Chapter 1: Use of Force and International Law

Regulation of the Use of Force

Naturally, States would not consider to give up their sovereign right to resort to force altogether; even though they wanted to avoid from the results of a full-fledged war. First of all, they developed self-help methods not amounting to war mentioned above. These methods were of limited purpose and involved limited use of force, so they were distinguished from the concept of war. Self-help and a looselydescribed right of self-defense have started to come to the forefront. What changed all of the previous practice was the technological development that made war affect civilian life in an unprecedented degree. The concept of total war encompassing civilian life caused a huge amount of loss of life during the First World War and forced the States to reconsider the rules regulating resort to force.

Before the United Nations Charter

The League of Nations was founded as a post-First World War organization and included in the postwar peace treaties as a part of the peace deal. Its Covenant required the States to apply methods of pacific settlement of disputes before going to war against each other. If these methods proved to be unsuccessful, then States could resort to war lawfully under the terms of the Covenant. In the Preamble, in order to achieve international peace and security, parties declared their acceptance of the obligation not to resort to war. First observation to be made is that Article 11 regulates only “war”, but not limited methods not amounting to war. In other words, it was not regulating all occasions of use of force. Moreover, it was not forbidding resort to war on all occasions either. Article 15/1 stipulates that members agree to submit disputes likely to lead to a rupture to the Council. Article 15/7 permits members to take any action in case the Council fails to reach a conclusion unanimously. Furthermore, according to Article 15/6, if the Council reaches to a unanimous decision, parties would not resort to war against any party which complies with this decision. In other words, it was possible for the parties to claim that other party were not complying with the decision and resort to war against it on the basis of this claim. The Covenant required parties of a dispute to go for one of the three methods of pacific settlement: arbitration, judicial settlement, or enquiry by the Council (Article 12). After applying them and obtaining no result, States would then be allowed to take any measures they deemed necessary. The only restriction stipulated in Article 12 is the ‘cooling period’ of three months before resorting to war.

The second document regulating war was the Treaty Providing for the Renunciation of War as an Instrument of National Policy accepted in 1928 (Briand-Kellogg Pact, 1928), widely known as the Briand-Kellogg Pact (or the Kellogg-Briand Pact as used in the English-speaking world). Consisting of only three articles, parties condemned recourse to war for the solution of international controversies and renounce it as an instrument of national policy in Article 1. On 27 August 1928, fifteen nations signed the pact at Paris. Later, an additional forty-seven nations followed suit. Turkey is one of the parties as well. Nevertheless, it soon became clear that there was no way to enforce the pact or sanction those who broke it.

Use of Force in the Charter of the United Nations

Since the adoption of the United Nations (UN) Charter, there has been a continuous debate regarding the provisions governing the use of force. The Charter permitted use of force only in self-defense (selfdefence in the Charter, and in some varieties of English) and in collective enforcement action.

Rule

According to Article 2/4, “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.” Prohibition brought by Article 2/4 encompasses not only the actual use of force, but also the threat of force.

The problem here is that, the Charter does not define the concepts or terms it uses. Thus, the definitions of the terms “use of force” and “threat of force” are to be found in the application of the States and related decisions of the competent bodies of the UN. This function of the bodies is especially important due to the fact that many grey areas have emerged since the end of the World War II. There are also other concepts and terms used in the Charter that went without definition such as “aggression”, “armed attack”, “breach of the peace”, “threat to the peace”, etc.

The crucial question about Article 2/4 is that how to interpret the prohibition on the use of force: narrow or broad? The most important argument about the scope of Article 2/4 is related to the interpretation of the place or effect of the term “against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.” One of these possibilities was considered as the protection of nationals abroad who are in danger or under threat. Another one was wars of self-determination. Debate still continues about interventions for humanitarian reasons or as an application of the responsibility to protect. Majority view accepts that the prohibition is general and certain. Most of the States and doctrine accept this view.

The Charter refers to two circumstances in which the prohibition does not apply. First, enforcement measures taken or authorized by the Security Council under Chapter

VII. Second, force may be used in the exercise of the right of self-defense as recognized in Article 51.

Transitionary Exceptions

There are two transitionary exceptions made to the prohibition of the use of force. The first one is under the heading of “Transitional Security Arrangements”. According to Article 106, “Pending the coming into force of such special agreements referred to in Article 43 as in the opinion of the Security Council enable it to begin the exercise of its responsibilities under Article 42, the parties to the FourNation Declaration, signed at Moscow, 30 October 1943, and France, shall, in accordance with the provisions of paragraph 5 of that Declaration, consult with one another and as occasion requires with other Members of the United Nations with a view to such joint action on behalf of the Organization as may be necessary for the purpose of maintaining international peace and security.”

Second exception is regulated in Article 107, also under the “Transitional Regional Arrangements” heading and Article 53. Article 107 stipulates that nothing in the Charter shall invalidate or preclude action taken or authorized as a result of the Second World War against a State which has been an enemy of any signatory of the Charter.

These two exceptions were placed in the Charter as transitional arrangements and has never been put into use. Although it is still possible to apply them if necessary, existing web of relations and treaties does not make it probable.

Self-Help

Various measures of self-help ranging from economic retaliation to the use of force have historically been used. Since the establishment of the Charter regime there are basically three categories of compulsion open to States under international law: retorsion, reprisal, and self- defense. Self-defense is still the only exception to the prohibition of the use of force open to the individual States.

Common Security System

Common security system established by the Charter constitutes the first general exception to the prohibition of the use of force. According to Article 24, it is the Security Council that bears primary responsibility for maintenance of international peace and security. Chapter VII of the UN Charter is devoted to this issue and regulates the “action with respect to threats to the peace, breaches of the peace, and acts of aggression”. According to Article 39, before deciding for any kind of action, the Security Council needs to determine the existence of any threat to the peace, breach of the peace, or act of aggression, and make recommendations or decide for measures to maintain or restore international peace and security. Article 41 determines the Council’s authority to decide for measures not involving use of armed force. According to Article 42, the Council may deem that the measures provided for in Article 41 would be inadequate or have proved to be inadequate, and may take action by air, sea, or land forces. In summary, Article 39 gives the Council two duties: First, it needs to determine the existence of threat to the peace, breach of the peace, or act of aggression. Then, it needs to decide what kind of action is going to be taken by the UN and its member States. First two of these methods are not binding on parties, while measures decided under Article 41 and 42 are binding on all UN member States. It also does not have to follow these steps, and can decide to jump to the use of armed force from recommendations.

Self-Defense

By the terms of Article 51 of the Charter, “the inherent right of individual or collective selfdefense if an armed attack occurs against a Member of the United Nations” was safeguarded. This provided the legal basis for the use of force by a single member or a group of members in case of an armed attack without any requirement of Security Council authorization. The right of individual or collective self-defense requires no action by the Security Council before the actual use of force.

A response in selfdefense must be necessary and proportionate. There must be an imminent situation, no choice of other means, no moment of deliberation, and this necessity must be instant and overwhelming.

What the Charter requires is an actual armed attack. An armed attack does not need to be in the scale of a massive military operation.

Every action of self-defense requires the attacked State’s assessment of the situation. After deciding the presence of an armed attack and responding it by using armed force, State claiming self-defense is under a duty to report measures taken to the Security Council. The right of self- defense is temporary until the Council takes necessary measures to maintain international peace and security. If the State fails to report, its right of self-defense would not be impaired since it is an inherent right, but it would be in breach of its obligation to report under the Charter.

The UN Charter improves customary international law by recognizing the right of collective self-defense. Organizations of collective self-defense arises from the rule stipulated in Article 51. State practice shows that one State may defend the other upon its request.

Unchartered Territory: Humanitarian Intervention and Responsibility to Protect

Humanitarian reasons are not mentioned in the Charter as an exception or limitation to the prohibition of the use of the force. Consequently, it must be found in customary international law. The 1990s witnessed a debate about both humanitarian intervention and obligations that States might have in cases where governments deny even the most basic human rights. The 2000s focused on war against terrorism and how to respond terrorist organizations. Arising from it, a debate whether the prohibition of the use of force is not what it was. It was even claimed in the 1970s that Article 2/4 is on the brink of death.

Humanitarian Intervention

Classic humanitarian intervention can be defined as those instances in which a State unilaterally uses military force to intervene in the territory of another State with the purpose of protecting a group of people from life- threatening violations of the government. A more compact definition would be “a military intervention undertaken by a State or group of States outside the umbrella of the UN in order to secure human rights in another country”.

Whether the humanitarian intervention constitute a new exception or limitation to the prohibition of the use of force has been debated extensively. Traditionally, unilateral humanitarian intervention has very few supporters. UNsanctioned examples of it create no debate, since the Security Council’s determination under Article 39 as a “threat to the peace” provides legality to the operations. If the Security Council determines that massive violations of human rights occurring within a country constitute a threat to the peace, and calls for or authorizes an enforcement action to put an end to these violations, a humanitarian intervention by military means is permissible.

Argument for the humanitarian intervention is based on the permissive reading of Article 2/4. According to this approach, any threat or use of force that is not against a State’s territorial integrity or political independence is not prohibited. In Kosovo case, intervention was justified on humanitarian grounds with the intention of protecting Kosovar Albanians from ethnic cleansing in the hands of the Former Yugoslavian government. Moreover, the phrase “or in any other manner inconsistent with the Purposes of the United Nations” interpreted to be indicative of the fact that the scope of the prohibition is restrictive and that only those uses of force that are inconsistent with the purpose of the UN will be deemed unlawful. Protecting civilians is clearly not inconsistent with these purposes. Security Council resolutions 1160 and 1199 determine the situation in Kosovo as “threat to peace and security” in the region. In conclusion, the Council decided “should the concrete measures demanded in this resolution and resolution 1160 (1998) not be taken, to consider further action and additional measures to maintain or restore peace and stability in the region’. Some NATO members argued that these resolutions provide implicit authorization, since the NATO’s purpose of operations was to give effect to them. Since it became clear that at least Russia would veto any Council resolution containing an authorization to use force. At this point, NATO took over and approved a military action if Former Yugoslavia did not comply with the Council resolutions. After NATO’s intervention in Kosovo, some commentators agreed that some form of exception to the prohibition may be gaining acceptance.

Responsibility to Protect (R2P)

Given the change in the post-Cold War set up, many scholars have advocated further codification of UN- executed humanitarian interventions. Two fundamental principles of national sovereignty and non-interference in States’ internal affairs would be observed, and it would be limited to terminating human rights abuses. That way, the UN would be able to decide using force to address a human rights crisis in a State whether this situation falls under Article 39 or not. It would be different from the current state of the affairs, since it requires a determination of “threat to the peace” by the Security Council.

Although immediate impetus to elaborate the concept of responsibility to protect was provided by the NATO’s Kosovo intervention in 1999, there have been many previous humanitarian crises especially in Africa that led the African Union to provide in Article 4/h of its Constitutive Act of 2000 for a right to intervene in a member State in the case of grave circumstances, namely: war crimes, genocide and crimes against humanity.

In 2001, one of the participants in the NATO intervention, Canada promoted the creation of an independent International Commission on Intervention and State Sovereignty (ICISS). It defined the responsibility to protect not as a right to intervene, but as a responsibility, contrary to the concept of humanitarian intervention. State should provide security and protection to its own citizens.

The report (ICISS, 2001) offered a set of criteria for recourse to collective military action where there was “serious and irreparable harm occurring to human beings, or imminently likely to occur”. In 2004, Secretary- General’s High-Level Panel on Threats, Challenges and Change drew extensively on the ICISS recommendations in its report. The Panel endorsed ‘the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort. Triggering events for collective military action was similar to that of ICISS: genocide and other largescale killing, ethnic cleansing or serious violation of international humanitarian law. In addition, the Panel emphasized that guidelines on the use of force could maximize the possibility of achieving Security Council consensus, and minimize the possibility of individual Member States bypassing the Security Council. The criteria were: seriousness of threat, proper purpose, last resort, proportional means, and balance of consequences. Both the ICISS and the Panel had left open the possibility of unilateral action. According to the 2005 World Summit Outcome document (UN, 2005), the responsibility to protect encompasses the possibility of collective military action through the Security Council.