Chapter 1: Legal Regulation of the Use of Force

 The Law of War (jus ad bellum) is concerned with the right to initiate war. This
deals with (a) when wars may be fought and (b) when armed forced may be used.
 According to Oppenheim, war is a contention (争夺) between two or more States
through their armed forces, for the purpose of overpowering each other and imposing
such conditions of peace as the victor (winner) pleases.

Traditional definition of War

Dalmia Cement, Ltd v National Bank of Pakistan
 In this case, it was held that war is a dispute between states and not between
individuals. Before a state of war can exist, all peaceful relations between two States
have to be severed.
 The defendant unable to the compliance of arrangement by arguing that both
countries are in the state of war. In the end, the International Tribunal held that there
was no official declaration in both Indian and Pakistan that their countries are in war
because the conduct of both parties in such hostilities were merely conflict and not
amounting to war.

Shortcoming: It shall be noted that wars are not always fought between States and
the parties may prefer to call war as an armed confrontation.

Suggested Contemporary Definition of War

1. War is a sustained struggle of a scale and duration that threatens the existence of the
government of a state.

2. War is a waged (战争) between groups of forces that are armed, wear a distinctive badge,
and are subject to military discipline under a responsible command.

Civil War

 Civil war exists (a) when two opposing parties within a State have recourse to arms
for the purpose of obtaining power in the State, or (b) when a large portion of the
population of a State have recourse to arms against the legitimate government. It can
become war through the recognition of the warring parties or the insurgent.
 It is an exception to the UN Charter prohibition against the use of armed force
because they are not international conflicts.
Rules governing Civil Wars
General rule: Foreign states are forbidden from aiding the insurgents (rebels) in a civil
war unless the established government begins receiving outside aid.

 Traditional corollary rule: Foreign states may intervene on behalf of an established

government.
 Modern practice: Foreign states will not intervene on behalf of either side.

Law Before 1945 on Governing the Use of Force

 In 15th Century, the legality of war was governed by the ‘just war’ doctrine.
According to Belli, nature teaches us to oppose force with force. However, all good
men agree that war is just when it is undertaken for the purpose of defense or
enforcement of one’s rights.

 By 18th century, the governing doctrine was the sovereign right of state to resort to
war. It was believed that every state had a perfect right to resort to war for any reason
and there is recognition of conquests as well. Hence, during that time, the European
countries have colonized Asian, African and Latin American countries.

 Later, due to the effect of World War I, the Covenant of the League Nations
introduced limited restrictions on the sovereign right of States to resort to war.
However, the major weakness was that if States complied with the conditions from
Article 10 -16 under the Covenant, then they were perfectly entitled to go to war.

 The first significant development towards a general prohibition of war was The
General Treaty for the Renunciation of War 1928 (the Pact of Paris). The parties
solemnly declare that they condemn recourse to war for the solution of international
controversies, and renounce it as an instrument of national policy. However, it failed
to provide sanctions for the case of its violation.

Law After 1945 on Prohibition of the Use of Force

 The basic rule is that the use of force is prohibited.

Article 2(4) of UN Charter: All Members shall refrain in their international relations from
the threat or use of force against the territorial integrity or political independence of any
state, or in any other manner inconsistent with the purposes of the United Nations.
Meaning of Force

 The term “force” in Article 2(4) is armed force and not other forms of economic or
political pressure. Both direct and indirect armed force are also prohibited.
Nicaragua v United States
 In this case, the World Court recognizes a wider meaning of armed attack which
may include an indirect use of force.

Threat of Force

 Article 2(4) bars not only the use but also the threat of force. EG: An ultimatum (最
后 通 牒 ) announcing recourse to military measures if certain demands are not
accepted.
Example: In 1956, ultimatum issued by France and UK to Egypt and Israel that demanding
a ceasefire within 12 hours would be a threat of force.

The Prohibition of the Use of Force as Jus Cogen=Compelling law

Nicaragua v United States
 In this case, ICJ highlighted the fact that the principle of the prohibition of the use
of force belongs to the realm of jus cogen. Any treaty and customary rules that
contrary to it is null and void.

Inconsistent with the Purposes of the United Nations under Article 2(4) [Provided by
UN General Assembly Declaration 1970 on Principles of International Law]
1. Propaganda for wars of aggression.
2. The threat or use of force to violate the existing international boundaries of another state.
3. The threat or use of force to violate international lines of demarcation. (界限)
4. Acts of reprisal involving the use of force.
5. Any forcible action which deprives peoples of their right to freedom and independence.
6. Organising or encouraging the organization of irregular forces for invasion into the
territory of another state.
7. Organising, assisting, or participating in acts of civil conflict or terrorist acts in another
state.
8. Occupying the territory of another state through the use of force in contravention of the
provisions of the Charter.
Interpretation of Article 2(4)

1. Permissive View (宽容观点)

 Article 2(4) does not lay down an absolute prohibition on the use of force and States
are still permitted to use force in quite a number of situations. They argue that a total
ban on the use of force would be particularly foolish in an international society that
has no Police Force and no effective machinery for the vindication of rights illegally
denied.(非法剥夺辩护权利)
 For them, as long as the use of force does not threaten the territorial integrity and
political independence, States are still permitted to use it.
Corfu Channel Case
 In this case, the court has rejected the defence that Albania’s territorial integrity and
political independence have not been threatened. The court concluding that in order
to ensure respect for international law, it must declare that the action of British Navy
constituted a violation of Albanian sovereignty.

2. Restrictive View [Correct Interpretation]

 It lays down a total ban on the use of force by States unless explicitly allowed by the
Charter such as for self defence under Article 51 and enforcement action under
Chapter VII of the Charter. The restrictive school sees the permissive view as
favouring powerful States and only encouraging abuse.
 In the last 60 years, only a single country, Israel had relied primarily on the
permissive view in relation to the Entebbe raid. In all other cases, the States have
relied on exceptions laid down in Chapter VII of the Charter (Eg: self defence) to
resort the force.
 Therefore, we may conclude that the restrictive view is the correct interpretation for
the Article 2(4) of UN Charter.
Exception to Prohibition of Use of Force: The Right of Self Defence

 Three fundamental pillars of the Charter System: -

a) The threat or use of armed force is prohibited – Article 2(4) of UN Charter
b) A collective body, the UN’s Security Council is entrusted with enforcement
powers. It can take enforcement measures against the wrongdoer or aggressor
under the collective security system- Article 39,41 and 42 of UN Charter
c) In exceptional circumstances, a State can defend itself as long as it is the victim
of armed attack- Article 51 of UN Charter

Self-Defence

 The essence of self-defence is that if a State is attacked, in circumstances of necessity,

they are entitled to use armed force to defend itself against the attack, to repel the
attackers and expel them from its territory.
Article 51 of UN Charter: Nothing in the present Charter shall impair the inherent right
of individual or collective self-defence if an armed attack occurs against a Member of the
United Nations, until the Security Council has taken measures necessary to maintain
international peace and security. Measures taken by Members in the exercise of this right
of self-defence shall be immediately reported to the Security Council and shall not in any
way affect the authority and responsibility of the Security Council under the present
Charter to take at any time such action as it deems necessary in order to maintain or restore
international peace and security.

Nicaragua v United States

 In this case, Nicaragua alleged that US had: -
1. Used direct armed force against it by laying mines in Nicaragua waters, and
attacking and damaging Nicaraguan ports and oil installations.
2. Used indirect forces and intervened in the domestic affairs of Nicaragua, by
giving assistance to the contras, Nicaragua guerrillas fighting to overthrow the
Nicaraguan Government.
Held: The World Court announced its judgement in favour of Nicaragua. It rejected the
justification of collective self-defence by the US. This is because by training, arming, and
financing the contras forces, US had acted against Nicaragua, in breach of its obligation
not to intervene in the affairs of other States and that by certain attacks on Nicaraguan
territory in 1983-84 had acted in breach of its obligation not to use force against another
State.
Role of Security Council in Self-Defence
1. The right of self-defence can be exercised until the Security Council has taken
measures necessary to maintain international peace and security.
2. Measures taken in self-defence shall be immediately reported to the Security Council.
Nicaragua v United States
 In this case, it was held that a State could not invoke the right of self-defence if it
failed to comply with the requirement of reporting to the Security Council.

Essential Elements of a Lawful Self-Defence

Nuclear Weapon Case
Nicaragua v United States
 In this case, it was held that the three essential elements of a lawful self-defence are:
i) Armed attack;
ii) Necessity; and
iii) Proportionality.
Oil Platform Case (Iran v US)
 In this case, the court held that US attack against Iranian oil platform were not
justified as lawful self-defence because: -
i) The US failed to discharge the burden of proof of the existence of armed
attacks by Iran on it;
ii) The requirement of necessity was not satisfied as the oil platforms were not
military facilities and they were not legitimate targets for an armed action in
self-defence
iii) Even if Iran was responsible for armed attacks, the US’s attacks on oil
platforms were not proportionate.

First Element: Armed Attack

Nicaragua v United States
 In this case, it was held that armed attack includes: -
i) Action by regular armed forces across an international border [Direct
armed attack]
ii) On behalf of a State of armed bands, groups, irregulars which carry out acts
of armed forces against another State of such a gravity as to amount to an
actual armed attack conducted by regular armed forces. [Indirect armed
attack]
A. Direct Armed Attack by a State
Article 3 of General Assembly Definition of Aggression: Direct armed attack by a State
may include: -
(i) The invasion or attack by the armed forces of another State’s territory
(ii) Any military occupation, however temporary, resulting from such invasion or
attack; or [EG: Israeli occupation of Arab & Palestinian territories during the
six-day war]
(iii) Use of any weapons or bombardment by the armed forces of a State against the
territory of another State.
Nicaragua v United States
 In this case, it was held that to be deemed as an armed attack, it must has sufficient
gravity. Mere frontier incident, for example, exchange of shots between border
guards of the two States, cannot be classified as armed attack.

B. Indirect Armed Attack – By non-State actors which is attributable to a State

 In addition to the sending itself, the court considers that the substantial involvement
of a State in the action that constitute armed attack.
Nicaragua v United States
 In this case, it was held that mere assistance to rebels in the form of the provision of
weapons or other support might involve an intervention that can create State
responsibility and subject to certain sanction, but these would not constitute an
armed attack for purposes of self-defence.

Armed Attack Must be In-Progress or On-going

 The purpose of self-defence is to defend and not to retaliate. Hence, in order for the
self-defence to be justified, the armed attack must be an actual and ongoing one, that
is, the victim State must be under an armed attack.
 A State that has been the victim of a completed attack may not use armed force in
retaliation and claim self-defence. Armed reprisals are contrary to Article 2(4) of
UN Charter.
The Target of an Armed Attack
Tehran Hostage Case
 In this case, it was held that the armed attack must be against the State, in other
words, it must be against the ‘territorial integrity and political independence’.

a) The territory of a State

 The foremost target of an armed attack justifying the use of force in self-defence is
the territory of a Foreign State or any section thereof – land, water or air, including
persons or property within the affected area.
 Therefore, the invasion by the armed forces of a State of the territory of another State,
as well as bombardment of a Foreign territory and cross-border use of weapons
represent classical cases of armed attacks provided that they are on a certain scale
and have a major effect.

b) External positions of a State

 Attack by a State’s armed force on land, water or air of another State which are
outside the national territory amounts to an ‘armed attack’ provided the use of force
is significant.
 Therefore, warships and combat aircraft (军舰和作战飞机), when assaulted by
Foreign force on the high seas or in international airspace do have the right to defend
themselves if the attack is significant.

The Beginning of Armed Attack

 Usually, the right of self-defence may be exercised once there is a full-scale invasion
of one country by another.
 On the other hand, a State may resort to force in self-defence even before its territory
is invaded by another State provided that there is a clear intention of armed attack.
Second Element: Necessity
1. First Requirement: There must be an actual attack against a State.
Oil Platforms Case
 In this case, it was held that the burden of proving there has been an armed attack
against it lies on the State which wants to use force in self-defence.

2. Second Requirement: The State attacked must not, in the particular circumstances,
have had any means (eg: peaceful means or recourse to the Security Council) of halting
the attack other than recourse to armed force. [No other means to stop the attack]

3. Third Requirement: Must have element of ‘Immediacy’. When the armed attack is
accomplished, damages suffered, and the danger passed, then the incidents of self-
defence cease. The State must then rely on the Security Council for assistance. If the
State attacked responds only after some time, it would amount to unlawful ‘reprisals’.
Caroline Incident Case
 In this case, it was held that there must be a necessity of self-defence, instant,
overwhelming, leaving no choice of means, and no moment for deliberations.
Nicaragua v United States
 In this case, the court observed the condition of necessity was not fulfilled when the
US began its collective defensive measures many months after the alleged attack by
Nicaragua on El Salvador.
Falkland Conflict & Gulf War
 In both incidents, although the initial armed attack was over, there was military
occupation of the targeted territory which amounted to continuous ‘armed attack’
and thus, self-defence was justified so long as the occupation lasted.
Third Element: Proportionality

 Proportionality and necessity are intertwined. Proportionality required the force used
must not more than necessary to meet the objectives of self-defence.
Oil Platforms Case
 In this case, it was held that the element of proportionality is depending on the nature,
scale and effect of the attack.

 The defensive action must be proportionate to the armed attack.

 Only measures that are compatible with the legitimate objectives are amount to in
proportion. The legitimate objectives of self-defence include resistance to an on-
going armed attack, eviction of invader and the restoration of the territory status quo
ante bellum (before the war).

Events
1. US use of force in Afghanistan: The occupation of the delinquent State’s territory
for an indefinite period of time clearly violate the principle of proportionality.
2. US invasion and occupation of Iraq: The overthrowing of its legitimate
government clearly violate the principle of proportionality.

Individual & Collective Self-Defence

 Article 51 of UN Charter recognises both individual and collective self-defence. In
anticipation of future armed attack, States can conclude collective self-defence
treaties in accordance with Article 51.
Nicaragua v United States
 In this case, the World Court held that the elements to be satisfied are similar in both
individual and collective self-defence. A further requirement in the case of collective
self-defence is the ‘request’ by the victim State to come to its assistance. This means
that other States could only provide aids when it is requested by the victim State.

Examples for Collective Self-Defence

Article 4 of North Atlantic Treaty of 4/4/1949 (NATO): Armed attack on any Europe or
North America countries, considered as an attack on all of them. Self-defence (collective
or individual) according with the Art.51, will help the attacked country for necessity using
forces to restore and maintain security in North Atlantic.
Enforcement Action under Chapter VII of UN Charter

 Enforcement action is the use of force on behalf of international community against

a delinquent State. Security Council has been entrusted with primary responsibility
for the maintenance of international peace and security.

 Article 39 of UN Charter stated that Security Council has the power to determine
(i) the existence of breach of the peace or act of aggression and (ii) decide on
measures to maintain international peace and security.

 Article 43 of UN Charter stated that Security Council has the power to take military
action or to use force against a delinquent State.

 Thus, collective use of force authorised by Security Council as an enforcement

action is the legitimate use of force which is an exception to the principle of non-use
of force.

 The Security Council consists of 15 members, 5 permanent and 10 non-permanent.

The permanent members consists of China, Russia, France, UK and US and they
enjoy a privileged status not only by virtue of their permanency but also by reason
of their veto power.

 The effect of Article 27(3) is that each permanent member of the Security Council
has a veto power on non-procedural or substantive questions.

 In the Security Council, decisions regarding enforcement action can be taken only
when the BIG 5 unanimously agree. Therefore, an enforcement action is always
vetoable.

 The Security Council has 2 forms of enforcement action namely (i) action not
involving in the use of armed force as described in Article 41. It mainly speaks of
interruption of economic relations and of all means of communication, as well as the
severance of diplomatic relations. As an illustration, Security Council could take
enforcement actions under Art.41 in the Rhodesia, the white minority regime which
was exercising apartheid policy and (ii) action involving the use of armed forces as
described in Article 42.
 Anticipatory Self-Defence

 The right of anticipatory self-defence whenever an attack is expected is the most

controversial attempt to widen the exceptional right of self-defence.

 According to an American realism, McDougal argues that States faced with

perceived danger of immediate attack cannot be expected to await the attack ‘like
sitting duck’.

 There are two arguments made by leading advocates of the anticipatory self-defence
which are (i) anticipatory self-defence is allowed by customary international law and
(ii) nuclear weapon and modern sophisticated devices make it inadvisable to wait for
the attack.

 However, there are several arguments with respect to these two allegations.
i) Anticipatory Self-Defence Is Not An Established Rule of Customary International Law.
 Many Western writers are of the view that Caroline incident is a classic precedent
of anticipatory self-defence.
Caroline Incident
 Caroline was an American ship that had been used by Canadian rebels to harass
British authorities in Canada. When it was moored in an American port, a British
force from Canada seized the Caroline, fired and sent her over Niagara Falls.
 In order to determine legality of the attack, British have to shows a necessity of self-
defence, instant, overwhelming leaving no choice of means, and no moment for
deliberation.
 However, the analysis of facts clearly shows that (a) armed attacks by the rebels
against British had been in progress which amount to on-going armed attack, thus
Caroline incident which is a classic precedent of anticipatory self-defence is
fundamentally flawed. (b) Even one accepted Caroline incident did formulated the
right of anticipatory self-defence, it is merely a practice between US and Britain
because to be established as a rule of general customary international law, it must be
supported by widespread and consistent State practice.

 Even anticipatory self-defence is accepted as pre-Charter customary law, it could

not survive in UN Charter because use of force is unlawful except self-defence and
enforcement action as stipulated in Article 2(4) of UN Charter.

 Article 51 of UN Charter emphasizes that actual armed attack is an essential

requirement for legitimate self-defence. This provision clearly abolished the
possibility of preventative action in self-defence.
  In Post UN Charter, State practice also not in support of anticipatory self-defence
which shows that it will never established as customary international law. Fear of
creating a dangerous precedent is probably the reason why States seldom invoke
anticipatory self-defence in practice.

 Thus, the right of anticipatory self-defence claimed to be formulated in Caroline

incident was not supported by post UN Charter, State practice was never established
as customary international law.

 The 3 notable incidents of anticipatory self-defence are as follow:

The Israel destruction of Iraq’s nuclear reactor
 Israeli war planes destroyed Iraq’s nuclear reactor which was a research type and
meant for peaceful purpose. Such destruction causing many civilians casualties.
However, Israel argued that they merely exercising its inherent right of self-defence
in accordance with Article 51 of UN Charter.
 Security Council condemned the military attack by Israel is clear violation of UN
Charter and norms of international conduct. Such condemnation means a clear
rejection of the notion of ‘anticipatory self-defence’ by international community.
United States used force against Afghanistan
 The commentator argued that US use of force was also pre-emptive because in its
letter to Security Council, they said the action was in response to the attack on the
World Trade Centre and defer further attacks on US but it did not specify
information about any anticipated attacks.
 However, the letter also mentioned the ‘significant armed attack has already
occurred’ which clearly indicate the Afghanistan incident cannot be a precedent
legitimising anticipatory self-defence because there is an actual armed attack against
World Trade Centre.
United States invaded Iraq
 US invaded Iraq despite the overwhelming opposition by international community.
The US’ controversial reliance on ‘pre-emptive self-defence’ or Bush Doctrine for
the invasion of Iraq also met opposition by the international community.

 The general rule is that almost all States after the emergence of United Nations never
accept the right of anticipatory self-defence as lawful but such acceptance is depend
on the fact of each circumstances. Therefore, the right of anticipatory self-defence
as formulated in Caroline case cannot be said forming part of the existing customary
law.
BUSH DOCTRINE

 Bush doctrine is very controversial as there is no need immediate threat, planning

also is sufficient to attack particular country.

 There are two main pillars are identified for the doctrine which are (i) pre-emptive
strikes against potential enemies and (ii) promoting democratic regime change.

 The arguments expressed both before and after the invasion of Iraq, accuse United
States to act unilaterally is a dangerous precedent. The United States ignores world
opinion, thereby jeopardizing the international cooperation.

 The President Obama had modified the Bush doctrine of pre-emption by stating that
if the force is necessary we will continue to do so to reflect our values and
strengthens our legitimacy.

ii) Nuclear Weapon and Modern Sophisticated Missiles Systems Do Not Make Anticipatory
Self-defence a Necessity

 Most writers and governments agree that it would be too dangerous to allow
anticipatory self-defence simply because there were nuclear weapons with modern
sophisticated devices.

 Intercontinental Ballistic Missiles (ICBMs) or even intermediate range missiles can

be destroyed by an effective Anti-Ballistic Missile (ABM) system. It shows that
defensive measure are still possible even after a nuclear missile has been launched.

 Therefore, the claim that nuclear weapons have made the anticipatory self-defence
a necessity is obviously unfounded.
iii) Anticipatory Self-defence will be Open To Abuse and Open the Floodgates For Unending
Armed Conflicts

 Anticipatory self-defence does not require to determine the certainty of attack which
may lead to an unthinkable tragedy if there is a mistaken assessment of a situation.
United States invaded Iraq in 2003 [Example of mistaken assessment]
 US was justify to invade Iraq because of its possession of Weapons of Mass
Destruction and their potential danger to US and its citizens. Their intelligence
reports were so positive and indicative that Iraq definitely had such destructive
weapons and only after the invasion it was proven to be untrue.

 The notion of anticipatory self-defence is also objectionable because it tends to

expose the danger of opening the floodgates for unending armed conflicts. If
 anticipatory self-defence is legal, every States would have a license to attack any
other State on the ground of potential danger.
Claim of Self-Defence Against a Terrorist Attack
i) Can Terrorists Raised the Right of Self-Defence?

 Self-defence is regarded as a right applicable only in an inter-State armed conflict.

However, there have been attempts to reinterpret the meaning of ‘armed attack’
under Article 51 of UN Charter to include attacks by terrorists who is non-State
actors and thus rendering the use of force against terrorist as a lawful exercise of self
-defence.

 They argued that Article 51 of UN Charter merely identifies the potential target of
an armed attack must be a State and does not specifically state that the perpetrator
must be State as well. It is true that wording of Article 51 is merely ‘if an armed
occurs against a Member of the United Nation’. Even though Article 51 of UN
Charter does not expressly mentioned that armed attack must come from a State, the
meaning is implicit where it must be an act of a State.
 Article 2(4) of UN Charter provides for the prohibition of the use of force in
international relations which clearly means prohibition of the use of force by one
State against another State. Since the general rule is restricted to the prohibition of
the inter-State use of force, it is absurd to interpret exception for the use of force by
non-State actors without the attribution of a State.

 This shows that international law remains State-centred despite the terrorist situation.
These arguments are fundamentally flawed and contrary to well established
international law rules. It is fairly concluded that the right of self-defence against
terrorists is not supported by legal as well as policy considerations. If we have to
accept self-defence against terrorists, the international law of armed conflict has to
be entirely restructured.
ii) Can Terrorists Attack Considered As An Armed Attack under Article 51 of UN Charter?

Nicaragua case
 The ICJ has formulated a comprehensive definition of an ‘armed attack’ which even
extended to include attacks by ‘non-State actors’. However, there are two essential
elements must be satisfied for a terrorist attack to be qualified as an ‘armed attack’
under Article 51 namely:
o The non-State actors must be sent by or on behalf of a State. The armed attack
must come from a State or be attributable to a State.
o Scale and effects: The attack must be grave as to amount to an actual armed
attack conducted by regular armed forces.

 If the terrorist attack does not reach the threshold of scale and effects, the responsible
State may be subject to every kind of sanction by the victim State or enforcement
action by the Security Council.
Oil Platform’s case
 Due to the inconclusiveness of the evidence of Iran’s responsibility for the mining
of the USS, the court is unable to hold that the attack have been justifiably made.
Palestinian Wall Advisory Opinion
 Article 51 of UN Charter recognises the existence of an inherent right of self-defence
in the case of armed attack by one State against another State but in this case Israel
does not claim that the attacks against it are attributable to a foreign State.
Armed Activities in Congo case
 The court rejected Uganda’s claim of self-defence for its attack against Democratic
Republic of Congo (DRC) because the attack did not arise on behalf of DRC. Thus,
they still remained non-attributable to the DRC.

 Furthermore, the Security Council Resolution 1368 and 1373 do not expressly says
that terrorist attacks constitute an ‘armed attack’ within the meaning of Article 51 of
UN Charter. The wordings of the above resolutions can be compared with those of
the actual determination by the Council of a genuine self-defence.
Iraqi invasion of Kuwait
 Iraq invaded Kuwait and UN demanded Iraq withdrew immediately its forces from
Kuwait. The wording of resolution affirmed the inherent right of individual or
collective self-defence in response to the armed attack by Iraq against Kuwait.

 In order for the use of force against a State on account of terrorist attacks to be lawful,
terrorist attack must be tantamount to an armed attack under international law and it
must be an act of a State or attributable to a State.
Armed Reprisals

 Reprisals is an act of retaliation of a State for an illegal act committed against itself
by an act of a similar kind.

 Reprisals consists of two types namely (i) involving the use of armed forces –armed
reprisals and (ii) not involving the use of armed forces.

 The General Assembly Declaration on Principles of International Law had

stated that States have a duty to refrain from acts of reprisals involving the use of
force. Thus, it is settled law that act of rebels are illegal.

 The main elements of “right of reprisal” are: subsidiarity (failure of all other
available means), notice (formal warning of the planned action), proportionality (the
damage and suffering inflicted on the adverse party not to exceed the level of
damage), and temporary character (termination of the reprisal when the enemy stops
violating the law).
Naulilaa Case (Portugal v Germany)
 Germans enter Angola to negotiate the transportation of supplies. Argument arises
and the Germans are shot. Without any further communication, a number of Angola
forts are destroyed. Germany claimed that they were engaged in a reprisal but they
did not satisfy the requirements of a legal reprisal. Thus, German government have
to pay reparation “for the damage caused by its aggressions.

 Reprisals are strictly restricted. They are subject to the following limitations:
o Reprisals must not involve the use of force. By virtue of Art 2(4) of UN
Charter, armed reprisals is prohibited.
o Reprisals must not violate fundamental principle of human rights.
o Reprisals must be proportionate with the injury suffered.

Distinction between Reprisals and Self-Defence

SELF-DEFENCE REPRISALS
 Self-defence aim to protect the  Reprisals seek to impose reparation
sovereignty of the State. It is for the harm done. Since the harm
protective in nature and can never be has already been inflicted, it cannot
in the form of a punishment or be characterized as a means of
sanction. protection.
The distinction is the punishment. This is the reason why armed reprisals have been
prohibited while self-defence is still permitted as it is acts as a measure of
protection.
Distinction between Reprisals and Retorsion

Reprisals Retorsion
 Reprisals are acts normally illegal but  Retorsion is a lawful but unfriendly
it will becomes legal by a prior illegal act against an unfriendly act of
act committed by the other state. another state – e.g. declaring their
non-welcoming to a diplomat
persona.

Condemnation of Reprisals by the Security Council

 By virtue of Article 2(4) of UN Charter, self-defence is the only permissible use of

unilateral force and use of force by way of reprisals is illegal.

 However, there are many countries including US and UK still used force which was
in reality acts of reprisal by justifying it with ‘accumulation of events theory’. They
argued that a series of past incidents against the security of their territory and
property, thus the use of force is justified as self-defence based on the accumulation
of past events.
The Beirut Raid
 Israeli commandos had destroyed 13 civil aeroplanes at Beirut airport in Lebanon.
Then Palestine guerrillas was retaliated the raid by attacking on an EI Al aeroplane
at Athens.
 The Security Council condemned Israel for its planned military action in violation
of its obligations under the Charter and considered Lebanon was entitled to
appropriate redress for the destruction it had suffered.
Bombing of PLO Headquarters
 Another reprisals by Israel is the bombing of the PLO Headquarters in Tunisia
following the killing of Israeli tourists by Palestinian guerrillas.
 The Security Council condemned Israel for its bombing as it is an act of armed
aggression in violation of international law.
Humanitarian Intervention

 Humanitarian intervention means when a State commits cruelties against nationals

to deny their fundamental human rights and to shock the conscience of mankind,
intervention in the interest of humanity is legally permissible.

 The two most discussed instance of alleged humanitarian intervention are India’s
intervention in East Pakistan in 1971 and Tanzania’s humanitarian invasion of
Uganda in 1970. Although both did result in unquestionable benefits for the people
of East Bengal and Uganda, India and Tanzania reluctant to use humanitarian to
justify their invasion of neighbour’s territory. Both prefer to quote the right of self -
defence.

 Therefore, it appears little evidence that States have accepted a right of humanitarian
intervention.

 Although humanitarian end is a noble one, the possibility for abuse is manifest. This
is because the use of force in humanitarian intervention runs directly counter to the
whole purpose of Article 2(4) of UN Charter as it against the ‘territorial integrity’
and ‘political independence’ of the target State.
The Kurdish Crisis
 The ‘Operation Comfort’ was an allied intervention to save the Kurdish refugees.
The coalition States also establish ‘no fly zone’ where Iraqi aircraft were excluded
in Iraq to protect Kurds from Iraqi attack. The Security Council Resolution 688
always been referred to as the legal basis for this action.
 However, the resolution 688 was not made under Chapter VII, its wording does not
mention any collective enforcement measures and it did not expressly authorise the
allied military intervention. Thus, many jurists viewed the intervention as unilateral
action without authorisation and concluded that it was illegal under international law.
Intervention in Somalia, Rwanda, Haiti and Yugoslavia
 These intervention are primarily based on Security Council resolutions. Therefore,
they are generally categorised as instances of humanitarian intervention and they are
in effect enforcement actions under Chapter VII of the UN Charter which are legal.

 We have to clearly distinguish ‘unilateral humanitarian intervention’ from

‘collective humanitarian intervention’. The former is a violation of Article 2(4) of
UN Charter and thus illegal while the latter is legal.
The Law On The Use of Force After September 11
(i) US Use of Force in Afghanistan (2001)

 US and its allies used military force in Afghanistan, alleging government of

Afghanistan (Taliban) had harboured and gave safe heaven to Al Qaeda terrorist.
Initially, US demanded Taliban government to hand over the leaders of Al Qaeda
but latter declined to do so. Then, US argued that they exercising its inherent right
of self-defence by attacking terrorist training camps and military installation in
Afghanistan.

 There are 2 exceptions in UN Charter to the prohibition on the use of force. First,
State may use force when authorised by Security Council pursuant to Article 2(4)
of UN Charter. In the current case, Security Council had passed two resolutions
prior to US military action against Afghanistan but it did not authorise US to use
force against Afghanistan.

 Second, States may use force in self-defence ‘if an armed attack occurs’ pursuant to
Article 51 of UN Charter. However, September 11 terrorist attacks cannot consider
‘armed attack’ within the meaning of Article 51 because attacks were not made by
particular State but by terrorists who were ‘non-State actors. There is also absence
of effect that they were agents of Taliban or acted on behalf of Taliban regime. Thus,
the attack cannot be considered as an armed attack.

 The impact of international law on the use of force is that it is still as it was and has
by no means been modified.

 It is true that majority of State did not oppose the use of force against Afghanistan
because
o September 11 incident was a tragedy not only for the US but also for
international community and therefore use of force to attack Al Qaeda
terrorists is a just war.
o Most States did not recognise and dislikes Taliban regime as there is no
diplomatic ties with it due to gross violations of human rights
o If the use of force were not against Taliban but against another sovereign State,
the reaction of international community would be certainly different.

 However, the absence of protest against the use of force in Afghanistan could not
constitute ‘acquiescence’ by States. Thus, international law is intact, to be a
legitimate self-defence, there must be an armed attack by a State or its agent must
be directly involved in the armed attack.
(ii) ‘State Responsibility’ Issue

 International Law Commission’s Articles on Responsibility of States 2001

regard a State as responsible if they are acting on the instructions of a State and State
acknowledged and adopts the conduct in question as its own.
Nicaragua case
 The World Court held that the acts of the contras cannot be attributed to the United
States because US does not control on the operation of the contras.

 In the absence of Security Council’s authorisation to use military force against a

State that merely harbours terrorists and does not directly involve in a process of
armed attack, the use of military force against such State is not permissible under
international law.

 Unless the State itself is organising, directing or directly participating in armed

attacks by non-State terrorists, otherwise the use of military force against the State
would be unlawful.
(iii) US invasion of Iraq (2003)

 US and its allies invaded Iraq despite the widespread opposition by most of the
international community. However, US justify their invasion of Iraq by relying on
the doctrine of pre-emptive self-defence’ which has no basis in international law
because it goes beyond the ‘imminent threat’ requirement of the doctrine of
anticipatory self-defence.

 US also asserted that invasion was lawful because Security Council had authorised
it in earlier resolution. However, the overwhelming majority of international lawyers
opined that resolution clearly demonstrate that US and its allies did not have Security
Council’s authorisation to invade Iraq. Thus, the legal justification invoked by US
and its allies to invade Iraq are unfounded in international law.

 The impact of international law on the use of force is that it is still as it was and has
by no means been modified or altered.

 In fact, United States could proceed to invade Iraq without invoking international
law norm, but instead it took the case to United Nations. It also repeatedly referred
to UN Charter for the ‘bindingness’ of the resolutions. This shows that US still relied
on established international law norm. Thus, US’ invasion of Iraq cannot be consider
as a total rejection of authority of Security Council.
Civil Wars

 A civil war can be defined as a war between two or more groups of inhabitants of
the same State, one of which may be the government.

 There is no rule in International law against civil wars. Article 2 (4) prohibits the
use of force in international relations only. Thus, the issue is the lawfulness of
intervention by other States in a civil war in another country.

 In principle, a legitimate government may invite the armed forces of another state
on to its territory for any purpose lawful under international law.

 In the Afghanistan case (1979), the former Soviet Union invaded Afghanistan in
pursuance of an invitation from the alleged legitimate government. Since the civil
war was still in progress the Soviet argument was obviously unfounded.

 There is also the problem of fabricated invitations. For instance, in the Grenada
case (1983) it was argued that the Governor General requested the US intervention.
However, it is doubtful whether he was competent to do so.

PROTECTION OF NATIONALS ABROAD

 The right to use force to protect nationals abroad need to justify on two grounds
o The strike may not amount to infringement of territorial integrity of any State
and thus not violate Art.2(4) of the Charter or
o It is an aspect of self-defence, so that an attack on the state itself.

 Article 1 of General Assembly Definition of Aggression had mentioned that even

a mere entry into foreign territory will be considered as an act of aggression.

 Since the use of force for the protection of citizen abroad always involves the
infringement of the territorial integrity, it clearly violates Art.2(4) of UN Charter
and thus illegal.

 The 2nd ground is “self-defence”. According to Article 51 of UN Charter, armed

attack must be against a state. It means that self-defence can be exercised only when
an armed attack endangers territorial integrity or political independence of the victim
state. Therefore, the reliance on self-defence as a justification is not a sound one.

 Overwhelming majority of States do not accept the existence of such a right to

protect nationals abroad.