THE LOOPHOLES IN THE PRINCIPLE OF NON-USE OF FORCE AS LEGISLATED IN INTERNATIONAL LAW
THE LOOPHOLES IN THE PRINCIPLE OF NON-USE OF FORCE AS LEGISLATED IN
INTERNATIONAL LAW
Introduction
“No principle of
the Charter is more important than the principle of the non-use of force as
embodied in Article 2, paragraph 4 ….Secretaries General confront many
challenges in the course of their tenures but the challenge that tests them and
defines them inevitably involves the use of force.”[1]
The use of force
The prohibition against
the threat or use of force is the cornerstone of the UN Charter, article 2(4)
of which stipulates that:
All members shall refrain in their
international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner
inconsistent with the purposes of the United Nations. For the core objective of
international peace to be achieved, the United Nations Charter1
provides for various organs to help in its realization.
The United Nations Charter is the primary source of international law governing the use of force. It prohibits the use of force in international relations except in two cases: self-defense and when authorized by the Security Council for the purpose of maintaining international peace and security.[2] The UN Charter has been successful in preventing wars between states but has failed to prevent internal conflicts within states.[3] The UN Charter has been criticized for being too restrictive and not providing a clear definition of what constitutes self-defense1. Some scholars have proposed reforms to the UN Charter to address these issues[4]
Article 51 of
the Charter provides that:
“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 […].”
Flaws of the existing legal regime
Ambiguity of Right to self-defence.
Article 51 thus recognizes the inherent right of self-defence under customary
international law. It is sometimes suggested that the right of self-defence as
recognized in the Charter is too restrictive for the modern age. The US 2002 National
Security Strategy, with its references to preventive
action, seemed to reflect such a view. Suggestions of this kind tend to
overlook, or downplay, the potential role of the Security Council in
authorizing States to use force preventively to avert terrorist threats.
Three
main questions arise in connection with self-defence against terrorist attacks.
(i)
Does
the right of self-defence apply at all in response to attacks by nonState
actors, including transnational terrorist groups?[5]
(Even the ICJ in DRC V. Uganda case failed to resolve this matter exhaustively)
(ii)
Is
there a right of ‘anticipatory’ self-defence?
And, if these questions are answered in the affirmative,
(iii)
how
does the requirement of imminence apply in relation to attacks by terrorists or
with weapons of mass destruction?[6]
Some question whether the right of
self-defence is at all available in response to attacks by non-State actors,
such as transnational terrorist groups. Yet in the immediate aftermath of the
terrorist attacks of 11 September 2001, the Security Council adopted
resolutions 1368 (2001) and 1373 (2001) reaffirming ‘the inherent right of
individual and collective self-defence as recognized by the Charter of the
United Nations’.
Failure to define an “imminent attack”
The
question on what constitutes an imminent attack in the
context of transnational terrorist groups and weapons of mass destruction
remains difficult to answer even today. The Caroline
language is familiar: ‘a necessity of self-defence, instant, overwhelming,
leaving no choice of means, and no moment for deliberation’.[7] The Attorney General said in the House of
Lords in April 2004:
“The concept of what constitutes an ‘imminent’ armed
attack will develop to meet new circumstances and new threats [...]. It must be
right that States are able to act in self-defence in circumstances where there
is evidence of further imminent attacks by terrorist groups, even if there is
no specific evidence of where such an attack will take place or of the precise
nature of the attack.”[8]
In
the same speech, however, Lord Goldsmith brings a contrary view that
“the use of force in self-defence against an
imminent attack but does not authorize the use of force to mount a pre-emptive
attack against a threat that is more remote”[9]
but the boundaries of such remoteness remain unclear (emphasis mine).
Due
to this vagueness and contradictions on what constitutes an armed attack and on
the boundaries of the right to self defence, the latter right to preemptive self-defense remains insufficiently enjoyed up
to today, a thing which has seen countries bend towards external forceful
interventions without knowledge of what to do. This in itself has created
insecurity arising from the failure to effectively prohibit the use of force.
A
classic example is the Israeli attack on a nuclear plant in Iraq in 1981.[10] On 7 June 1981, Israel bombed a research
centre near Baghdad, destroying the Osirak nuclear reactor which, it said, was
developing nuclear bombs that would have been ready for use against Israel in
1985. The Security Council, after extended debate,[11]
strongly condemned ‘the military attack by Israel in clear violation of the
Charter of the United Nations and the norms of international conduct.’[12] Israel had also failed to produce evidence
that it was threatened with an imminent attack.
Note that Baghdad would have been in position to defend itself but for
the vagueness of the laws which fail to lay proper directions. Without clearing
defining the boundaries of self-defence, states shall continue to violate the
peace of others and then appear before court and this shall be the norm.
Recommendations
The
statement that the international law governing the use of force has failed in
maintaining international peace and security is a complex one that requires
careful analysis. Indeed, the use of force in various regions around the world,
including Iraq, Syria, the Democratic Republic of Congo, and Ukraine, has
resulted in significant human suffering and destabilization. However, the
causes of these conflicts are complex and multifaceted, and there is no simple
solution to the issue.
An obsolete charter.
One major problem with the current system of international law governing the
use of force is that it is based on the United Nations Charter, which is over
75 years old. The Charter was designed to prevent another world war, and it
prohibits the use of force except in self-defense or when authorized by the UN
Security Council. However, the world has changed significantly since the
Charter was written, and new challenges have emerged, such as terrorism,
cyberattacks, and hybrid warfare. As a result, the current legal framework has
been criticized for being outdated and inadequate in addressing these new
challenges.
Legal reforms. To
address these issues, there is a need for legal reforms to create a more robust
system of international law governing the use of force. One proposed reform is
to expand the scope of the Charter's prohibition on the use of force to include
new forms of aggression, such as cyberattacks and hybrid warfare. This would
require a rethinking of the traditional definition of "armed attack"
and "self-defense" under the Charter, and it would likely require a
new treaty to be negotiated and ratified.
Preemptive strikes.
One proposal is to expand the definition of self-defense to include preemptive
strikes against imminent threats.[13]
This will give a wider scope for countries to enjoy self defence in
preservation of their internal security. However, the existing legal framework
for self-defense is carefully crafted to ensure that the use of force is
necessary and proportionate, and any attempt to expand it should be approached
with caution and subjected to rigorous scrutiny to ensure that it promotes,
rather than undermines, international peace and security.
Humanitarian intervention.
There is need to create a new legal framework for humanitarian intervention.[14]
An intervention is lawful, the criteria for deciding when and how to intervene,
and the mechanisms for accountability and oversight.
(i)
One proposal for such a legal framework
is the Responsibility to Protect (R2P) doctrine, which was endorsed by the UN
General Assembly in 2005. The R2P doctrine asserts that states have a
responsibility to protect their populations from genocide, war crimes, ethnic
cleansing, and crimes against humanity, and that the international community
has a responsibility to intervene if a state is unwilling or unable to protect
its population from these crimes. The R2P doctrine emphasizes the importance of
prevention, peaceful resolution of conflicts, and non-military intervention,
but also recognizes the need for military intervention as a last resort in
certain circumstances.
(ii)
Another proposal is to create a new
legal instrument, such as a treaty or a resolution, specifically addressing the
legality and conditions of humanitarian intervention. Such an instrument could
clarify the circumstances under which humanitarian intervention is lawful, such
as when there is a grave and imminent threat to the population, when peaceful
means have been exhausted, and when the intervention is proportional and
necessary. It could also establish mechanisms for accountability and oversight,
such as an independent body to assess the legality of intervention and to
ensure compliance with international law.
Strengthen the UN Security council.
Another proposed reform is to strengthen the role of the UN Security Council in
authorizing the use of force. Currently, the Security Council is the only body
authorized to authorize the use of force, but it has been criticized for being
slow to act and for being subject to political pressure from its members. One
proposal is to give the Security Council more power to enforce its decisions,
including through the use of economic sanctions and other non-military
measures.
Addressing State impunity:
Additionally, there is a need to address the issue of impunity for those who
commit war crimes and other serious violations of international humanitarian
law. The International Criminal Court (ICC) was established to prosecute
individuals for these crimes, but it has been criticized for being ineffective
and subject to political pressure. One proposal is to strengthen the ICC's
jurisdiction and independence, including by giving it the power to prosecute
individuals for crimes committed during non-international armed conflicts.
Conclusion. The
statement that the international law governing the use of force has failed in
maintaining international peace and security is a complex one, and there is no
simple solution to the issue. However, legal reforms are necessary to create a
more robust system of international law that can address the new challenges of
the 21st century. This will require a rethinking of the traditional definition
of "armed attack" and "self-defense," as well as stronger
measures to ensure the accountability of those who commit war crimes and other
serious violations of international humanitarian law.
AHIMBISIBWE INNOCENT BENJAMIN
International
Award Winning Lawyer 2022
[1]
R.
Zacklin, The United Nations Secretariat and
the Use of Force in a Unipolar World: Power v. Principle (2010), pp.
xii-xiii.
[2] https://press.un.org/en/2018/sc13344.doc.htm
[3] Security Council Must
Rectify Failure to Prohibit Use of Force, Maintain International Peace,
Speakers Stress in Day-long Debate | UN Press
[5]
Even the ICJ in DRC V. Uganda case did not resolve this matter exhaustively
[6]
Wood (2014), note 1.
[7]
C. Greenwood, “Caroline, The”, in Max
Planck Encyclopedia of Public International Law (2012).
[8]
Hansard, 21 April 2004, cols. 370-371. William H Taft IV, when State Department
Legal Adviser, made similar remarks on a number of occasions. For example, on
27 October 2004 he said that ‘[t]he right of self-defense could be meaningless
if a state cannot prevent an aggressive first strike involving weapons of mass
destruction. The right of self-defense must attach early enough to be
meaningful and effective, and the concept of “imminence”
[9]
Set out in the 2002 National
Security Strategy
[10]
Pertaining the difficulty in applying the imminence criterion
[11]
S/PV.
2280-2288.
[12] Security Council resolution
487 (1981) of 19 June 1981
[13]Michael
Wood, “ INTERNATIONAL LAW AND THE USE OF FORCE: WHAT HAPPENS IN PRACTICE” https://legal.un.org/avl/pdf/ls/Wood_article.pdf
accessed 4th May 2023
[14]
Michael Wood, “ INTERNATIONAL LAW AND THE USE OF FORCE: WHAT HAPPENS IN
PRACTICE” https://legal.un.org/avl/pdf/ls/Wood_article.pdf
accessed 4th May 2023
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