Unit-1: Use of Force and War

1.1 Definition of War

Disputes are as old as the human race. War was the primary instrument for settlement of inter-state disputes. The resolution of disputes is now available under the peaceful methods. When such methods fail, states use the coercive means of settlement of disputes. When a dispute between the states is not settled even by coercive means, they resorted to war. By resorting a war a state seeks to impose its will to another state. Powerful states have used war not only for settlement of their disputes but also for furthering their own interests and in some cases for depriving the weak states of their legal rights and claims.

Oppenheim defines war, as a contention between two or more states, through their armed forces, for the purpose of overpowering each other and imposing such conditions of peace as victor pleases.

According to Starke” war in its most generally understood sense was a contest between two or more states primarily through their armed forces, the ultimate purpose of each contestant or each contestant group being to vanquish the other or others and impose its own conditions of peace”.

These definitions contain following elements of war:

1. War is a contention through the application of armed forces. So, it is different from aggression where a state uses the armed forces against another state. It may be lead to war when it is answered by similar hostile acts by the other side.
2. The contention must be between two or more states. By this element civil war is distinguished from war.
3. War is a contention between states through their armed forces. This point distinguishes combatants and non- combatants.
4. The purpose of war is to overpower each other, i.e. to defeat of the opponent.

But there has been a change in the concept of war since the First World War. States in many cases may declare war on each other without the use of armed forces. For instance in the Second World War 50 states declared war against Axis Powers but only 20 states actually used armed forces. States may apply laws of war without the use of armed forces. For instance, they may confiscate the property belonging to the enemy state. Contention with armed force does not include these cases where states use their nuclear weapons, missiles, aerial weapons in the conflict. In modern times, war is not only a contention between the armed forces. It affects the civilians as well. In modern war besides soldiers, a number of other persons support the combatants.

So, the old co  ncept of war is not correct now. In fact, no definition which offers an objective criterion of war. Because of this reason the Covenant of the League, Kellogg-Briand Pact, UNO Charter did not expressly define the term war.

1.2 Attempts for an outlawry of war

From the ancient time, war was recognized as a legal act. It could be resorted by the states as a means for the settlement of disputes. International law did not consider war as an illegal act. However, Grotius had introduced the concept of ‘just war’ and gave concept to impose certain limitations on the power of the states to war. Some of the writers of nineteenth century made a distinction ‘right and wrong wars’ and ‘just and unjust wars’. From the beginning of the twentieth century attempts have been made to limit the right of a state to resort to war.

In the history of modern international law, the Hague Convention of 1899 and 1907 emphasized on the peaceful settlement of int. disputes. But war was not declared illegal. The Convention on the Peaceful Settlement of Int. Disputes Was adopted by the First Hague Conference of 1899 and Permanent Court of Arbitration (PCA/ICA) in 1900. The Hague Convention of 1907 prohibited the use of force for the recovery of contract debts. Hague Convention of 1907 on the Laws and Customs of War on Land imposed certain restrictions on the means of injuring the enemy and bombardments. But these provisions concerned the restriction on the means of injuring the enemy rather than limiting the right of war.

Attempt for the outlawry of war began from the adoption of the Covenant of the League of Nations.1920. Members of the League agreed that if a dispute arises between them, they will submit the matter either to arbitration or judicial settlement or to the enquiry by the Council. If their disputes were not satisfactorily resolved through these means, they could not go to war before the lapse of three months. So, for the first time the Covenant of the league imposed certain restrictions upon the right of the states to resort war. That after, the Treaty of Locarno1925 also provided that parties shall not attack or invade each other subject to certain exceptions.

The other important event in this connection was the Pact of Paris or Kellogg-Briand Pact1928. The Pact provides that the contracting parties condemn recourse to war for the solution of the int. controversies and renounce it as an instrument of national policy in their relation with one another. All disputes or conflicts, whatever nature or whatever origin they may be settled through peaceful means. But the Pact could not prevent the states from resorting to war between1929-1939 when the Second World War broke out. The weakness of the Pact was that there was no effective machinery to implement it. Pact did not prohibit war in all the cases. However, it was an important instrument which restricted resort to war by the parties to the pact.

After Second World War UNO is established in 1945. The UNO Charter contains the following provisions restricting war by states:

1. Preamble of the Charter says that armed force shall not be used save in the common interest. Although, the term war was not used in the Charter, it prohibited the use of force by a member of the UN.
2. Article 2(3) mandates the organization and its members to settle their disputes by peaceful means in such a manner that int. peace and security and justice are not endangered.
3. Article 2(4) lays down the principle under which all members shall refrain in their int. 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 UN. The scope of the Charter is wide because it prohibit not only war but the use of force or threat thereof.

1.3 Principle of prohibition of use of force under the UN Charter

The Charter under Article 2(4) lays down that all members shall refrain in their int. 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 UN. It is a general principle of int. law. This principle prohibits the use of force of all types, i.e. the armed force as well as other coercive, economic and political measures. In accordance with this principle a state should not interfere in the affairs of another state.

The principle of non-use of force is related with one of the purposes of the UN, i.e. to maintain int. peace and security. If the use of force is prohibited int. peace shall be maintained effectively. Use of force is likely to lead to armed conflict and in that case int. peace is threatened.

In 1970 the General Assembly of the UN adopted a resolution interpreting the provision of the Article 2(4) of the Charter entitled Declaration on Principles of Int. Law. The Declaration has following main provisions:

1. 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. 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 are in violation of int. law.
2. No state may use or encourage the  use of economic, political or any other type of measures to coerce another state in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind.
3. No state shall organize, assist, foment, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another state or interfere in civil strife in another state.
4. States have the duty to refrain from propaganda for wars of aggression. A war of aggression constitutes a crime against the peace.
5. Every state has the duty to refrain from the threat or use of force t violate the existing boundaries of any state.
6. States have a duty to refrain from acts of reprisal involving the use of force.
7. Every state has the duty to refrain from organizing or encouraging the organization of irregular forces.
8. The territory of a state shall not be the object of military occupation resulting from the use of force in contravention of the provisions of the Charter.

When the principle of the non-use of force was being repeatedly violated by the states, it was felt that an instrument dealing with the principle of non-use of force should be adopted. In order to draft a treaty on the non-use of force in int. relations and to discuss other issues relating to the principle of non-use of force a special committee was established in 1977. But due to the divergent views of the states the committee was unable to formulate a treaty. Then the idea of drafting of a treaty was dropped and the committee proceeded to prepare a declaration on the non-use of force in int. relations. A Declaration on the Non-use of Force in International Relations was adopted on November 18, 1987. Some of the major provisions of the Declaration are following;

1. Every state has the duty to refrain in its int. 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 UN purposes. Such a threat or use of force constituted a violation of int. law and the Charter.
2. States should fulfill their obligations under int. law to refrain from organizing, assisting or participating in paramilitary, terrorist or subversive acts including acts of mercenaries in other states.
3. The principle of refraining from the threat or use of force in int. relations is universal in character and is binding regardless of each state’s political, economic, social or cultural system or relations of alliance.
4. All peoples have the right freely to determine without external interference, their political status and to proceed their economic, social and cultural development.
5. Neither acquisition nor any occupation of territory resulting from the threat or use of force in contravention of int. law will be recognized as legal acquisition occupation.
6. No state have use or encourage the use of economic political or any other type of measures to coerce another state in order to obtain fro it the subordination of the exercise of sovereign rights and to secure from it advantages of any kind.
7. In accordance with the purposes and principles of the UN states have the duty to refrain from propaganda for wars of aggression.

This Declaration is the authoritative interpretation of Article 2(4) of the Charter or Extension of the Charter itself. If the states follow its Declaration, int. peace will definitely be effectively maintained.

1.4 Definition of aggression

Aggression is an illegal act of the state. The Security Council (SC) has been empowered to take collective action under Chapter VII of the Charter against a state which commits aggression. On many occasions, the Council has failed to determine the aggression because the term has not been defined under the Charter. The task for defining aggression was entrusted to the Int. Law Commission (ILC) by the General Assembly (GA) in 1950. The Commission did not furnish the definition of the term. So, in 1952, the Assembly established a Special Committee for defining aggression. After a long preparation the committee approved a definition of aggression and referred to the GA.  The GA adopted a resolution “Definition of Aggression”. On December 14, 1974.

The resolution defines under Article 1 that aggression is the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or any other manner inconsistent with the Charter of the UN. The definition has asserted under Article 2 that the first use of armed force by a state in contravention of the Charter shall constitute prima facie evidence of an act of aggression. The concept of first use of force has been regarded as a test for determining the act of aggression and the aggressor. The circumstances of being first to use armed force is not a sure criterion for the determination of aggressor in an int. conflict. The circumstances may compel a state to use the armed forces first upon another state. If the SC considers that in view of the other relevant circumstances first use of force was not justified, even the first user shall not be regarded as aggressor.

Article 3 of the definition lists the following acts as acts of aggression;

1. The invasion or attack by the armed forces of a state on the territory of another state including military occupation or annexation.
2. Bombardment or use of weapons by armed forces of a state against the territory of another state.
3. Blockade of the ports or coasts of a state by the armed forces of another state.
4. Attack by the armed forces of a state on the land, sea or air forces, marine and air fleets of another state.
5. Use of armed forces stationed with agreement in another state beyond the terms of agreement.
6. Permitting a state preparations for aggression on a third state.
7. Sending mercenaries or irregular armed groups in another state capable of committing acts listed 1-6 above.

The acts enumerated under article 3 are not exhaustive. The SC may determine other acts also as an act of aggression under the UN charter. An act of aggression is declared a crime against int. peace and security and carries int. responsibility.

1.5 Self-Defense and Collective Security

1.5.1 Self-Defense

The right of self-defense is available to a state under the customary int. law. Grotius had stated that the right of self-defense is based on natural instinct for the protection and preservation of life, liberty and property. States have a right to protect their rights and preserve their liberty if attacked by another’s.

Before the coming into existence of the League of Nations, the use of force by the states was a sovereign right on the ground of necessity. This unrestricted right of a state to use the forces though reduced under the League of nation but it was not abolished. The Kellogg-Briand Pact 1928 which renunciated the war but had allowed the states to use the forces in self-defense. However, it was not clear under the pact as to who shall determine the justification for the action taken by a state in self-defense. The exercising this right should show a necessity of self- defense.

Article 51 of the Charter of the UN provides that every state has an inherent right of individual or collective self-defense if an armed attack occurs against a member of the UN, until the Security Council has taken measures necessary to maintain the peace and security. Measures taken by members in the exercise of their right of self-defense 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 actions as it deems necessary in order to maintain or restore int. peace and security.

The right of self-defense, if any individual state is used it is called individual self-defense or only self-defense and if this right is used by several states collectively it is called collective self-defense.

The right of individual and collective self-defense is however subject to the following certain conditions:

1. If an armed attack takes place.
2. The right exists until Security Council takes any action.
3. IT shall be reported to the Security Council.
4. It is subject to the review of the Security Council.
5. The right cannot affect the authority and responsibility of the Security Council for the maintenance or restoration of int. peace and security.
6. This right is limited to the members of the UN.

The ICJ in the Nicaragua case has laid down two conditions for the exercise of the right under Article 51 of the Charter. These are: (1) the victim state should declare its status as victim and request for assistance; and (2) the wrongful act complained of most constitute an armed attack.

The right of self-defense under Article 51 is not unlimited. It is a temporary right existing only the Security Council’s acts. Use of force by the parties would not be violative of the provisions of the Charter as long as the Council does not take necessary measures. Necessary measures may be taken by the SC only when it decides under Article 39 of the Charter that there exist threat to the peace, breach of the peace or act of aggression. If the Council fails to decide it because of the exercise of the veto power, it cannot take necessary measures in such cases the right of self-defense will become of unlimited duration and war in the name of self-defense would than legally run its full course without UN action.

So, self-defense and collective self-defense are intended by Charter as provisional and temporary until Security Council takes necessary measures and until Security Council comes into action.

1.5.2 Collective Security

By the term collective security it’s meant the measures taken by the UN in situations amounting to threat to the peace, breach of the peace or acts of aggression. The idea of collective security is that all will co-operate in controlling the disturber of the peace. They will act as one for all and all for one. Collective security is based on the principle that conflict among the members of the community affect the whole community and unilateral violence against the member is crime against all the members.

League of Nations had contributed for starting the concept of collective security. The Covenant of the League of Nations provided that if any member state resorted to war in violation of the provisions of the Covenant it would be deemed to be the enemy of the whole League of Nations.

The expression collective security has not been used in the Charter of the UN, it had made provisions for taking the joint measures under the authority of the Security Council. Enforcement action provided under chapter VII of the Charter is therefore referred to as collective security. Following are the main provisions of collective security under the Charter:

1. It is one of the purposes of the UN under Article 1 to maintain int. peace and security and to that end to take effective collective measures for the prevention and removal of threats and the suppression of acts of aggression or other breach of peace.
2. Under Article 2(4) it is one of the principles of the UN that, all members shall refrain in their int. relations from the threat or use of force against the territorial integrity and political independence of any state or in any other manner inconsistent with the purposes of the UN.
3. According to Article 2(5) of the Charter all members shall give UN every assistance in any action it takes in accordance with the Charter and shall refrain from giving assistance to any state against which e UN is taking preventive or enforcement action.
4. According to Article 25 member of the UN have agreed to accept and carry out the decisions of the Security Council in accordance with the present Charter.
5. Chapter VII of the Charter deals with the enforcement or preventive action which builds a system of collective security. Some important provisions are following:

1. 1. According to Article 39 for any action to be taken the Security Council should first determine the existence of any threat of peace, or act of aggression. Only that after it may make recommendations or decide what measures shall be taken to maintain or to restore int. peace and security.
   2. According to Article 41 the Security Council decide what measures not involving the use of armed forces are to be employed to give effect to its decision and it may call upon the members of the UN to apply such measures which may include complete or partial interruption of economic relations and rail, sea, air, postal, telegraphic, radio and other means of communication and severance of diplomatic relations.
   3. According to Article 42 in case the measure taken by the Security Council under 41 would be inadequate it may take such action by air, sea or land forces as may be necessary to maintain or restore int. peace and security . Such actions may include the demonstration, blockade and other operations by air sea or land forces of the members of the UN.
   4. Provision for the creation of the Military Staff Committee is also in the Charter under Article 46 to advise and assist the Security Council on all military problems.
   5. According to Article 49 the members of the UN shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council.

Under the Charter of the UN the provisions of the collective security are strong. But because of conflict and co-operation have become more or less defunct. Therefore, the UN has not been able to equip itself with armed forced forces and other necessary powers to ensure the maintenance or restoration of int. peace and security.