua caseNicaragua case [Cont.][Cont.] (On intervention)(On intervention)

The principle of non-intervention is part The principle of non-intervention is part and parcel of customary international law. and parcel of customary international law.

The principle The principle forbids all States or group of forbids all States or group of States to intervene directly or indirectly in States to intervene directly or indirectly in internal or external affairs of other Statesinternal or external affairs of other States. .

By virtue of the ‘By virtue of the ‘doctrine of sovereigntydoctrine of sovereignty’, a ’, a State is free to choose any political, State is free to choose any political, economic, social and cultural system, or to economic, social and cultural system, or to formulate whatever foreign policy, it likes. formulate whatever foreign policy, it likes.

Nicaragua caseNicaragua case [Cont.][Cont.] (On intervention) (On intervention)

Intervention is wrongful when it uses Intervention is wrongful when it uses methods of methods of coercioncoercion in regard to such in regard to such choices, which must remain free ones. choices, which must remain free ones.

The element of coercion, is particularly The element of coercion, is particularly obvious in the case of obvious in the case of an intervention an intervention which uses forcewhich uses force, either in the , either in the direct formdirect form of military action, or in the of military action, or in the indirect formindirect form of of support for subversive or terrorist armed support for subversive or terrorist armed activities within another State.activities within another State.

Nicaragua caseNicaragua case [Cont.][Cont.] (On Collective self-defence)(On Collective self-defence)

The rule prohibiting force allows for certain The rule prohibiting force allows for certain exceptions, the right of self-defence being one exceptions, the right of self-defence being one among them.among them.

Whether it is an Whether it is an individualindividual or or collective self-collective self-defencedefence, three essential criteria must be , three essential criteria must be satisfied:satisfied:

(1) (1) An armed attackAn armed attack by another State (the by another State (the StateState

concerned , having been the victim of an concerned , having been the victim of an armed attack);armed attack); (2) (2) NecessityNecessity of self-defence; and of self-defence; and (3) (3) ProportionalityProportionality..

Nicaragua caseNicaragua case [Cont.][Cont.] (On Collective self-defence) (On Collective self-defence)

The Court finds that in customary The Court finds that in customary international law, there is no rule permitting international law, there is no rule permitting the exercise of collective self-defence in the the exercise of collective self-defence in the absence of a “absence of a “requestrequest” by the State which ” by the State which regards itself as the victim of an armed regards itself as the victim of an armed attack. attack.

Therefore, in the case of a collective self-Therefore, in the case of a collective self-defence, the ‘defence, the ‘request by the victim of armed request by the victim of armed attackattack’ to come to its assistance is an extra ’ to come to its assistance is an extra requirement.requirement.

Nicaragua caseNicaragua case [Cont.][Cont.] (Judgment of the Court)(Judgment of the Court)

The world Court announced its The world Court announced its judgment in favour of Nicaragua. judgment in favour of Nicaragua.

Held that the United States was Held that the United States was under an obligation to make under an obligation to make reparation to Nicaragua for all injury reparation to Nicaragua for all injury caused to Nicaragua by the caused to Nicaragua by the breaches of obligations under breaches of obligations under international law.international law.

3. 3. RIGHT OF SELF-DEFENCE RIGHT OF SELF-DEFENCE OF STATESOF STATES

Article 51Article 51 Nothing in the present Charter shall Nothing in the present Charter shall

impair the inherent right of individual and impair the inherent right of individual and collective self-defence collective self-defence if an armed attack if an armed attack occursoccurs against a Member of the United against a Member of the United Nations, until the Security Council has Nations, until the Security Council has taken measures necessary to maintain taken measures necessary to maintain international peace and security. Measures international peace and security. Measures taken by Members in the exercise of this taken by Members in the exercise of this right of self-defence shall be immediately right of self-defence shall be immediately reported to the Security Council….reported to the Security Council….

3.1 3.1 Self-Defence as a Response to an Self-Defence as a Response to an Armed AttackArmed Attack [Textbook, p. 497][Textbook, p. 497]

Article 51 prescribes that “nothing in the Article 51 prescribes that “nothing in the present Charter shall impair the inherent present Charter shall impair the inherent right of individual and collective self-right of individual and collective self-defence defence if an armed attack occursif an armed attack occurs…”. …”.

The meaning is clear and unambiguous. The meaning is clear and unambiguous. The right of self-defence is restricted to a The right of self-defence is restricted to a case where there is case where there is an actual armed an actual armed attack against the Stateattack against the State. .

But here again there are two differing But here again there are two differing views: permissive and restrictive.views: permissive and restrictive.

Permissive schoolPermissive school[Textbook, p. 497][Textbook, p. 497]

The ‘The ‘permissive schoolpermissive school’ maintains that ’ maintains that Article 51 does not restrict the right of self-Article 51 does not restrict the right of self-defence to cases of armed attack only and defence to cases of armed attack only and that States have wider rights of self-defence that States have wider rights of self-defence permitted by customary international law. permitted by customary international law.

BowettBowett, for example, argues that:, for example, argues that: “ “The The travaux pr`eparatoirestravaux pr`eparatoires suggests that suggests that

the Article should safeguard the right of self-the Article should safeguard the right of self-defence, not restrict it. …The right implicitly defence, not restrict it. …The right implicitly excepted was not confined to reaction to excepted was not confined to reaction to ‘armed attack’ but permitted of certain ‘armed attack’ but permitted of certain substantive rights.”substantive rights.”

Restrictive schoolRestrictive school[Textbook, pp. 217-218][Textbook, pp. 217-218]

The ‘The ‘restrictive schoolrestrictive school’ maintains that ’ maintains that Article 51 restricts the right of self-defence Article 51 restricts the right of self-defence to cases of armed attack only. to cases of armed attack only.

Philip C. JessupPhilip C. Jessup writes: writes: “ “Article 51 of the Charter suggests a Article 51 of the Charter suggests a

further limitation on the right of self-further limitation on the right of self-defence: it may be exercised defence: it may be exercised only ‘if an only ‘if an armed attack occurs’armed attack occurs’. This restriction in . This restriction in Article 51 very definitely narrows the Article 51 very definitely narrows the freedom of action which States had under freedom of action which States had under traditional international law.”traditional international law.”

Restrictive view is the established Restrictive view is the established law.law.

A treaty is as a general rule to be interpreted A treaty is as a general rule to be interpreted in accordance with the in accordance with the ordinary meaning to ordinary meaning to be given to the terms of the treaty in their be given to the terms of the treaty in their contextcontext (Art. 31). (Art. 31).

In Article 51, the expression ‘if an armed In Article 51, the expression ‘if an armed attack occurs’ is very clear and unambiguous. attack occurs’ is very clear and unambiguous. The textual interpretation, therefore, shall The textual interpretation, therefore, shall prevail and prevail and travaux preparatoriestravaux preparatories has no has no relevance here.relevance here.

It is in conformity with the main purpose of It is in conformity with the main purpose of the UN: non use of force: Article 2(4). the UN: non use of force: Article 2(4).

Restrictive view is the established Restrictive view is the established law.law.

[Cont.][Cont.]

It is also accepted by the overwhelming It is also accepted by the overwhelming majority of jurists and supported by state majority of jurists and supported by state practice.practice.

In the In the Nicaragua caseNicaragua case, , the World Court ruled the World Court ruled that that

“ “In the case of individual self-defence, the In the case of individual self-defence, the exercise of this right is exercise of this right is subject to the State subject to the State concernedconcerned having been the victim of an having been the victim of an armed attackarmed attack. Reliance on collective self-. Reliance on collective self-defence of course does not remove the need defence of course does not remove the need of this.”of this.”

The ruling of the World Court on the meaning of The ruling of the World Court on the meaning of ‘armed attack’ [‘armed attack’ [NicaraguaNicaragua case] case]

““An armed attack must be understood as An armed attack must be understood as including not merely action by including not merely action by regular regular armed forces across an international armed forces across an international borderborder, but also ‘, but also ‘the sending by or on the sending by or on behalf of a State of armed bands, groups, behalf of a State of armed bands, groups, irregulars or mercenariesirregulars or mercenaries, which carry out , which carry out acts of armed forces against another State acts of armed forces against another State of such gravityof such gravity as to amount to ( as to amount to (inter aliainter alia) ) an actual armed attack conducted by an actual armed attack conducted by regular forces, or its substantial regular forces, or its substantial involvement therein… involvement therein…

The ruling of the World Court on the The ruling of the World Court on the meaning of ‘armed attack’ [meaning of ‘armed attack’ [NicaraguaNicaragua case] case]

Cont.Cont. But the Court But the Court does not believedoes not believe that the that the

concept of armed attack includes not only concept of armed attack includes not only acts by armed bands where such acts acts by armed bands where such acts occur on a significant scale but also occur on a significant scale but also assistance to rebels in theassistance to rebels in the form of form of provisions of weapons or logistical or other provisions of weapons or logistical or other supportsupport. Such assistance may be regarded . Such assistance may be regarded as a threat or use of force, or amount to as a threat or use of force, or amount to intervention in the internal or external intervention in the internal or external affairs of other States.”affairs of other States.”

3.23.2 Legality of anticipatory Legality of anticipatory self-defenceself-defence [Textbook, p. 502] [Textbook, p. 502]

The most debatable and controversial The most debatable and controversial attempt to widen the exceptional right of attempt to widen the exceptional right of self-defence is the argument that States self-defence is the argument that States have the right of anticipatory self-defence have the right of anticipatory self-defence whenever an attack is expected. whenever an attack is expected.

This idea seems to be based on ‘This idea seems to be based on ‘military military necessitynecessity’, according to which ‘the best ’, according to which ‘the best defence is to attack first. defence is to attack first.

Bowett Bowett advocates anticipatory self-advocates anticipatory self-defence: “No State can be expected to defence: “No State can be expected to await an initial attack which, in the present await an initial attack which, in the present state of armaments, maystate of armaments, may

well destroy the State’s capacity for further well destroy the State’s capacity for further resistance and so jeopardize its very existenceresistance and so jeopardize its very existence.”.”

McDougalMcDougal argues that States faced with a argues that States faced with a perceived danger of immediate attack cannot be perceived danger of immediate attack cannot be expected to await the attack ‘expected to await the attack ‘like sitting ducklike sitting duck’.’.

There are two major arguments held by them:There are two major arguments held by them: (1) Anticipatory self-defence is allowed by (1) Anticipatory self-defence is allowed by

customary international law; customary international law; (2) Nuclear weapons and modern sophisticated (2) Nuclear weapons and modern sophisticated

devices makes it inadvisable to wait for the devices makes it inadvisable to wait for the attack.attack.

(2) (2) Does customary international lawDoes customary international law allow anticipatory self-defenceallow anticipatory self-defence??

Many Western writers are of the view Many Western writers are of the view that the that the Caroline caseCaroline case is a classic is a classic precedent of anticipatory self-precedent of anticipatory self-defence and a rule of customary defence and a rule of customary international law has been formed international law has been formed through subsequent State practice. through subsequent State practice.

The Caroline CaseThe Caroline Case 30 30 B.F.S.P.B.F.S.P. 195-196 195-196

The case arose out of the Canadian rebellion The case arose out of the Canadian rebellion of 1837. The Caroline was an American ship of 1837. The Caroline was an American ship that had been used by Canadian rebels to that had been used by Canadian rebels to harass the British authorities in Canada. harass the British authorities in Canada.

While it was moored in an American port, a While it was moored in an American port, a British force from Canada entered upon British force from Canada entered upon United States territory, seized the Caroline, United States territory, seized the Caroline, fired her and sent her over Niagara Falls. fired her and sent her over Niagara Falls.

The legality of the attack was discussed in The legality of the attack was discussed in detail in correspondence between Great detail in correspondence between Great Britain and the United States.Britain and the United States.

The Caroline Case The Caroline Case [Cont.] [Cont.]

Letter from Letter from Mr. Webster Mr. Webster ((the the American Secretary of State)American Secretary of State) to Mr. Fox to Mr. Fox (British Minister at Washington)(British Minister at Washington) [April 24, [April 24, 1841]1841]

““It will be for …[Her Majesty’s] It will be for …[Her Majesty’s] Government to show a Government to show a necessity of necessity of self-defence, instant, overwhelming, self-defence, instant, overwhelming, leaving no choice of means, and no leaving no choice of means, and no moment for deliberationmoment for deliberation.”.”

The Caroline Case The Caroline Case [Cont.] [Cont.]

The permissive school regards the The permissive school regards the Caroline caseCaroline case as the classic as the classic formulation of customary formulation of customary international law on self-defence. international law on self-defence.

In fact the In fact the Caroline caseCaroline case is just an is just an instance of instance of practice of two countriespractice of two countries. . To be a customary law, it needs the To be a customary law, it needs the support of subsequent consistent support of subsequent consistent State practice. State practice.

Fear of Fear of creating a dangerous precedentcreating a dangerous precedent is is probably the reason why States seldom probably the reason why States seldom invoke anticipatory self-defence in practice.invoke anticipatory self-defence in practice.

Out of the 192 UN Members, only Israel and Out of the 192 UN Members, only Israel and the US invoked it.the US invoked it.

Israel invoked anticipatory self-defence in Israel invoked anticipatory self-defence in ““Israeli destruction of Iraqi nuclear reactor Israeli destruction of Iraqi nuclear reactor incidentincident” in 1981. But the SC strongly ” in 1981. But the SC strongly condemned it and declared it as a violation condemned it and declared it as a violation of international norms.”of international norms.”

The US initially invoked it (or in particular The US initially invoked it (or in particular preemptive self-defence) in the “preemptive self-defence) in the “US invasion US invasion of Iraq (2003)of Iraq (2003)” but received widespread ” but received widespread condemnation by the international community.condemnation by the international community.

The overwhelming practice of states after the The overwhelming practice of states after the emergence of the United Nations never emergence of the United Nations never accepts the right of anticipatory self-defence. accepts the right of anticipatory self-defence.

Therefore, anticipatory self-defence, as Therefore, anticipatory self-defence, as formulated in the formulated in the Caroline caseCaroline case, is not , is not supported by subsequent State practice and supported by subsequent State practice and cannot be said as forming part of the cannot be said as forming part of the customary law of the time.customary law of the time.

Nuclear weapons and Nuclear weapons and anticipatory self-defenceanticipatory self-defence

Most writers and Governments agree Most writers and Governments agree that it would be that it would be too dangerous for too dangerous for the world community to allow the world community to allow anticipatory self-defenceanticipatory self-defence simply simply because there were nuclear weapons because there were nuclear weapons with modern sophisticated devices. with modern sophisticated devices.

Intercontinental Ballistic MissilesIntercontinental Ballistic Missiles (ICBMs) (ICBMs) can be destroyed by an effective can be destroyed by an effective Anti-Anti-Ballistic MissileBallistic Missile (ABM) system. (ABM) system.

An ICBM normally takes 25 to 30 minutes An ICBM normally takes 25 to 30 minutes to hit the target. Different forms of to hit the target. Different forms of interception can be used at different interception can be used at different stages of the flight of the ICBM.stages of the flight of the ICBM.

The above facts and figures clearly indicate The above facts and figures clearly indicate the the feasibility of defensive measures even feasibility of defensive measures even after a nuclear missile has been launchedafter a nuclear missile has been launched. .

In practice, however, the main nuclear In practice, however, the main nuclear policy of the nuclear power States is the policy of the nuclear power States is the doctrine of ‘doctrine of ‘nuclear deterrencenuclear deterrence’. They ’. They primarily rely on the primarily rely on the second strike second strike capabilitycapability. .

In this way, both sides are able to inflict In this way, both sides are able to inflict ‘‘mutuallymutually assured destructionassured destruction’ (’ (MADMAD) on ) on each other whichever side attacks firsteach other whichever side attacks first..

Therefore, the claim that the nuclear Therefore, the claim that the nuclear weapons have made the anticipatory self-weapons have made the anticipatory self-defence a necessity is obviously unfounded.defence a necessity is obviously unfounded.

Individual Self-DefenceIndividual Self-Defence

It is generally accepted under It is generally accepted under customary international law that the customary international law that the right of self-defence is subject to right of self-defence is subject to limitations of ‘necessity’ and limitations of ‘necessity’ and ‘proportionality’.‘proportionality’.

This is reaffirmed in the Judgment of This is reaffirmed in the Judgment of the ICJ in the ‘the ICJ in the ‘NicaraguNicaragua case’.a case’.

NecessityNecessity

A State can use force in self-defence ‘only if an A State can use force in self-defence ‘only if an armed attack occurs’ against that State. Therefore, armed attack occurs’ against that State. Therefore, the requirement of ‘necessity’ appears to be the requirement of ‘necessity’ appears to be mainly the mainly the requirement for ascertaining whether requirement for ascertaining whether there is an actual armed attack against a Statethere is an actual armed attack against a State. .

The State attacked The State attacked must not have had any means must not have had any means of halting the attack other than recourse to armed of halting the attack other than recourse to armed forceforce. (No other choice). (No other choice)

If it had been able to achieve the same result by If it had been able to achieve the same result by measures not involving the use of armed force, it measures not involving the use of armed force, it would have no justification for using armed force in would have no justification for using armed force in self-defence.self-defence.

ProportionalityProportionality

It is the It is the general principle of law general principle of law that the that the defensive action must be commensurate with defensive action must be commensurate with and in proportion to and in proportion to the armed attack the armed attack which which gave rise to the exercise of the right of self-gave rise to the exercise of the right of self-defence.defence.

Regarding the principle of proportionality, the Regarding the principle of proportionality, the ICJ in the ‘ICJ in the ‘NicaraguaNicaragua case case’ stated that “the ’ stated that “the Court cannot regard the US activities … those Court cannot regard the US activities … those relating to the mining of the Nicaraguan ports relating to the mining of the Nicaraguan ports and the attacks on ports, oil installations, etc. and the attacks on ports, oil installations, etc. as satisfying that criterionas satisfying that criterion..

Cessation of self-defence; when the Cessation of self-defence; when the Objectives of Self-Defence have been Objectives of Self-Defence have been

metmet The objectives of self-defence are threefold: The objectives of self-defence are threefold:

(I) fending off current, persistent attacks; (I) fending off current, persistent attacks;

(ii) fending off and protection from further (ii) fending off and protection from further attacks which constitute an integral part of attacks which constitute an integral part of the continuum of hostilities; and the continuum of hostilities; and

(iii) the restoration of the territorial (iii) the restoration of the territorial statusstatus quo ante bellum.quo ante bellum.

Once the above objectives have been Once the above objectives have been achieved, there is a duty to end defensive achieved, there is a duty to end defensive measures.measures.

The Role of the Security CouncilThe Role of the Security Council

Article 51 provides a vital role for the Security Article 51 provides a vital role for the Security Council in respect of the exercise of self-defence. Council in respect of the exercise of self-defence.

There are two principal aspects of the role of the There are two principal aspects of the role of the SC: SC:

(1) Measures taken in self-defence shall be (1) Measures taken in self-defence shall be immediately reported to the Security Council immediately reported to the Security Council ((Reporting dutyReporting duty); and ); and

(2) The right of self-defence can be exercised until (2) The right of self-defence can be exercised until the Security Council has taken measures the Security Council has taken measures necessary to maintain international peace and necessary to maintain international peace and security (security (only a temporary measureonly a temporary measure).).

RIGHT OF SELF-DETERMINATION RIGHT OF SELF-DETERMINATION [p. [p. 520] Definition [p. 521]520] Definition [p. 521]

The principle of self-determination refers The principle of self-determination refers to the to the right of a people living in a territory right of a people living in a territory to determine the political and legal status to determine the political and legal status of that territoryof that territory – for example, by – for example, by setting setting up a State of their ownup a State of their own or by or by choosing to choosing to become part of another Statebecome part of another State..

One of the difficulties with the right of self-One of the difficulties with the right of self-determination is lack of an authoritative determination is lack of an authoritative definition of the term ‘people’. definition of the term ‘people’.

Definition of ‘people’ (UNESCO)Definition of ‘people’ (UNESCO)

A people for the [purpose of the]…the A people for the [purpose of the]…the right to self-determination, has the right to self-determination, has the following characteristics:following characteristics:

(a)    A group of individual human beings (a)    A group of individual human beings who enjoy some or all of the following who enjoy some or all of the following common features:common features:

- A common historical tradition;- A common historical tradition; - Racial or ethnic identity;- Racial or ethnic identity; - Cultural homogeneity;- Cultural homogeneity; - Linguistic unity;- Linguistic unity;

- Religious or ideological affinity;- Religious or ideological affinity; - Territorial connection;- Territorial connection; - Common economic life;- Common economic life; (b)   (b)   The group as a whole must have the The group as a whole must have the

willwill to be identified as a people or the to be identified as a people or the consciousness of being a people…consciousness of being a people…

(c) Possibly the group must (c) Possibly the group must have have institutions or other means of expressing institutions or other means of expressing its common characteristicsits common characteristics and will for and will for identity.identity.

Common Article 1, Common Article 1, International Covenants on International Covenants on Human Rights of 1966Human Rights of 1966::

“ “All peoples have the right of self-determination. All peoples have the right of self-determination. By virtue of that right they freely determine their By virtue of that right they freely determine their political status and freely pursue their economic, political status and freely pursue their economic, social and cultural development”social and cultural development”

General Assembly Declaration on Principles of General Assembly Declaration on Principles of International Law, 1970International Law, 1970 : :

““All peoples have the right freely to determine, All peoples have the right freely to determine, without external interference, their political without external interference, their political status and to pursue their economic, social and status and to pursue their economic, social and cultural development and every State has the cultural development and every State has the duty toduty to

respect this right in accordance with the respect this right in accordance with the provisions of the Charter….provisions of the Charter….

Every State has the duty to refrain from any Every State has the duty to refrain from any forcible action which deprives peoples of forcible action which deprives peoples of their right to self-determination and freedom their right to self-determination and freedom and independence. In their actions against and independence. In their actions against and resistance to such forcible action in and resistance to such forcible action in pursuit of the exercise of their right of self-pursuit of the exercise of their right of self-determination, such peoples are entitled to determination, such peoples are entitled to seek and to receive support in accordance seek and to receive support in accordance with the purposes and principles of the with the purposes and principles of the Charter of the United Nations.Charter of the United Nations.

Although the Declaration does not Although the Declaration does not include any express indications as to include any express indications as to whether force can be used in the whether force can be used in the exercise of the right of self-exercise of the right of self-determination, it can clearly be implied. determination, it can clearly be implied.

Self-determination is recognized by Self-determination is recognized by State practice as a basic principle of State practice as a basic principle of international law, to which even the international law, to which even the status of status of jus cogensjus cogens is attributed. is attributed.

East Timor case East Timor case (Portugal v Australia(Portugal v Australia))(1995) IC J Rep. 95(1995) IC J Rep. 95 [p. 522-23] [p. 522-23]

The ICJ acknowledged the The ICJ acknowledged the erga erga omnesomnes character of self- character of self-determination.determination.

Wars of national liberationWars of national liberation

If the people of a particular territory are If the people of a particular territory are regarded by international law as regarded by international law as possessing a legal right of self-possessing a legal right of self-determination but the State determination but the State administering that territory refuses to administering that territory refuses to let them exercise that right, they may let them exercise that right, they may need to fight a war of national need to fight a war of national liberation in order to achieve self-liberation in order to achieve self-determination in practice. There is no determination in practice. There is no rule in international law against rule in international law against rebellion.rebellion.

The prevailing view is that (use of The prevailing view is that (use of force in the exercise of) self-force in the exercise of) self-determination is basically limited to determination is basically limited to the colonial context, that is to say, to the colonial context, that is to say, to the relationship between colonies in the relationship between colonies in Africa, Asia and Latin America Africa, Asia and Latin America vis-à-vis-à-visvis the colonial powers. Whether it the colonial powers. Whether it applies to cases beyond the colonial applies to cases beyond the colonial context is uncertain.context is uncertain.

Right of secessionRight of secession

The effect of linking self-determination to The effect of linking self-determination to decolonization seems to deny a general decolonization seems to deny a general right to secession of groups within a State. right to secession of groups within a State. However, while international law does not However, while international law does not acknowledge a general right to secession, acknowledge a general right to secession, it is also generally agreed that it does not it is also generally agreed that it does not prohibit secession. International law is prohibit secession. International law is neutral in this respect, and, in other words, neutral in this respect, and, in other words, follows reality and the principle of follows reality and the principle of effectiveness.effectiveness.

4.4. INTERNATIONALINTERNATIONALHUMANITARIAN LAWHUMANITARIAN LAW

We now turn to We now turn to Jus in Jus in bello, or rules bello, or rules governing the actual conduct of armed governing the actual conduct of armed conflict, or the “laws of war’. conflict, or the “laws of war’.

The ‘laws of war’ consists of the limits set The ‘laws of war’ consists of the limits set by international law within which the force by international law within which the force required to overpower the enemy may be required to overpower the enemy may be used, and the principles thereunder used, and the principles thereunder governing the treatment of individuals in governing the treatment of individuals in the course of war.the course of war.

In the absence of such rules, the barbarism In the absence of such rules, the barbarism and brutality of war would have known no and brutality of war would have known no bounds.bounds.

These laws and customs of war have arisen These laws and customs of war have arisen from the long-standing practices of from the long-standing practices of belligerents. belligerents.

The laws of war are based on The laws of war are based on respect for respect for humanityhumanity and their main objective is and their main objective is humane humane treatment of victims of war. treatment of victims of war.

That is why in modern time they have come That is why in modern time they have come to be known as ‘to be known as ‘International Humanitarian International Humanitarian LawLaw’.’.

International humanitarian law can be defined International humanitarian law can be defined as that branch of as that branch of law regulating the law regulating the protection of the victims of armed conflictprotection of the victims of armed conflict..

4.1 4.1 Sources of international Sources of international humanitarian lawhumanitarian law

The laws and customs of war (international The laws and customs of war (international humanitarian law) have arisen from long humanitarian law) have arisen from long standing practices of belligerents.standing practices of belligerents.

Since the nineteenth century, the majority of Since the nineteenth century, the majority of the rules have ceased to be customary and the rules have ceased to be customary and are to be found in treaties and conventions.are to be found in treaties and conventions.

A number of conventions on the laws of war A number of conventions on the laws of war were done at the Hague and many were were done at the Hague and many were adopted in Geneva. adopted in Geneva.

For the sake of convenience, these rules are For the sake of convenience, these rules are classified into: the classified into: the Hague lawHague law and the and the Geneva Geneva lawlaw..

The Hague lawThe Hague law: : The Hague Conventions of 1899 and The Hague Conventions of 1899 and

1907 on the Laws and Customs of War 1907 on the Laws and Customs of War (also known as Hague Regulations).(also known as Hague Regulations).

The Geneva lawThe Geneva law: : The Four Geneva Conventions of The Four Geneva Conventions of

1949, and the two Additional Protocols 1949, and the two Additional Protocols of 1977.of 1977.

Four Geneva Conventions, 1949Four Geneva Conventions, 1949

(1) Geneva Convention for the Amelioration of(1) Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in the Condition of the Wounded and Sick in

Armed Forces in the FieldArmed Forces in the Field; ; (2) Geneva Convention for the Amelioration of(2) Geneva Convention for the Amelioration of … … the Wounded, Sick and Shipwreckedthe Wounded, Sick and Shipwrecked Members of the Members of the Armed Forces at SeaArmed Forces at Sea;;(3) Geneva Convention Relative to the (3) Geneva Convention Relative to the

TreatmentTreatment of Prisoners of Warof Prisoners of War;;(4) (4) Geneva Convention relative to the Geneva Convention relative to the Protection Protection

of Civilian Personsof Civilian Persons in Time of War. in Time of War.

The Four GenevaThe Four Geneva Conventions of 1949Conventions of 1949Common Article 2Common Article 2

Application of the ConventionApplication of the Convention

……[T]he present Convention shall apply to [T]he present Convention shall apply to all cases of declared war or of any other all cases of declared war or of any other armed conflictarmed conflict which may arise which may arise between between two or more of the High Contracting two or more of the High Contracting PartiesParties, even if the state of war is not , even if the state of war is not recognized by one of them…. [and] all recognized by one of them…. [and] all cases of cases of partial or total occupation of the partial or total occupation of the territoryterritory of a High Contracting Party, even of a High Contracting Party, even if the said occupation meets with no if the said occupation meets with no resistance.resistance.

Common Article 3Common Article 3Conflicts not of an International CharacterConflicts not of an International Character

In the case of armed conflict not of an In the case of armed conflict not of an international character… each Party to the international character… each Party to the conflict shall be bound to apply, as a conflict shall be bound to apply, as a minimum, the following provisions:minimum, the following provisions:

(1)(1)Persons taking no active part in the Persons taking no active part in the hostilitieshostilities, including members of the , including members of the armed forces who have laid down their armed forces who have laid down their arms and those placed arms and those placed hors de combathors de combat by by sickness, wounds, detention, or any other sickness, wounds, detention, or any other cause, shall in all circumstances be cause, shall in all circumstances be treated humanely, …treated humanely, …

To this end, the following acts are To this end, the following acts are and shall remain prohibited at any and shall remain prohibited at any time and in any place whatsoever time and in any place whatsoever with respect to the above mentioned with respect to the above mentioned persons:persons:

(a) violence to life and person, in (a) violence to life and person, in particular murder of all kinds, particular murder of all kinds, mutilation, cruel treatment and mutilation, cruel treatment and torture;torture;

(b)  taking of hostage;…(b)  taking of hostage;…

The Two Additional Protocols of 1977The Two Additional Protocols of 1977

The Diplomatic Conference of 8 June 1977 The Diplomatic Conference of 8 June 1977 adopted the two Protocols additional to the adopted the two Protocols additional to the four Geneva Conventions of 1949. They are:four Geneva Conventions of 1949. They are:

(1)  Protocol Additional to the Geneva (1)  Protocol Additional to the Geneva Conventions of 12 August 1949, and Conventions of 12 August 1949, and relating to the Protection of relating to the Protection of Victims of Victims of International Armed ConflictsInternational Armed Conflicts [Protocol I]; [Protocol I];

(2) Protocol Additional to the Geneva (2) Protocol Additional to the Geneva Conventions of 12 August 1949, and Conventions of 12 August 1949, and relating to the Protection of relating to the Protection of Victims of Non-Victims of Non-International Armed ConflictsInternational Armed Conflicts [Protocol II]. [Protocol II].

4.2 4.2 Enforcement of Enforcement of international humanitarian lawinternational humanitarian law

(1) Enforcement by national courts;(1) Enforcement by national courts;

(2) Enforcement by international (2) Enforcement by international courts and tribunals.courts and tribunals.

Enforcement by national courtsEnforcement by national courts

The enforcement of international The enforcement of international humanitarian law rests humanitarian law rests primarily with primarily with national authoritiesnational authorities, who are under , who are under obligations to disseminate that law, obligations to disseminate that law, educate their armed forces in it, and to educate their armed forces in it, and to repress breaches through repress breaches through prosecution prosecution before national tribunalsbefore national tribunals….….

The Rome Statute establishing the ICC The Rome Statute establishing the ICC reaffirms the principle of reaffirms the principle of ‘‘complementaritycomplementarity’. [Art. 17].’. [Art. 17].

Enforcement by international courts Enforcement by international courts and tribunalsand tribunals

Nuremberg and Tokyo International Military Nuremberg and Tokyo International Military TribunalsTribunals, 1946, 1946

The famous The famous Nuremberg JudgmentNuremberg Judgment, which , which convicted major Nazi war criminals, laid convicted major Nazi war criminals, laid down the principle of ‘individual criminal down the principle of ‘individual criminal liability’:liability’:

““Crimes against international law are Crimes against international law are committed by men, not by abstract entities committed by men, not by abstract entities and only by punishing individuals who and only by punishing individuals who commit such crimes can the provisions of commit such crimes can the provisions of international law be enforces.”international law be enforces.”

Ad hocAd hoc International Criminal Tribunals: The International Criminal Tribunals: The ICTY and the ICTRICTY and the ICTR

Mass killings, the policy of ethnic cleansing, Mass killings, the policy of ethnic cleansing, organized torture and rape in the former organized torture and rape in the former Yugoslavia shocked the international Yugoslavia shocked the international community, and caused the SC to establish community, and caused the SC to establish the the International Criminal Tribunal for the International Criminal Tribunal for the Former YugoslaviaFormer Yugoslavia (ICTY) in 1993. (ICTY) in 1993.

To deal with the massacre and genocide in To deal with the massacre and genocide in Rwanda, the SC established the Rwanda, the SC established the International International Criminal Tribunal for RwandaCriminal Tribunal for Rwanda (ICTR) in 1994. (ICTR) in 1994.

Some writers cast doubts on whether the Some writers cast doubts on whether the Security Council has the power to establish Security Council has the power to establish judicial bodies.judicial bodies.

The International Criminal Court (ICC)The International Criminal Court (ICC)

The Statute of the International Criminal The Statute of the International Criminal Court was adopted in 1998 by the UN Court was adopted in 1998 by the UN Diplomatic Conference in Rome. Diplomatic Conference in Rome.

The Rome Statute entered into force on 1 July The Rome Statute entered into force on 1 July 2002. It creates the ICC.2002. It creates the ICC.

As of 29-09-2004, As of 29-09-2004, 139 States139 States are are Signatories Signatories and and 97 States97 States are are parties parties to the Rome to the Rome Statute.Statute.

Parties include the United Kingdom and Parties include the United Kingdom and France. Russian Federation has signed but France. Russian Federation has signed but not yet ratified the Statute. China has not yet not yet ratified the Statute. China has not yet signed it. signed it.

The US Signed the Statute on 31-12-2000 The US Signed the Statute on 31-12-2000 but later declared that it had no intention but later declared that it had no intention to become a party.to become a party.

The US actually is openly opposing the The US actually is openly opposing the establishment of the ICC.establishment of the ICC.

It has entered into Article 98(2) It has entered into Article 98(2) Agreements with a number of States in Agreements with a number of States in order to ensure that these States will not order to ensure that these States will not surrender any US national to the ICC.surrender any US national to the ICC.

Jurisdiction regarding subject matterJurisdiction regarding subject matter

The The jurisdictionjurisdiction of the Court is limited to of the Court is limited to the most serious crimes of concern to the the most serious crimes of concern to the international community as a whole. The international community as a whole. The Court has jurisdiction with respect to the Court has jurisdiction with respect to the following crimes:following crimes:

(a)  The crime of genocide;(a)  The crime of genocide;

(b) Crimes against humanity;(b) Crimes against humanity;

(c)  War Crimes; and(c)  War Crimes; and

(d) The crime of aggression.(d) The crime of aggression.

Preconditions to the exercise of JurisdictionPreconditions to the exercise of Jurisdiction

According to According to Article 12Article 12, in cases other than , in cases other than security Council referrals, the ICC can security Council referrals, the ICC can exercise jurisdiction only when:exercise jurisdiction only when:

(1) the State on the territory of which the (1) the State on the territory of which the crime was committed is a Party to the crime was committed is a Party to the Statute; orStatute; or

(2) the State of which the accused is a (2) the State of which the accused is a national is a Party to the Statute.national is a Party to the Statute.

[Court’s jurisdiction is based on territorial [Court’s jurisdiction is based on territorial and nationality principles.]and nationality principles.]

Referral of a situation to the CourtReferral of a situation to the Court

According to Article 13:According to Article 13: (1) A situation in which a crime has been (1) A situation in which a crime has been

committed may be referred to the committed may be referred to the Prosecutor by a Prosecutor by a State PartyState Party;;

(2) A situation in which a crime has been (2) A situation in which a crime has been committed may be referred to the committed may be referred to the Prosecutor by the Prosecutor by the Security CouncilSecurity Council; or; or

(3) The (3) The Prosecutor himselfProsecutor himself initiates an initiates an investigation and submit the situation to investigation and submit the situation to the Trial Chamber.the Trial Chamber.

Deferral of investigation or prosecutionDeferral of investigation or prosecution

Article 16Article 16:: No investigation or prosecution may be No investigation or prosecution may be

commenced or proceeded with for a commenced or proceeded with for a period of period of 12 months12 months after the Security after the Security Council, in a resolution adopted under Council, in a resolution adopted under Chapter VII of the CharterChapter VII of the Charter, has requested , has requested the Court to that effect; that request the Court to that effect; that request may may be renewedbe renewed by the Council under the same by the Council under the same conditions.conditions.

[It clearly indicates the important role of [It clearly indicates the important role of the Security Council.]the Security Council.]

Composition of the CourtComposition of the Court

The Court is composed of four organs, namely: The Court is composed of four organs, namely: (1) the Presidency; (1) the Presidency; (2) an Appeal Division, a Trial Division, and a (2) an Appeal Division, a Trial Division, and a

Pre-Pre- Trial Division; Trial Division; (3) the Office of the Prosecutor; and (3) the Office of the Prosecutor; and (4) the Registry.(4) the Registry.The seat of the Court is at the Hague, The seat of the Court is at the Hague,

Netherlands.Netherlands.The Court consists of 18 judges. The Judges are The Court consists of 18 judges. The Judges are

divided into three Divisions.divided into three Divisions.

Cooperation of States partiesCooperation of States parties

The success of the Court will entirely The success of the Court will entirely depend upon cooperation of States depend upon cooperation of States parties.parties.

State parties have to cooperate with the State parties have to cooperate with the Prosecutor to use national police powers Prosecutor to use national police powers and facilities to capture individuals, to and facilities to capture individuals, to surrender the accused criminals to the surrender the accused criminals to the Court, to imprison the convicted Court, to imprison the convicted criminals and to confiscate property.criminals and to confiscate property.