USE OF FORCE-LEGAL

DIMENSIONS

Use of Force Legal Dimensions

Nevil Zacharia Mathew1

Abstract
The laws and rules governing resort to force form an important theme within international
law, along with other principals such as territorial sovereignty and the independence and the
equality of states provide the framework for international order. The domestic systems have
wholly managed to prescribe a virtual monopoly on the use of force for the governmental
institutions in order to reinforce the hierarchical structure of authority and control. But in
international law it is a different situation, it must seek to minimise and regulate the use of
force by states, without itself being able to enforce its will. Although the role and
manifestation of force in the world community depends upon the political and other non-legal
factors, the law must seek to provide mechanisms to restrain and punish the resort to
violence.
Historical Development- Law and force from the just war to the United Nations2
The doctrine of the just war arose as a consequence of the Christianisation of the Roman
Empire and the ensuing abandonment by Christians of pacifism. St Augustine defined the just
war as avenging of injuries suffered where the guilty party has refused to make amends. In
the 13th century, Thomas Aquinas defined just war a stage further by declaring that it was the
subjective guilt of the wrongdoer that had to be punished. He opined that war could be
justified if it was waged by the sovereign authority, accompanied by a just cause and
supported by right intentions.
With the rise of European nation-states, this doctrine began to change. There came to exist a
new state of international affairs where serious attempts at a peaceful resolution of the dispute
were necessary before turning to force. Thus emphasis in legal doctrine moved from the
application of force to suppress the wrongdoers to concern to maintain the order by peaceful
means. But with the rise of positivism and the definitive establishment of the European
1 Second year Student, B.A L.L.B(Hons.), National University of Advanced Legal
Studies, Kochi
2 L.C Green, The Contemporary Law of Armed Conflict, 2nd edition
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balance of power system after the Peace of Westphalia, 1648, the concept of just war
disappeared from international law. States being sovereign and equal, were bound to honour
the agreements and respect the independence and integrity of other countries, and had to try
and resolve differences by peaceful methods.3But when war occurred it entailed a series of
legal consequences and it became irrelevant whether the cause of the war was just or not.
The medieval theory of just war proved ineffective and the lack of agreement which may be a
just cause to wage war led to interpretations of war as a trial of ordeal and later to the
theoretical variation that recourse to war could be just for either side. Thus without any legal
restrictions to war, warfare was regarded as being part of sovereignty, leaving the legal
society with a situation where minor infliction on the rights of other states called for
justification while the worst interference was beyond legal reasoning. At the end of the 19 th
century, first steps were taken to change the attitude towards unrestricted resort to war. The
Hague Peace Conferences in 1899 and 1907 concentrated on the rules of war in general and
the Hague convention III of 1907 relating to opening of hostilities drew up some formal rules
on the for the start of wars. Similarly some restrictions to the use of force was were agreed on
in the Bryan Treaties concluded from 1913 onwards between the United States and several
other states. Hostilities were allowed only after recourse to a conciliation commission and its
final report was delivered within one year.
In response to the experiences of World War I, the League of Nations of 1919 was created as
a collective security system whose main task was to ensure peace (Article 11). It explained on
the formal approach of restrictions on the resort to war. Members of the League of Nations
were first and foremost obliged to submit a dispute to enquiry, arbitration or to the Council of
the League. Any war had to be postponed until three months after the arbitrators report or the
Councils report and it was definitely prohibited in the case of a state complying with these
statements (Articles 13, 15). A violation of these rules could lead to coercive measures of the
League (Article 16). However, in practice the League, of which the United States was never a
member and the Soviet Union, Germany, Italy, and Japan were fix only for a short time ,
failed to achieve its ambitious objectives.
The League system did not prohibit war or use of force but provided a procedure to restrict it
to tolerable levels. It was a constant challenge of the inter war years to close the gaps in the
Covenant in order to achieve the total prohibition of war in international law and this resulted
3 P1120 Malcom N Shaw, International Law, 6th edition, Cambridge
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ultimately in the signing of the General Treaty for the Renunciation of War (Kellogg-Briand
Pact).4 The parties to this treaty condemned recourse to war and agreed to renounce it as an
instrument of national policy in their relations with one another. This treaty has never been
terminated and in the light of its widespread acceptance,5 the prohibition of resort to war is
now a valid principal of international law. However the prohibition on the resort to war does
not mean that the use of force in all circumstances is illegal. The right to use force in selfdefence was still a recognised principal in international law.6
The Charter of the United Nations
After the World War II, with the creation of United Nations Organizations, world countries
attempted to create a system of collective security to prevent the use of force in future. Article
2(4) of the charter declares that: all member nations 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 United
Nations. The word force is useful as it covers violence employed which fall short of the
technical requirements of the state of war. There are some important exceptions to article 2(4)
exist in relation to collective measures taken by United Nations and with regard to the right of
self-defence. Sometimes humanitarian intervention also falls in this category. With nearly all
states having become U.N members, the prohibition on the use of force must be regarded as a
general rule of international law. Article 2(6) of the chapter provides that the UN shall
ensure that states which are not members of the United Nations act in accordance with these
principals so far as may be necessary for the maintenance of international peace and
security. The general prohibition is secured by the possibility of coercive measures by the
U.N (Article 39) and the obligation to resort to peaceful means for settlement of disputes
(Article 33). Although the experience of the holocaust could have given rise to another class
of exceptions to the prohibition of the use of force, the wording of the U.N Charter clearly

4 A.K Skubiszewski, The Use of Force by States in Manual of Public International

Law pp.739,742
5 It came on to force on 24th July, 1929 and is still in effect. Many inter-war
treaties reaffirmed the obligations imposed by the pact.
6 C.F Bowett , Self-Defence, p 136
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stands in the tradition of the Westphalian Peace Treaty, blind to a states domestic affairs. This
id underlined by Article 2(7), subjecting the U.N to the principal of non-intervention.7
The Right of Self-Defence
The traditional definition of the right of self-defence in customary international law arose out
of Caroline case.8 Here the British subjects seized and destroyed a vessel in an American port
which was supplying to groups of American national who had been conducting raids into
Canadian territory. This led the US Secretary of the State to lay down essentials of selfdefence which says that there had to exist a necessity of self-defence, instant, overwhelming,
leaving no choice of means and no moment of deliberation. These principals where accepted
by the British government at that time and were accepted as part of customary international
law.
Article 51 of the U.N charter provides an exception to the use of force in the name of selfdefence. Nothing in this charter shall prevent 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 the measures necessary to maintain international peace and
security. Measures taken by members in exercise of this right of self-defence shall be
immediately reported to the Security Council and shall not in any way affect the authority
and security of the Security Council under the present Charter to take any time such actions
as it deems necessary in order to maintain or restore international order. .
There has been controversy over the precise extend of the right of self-defence as mentioned
in the Charter with some arguing that it is exhaustive and other arguing that it violates the
inherent right of self-defence under the customary international law. However the
International Court of Justice in Nicaragua9 case established that the right of self-defence
existed as an inherent right under the international law as well as under the U.N Charter.
In order to invoke the right of self-defence, a state has to be able to demonstrate that it had
been the victim of an armed attack and it bears the burden of proof. It is also necessary to
show that the state seeking to resort to force has itself be intentionally targeted. In Oil
7 Sebastian Heselhaus, International Law and the Use of Force, p 4
8 29 BFSP , p 1137
9 76 ILR, pp. 349, 428
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Platform case as well as Nicaragua case the International court observed that none of the
incidents shows that the US itself has been targeted. It is difficult to determine when an
armed attack had commenced in order to comply with requirements of Article 51 and the
resort to force in self-defence.
Another important question is whether the right of self-defence applies in response to attack
by non-state entities which is sent by the state itself to carry out an armed attack conducted
by the regular armed forces. In the Nicaragua case, the Court did not accept that the right of
self -defence extended to that situation where a third state has provided assistance to the
rebels in the form of weapons and logistics, although this form of assistance could constitute
as threat or use of force, or amount to intervention in the internal or external affairs of the
state. Thus in certain circumstances a state under attack from groups supported by another
state may not be able to respond militarily if the support given by the state does not reach the
threshold laid down. The line of assistance from a third state to a group which could give rise
to legitimise use of force in self-defence against such state and assistance which fell below
this is difficult to specify in practise. The International Court in its advisory opinion in the
Construction of Wall case adopted that article 51 does not apply with regard to Israels actions
since these were taken with regard to threats originating from within the occupied territory
and not imputable to another state. But this does not mean that the self-defence does not exist
with regard to attack by a non-state entity emanating from a territory outside of the control of
the target state. Further the legal sources of Israeli actions in the occupied territories would
appear to lie in the laws of armed conflict. The ICJ failed to revisit the ambiguities in
Nicaragua decision in Democratic Republic of the Congo v. Uganda.10 Here the court found
that there was satisfactory proof of involvement

in attack on Uganda by the Congo

government and that such attacks dis not emanate from armed bands or irregulars sent by or
on behalf of Congo. Since the court addressed only the actions that Uganda might or might
not take against Congo as such, it did not deal with the increasingly important question as to
whether action might be taken in self-defence against an armed attack by a non-state actor as
distinct from another state.
The day after 11 September 2001 attacks upon the world trade centre in New York, the
Security Council adopted resolution 1368 in which it specifically referred to the inherent
right of individual or collective self-defence in accordance with Charter. Resolution 1373
10 ICJ Reports, 2005, p168
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(2001) reaffirmed this and, acting under chapter vii, adopted a series of binding decisions,
including a provision that all states shall take the necessary steps to prevent the commission
of terrorist acts. Such binding security council resolutions declaring international terrorism
to be a threat to international peace and security with regard to which the right of self-defence
is operative as such lead to the conclusion that large-scale attacks by non-state entities might
amounted to armed attacks within the meaning of article 51 without the necessity to
attribute them to another state and thus justify the use of force in self-defence by those states
so attacked.
Further recognition that particular hostile actions by non-state entities could amount to
attack may be found in Security Council resolution 1701 in which both the attacks by the
Hezbollah upon Israel and Israeli military operations were condemned. The United State and
its allies invoked Article 51 to attack Afghanistan and to take action against Al-Qaeda who
were responsible for September 11 attacks.
A right to anticipatory or pre-emptive self-defence would appear unlikely if one adopted the
notion that self-defence is restricted to response to actual armed attacks. This is of particular
relevance in light of modern weaponry that can launch an attack with tremendous speed,
which may allow the target state little time to react to the armed assault before its successful
conclusion. States have employed pre-emptive strikes in self-defence. Israel in 1967 launched
a strike on the Arab Republics as a self-defence. And the United Nations apportioned no
blame for the outbreak of fighting and did not condemn the exercise of self-defence by Israel.
The trouble with concept of anticipatory self-defence is that it involves fine calculations of
various moves by the other party. An early pre-emptive strike may constitute an aggression.
The problem is that the nature of the international system is such as to leave such
determinations to be made by the state themselves and in the absence of an acceptable
institutional alternative, it is difficult to foresee a modification.
The concepts of necessity and proportionality are at the heart of self-defence in international
law. The court in the Nicaragua case stated that there was a specific rule whereby selfdefence would warrant only measures which are proportional to the armed attack and
necessary to respond to it.11 The necessity criterion raises important evidential as well as
substantive issues. It is essential to demonstrate that, as responsible conclusion on the basis of
facts reasonably known at the time, the armed attack that has occurred is responsibly believed
11 ICJ reports, 1986 pp.14, 94 and 103
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to be imminent requires the response that is proposed. Proportionality as a criterion of selfdefence may also require consideration of the type of weaponry to be used, an investigation
that necessitates an analysis of the principle of international humanitarian law. In Oil
Platform case, the court observed that the U.S attack was unnecessary as the United States
had not complained to Iranian authorities. The attack was also not proportional as huge
damages were inflicted on the Iranian forces to the mining by an unidentified agency of a
single warship without loss of life. Despite controversy and disagreement over the scope of
the right of self-defence there is an indisputable core and that is the competence of the state to
restore to force in order to repel an attack
Protection of Nationals Abroad
In the 19th century, it was clearly regarded as lawful to use force to protect national and
property situated abroad and many incidents occurred to demonstrate the acceptance of this
position.12 Since the adoption of the U.N charter, however, it has become rather more
controversial since of necessity the territorial integrity and political independence of the
target state is infringed 13, while one interpretation of article 51 would deny that an armed
attack could occur against individuals abroad within the meaning of that provision since it is
the state itself that must be under attack, not specific person under jurisdiction. The issue has
been raised in recent years in several cases.
The most famous incident, however, was the rescue by Israel of hostages held by Palestinian
and other terrorist at Entbe, following the hijack of an Air France airliner. The Security
Council had a mixed response. Some states supported Israels view that it was acting lawfully
in protecting its national abroad where the local state concerned was aiding the hijackers.
Others adopted the approach that Israel had committed aggression against Uganda or used
excessive force.
On 29 June 1993 the US launched missiles at the headquarters of the Iraqi military
intelligence in Baghdad as a consequence of an alleged Iraqi plot to assassinate former US
president bush in Kuwait. It was argued that the resort to forces was justified as a means of
protecting US nationals in future.

12 Bownlie, Use of Force, pp. 289

13 Gray, Use of Force, pp. 129
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On balance and considering the opposing principles of saving the threatened lives of
nationals and the preservation of territorial integrity of states, it would seem preferable to
accept the validity of the rule in carefully restricted situations consistent with the conditions
laid down in Caroline case. Whether force may be used to protect property abroad is less
controversial. It is universally accepted today that it is not lawful to have resort to force
merely to save material processions abroad.
Collective Self-defence
Historically the right of states to take up arms to defend themselves from external force is
well established as a rule of customary international law. Art 51, however, also refers to
collective security. There arises a question as to how far one state may resort to force in the
defence of another the idea of collective self-defence, however, is rather doubtful it may be
regarded merely as pooling of a number of individual rights of self-defence within the frame
work of a particular treaty or institution or it may form the basis of comprehensive regional
security system.
Organisations such as NATO and the Warsaw Pact were established after the World War II
specifically based upon the right of collective self-defence under Art 51. By such agreements,
an attack upon one party is treated as an attack upon all, thus necessitating the conclusion that
the collective self-defence is something more than a collection of individual rights of selfdefence, but another creature all together.14
The invasion of Kuwait by Iraq on 2nd August, 1990 raised the issue of collective self-defence
in the context of the response of the states allied in the coalition to end the conquest and
occupation. The Kuwait government in exile appealed for assistance from other states.
Although the armed action from 16th January, 1991 was taken pursuant to U.N Security
Council resolution, it is indeed arguable that the right to collective self-defence is also
relevant in this context.
Humanitarian Intervention
Humanitarian intervention is used as a provision for the use of force by states. It is the
intervention in order to protect the lives of persons situated within a particular state and not
14 Note Article 52 of the U.N charter, which recognises the existence of regional
arrangements and agencies dealing with such matters relating to international
peace and security as are appropriate for regional action, provided they are
consistent with the purposes and principles of the U.N
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necessarily nationals of the intervening state is permissible in strictly defined situations. This
has some support in pre-charter law and it may very well have been the case that in the 19 th
century such intervention was accepted under international law. However, it is difficult to
reconcile today with the Art 2(4) of the Charter and it may be used to justify interventions by
more useful states into the territories of weaker states. But sometimes force could be used
where extreme humanitarian aid is needed to save lives of citizens of a country who were
facing gross oppression from the government. An example is proclamation of no-fly zones
without U.N authorisation in northern and southern Iraq by U.S, U.K and France when Iraq
government repressed its Shia and Kurd population.
The Kosovo crisis of 1999 raised the issue of humanitarian intervention. The justification for
the NATO bombing campaign, acting out of area and without U.N authorisation in support of
repressed ethnic Albanian population of that province of Yugoslavia, was that of humanitarian
necessity. Here the doctrine of humanitarian intervention was invoked in a crisis situation and
not condemned by the U.N but received a meagre support.
One variant of the principle of humanitarian intervention is the contention that intervention in
order to restore democracy is permitted as such under international law. This is one of the
grounds given for the intervention in Panama in December 1989 was the restoration of
democracy.
Now a days, the doctrine of humanitarian intervention has been invoked by states for the use
of force in order to protect their own interest. It was doubted that during the Arab Spring in
2011, intervention in Libya and the creation of no-fly zone by world powers in the name of
humanitarian aid was a part of the script to topple the government present there and to install
a government loyal to the intervened countries. The threat of use of force in Syria and
Ukraine by United States and Russia respectively are in the name of humanitarian need. This
is a grave situation which could affect international peace and security.
Most recently, there has been extensive consideration of the responsibility to protect as a
composite concept comprising the responsibility to prevent the catastrophic situations, to
react immediately when they do occur and to rebuild afterwards. Such an approach may be
seen as an effort to redefine the principle of humanitarian intervention in a way that seeks to
minimise the motives of the intervening powers and there is no doubt that it reflects an
important trend in international society and one that is influential, particularly in the context
of U.N action. Such responsibilities are deemed to fall both upon states and the international
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community and notably include the commitment to reconstruct after intervention or initial
involvement. As they have been broadly and flexibly proposed, emphasizing, for example,
the obligation of states to protect human rights on their territory and the primary focus upon
the U.N with regard to any military action, the sharp edges of the humanitarian intervention
doctrine have been blended, but it remains to be seen how influential this approach may be.
Conclusion
The use of force has a relevant position in international law as it is a tool affecting
international peace and security and international relations. The emergence of powerful
terrorist organisation like ISIS, Al-Qaeda etc. led to formation of new doctrines in
international law for the use of force. War on Terror which is the global war against terrorism
by United States and allies are examples of such doctrines. This doctrine was used by United
States to carry out drone attacks in Pakistan and other countries to eliminate terrorist
networks in those countries without the consent of the government of those countries. Other
than terrorism, the world is witnessing the use of force by powerful states to protect their
interests in weaker states. The recent events like military intervention in Ukraine and the
annexation of Crimea by Russia are examples of such use of force. Although U.N, as an
international agency for maintaining peace is performing its duty, the exceptions in the
charter are interpreted by the powerful states for the use of force.

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