The Prohibition on the Use of Force

MAKERERE UNIVERSITY FACULTY OF LAW NAME : AHUMUZA MUGISHA PETER REGISTRATION : 2018/HD09/796U STUDENT’S NO : 1800736913 COURSE : LL.M SUBJECT : LAW OF ARMED CONFLICTS LECTURER : DR. NALUWAILO RONALD & DR.ZAHARA NAMPEWO  THE GENERAL LAW PROHIBITING THE USE OF FORCE The starting point for any examination of the law on military intervention is the prohibition against the threat or use of force under Article 2(4) of the UN Charter. Article 2(4) states that “[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” Under customary international law, this prohibition has also been accepted as a jus cogens rule Nicaragua v USA (1986) ICJ Rep 14 . This parallel rule in the customary plane clearly entrenches the prohibition as an obligation which binds all States. The prohibition on the use of force emanates from the principle of ‘sovereignty equality’ under Article 2(1) of the UN Charter. Under Article 2(1), there are two mutually complementary and dependent aspects of sovereignty: “Within a State, a sovereign power makes law with the assertion that this law is supreme and ultimate, i.e. that its validity does not depend on the will of any other, or higher, authority. Externally, a sovereign power obeys no other authority.” Bardo Fassbender, The Charter of the United Nations: A Commentary (OUP, 2002), at p. 70. HISTORY OF USE OF FORCE The law of recourse to force has changed dramatically with time. In the early 19th and 20th Century, the use of force was governed by the bellum justum doctrine Malcolm N. Shaw, International Law (Cambridge University Press, 6th ed., 2008).. According to this doctrine, the use of force as a means to settle disputes would be legitimate only if certain criteria were met relating to the belligerents authority to make war, its objectives and intentions. The purpose of the law regarding the use of force was to maintain status quo between States, and to minimise the use of force, or at least limit its application. Ibid. After the First World War, the concept of maintaining “balance” between States changed. The Covenant of the League of Nations, 1919 made war illegal in 4 situations 4League of Nations, Covenant of the League of Nations, June 28, 1919, available at http://www.refworld.org/docid/3dd8b9854.html., namely, when made without prior submission of the dispute to arbitration or judicial settlement or to inquiry by the Council of the League; when begun before the expiration of three months after the arbitral award or judicial decision or Council Report; when commenced against a member which had complied with such award or decision or recommendation of a unanimously adopted Council report; and under certain circumstances, when initiated by a non-member state against a member state. After Second World War, in the first half of the twentieth century, the US along with its allies, became fully committed to establishing a broad prohibition on the use of force as well as an institution to enforce that prohibition. Mary Ellen O’Connell, ‘The Myth of Pre-emptive Self-Defence [2002] ASIL 1 – 21 at pp 7 Consequently, in 1945, the United Nations was established. The UN Charter was created as a binding treaty. It contains the prohibition on the use of force in Article 2(4) and establishes the Security Council as the authority to take measures “against threats to the breaches of peace and acts of aggression.” The law governing the prohibition of the use of force is provided for in Article 2(4) of the UN Charter 1945. It provides that: “all members shall refrain in their international relations from the threat or use of force against the territorial integrity or territorial independence of any state, or in any other manner inconsistent with the purposes of the UN.” Article 2(4) UN Charter 1945 Article 2(4) sets the basis for the general prohibition of the use of force against another state. It is a principle of international customary law and consequently all states bound by the provision. The provision is authoritative but however it is not absolute. The fact that it is not absolute means that states can use force provided it is used in ‘collective or individual self-defence’ in the case of an armed attack and when the Security Council uses force for peace keeping purposes. THE CONCEPT OF SELF-DEFENCE UNDER ARTICLE 51 In order to resort to self-defence, the state has to show that it has been a victim of an armed attack and the burden of proof lies in the state claiming victim of the armed attack. Malcolm N Shaw, International Law (7th edn Cambridge 2014) pg 850 It is necessary for the state to show that the state resorting to self-defence has been intentionally attacked. In order to determine how serious an armed attack must be in order to justify the right of self-defence, the court in Nicaragua’s Case Nicaragua v USA [1986] ICJ Rep 14 distinguished ‘the gravest forms of the use of force (those constituting armed attack) from the less grave ones. Nevertheless it is extremely difficult to define the justification of self-defence. The “Charter’s reference to the „inherent‟ right of self-defence preserves all customary international law in regard to self-defence”. ibid As a result, the customary international law that existed prior to the Charter, for example anticipatory self-defence, was not abrogated by the U.N Charter, and they can run in parallel. The proponents of this interpretation relied on the case of Nicaragua v. U.S, where it was held that “[i]t cannot therefore be held that Article 51 is a provision which „subsumes and supervenes‟ customary international law. It rather demonstrates that customary law continues to exist alongside treaty law.” Nicaragua v. United States of America (1986), note 5 at para. 94. There are conditions that imposed by the UN Charter under Article 51 for one to claim self defence as discussed below. The armed attack Before the States can legally invoke the right to self-defence, there must be an actual armed attack. The wordings in Article 51 are very clear, as it provides that the right to self-defence only applicable “if an armed attack occurs”. This has precluded any attempts to justify the so-called „pre-emptive‟ strike or „anticipatory self-defence‟. Mohammad Naqib Ishan Jan, Use of Force in International Law, CLJ Publication 2011, pp. 132. In the case of Advisory Opinion on the Palestinian Wall Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Rep (2004), at 136., the I.C.J held that the State which invokes the right to self-defence has the burden of proof to show that there is in fact situation of armed attack occurring against it, at the very time where the right of self-defence is being invoked by that State. The same line of endorsement can also be seen in the Case Concerning Oil Platforms Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I. C. J. Reports 2003, p. 161, where it was held that if the State can prove the existence of armed attack occurring at the time it invokes the right to self-defence, whether in response to armed attacks initiated by regular military forces of other sovereign States, or by non-State actors acting on behalf of that other State, then the State can legitimately rely on Article 51. The temporal requirement of notifying the UN Security Council. The exercise of right to self-defence must be reported to the U.N.S.C as soon as possible in accordance with Article 51 of the U.N Charter. The article provides that the “Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council.” Prof. Christine Gray wrote that “[g]iven that the UN Charter aims not only to limit, but also to centralize, the use of force under UN control, it seems clear that the intention [of reporting to the U.N.S.C] was to give the Security Council the right to decide measures terminating the right to self-defence.” Christine Gray, note 89 It is to be noted here that, the Security Council has the final say regarding the extent of self-defence being invoked. Once the Council has seized of the situation and the matter, the invocation of right to self-defence is no longer valid and any military actions in the name of self-defence must be immediately stopped. As the wordings of Article 51 provide, „[s]hall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary.” Hans Kelsen, Collective Security and Collective Self-Defense Under the Charter of the United Nations, AM. J. INT‟L L., Vol. 42, No. 4 (Oct., 1948), at 783-796; Bowett, D. W., Collective Self-Defence under the Charter of the United Nations, 32 Brit. Y.B. Int'l L. 130 (1955-1956); Josef L. Kunz, Individual and Collective Self-Defense in Article 51 of the Charter of the United Nations, AM. J. INT‟L L., Vol. 41, No. 4 (Oct., 1947), at 872-879. TO A LARGER EXTENT THE LAW ON USE OF FORCE IS TOO WEAK TO GUARANTEE INTERNATIONAL PEACE AND SECURITY AS DISCUSSED BELOW; Lack of Enforcement of judicial decisions. The enforcement of decision of the international court of justice may involve problems that touch upon some of the most delicate areas of both public international law, and the law of the United Nations at a time when these two systems of law can hardly be considered as totally separate from each other. As a result states are obliged to adhere to such decision made by courts. However the rules that govern the use of force in international law does not provide a mechanism that ensure the enforcement of judicial decisions. A case in point is ICJ decision in Nicaragua v USA (1986) supra in which the United States of America was ordered to compensate Nicaragua because it had violated the international law by supporting the contras in their rebellion against the Nicaragua Government by mining their harbours. The US did not even attend the proceedings. Even up to date, the USA has never bothered to pay the said compensation. This has in turn undermined the principles that govern use of force. Limited scope of the laws that govern use of force. For a generation the nature of warfare in the world has evolved due to technological advances. The scale of destructiveness in modern warfare has increased and its effect on the world’s biodiversity and ecosystems has rendered natural resources more vulnerable. A case in point, the wordings in Article 51 are very clear, as it provides that the right to self-defence only applicable “if an armed attack occurs.” Nicaragua v USA [1986] ICJ Rep 14 However with terrorism as a new area of conflict one cannot know whether to attack a state that harbours the terrorists or the terrorists themselves. This has created a weakness in the enforcement of these laws that govern international use of force. The influence of super powers. The UN Charter under Chapter VII provides for the UN Security Council which is comprised of permanent members of that Security Council. The permanent representatives include United Kingdom, USA, France, China, and Russia. These are the super powers that influence world politics especially when it comes to decision making and making resolutions in respect to Amada attacks. These states however make decisions that favour their interest at the expense of the attacked state. A case in point was in 2011 when the UN Security Council passed a resolution to attack Libya claiming that they were protecting the civilian population’s rights and self determination. This however was not true as it was only a hidden agenda after Muammar Gaddafi had refused all European states from exploring their oil reserves. Such selfish interest by permanent states has weakened the fair application of the laws that govern international law of use of force. TO A SMALLER EXTENT THE LAW ON USE OF FORCE IS TOO WEAK TO GUARANTEE INTERNATIONAL PEACE AND SECURITY AS DISCUSSED BELOW; Maintenance of peace and security. The laws that govern use of peace have ensured the maintenance of peace and security in the world. Chapter VII of the UN charter establishes the UN Security Council whose objectives among others are to secure peace. The Security Council resolved one of the worst crises to avert the horrors of another world war. This was the case during the 1960s and 1970s termed the cold war. The UN Security Council then resolves the conflict amicably and prevented the escalation of the US-USSR Conflict. Reparation Mechanisms. Despite being hard or difficult to enforce, the law envisages reparation or compensation mechanisms in use of force by states. The ICJ is empowered by the ICJ rules to award compensation to states that have suffered injury. A case in point is the DRC V UGANDA. Democratic Republic of Congo V Uganda ICJ NO.116{ 2005} The ICJ held that Congo was not directly or indirectly responsible for acts of rebel groups in its territory that used force against Uganda and that Uganda’s actions of attacking DRC over such allegations and stealing Natural resources was contrary to laws that govern international relations. As a result Uganda was ordered to compensate Congo over its unlawful acts in the circumstances. Such measures have promoted peace and security in the world. Promoted self determination. By virtue of the principle of equal rights and self determination of the peoples enshrined in the charter of the United Nations Chapter 1, Article 1, Part 2 of the United Nations Charter, 1995, all people have the right freely to determine, without external interference, their political status and to pursue their economic, social, cultural development. The principle of self determination outlines not only the duty of states to respect and promote the right, but also the obligation to refrain from any forcible action which deprive people’s enjoyment of such rights. The law on use of force specifically through collective self defence has promoted the right to self determination. A case in point is the UN Security Council resolution on Libya. United Nations Security Council Resolution 1973 adopted 2011 The resolution was adopted on the 17th March 2011. It was formed for military intervention in the Libyan Civil War demanding an immediate cease fire and authorising the international community to establish a no fly zone and to use all means necessary short of foreign occupation to protect the civilian’s rights of self determination. As a result of this resolution there was Military intervention by the UN in Libya which ousted Gaddafi from power. This in turn has ensured peace in the world. RECOMMENDATIONS Dissolve the UN Security Council and grant decision making powers to the UN General Assembly. The principle that all states are equal is inapplicable at the present because of the presence of permanent members in the UN Security Council whose powers to make decisions in the council mostly carry weight and usually are to favour their interests. With the current structure of the Security Council it is hard to establish sound decisions without interests from the permanent member states being fulfilled at first. Widen the scope of law governing use of force. The UN Charter contains shallow principles governing use of force which has created a large problem. A case in point is Article 51 of the UN Charter which provides for self defence as an exception to use of force. The charter does not explain the extent of use of force and as a result states have created their own grounds of self defence such as Anticipatory self defence. A Case in point is the US attack on Iraq in which George W. Bush in 2003 claimed was for self defence because he suspected Iraq to be in possession of weapons of mass destruction. The international community did not see any wrongful act done simply because there was no law that created anticipatory self defence. With such Loopholes covered by such law, the law governing use of peace would be operative. CONCLUSION The law governing use of force is an important structure to promote peace and security in the world. With the current setting, it’s explained above that to a smaller extent, peace and security has been convincingly established. REFERENCE UNITED NATIONS CHARTER 1945 TEXT BOOKS Malcolm N Shaw, International Law (7th Edition Cambridge 2014) Mary Ellen O’Connell, ‘The Myth of Preemptive Self-Defence [2002] ASIL 1 – 21 Bowett, D. W., Collective Self-Defence under the Charter of the United Nations, 32 Brit. Y.B. Int'l L. 130 (1955-1956). CASE LAW Democratic Republic of Congo V Uganda ICJ NO.116{ 2005} Nicaragua v USA [1986] ICJ Rep 14 Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I. C. J. Reports 2003 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Rep (2004) JOURNAL Mohammad Naqib Ishan Jan, Use of Force in International Law, CLJ Publication 2011. Josef L. Kunz, journal on Individual and Collective Self-Defense in Article 51 of the Charter of the United Nations, AM. J. INT‟L L., Vol. 41, No. 4