Saturday, May 10, 2014
Guaranteeing International Peace and Security in the 21st Century: The Effectiveness of the Law on Use of Force
By Bakampa Brian Baryaguma
[Dip. Law (First Class) – LDC; Cert. Oil & Gas – Mak; LLB (Hons) – Mak]
The extreme terror and horrors of the world wars (I and II) of the twentieth century, followed by the arms race mainly between Russia and United States of America, originating from the Russians’ explosion of an atomic bomb on 29 August, 1949,  which proved so contagious, affecting all parts of the earth and subsequently leading to the Cold War, again between Russia and United States of America, in which the two super powers sponsored brutal civil wars around the world, were eye openers to mankind, of the need for state and individual restraint for the sake of peace and security. The world wars were so ferociously and zealously fought,  that World War I (1914-1918) alone claimed 13 million people, 10.5 million of whom were from Eastern Europe!  Thereafter, World War II (1939-1945) broke out in Europe, ushering in a new phase of global warfare in which, ‘War ... became well and truly industrialized as industry became no less well and truly militarized,’  leading to so much widespread carnage that human life was de-sanctified and rendered worthless. The scale and intensity of these wars transmogrified human beings into bloodthirsty and tyrannous creatures.
Consequently, the elimination of international anarchy and disorder has ranked highly on the international agenda ever since. The brutality exhibited in the 20th century aroused heightened awareness and consciousness of the need for international peace and security. Today, the world aspires to the following: first, ‘... to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind;’ and second, ‘to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest ....’ 
To achieve these objectives, there has been a heightened nurturing of international law on use of force in resolving international conflicts. This essay studies this law, its effectiveness in guaranteeing international peace and security in the 21st century and analyzes the areas to be strengthened.
2. The International Law on Use of Force and its Effectiveness in Guaranteeing International Peace and Security
The main sources of the international law on use of force are the Charter of the United Nations (hereinafter ‘the UN Charter’), UN General Assembly Resolutions and international customary law.
A. The UN Charter
The starting point is Article 2(4) of the UN Charter, which obliges all states to ‘... refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state ....’ This article states the general rule of contemporary international law on use of force; that states are obliged to avoid using force in conducting their international relations. This obligation is considered a rule of jus cogens,  meaning compelling law i.e. ‘... a norm thought to be so fundamental that it invalidates rules consented to by states in treaties or custom.’  Therefore, as a general rule of the international law on use of force, states cannot agree to conduct their international relations in a manner that accepts or validates resort to use of force.
However, there are two recognized and established exceptions to the general rule in Article 2(4) of the UN Charter namely, the right of self-defence and UN authorisation. The first exception – the right of self-defence – is contained in Article 51 of the UN Charter, while the second exception – UN authorisation – is deciphered from the general scheme of the UN Charter.
1. The Right of Self-Defence
Article 51 of the UN Charter permits the use of force in self-defence. It provides that nothing in the Charter impairs the inherent right of individual or collective self-defence if an armed attack occurs against a UN member, until necessary measures have been taken by the Security Council to maintain international peace and security. Any measures taken in self-defence should be immediately reported to the Security Council, which has absolute authority and responsibility under the Charter, to take such action it deems necessary in order to maintain or restore international peace and security.
Therefore, as long as there is an armed attack occurring against a UN member state, the use of force in self-defence is lawful, until the Security Council decides or directs otherwise. There are three important criteria to be noted here that must be satisfied: the occurrence of an armed attack; against a UN member; and immediate report to the Security Council. Further, there are two types of self-defence envisaged in this article: individual and collective self-defence.
(a) Individual self-defence
Based on state practice, individual self-defence is divided into four categories namely, anticipatory self-defence, protection of nationals living abroad, assertion of legal rights and armed reprisals. 
(i) Anticipatory self-defence
Anticipatory self-defence refers to defence against imminent armed attacks.  It is pre-emptive in nature, whereby a military strike is carried out before the enemy’s actual attack. The party on the defensive strikes its opponent first, in anticipation of an expected future attack. The exercise of this right has been controversial. It is accepted on some occasions, yet rejected on others. When Israel invoked this right in 1981 by bombing a nuclear reactor in Iraq, claiming that the reactor was used to make bombs which would be used against it and therefore, ‘entitled to destroy the reactor as an act of anticipatory self-defence,’ it was condemned by the UN Security Council.  But when the United States invoked the same right to justify its bombing of Libya in 1986, in protest ‘against acts of state-sponsored terrorism,’ it received approval from the UN Security Council. 
The controversy surrounds the question is whether the phrase ‘if an armed attack occurs’ permits anticipatory self-defence attacks. On the one hand, it is argued that an armed attack has to occur before regard to self-defence can be had,  which effectively renders anticipatory self-defence illegal. On the other, it is strongly argued that Article 51 does not in any way limit the circumstances in which self-defence in general may be resorted to; and that the word ‘if’ does not mean ‘if and only if,’  such that the article’s language is permissive of several circumstances, including anticipatory self-defence. This ambiguity is a weakness in the law. A clear prohibition of anticipatory self-defence will strengthen it by preventing abuse. Considering that more often than not, the right of anticipatory self-defence has been rejected by the Security Council,  this will make the law more effective in guaranteeing international peace and security, through enhanced restraint by states.
(ii) Protection of nationals abroad
Under international law, there can be no state without people, because one of the requirements for recognition of statehood is a permanent population.  The entity seeking recognition as such should not be terra nullius i.e. without people. Therefore, it is the population that in fact makes up a state and on this basis it is argued that the use of force to protect nationals living abroad is justified as a form of self-defence.  It is also said that the use of force in this situation is justified because naturally it is a right which is exempt from the operation of Article 2(4) of the UN Charter since its objective is not to compromise territorial integrity or political independence of the attacked state. 
The most prominent example of the exercise of this right was the 1976 Israeli rescue mission at Entebbe Airport, in Uganda, in which Israel used armed force to rescue its nationals held hostage by President Idi Amin’s government.  Then, there is the Icelandic Fisheries Case between Iceland and Britain,  resulting from the late 1950s and early 1960s dispute between the two countries, where British vessels were used ‘to protect the asserted right of the British trawlers to fish in the disputed zone’  on account of protecting British nationals fishing in the disputed zone.
(iii) Assertion of legal rights
The conduct of international relations inevitably results into legal rights, accruing to states, which are enjoyable and exercisable over others. On account of this, sometimes states resort to using force as a means of asserting accrued rights.  In such situations, the question has always been whether it is ‘lawful for a state to use a degree of force in the assertion of its legal rights.’  The answer is in the affirmative because in the 1946 Corfu Channel Case between Britain and Albania,  a British warship was struck by Albanian mines when exercising its right of innocent passage in travelling through the North Corfu Strait. Britain sent additional warships to ‘sweep the minefield.’ The International Court of Justice (ICJ) rejected Albania's claim that British display of force was a violation of Albania's sovereignty, since neither Albania's territorial integrity nor political independence was affected.
(iv) Armed reprisals
Armed reprisals are acts of retaliation. They are counter actions in the form of a defensive nature,  which are ‘punitive in character ... seek[ing] to improve reparation for the harm done, or to compel a satisfactory settlement of the dispute created by the initial illegal act, or to compel the delinquent state to abide by the law in the future.’  Hence, unarmed reprisals that don’t involve the use of force may be lawful, but certainly not armed reprisals.  It follows therefore, that self-defence excludes the right of armed reprisal.  This is why the UN General Assembly, in 1970, declared that ‘States have a duty to refrain from acts of reprisal involving the use of force.’  The ICJ, in 1996, also advised that armed reprisals are unlawful.  This firm stance has curbed unnecessary state antagonism. Even the Security Council has occasionally condemned Israel for its armed reprisals against its Arab neighbours. 
(b) Collective self-defence
The right of collective self-defence needs better definition and clarity, as it is not clear what is collective about self-defence. Is it about a state’s collective exercise of its individual rights of self-defence,  or the exercise of a right by one or more states on behalf of the attacked state?’  The North Atlantic Treaty of 1949 favours the latter definition, providing that, ‘... the Parties, separately and jointly, by means of continuous and effective self-help and mutual aid, will maintain and develop their individual and collective capacity to resist armed attack.’  Thus, NATO members understand collective self-defence as each party undertaking to defend every other party against attack.’ 
The ICJ has adopted the same line. In the 1986 Nicaragua Case, it said that one state can only defend another only if that other state is the victim of an armed attack and asks the first state to defend it.  This majority stand guarantees international peace and security because through collective efforts, states are better placed to ward off international bullies and curtail war mongering.
2. UN Authorisation
This second exception is deciphered from the general scheme of the UN Charter, particularly Chapter VII thereof, concerning action with respect to threats to the peace, breaches of the peace, and acts of aggression and from the purposes and principles of the United Nations especially, as indicated in Article 1(1) on maintaining international peace and security. It is given by the UN Security Council under chapter VII of the UN Charter, after ‘... determin[ing] the existence of any threat to the peace, breach of the peace, or act of aggression ...’ in accordance with Article 39 thereof. If the Council is convinced that any of these circumstances exist, it may, by resolution, invoke remedial measures such as economic, diplomatic and military or a combination of sanctions.  This authority is usually for purposes of collective security and UN enforcement.  A good example here is the case of the Gulf War where the US and its allies justified their use of force against Iraq, following its invasion of Kuwait. In order to restore international peace and security in the area, the Security Council adopted Resolution 678 of 1990 authorizing UN members, co-operating with the Government of Kuwait, to remove Iraq from Kuwait.  This option guarantees international peace and security because it enhances the effectiveness of the UN in fulfilling its mandate. The UN may not be a paper tiger.
B. United Nations General Assembly Resolutions and Declarations
The United Nations General Assembly is the de facto legislative body of the United Nations,  whose resolutions and declarations however, are not binding on member states, but as the US Secretary of State suggested, only recommendatory.  Nevertheless, the Assembly’s resolutions have great evidentiary value’ and have been accorded considerable weight by international justice tribunals.  One of the resolutions adopted by the UN General Assembly is Resolution 3314 (XXIX) of 1974 on definition of aggression.  The Assembly was ‘Deeply, convinced that the adoption of the Definition of Aggression would contribute to the strengthening of international peace and security’ and ‘Considering also that, since aggression is the most serious and dangerous form of the illegal use of force ...,’ prohibited aggression under Article 5 of the Annex to the resolution. It is stipulated under clause (1) of article 5 that no political, economic, military or other considerations may serve as justifications for aggression. Clause (2) declares aggression as a crime against international peace, giving rise to international responsibility. Finally, under clause (3), any territorial acquisition or special advantage resulting from aggression is unlawful. Article 1 of the Annex to Resolution 3314 (XXIX) defines aggression. It states that, ‘Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations ....’ Therefore, Russia’s occupation and annexation of Ukraine’s Crimea territory in March, 2014, is an act of aggression. Fortunately, the UN has rejected Russia’s actions.  This firm stand will eventually guarantee international peace and security.
C. International Customary Law
International customary law emerges from the practice of states,  and concretizes into binding norms, having the force of law. Based on the broad concept of self-defence, states in this respect justified their use of force on grounds of intervention and self-determination. 
1. Armed Intervention
Armed intervention in the affairs of other states is generally prohibited, under Article 1 of Resolution 2131 (XX), which states that ‘No State has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State.’  The article further condemns any ‘... armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements ....’ The ICJ restated this principle in the Nicaragua case saying that the principle of non-intervention involves the right of every sovereign state to conduct its affairs without outside interference.  It follows therefore, that it ‘is a universally recognized and acknowledged obligation of all States not to encroach on another State's territory or affairs.’  There are two common, but controversial situations, however, in which a state may intervene in the affairs of another state: humanitarian intervention and intervention by invitation.
(a) Humanitarian intervention
Many times, states have justified the use of force against others on humanitarian grounds. For example, in 2011, America and its allies attacked and bombarded Libyan military installations on this basis, to deter President Muammar Gadaffi from killing protestors who were urging for his downfall. It is said that humanitarian intervention is necessary for the ‘... protection of individuals and groups of individuals against their own state.’  That it helps ‘... prevent and suppress large-scale violations of human rights.’  To this end, the law is strong and effective enough to guarantee international peace and security. But it is also said ‘... that intervention on humanitarian grounds is "non-permissive", as it appears to violate Article 2(4) [of the UN Charter] ....’  It also appears illegal, in light of the unambiguous wording of Resolution 2131 (XX).  This is an ambiguity in the law and to this extent, a weakness that renders it ineffective. In order to cure it, the General Assembly should clear expressly exclude humanitarian intervention from the prohibition in Resolution 2131 (XX).
(b) Intervention by invitation
It seems settled that the ‘... use of force in intervention by invitation is legal.’  That is why, for instance, the UN Security Council adopted Resolution 678 of 1990 authorizing UN members, co-operating with the Government of Kuwait, to remove Iraq from Kuwait.  But there must be caution before intervening on invitation, because first, in cases of national liberation movements, intervention by foreign states can only be lawful if it is shown that the ‘... national liberation movement (or the people whom it claims to represent) was the victim of an armed attack’  and second, where there is a legitimate government, it ‘... may invite the forces of another state on to its territory for any purpose lawful under international law, that is, not for genocide, wars of aggression, or to prevent an exercise of self-determination, etc.’  This opening is important for guaranteeing international peace and security as evidenced by Uganda’s deployment of troops in South Sudan, in December 2013, on the (controversial) invitation of the South Sudanese government to prevent the possibility of genocide.
This is ‘the right of a people living in a territory to determine the political and legal status of that territory.’  It is supported by developing states which justify the use force to achieve self-determination, claiming also that other states have a right to assist them with force to achieve this objective.  A lot of controversy surrounds this alleged right, so much because the UN Charter is generally silent about it. The most the UN has said about it is in the Annex to Resolution 2625 (XXV) of 1970 i.e. Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, Principle 1 of which imposes a duty on every state ‘... to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-determination and freedom and independence.’  It is therefore illegal for a state to ‘frustrate self-determination’ of the people of another.  This is an effective deterrence to imperialist states that may want to take over the territories of others in pursuit of their domineering interests and it guarantees international peace and security.
The law on use of force is fairly strong enough to guarantee international peace and security in the 21st century. 14 years into the century, the world is generally more peaceful, secure and stable now than before. The possibility of wars the magnitude of the two great world wars of the twentieth century, the Cold War or the frequent interstate clashes of the 19th century, is least imaginable today. Intrastate state conflicts like the ongoing crisis in Syria are the biggest threats to world peace and security now, because an otherwise internal conflict has the capacity to destabilize an entire region.
However, there are challenges like the unilateral American invasion of Iraq in 2001, in spite of objection by the United Nations and now the 2014 Russian annexation of Crimea. In light of these pockets of disorder, some scholars have doubted and questioned the effectiveness of the implementing mechanisms of the law on use of force, in guaranteeing international peace and security. It is believed that, ‘Reliance on the United Nations Security Council alone to combat terrorism, halt the proliferation of nuclear weapons, or intervene to prevent genocide and “ethnic cleansing” would be obvious folly.’  Further, that, ‘The Council has proven to be all but hapless in confronting such challenges, and, despite persistent, but unavailing, calls for reform, will remain so,’  and that ‘The lesson of experience is that “when ... the Great Powers and relevant local powers are in agreement ... the elaborate charades of the Security Council ... are unnecessary. When those powers do not agree, the U.N. is impotent.”’  These fears may be well founded, but it is submitted that there is no cause for alarm since the challenges on which they are based are the exception, not the norm, in today’s international relations. They will be ironed out gradually as people continue to interact more meaningfully across national borders through avenues like international trade, civil society networks and other socio-political engagements.
Nevertheless, it is critical that international law enforcement mechanisms be strengthened. For instance, we need standby United Nations personnel – army, police and humanitarian, under the absolute command and deployment of the Secretary General, to respond rapidly to emergencies. The UN is expected to respond quickly to crises, yet presently it delays to respond, simply because it is a beggar (and beggars have no choice) that is only dependent on the goodwill of states. More often than not, states drag their feet, haggling over petty matters like who to deploy, how many personnel and who to pay, how much, while the carnage on ground escalates. This is what happened during the 1994 Rwanda genocide where about 800,000 people died in just 100 days. Consider, for instance, that recently, on Thursday, 10 April, 2014, the UN Security Council voted to deploy troops to Central African Republic in order to curb the on-going deadly religious conflict there, but the troops will arrive in September this year – five months after – precisely for the above reasons! Imagine how many more people will have died before the UN responds in fulfilment of its mandate to maintain international peace and security. 
Notes and References
1. Zhores Medvedev, ‘Stalin and the Atomic Bomb’ in Roy Medvedev and Zhores Medvedev, The Unknown Stalin: His Life, Death, and Legacy, translated by Ellen Dahrendorf (2003), at 139.
2. William H. McNeill, The Pursuit of Power (1982), at 307, ‘Men went gladly to war in August 1914 in the more urbanized parts of Europe. Almost everyone assumed that fighting would last only a few weeks. In anticipation of decisive battles, martial enthusiasm bordering on madness surged through German, French and British public consciousness.’
3. Ibid., at 314.
4. Ibid., at 358-359.
5. Preamble to the Charter of the United Nations.
6. Martin A. Dixon and Robert McCorquodale, Cases and Materials on International Law (2000), at 561.
7. Anthony D’Amato (ed), International Law Anthology (1994), at 115.
8. Ms Ong Yen Nee, ‘When States May Lawfully Resort to Armed Force’ 28 JSAF (2002) 3, at paragraph 4. Available at http://www.mindef.gov.sg/safti/pointer/back/journals/2002/Vol28_3/8.htm.
9. Ibid., at paragraph 12.
10. Peter Malanczuk, Akehurst's Modern Introduction to International Law (1997), at 313.
12. Ibid., at 311.
13. Ibid., at 311-312.
14. Ms Ong Yen Nee, supra note 8, at paragraph 13.
15. Peter Malanczuk, supra note 10, at 75.
16. Ms Ong Yen Nee, supra note 8, at paragraph 14.
18. Jeffrey A. Sheehan, ‘THE ENTEBBE RAID: The Principle of Self-Help in International Law as Justification for State Use of Armed Force, TFF (1977), at 140, disputes this, ‘... contend[ing] that this label is not applicable and that its use is too inconsistent and too vague to provide a convincing legal justification for the raid.’
19. International Court of Justice, Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v. Iceland), ICJ Reports (1974), at 3.
20. Katz, 'Issues Arising in the Icelandic Fisheries Case', 22 ICLQ (1973), at 88.
21. Ms Ong Yen Nee, supra note 8, at paragraph 17.
22. Katz, supra note 22, at 87.
23. International Court of Justice, Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), ICJ Reports (1949), at 4.
24. Ms Ong Yen Nee, supra note 8, at paragraph 18.
25. D. Bowett, 'Reprisals Involving Recourse to Armed Force', 66 AJIL (1972) 1.
26. Malcolm N. Shaw, International Law (1997), at 786.
27. Peter Malanczuk, supra note 10, at 316.
29. International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, ICJ Reports (1996), at 226.
30. Ms Ong Yen Nee, supra note 8, at paragraph 18.
31. Ibid., at paragraph 19.
32. Martin A. Dixon and Robert McCorquodale, supra note 6, at 575.
33. Article 3 thereof (emphasis added).
34. Peter Malanczuk, supra note 10, at 318.
35. International Court of Justice, Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua V. United States of America) (Merits), ICJ Reports (1986), at 14. For avoidance of doubt, the Court stressed that this can only be lawful, as an exception, only when the response was provoked by an armed attack.
36. Ms Ong Yen Nee, supra note 8, at paragraph 34.
38. S/RES/0678 (1990), 29 November 1990.
39. S.K. Verma, An Introduction to Public International Law (1998), at 45.
40. See, Anthony D’Amato (ed), supra note 7, at 105.
41. S.K. Verma, supra note 39.
42. GA Res. 3314 (XXIX), 14 December 1974.
43. MSN News, ‘UN rejects Russian annexation of Crimea’ (2014). Available at http://news.msn.com/world/un-rejects-russian-annexation-of-crimea, accessed on 12-04-2014, at 15:33 hrs.
44. Henkin et al., International Law: Cases & Materials (1993), at 54.
45. Ms Ong Yen Nee, supra note 8, at paragraph 38.
46. GA Res. 2131 (XX), 21 December 1965.
47. International Court of Justice, Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua V. United States of America) (Merits), supra note 35, at paragraphs 202-209.
48. Jeffrey A. Sheehan , supra note 18, at 3.
49. R. Lillich, 'Forcible Self-Help by States to Protect Human Rights' 53 ILR (1967-1968), at 325.
50. Martin A. Dixon and Robert McCorquodale, supra note 6, at 579.
51. Ms Ong Yen Nee, supra note 8, at paragraph 27.
52. GA Res. 2131 (XX), 21 December 1965.
53. Ms Ong Yen Nee, supra note 8, at paragraph 28.
54. S/RES/0678 (1990), 29 November 1990.
55. Peter Malanczuk, supra note 10, at 338.
56. Ibid., at 581.
57. Ibid., at 326.
58. Martin A. Dixon and Robert McCorquodale, supra note 6, at 585.
59. GA Res. 2625 (XXV), 24 October 1970.
60. Peter Malanczuk, supra note 10, at 337. Since there is nothing that endorses the use of force to achieve self-determination, it is believed that, ‘In view that Article 2(4) propounds states to conduct their international relations through peaceful means, the use of force to achieve self-determination is likely to be unlawful’ (See, Ms Ong Yen Nee, supra note 8, at paragraph 29), it is nevertheless submitted that this is erroneous, because the struggle for self-determination is not one in the course of international relations, which is the concern of Article 2(4) of the UN Charter, as it is a purely domestic matter that the UN has tactfully left to states to handle internally. What is not prohibited is legal. People living in a given state are not prohibited to use force in determining its legal and political status. Therefore, it is lawful for them to use of force in doing so.
61. Robert J. Delahunty & John Yoo, ‘The “Bush Doctrine”: Can Preventive War Be Justified?’ 32 HJLPP (2009), at 845.
62. Michael W. Doyle, Striking First: Pre-emption and Prevention in International Conflict (2008), at 20-23; John C. Yoo & Will Trachman, ‘Less than Bargained for: The Use of Force and the Declining Relevance of the United Nations’ 5 CJIL (2005), at 379.
63. Robert J. Delahunty & John Yoo, supra note 61.
64. Under Article 1(1) of the Charter of the United Nations. Consider, for instance, that recently, on Thursday, 10 April, 2014, the UN Security Council voted to deploy troops to Central African Republic in order to curb the on-going deadly religious conflict there, but the troops will arrive in September this year – five months after – precisely for the above reasons! Imagine how many more people will have died before the UN responds in fulfilment of its mandate to maintain international peace and security.