“The Real Problem with the law relating to the use of force is not establishing what the rules of international law are, but ensuring that they are observed. Do you agree?”

by Robert Courts (University, 2000)

The law relating to the use of force has changed hugely since the end of the Second World War, and again in the new situations facing the world following the end of the Cold War. New institutions have come into existence, old ones have faded away and a correspondingly vast amount of academic literature has pored forth on this, arguably the most important area of international law.

This essay will examine to what extent the rules on this topic are settled, and whether it is indeed true that the real problem is not establishing what they are, but ensuring their observance. To do this, it will concentrate on the most prominent and controversial areas of this huge topic, for the brevity of this analysis must necessitate some selectivity. The idea will be advanced that, secure though the rules of international law are in theory, the realities of international law and the world situation make both for uncertain rules, and problems of enforcement.

It should perhaps be noted at his stage that collective action under the auspices of the United Nations (henceforth UN) is not a central part of this consideration. This is because any action thus carried out (see for example the actions in Korea, and in a slightly different capacity, the Gulf,) will naturally be operating under a Security Council resolution, which confers the necessary legality. These forces are, therefore, clearly observing the rules of international law, as effectively “created” by the UN. So, this essay will therefore concentrate on the actions of individual states, and groups of states operating outside the UN.

  The first thing that needs to be looked at is the general position on the use of force in international law today. The situation is a far cry from the turn-of –the-century position, stated by Hall: “International Law has no alternative but to accept war, independently of the justice of its origin.”[i]. Neither the League of Nations nor the Kellogg-Briand Pact of 1928 managed to alter this pessimistic comment, but the combined slaughter and destruction of two world wars (despite the above ineffectual efforts in the inter-war years,) did. Today, enshrined in the Charter of the United Nations, is the principle that “All members shall refrain in their international relations from the threat or use of force”[ii], a rule that reflects customary international law.[iii]Of course, there are exceptions to this, and it is to these exceptions, and the rules governing them, that we now turn our attention.

  The first area to be examined is that of self-defence. This is one of the most controversial areas of the use of force, and there are many examples that arguably show a problem with determining what the rules are, let alone enforcing them.

The position is laid down in the UN Charter: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs”[iv]. One also needs to consider the position in customary international law, laid down in the Caroline Case[v]. This case embodies some important principles, for example that of the response being proportionate to the harm threatened or received.

However, even at this early stage we see the cracks of uncertainty appearing. Which position is authoritative on self-defence: the Caroline Case or the UN Charter? Brownlie and Kelson argue Article 51 is conclusive, that a state cannot be acting in self-defence unless it is within Article 51. Bowett, however, argues that in cases of ambiguity one should look at customary law: “it is fallacious to assume that members have only these rights which the Charter accords them”[vi]. There is a lot of evidence for this second view, including the Committee No.1 of the San Francisco Conference and the Official British Commentary on the Charter[vii], both of which seem to view self-defence as unimpaired by the UN Charter. Whichever way you look at it, it is clear that to suggest that the rules are settled is clearly a misconception.

A controversial use of the justification of self-defence was in the Entebe Incident.[viii] Here, Israeli commandos rescued their nationals from a flight that had been hijacked by Arab terrorists and landed in Uganda, where the authorities had made little attempt to rescue them, and indeed may have helped the terrorists.  Although no resolution was adopted at the end of the Security Council debate, there was a great deal of useful analysis. The Israelis, naturally, claimed that the inherent right to self-defence extended to a right to defend their nationals abroad, suspending the sovereignty of the local state if need be. Although the Israeli action was not widely condemned and may, indeed, be said to be accepted, there is still doubt over whether the rules stretch this far. For instance, Brownlie[ix] states that “it is very doubtful if the present form of intervention has any basis in the modern law...it provides infinite opportunities for abuse”. Whichever view one takes, once again, it is clear that the rules are not as clear in this respect as the title of this essay would suggest.

One landmark case which deserves some consideration is the Nicaragua Case which “casts a considerable shadow of uncertainty over the right to use force in self-defence” (MacLean)[x]. Here, the United States were before the ICJ for certain actions affecting Nicaragua, for example mining their waters, arming rebels, and so on. The justification was that all this was done in collective self-defence of El Salvador and Costa Rica. This argument was not successful and the Court appeared to limit the right of self-defence to cases involving an “armed attack”, i.e. following a strict interpretation of the UN Charter. However, the meaning of “armed attack” was not exhaustively explored, and although it was suggested that it may not be necessary to actually receive an attack, the action must be of a serious nature. Clearly there is a great deal of uncertainty here as to what degree of force constitutes an “armed attack”, a distinction which Sir Robert Jennings, in his dissenting judgement, said was “neither realistic nor just”[xi].  Because of this uncertainty, it is possible that “ the approach of the court should be followed with caution and perhaps limited to the facts of the case in issue” (MacLean[xii]).  Not for the first time, it has to be said that one can take a number of views on this case, but once again it is neither indicative of a clear legal situation, nor helpful in clarifying it.

A more recent example is the legality ( or otherwise) of the 1993 US missile strike on Iraq, in response to a foiled Iraqi plot to assassinate former President Bush.[xiii]  Again , this was justified as self defence ( as the president is seen as an embodiment of the state,) and claimed to be necessary , immediate and proportionate, as the requirement for self defence stipulate.  Space prevents a thorough investigation of this incident, but it seems unlikely that this action was in “strict compliance” with “any conventional understanding of international law” (Kritsiotis[xiv]). However, as that author points out, it is possible that the US was “engaged in the progressive development of this area”[xv]. After all, international law is permanently evolving, especially in the post-Cold War environment: It is not an absolute, settled body of rules and owes more than most lawyers would care to admit to state practice. Furthermore, the action was not universally condemned and was, indeed , approved in some areas; not merely in the expected Western allies circles. However , it comes close to the line because of its similarity to a reprisal, which deserves a brief mention in it own right.

A reprisal (an act following a previous illegal act of another state,) was previously allowed under international law, but the UN charter’s sweeping prohibition of the use of force makes them prima facie illegal. Hence the need to distinguish between reprisals and self defence, which has caused much uncertainty in the rules governing the use of force. Many acts are committed which appear to be reprisals, but are claimed as self defence; the above strike, the Harib Fort incident and US bombing of Libya being notable examples.

  Another notable area of controversy is that of humanitarian intervention. Examples cited in favour of such a principle’s existence include the Indian invasion of Pakistan in 1971 in support of the Bangladeshis, and the Tanzanian intervention in Uganda which led to the downfall of Idi Amin; a result which was fully supported and appreciated by the international community, albeit in hushed tones. In the former case, the motives have been questioned: it was clearly in India’s self interest to divide and weaken Pakistan.  However, it is submitted that the presence of self interest does not nullify a humanitarian concern.  It is possible that two interests can be served at once;  if humanitarian interests are served, it is immaterial whether the self interest is also present and may even be the motive.  Similarly, in the recent Kosovo intervention, none of the Western states would have become involved if their interests in European stability where not threatened.  However, this is beside the point;  humanitarian concerns were addressed, even if only as a by-product.  One could site the Gulf War and numerous other examples as indicative of this.  It is further suggested that it is somewhat naive ever to expect nations to risk troops, electoral wrath, money and resources in a situation where their interests are not involved. 

In any case, this is of somewhat tangential concern to the legal admissibility. 

Amongst academics the majority (e.g. Brownlie [xvi]) appear to think that international law does not allow humanitarian intervention.  Concerns over the violation of territorial integrity, possibilities of abuse by the powerful and pretext for selfish motives vie against a perceived “emerging right, and perhaps even a duty on the part of the world community to intervene in the internal affairs of a state when egregious violations of basic human rights occur” (Nanda[xvii]).  It would appear that the provision of the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States, and indeed of the UN Charter itself suggests that non-intervention is the legal position.  Again, the rules are clearly far from established in this area; thirty-five year old treaties clash with an emerging and developing principle to produce somewhat cloudy law.  Once again, international law is by its nature unsettled and has to allow for change; true though this is, the rules are clearly open to interpretation.  It seems likely that the statement of the Court in Nicaragua v US that “Humanitarian aid…. cannot be regarded as unlawful intervention”[xviii] is the view likely to prevail in future.

  It should be noted that there are many more aspects to these topics which could be examined, as well as areas of the use of force such as hot pursuit, the use of nuclear weapons, intervention and collective action that could be examined, but space precludes any more than the above brief survey.

  In conclusion, it is submitted that the above title is partly correct and partly incorrect.  That is that the rules are settled in theory, but the realities of international law and interstate relations mitigate against a strict application.  Surveying the above evidence, it is clear that international law is a flexible body owing much to state consent and state practice.  It is critical to recognise the fact that it must evolve, and many of the above examples, whilst not observing the strict rules, are really pushing forward the boundaries of old law to progress and improve.  Of course, this is arguably a dangerous precedent to set, for it is open to abuse, but in the rapidly changing world system, it is unavoidable.  It will of course be a perpetual problem to make states observe rules of international law but the conclusion of this essay is that these rules have yet to be established in the area of the use of force.

^{Bibliography:}

^{·         Harris: “Cases and Materials in International Law” 5th Ed., Sweet and Maxwell, London, 1998.}

^{·         MacLean “Public International Law” 1st Ed., Old Bailey Press, London, 1997.}

^{·         Murphy “The obligation of states to settle their disputes by peaceful means” (1973) 14 Virginia Journal of International Law 57.}

^{·         Schachter “Self-defence and the Rule of Law” (1989) 83 American Journal of International Law 259.}

^{·         Nanda “Revisiting the validity of human intervention under international law” (1992) Denver Journal of International Law and Policy 305.}

^{·         Kritsiotis “The Legality of the 1993 US Missile Strike on Iraq and the right of self-defence in international law” (1996) 45 International and Comparative Law Quarterly 162.}

^{·         Franck “The strategic role of legal principles in the Falklands War” 77 American Journal of International Law 109.}

^{·         UN General Assembly Definition of aggression (1975) 69 American Journal of International Law 480.}

^{·         UN General Assembly Declaration on the Inadmissability of Intervention in the domestic affairs of states” (1966) 60 American Journal of International Law 662.[xix]}

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