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Summary problem 4 pil
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Problem 4: ForcefulE-lesson: 14
Literature: Chapter 10
Legislation: Charter of the United Nations, Article 5 NATO Treaty, UNSC Resolution 2249
Case Law: Nigaragua, Advisory Opinion Threat Nuclear Weapons, Tadic, Genocide case, Oil platform,
Advisory Opinion on Namibia
How is the use of force regulated?
The prohibition of the use of force under international law
The rules on the use of force, and in particular the prohibition on the use of force (except two
exceptions), are anchored (verankerd) in the UN Charter (VN-Handvest). Recent developments
(humanitarian intervention and terrorist acts) challenge the UN Charter rules on the use of force.
Introduction
The doctrine on the use of force is also known as jus ad bellum.
These rules regulate when force may be used legitimately;
In a case where force is used (irrespective (ongeacht) of whether it is done legitimately), a
succeeding regime of law will enter into force, namely international humanitarian law, also
known as jus In bello.
International humanitarian law contains rules on warfare: it prescribes how to behave when engaged
in an armed conflict. It does not concern itself with the question whether a war has been lawfully
started.
Thus, whether the rules of jus ad bellum (use of force) have been correctly applied.
The law on the use of force remains one of the most controversial areas of international law.
The prohibition on the use of force by states is anchored in Article 2(4) UN Charter;
However, it is also part of customary international law, as confirmed in the case
Nigaragua paragraphs 176, 190 and 193;
However, controversy remains as to the lawful exceptions to Article 2(4) UN Charter. This
controversy concerns two aspects in particular:
1. The extent of the exceptions in the UN Charter, which are self-defence (Article 51) and the
use of force with the authorization of the UN Security Council (Article 42);
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons
The ICJ confirmed in paragraph 38 that the prohibition of the use of force is to be
considered in the light of other relevant provisions of the Charter. In Article 51, the Charter
recognizes the inherent right of individual or collective self-defence if an armed attack
occurs. A further lawful use of force is envisaged in Article 42, whereby the Security
Council may take military enforcement measures in conformity with Chapter VII of the
Charter;
2. Possible exceptions outside the UN Charter, in particular humanitarian intervention. Both
humanitarian intervention and terrorist acts pose challenges to the UN Charter system on
the use of force and to international law more in general.
Self-defence
UN Charter
The UN Charter and the Use of Force
The UN Charter sets out the prohibition, which follows from Article 2(3) UN Charter that states that
states shall settle their international disputes by peaceful means.
Article 2(3) UN Charter is further developed in Chapter VI UN Charter (Articles 33-38) and is
about international dispute settlement.
Article 2(4) UN Charter prohibits not only the actual use of force, but also the threat of force. This has
proved difficult to operationalize, but still suggests that the drafters were keen on creating as
comprehensive a prohibition as possible.
The right to be free form the use of force is not merely reserved for member states, but applies
to all states;
The prohibition only affects the activities of states in their international relations. Whatever
happens within a state is not the concern of international law.
, In Armed Activities paragraphs 148, 164 and 168, the Court held that article 2(4) UN was a
cornerstone of the Charter, and that the provision on self-defence has to be read narrowly, it did not
allow the use of force by a State to protect perceived security interests beyond the wording of article
51, although the Court stopped short of saying that an armed attack must indeed already have
occurred. While Uganda argued that it had occupied towns and airports in the DRC not for the purpose
of overthrowing the DRC government but for its own perceived security needs, the Court did not
accept that argument, and held that Uganda, in doing so, had violated the principles of non-
intervention and the non-use of force. Uganda’s unlawful military intervention amounted to a grave
violation of the prohibition of the use of force expressed in article 2(4) UN Charter.
The Charter allows for two exceptions to the prohibition on the use of force.
In case of the right to self-defence, the UN Security Council retains the competence to take
decisions with respect to the situation at hand (Article 51 UN Charter);
The establishment of an armed force under control of the UN Security Council, as envisaged
in Article 43 UN Charter was never implemented in practice;
Instead, the UN Security Council authorizes the UN member state to use force under
Article 42 UN Charter. In other words, the troops would remain under the military
command of one or more specific member states, and do not operate under command
of the UN as international organization.
Customary international law
The right of self-defence forms a part of customary international law, as confirmed by the ICJ in the
case Nigaragua in paragraphs 176, 190 and 193.
The condition under which self-defence from article 51 UN Charter may be exercised is rather strict.
Self-defence may be engaged in if an armed attack occurs.
The argument goes that the customary right of self-defence would be broader than the right as
formulated in article 51 UN Charter and can be used before an armed attack occurs;
The customary requirements are authoritatively (gezaghebbend) formulated in
correspondence between the United States and the United Kingdom following the
British attack on an American ship, the schooner Caroline, in 1837.
The Caroline had been used to transport supplies to Canadians rebelling against
British domination, and was consequently attacked by the British while lying in
harbour. US Secretary of State Daniel Webster claimed, in correspondence with UK
representative Lord Ashburton, that the attack on a ship lying in harbour could not be
justified under the heading of self-defence, for self-defence was only allowed in cases
in which the necessity of that self-defence is instant, overwhelming, and leaving no
choice of means, and no moment for deliberation. The threat, in other words, must be
imminent (dreigend);
Webster’s definition, while strict, is not quite as strict as Article 51 UN Charter,
and leaves open the possibility of anticipatory self-defence. This is self-
defence in anticipation of an attack that is about to happen;
Even the Webster definition does not allow preemptive (preventieve) self-
defence. This is self-defence with the putative aim of preventing a strike by
the other state which may or may not otherwise take place at some
unspecified later point in time. The risk will be obvious, far from contributing to
the outlawing of force, a doctrine of preemptive self-defence might give
powerful states an almost unlimited licence to use force.
Requirements lawful self-defense
The right to self-defence is not boundless or open-ended. Certain criteria have to be met for a state to
lawfully exercise the right of self-defence. These criteria, which are derived both from Article 51 UN
Charter and customary international law, concern:
I. The occurrence of an armed attack – a state needs to be subjected to a significant armed
attack, in order to invoke its right to self-defence;
II. Necessity – the resort to the use of force in self-defence has to be a measure of the last resort
to counter an attack;
III. Proportionality – the proportion of such a use of force in self-defence has to be limited to a
level that is minimally sufficient to repel an armed attack.
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