THE USE OF FORCE

The use of force by states is controlled by both customary international law and by treaty law.
The UN Charter reads in 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.

This rule was "enshrined in the United Nations Charter in 1945 for a good reason: to prevent
states from using force as they felt so inclined", said Louise Doswald-Beck, Secretary-General
International Commission of Jurists.

Although some commentators interpret Article 2(4) as banning only the use of force directed at
the territorial integrity or political independence of a state, the more widely held opinion is that
these are merely intensifiers, and that the article constitutes a general prohibition, subject only to
the exceptions stated in the Charter (self-defence and Chapter VII action by the Security
Council). The latter interpretation is also supported by the historic context in which the Charter
was drafted, the preamble specifically states that "to save succeeding generations from the
scourge of war, which twice in our lifetime has brought untold sorrow to mankind" is a principal
aim of the UN as such. This principle is now considered to be a part of customary international
law, and has the effect of banning the use of armed force except for two situations authorized by
the UN Charter. Firstly, the Security Council, under powers granted in articles 24 and 25, and
Chapter VII of the Charter, may authorize collective action to maintain or enforce international
peace and security. Secondly, Article 51 also states that: "Nothing in the present Charter shall
impair the inherent right to individual or collective self-defence if an armed attack occurs against
a state." There are also more controversial claims by some states of a right of humanitarian
intervention, reprisals and the protection of nationals abroad.

 1 The Meaning of "Force"

 2 Collective action
 3 Self-defense
o 3.1 Pre-emptive force
o 3.2 Protection of nationals
 4 Humanitarian intervention
 5 The use of non-military force

The Meaning of "Force”

Article 2(4) does not use the term "war" but rather refers to "the threat or use of force." Although
clearly encompassed by the article, it is ambiguous whether the article only refers to military
force or economic, political, ideological or psychological force. The Preamble to the Charter
declares that the "armed force shall not be used, save in the common interest..." Article 51
preserves the "right of individual or collective self defence if an armed attack occurs...". In 1970
the General Assembly adopted the Declaration on Principles of International Law Concerning
Friendly Relations and Co-operation Among States in Accordance with the Charter of the United
Nations. This resolution was adopted without vote by consensus but is considered an
authoritative statement on the interpretation of certain provisions of the Charter. The Declaration
reiterates article 2(4) and elaborates upon the occasions when the threat or use of force is
prohibited but it does not address the question of whether force includes non-military force
within the scope of the Charter. The Declaration also states that: "Nothing in the foregoing
paragraphs shall be the construed as enlarging or diminishing in any way the scope of the
provisions of the Charter concerning cases in which the use of force is lawful." Certain types of
armed and non-armed intervention are prohibited by the Declaration: "No State or group of
States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or
external affairs of any other State. Consequently, armed intervention and all against its political,
economic and cultural elements, are in violation of international law." The Declaration addresses
the use of non-military force in the context of other international obligations such as the
obligation not to intervene in the affairs of another state.
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A number of developing nations have maintained that "force" includes non-military force but the
developed states have resisted this view while conceding that non-military force of various kinds
may be outlawed by other principles of international law.

Collective action
The Security Council is authorized to determine the existence of, and take action to address, any
threat to international peace and security. In practice this power has been relatively little-used
because of the presence of five veto-wielding permanent members with interests in a given issue.
Typically measures short of armed force are taken before armed force, such as the imposition of
sanctions. The first time the Security Council authorized the use of force was in 1950 to secure a
North Korean withdrawal from South Korea. Although it was originally envisaged by the
framers of the UN Charter that the UN would have its own designated forces to use for
enforcement, the intervention was effectively controlled by forces under United States command.
The weaknesses of the system are also notable in that the fact that the resolution was only passed
because of a Soviet boycott and the occupation of China's seat by the Nationalist Chinese of
Taiwan.

The Security Council did not authorize the use of significant armed force again until the invasion
of Kuwait by Iraq in 1990. After passing resolutions demanding a withdrawal, the Council
passed Resolution 678, which authorized the use of force and requested all member states to
provide the necessary support to a force operating in cooperation with Kuwait to ensure the
withdrawal of Iraqi forces. This resolution was never revoked, and in 2003, the Security Council
passed Resolution 1441, which both recognized that Iraq's non-compliance with other resolutions
on weapons constituted a threat to international peace and security, and recalled that resolution
678 authorized the use of force to restore peace and security. Thus it is arguable that 1441
impliedly authorized the use of force.

The UN has also authorized the use of force in peacekeeping or humanitarian interventions,
notably in the former Yugoslavia, Somalia, and Sierra Leone.

Self-defense
Article 51:

Nothing in the present Charter shall impair the inherent right of collective or individual self-
defence if an armed attack occurs against a member of the United Nations, until the Security
Council has taken the measures necessary to maintain international peace and security. Measures
taken by members in 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.

Thus there is still a right of self-defence under customary international law, as the International
Court of Justice (ICJ) affirmed in the Nicaragua Case on the use of force. Some commentators
believe that the effect of Article 51 is only to preserve this right when an armed attack
occurs, and that other acts of self-defence are banned by article 2(4). The more widely held
opinion is that article 51 acknowledges this general right, and proceeds to lay down procedures
for the specific situation when an armed attack does occur. Under the latter interpretation, the
legitimate use of self-defence in situations when an armed attack has not actually occurred is still
permitted. It is also to be noted that not every act of violence will constitute an armed
attack. The ICJ has tried to clarify, in the Nicaragua case, what level of force is necessary to
qualify as an armed attack.

The traditional customary rules on self-defence derive from an early diplomatic incident between
the United States and the United Kingdom over the killing on some US citizens engaged in an
attack on Canada, then a British colony. The so-called Caroline case established that there
had to exist "a necessity of self-defence, instant, overwhelming, leaving no choice of means,
and no moment of deliberation,' and furthermore that any action taken must be proportional,
"since the act justified by the necessity of self-defence, must be limited by that necessity, and
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kept clearly within it." These statements by the US Secretary of State to the British authorities
are accepted as an accurate description of the customary right of self-defence.

Pre-emptive force

There is a limited right of pre-emptive self-defence under customary law. Its continuing
permissibility under the Charter hinges on the interpretation of article 51. If it permits self-
defence only when an armed attack has occurred, then there can be no right to pre-emptive self-
defence. However, few observers really think that a state must wait for an armed attack to
actually begin before taking action. A distinction can be drawn between "preventive" self-
defence, which takes place when an attack is merely possible or foreseeable, and a permitted
"interventionary" or "anticipatory" self-defence, which takes place when an armed attack is
imminent and inevitable. The right to use interventionary, pre-emptive armed force in the
face of an imminent attack has not been ruled out by the ICJ. But state practice and opinio
juris overwhelmingly suggests that there is no right of preventive self-defence under international
law.

Protection of nationals

The controversial claim to a right to use force in order to protect nationals abroad has been
asserted by some States. Examples include intervention by the UK in Suez (1956), Israel in
Entebbe (1976) and the USA in the Dominican Republic (1965), Grenada (1983) and Panama
(1989). The majority of States are doubtful about the existence of such a right. It is often
claimed alongside other rights and reasons for using force. For example, the USA intervention in
Grenada was widely considered to be in response to the rise to power of a socialist government.
The danger that this posed to US nationals was doubtful and resulted in condemnation by the
General Assembly. As with the above examples (except the Entebbe incident), the protection of
nationals is often used as an excuse for other political objectives]

Humanitarian intervention
In recent years several countries have begun to argue for the existence of a right of humanitarian
intervention without Security Council authorization. In the aftermath of the Kosovo crisis in
1999, the UK Foreign Secretary asserted that, "In international law, in exceptional circumstances
and to avoid a humanitarian catastrophe, military action can be taken and it is on that legal basis
that military action was taken." It is very difficult to reconcile this statement with the UN
Charter. When NATO used military force against the Yugoslav state, it did not have
authorization from the Security Council, but it was not condemned either. This is because
veto-wielding countries held strong positions on both sides of the dispute.

Many countries oppose such unauthorized humanitarian interventions on the formal ground that
they are simply illegal, or on the practical ground that such a right would only be ever used
against weaker states by stronger states. This was specifically shown in the Ministerial
Declaration of G-77 countries, in which 134 states condemned such intervention. Proponents
have typically resorted to a claim that the right has developed as a new part of customary law.

The use of non-military force

There has been widespread debate about the significance of the phrasing of article 2(4),
specifically about the use of the solitary word "force." There is a strain of opinion holding that
whereas "armed attack" is referred to in article 51, the use of the word "force" in 2(4) holds a
wider meaning, encompassing economic force or other methods of non-military coercion.
Although such measures may be banned by certain other provisions of the Charter, it does not
seem possible to justify such a wide non-military interpretation of 2(4) in the light of subsequent
state practice. It must also be noted that this article covers the threat of force, which is not
permissible in a situation where the use of actual armed force would not be.