Prohibition of Use of Force under International Law

INDEX

S.No

TOPIC

Page
No.

Abstract

1.

2.

Introduction

3.

Doctrine of Preventive Self Defense

4.

Doctrine of Humanitarian Interventions

5.

Approaches of Interpretation

11

6.

Conclusion

12

8.

Bibliography

13

1.

Abstract

In 1945 United Nations Organization was established with a basic aim

to save succeeding generations from the scourge of war and principle
of Prohibition of Use of Force is a result of it.
But use of force can never be prohibited in totality because of
conflicting

interest

of

nations

and

prevalence

of

different

and

conflicting ideologies. Hence, exceptions to the prohibition on the use

of force are created in the UN Charter through Article 42 and
51. Article 42 enables the Security Council to authorize the use of
necessary force to maintain international peace and security and
Article 51 authorize a nation to use force in self-defense when there is
an armed attack against it. Also, nations have invoked customary
international law of self-defense and humanitarian intervention as a
justification for use of force by them. For example invasion of Iraq by
USA or bombing of Kosovo by NATO forces.
Use of Force under the context of humanitarian interventions has led to
large civilian casualties and violation of Human Rights by aggressor
nation. This has raised questions about the justification of use of force
as humanitarian intervention and this paper will try to analyze this
working question/hypothesis.

2.

Introduction

Till October, 2013 there was more then 4, 61,0001 war related deaths
in Iraq. This is the cost of the war and prima facie it represents the
failure of the basic aim of establishment of UN i.e. to save succeeding
generations from the scourge of war, which twice in our lifetime has
brought untold sorrow to mankind2.
Article 1(1) of the UN Charter has obliged it to maintain international
peace and security and in order to achieve this aim; Article 2(4) of the
charter contains a prohibition on the use of force. This prohibition is
enforced through a mechanism in which sanctions are collectively

1 http://www.bbc.com/news/world-middle-east-24547256 accessed on 19th August at 12:10 pm

2 http://www.un-documents.net/ch-ppp.htm accessed on 19th August at 12:20 pm

levied against the offending State that resorts to the use of force.
These sanctions could be found in Articles 39-51 of the UN Charter.
As mentioned, the use of force can never be prohibited in totality and
hence there are exceptions given under Art.42 and 51 of the UN
Charter. These articles are further complimented by the following
doctrines:
(i)
(ii)

Doctrine of preventive self-defense,

Doctrine of humanitarian intervention.

And the two approaches for interpretation of these doctrines are:

(i)

Extensive Approach: Interpreting the rule of prohibition of

(ii)

Use of Force in the most flexible manner possible.

Restrictive Approach: Interpreting the rule in the strictest
way possible.

Doctrine of Preventive Self- Defense and Doctrine of Humanitarian

Intervention are interconnected and related in a sense that there is a
protective purpose in both the interventions. In the former case
intervention is to protect the lives and properties of the intervening
country or its allies and in the later one it is to protect the lives and
property of other country. Secondly, in both cases intervening country
would employ forces to counter forces of aggressor nation to cause
harm to innocent people. Hence, the aim of both the doctrines is to
prevent mass civilian killings and to uphold international customs and
ethics.
Thus it is necessary to study Doctrine of Preventive self defense to
understand the doctrine of humanitarian Interventions.

3.

Doctrine of preventive self-defense

Doctrine of Preventive Self- Defense is also known as Doctrine of

Anticipatory Self Defense and it means attacking an adversary when it
is believed that an attack by the adversary, while not imminent, is
inevitable, and when delay in attacking would involve greater risk. 3
Doctrine of Preventive Self-Defense is often confused with doctrine of
3

Joe Barnes, Bonner Means Baker Fellow at the James A. Baker III Institute for Public Policy, and Richard

J. Stoll, PhD, Professor of Political Science at Rice University, Mar. 2007 , "Preemptive and Preventive War:
A Preliminary Taxonomy".

Pre-emptive Self- Defense and these two terms are often used
interchangeably but these are fundamentally different. Difference
between the two is clearly pointed out by The Council on Foreign
Relations' Boston Term Member group, in a Feb. 1, 2004 summary
paper as:
"The difference between preemptive war and preventive war is not a
matter of semantics. Rather, it is a matter of timing that has
implications for whether an act is justified or not. Traditionally,
preemption constitutes a 'war of necessity' based on credible
evidence of imminent attack against which action is justified under
international law as enshrined in the self-defense clause (Article 51)
of the UN Charter. But the Bush administration has expanded the
definition to include actions that more closely resemble preventive
war. Preventive wars are essentially 'wars of choice' that derive
mostly from a calculus of power, rather than the precedent of
international law, conventions and practices. In choosing preventive
wars, policymakers project that waging a war, even if unprovoked,
against a rising adversary sooner is preferable to an inevitable war
later when the balance of power no longer rests in their favor. The
proposition gains traction when that enemy state is arming itself
with WMD, or credibly threatens the supply of a critical resource
such as oil, and national intelligence indicates that the enemy
intends to harm one's own state."4

3.1 Legality of Doctrine of Preventive Self-Defense

under International Law
Article 51 of the United Nations Charter makes an exception to the
prohibition against the use of force not compelled or authorized by the
Security Council acting under Chapter VII. It permits Member States to
exercise the inherent right of individual or collective selfdefense if an
armed attack occurs against them, until the Security Council has

4 The Bush Administration's Doctrine of Preemption (and Prevention): When, How, Where?

taken the measures necessary to maintain international peace and

security.

Difference between legitimate preemptive selfdefense and allegedly

illegitimate preventive selfdefense can be understood by reference
to the famous nineteenth century exchange of letters between U.S.
Secretary of State Daniel Webster and British Special Minister Lord
Ashburton. The WebsterAshburton correspondence concerned a British
military foray into American territory during the Canadian Rebellion of
1837, the socalled Caroline incident. In a letter dated July 27, 1842,
Webster stated that it was for the British government to justify the
incursion of its forces by show[ing] a necessity of selfdefence,
instant, overwhelming, leaving no choice of means, and no moment for
deliberation.6
Hence, it can be concluded that Article 51 "only highlights one form of
self-defense i.e. in case of armed attack and not preventive self
defense which in effect is a self fulfilling prediction as armed attack on
a nation would ultimately lead to a full scale war.

4.

Doctrine of humanitarian intervention

Humanitarian intervention has been defined as a state's use of

"military force against another state when the chief publicly declared
aim of that military action is ending human-rights violations being
perpetrated by the state against which it is directed."7

4.1 Legality of Doctrine of Humanitarian

Intervention
Legal

status

challenging

to

of

Humanitarian

future

world

Intervention

order.

Some

is

ambiguous

authors

believe

and
that

5 U.N. Charter art. 51; 59 Stat. 1031, 104445 (1945)

6

Letter from Daniel Webster, U.S. Secy of State, to Lord Ashburton, British Special Minister (July 27,

1842), in 4 TREATIES AND OTHER INTERNATIONAL ACTS OF THE UNITED STATES OF AMERICA: 183646,
at 449 (Hunter Miller ed., 1934), available at http://avalon.law.yale.edu/19th_century/br1842d.asp.

7 Marjanovic, Marko (2011-04-04) Is Humanitarian War the Exception?, Mises Institute

Humanitarian Intervention is part of customary international law and

should not be ignored or rebuffed. While others believe that UN
Charter does not allow such intervention.
It is well accepted that after World War II International Law do not
permit use of force or threat of use of force except in self defense or in
pursuant to authorization of use of force by Security Council. But this
cannot be interpreted to mean that International Law prohibits use of
force in Humanitarian Interventions. In fact, the 1970 report of the
International
Commission

Law
on

Association

Human

Rights

submitted
stated

to

the

International

that

the

doctrine

of

humanitarian intervention appears to have been so clearly established

under customary international law that only its limits and not its
existence is subject to debate.
But

In

1970

General

Assemblys

Declaration

of

Principles

of

International Law Concerning Friendly Relations and Cooperation

Among States in Accordance with the Charter of the United Nations,
addressed to individual states, proclaims that the duty not to
intervene in matters within the domestic jurisdiction of any state, in
accordance with the Charter.9
The International Court of Justice in Nicaragua v. United States 10 stated
that, [t]he principle of non-intervention involves the right of every
sovereign state to conduct its affairs without outside interference;
though examples of trespass against this principle are not infrequent,
the court considers that it is part and parcel of customary international
law.
It is clear that the International authorities are contradictory on the
issue whether humanitarian intervention amounts to that form of
intervention which goes against the political independence of the state,
or even whether human rights are matters essentially within a states
domestic jurisdiction.
8 International Law Association, The International Protection of Human Rights by General International
Law, in International Commission on Human Rights, Interim Report of the Subcommittee 11 (1970).

9 G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 18, at 338, U.N. Doc. A/8082 (1970).
10 Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27)

U.N. Charter explicitly prohibits the use of force or threats of force by

states except in self-defense and no article of the UN Charter
authorizes humanitarian intervention. In fact, international legal
instruments emphasized the point of non intervention. During the 1963
U.N.

General

Assembly

Debate

on

this

question,

the

Mexican

representative Gomez Robledo stated in the U.N. Sixth Committee:

Under Article 2 Paragraph 4 of the United Nations Charter, it was clear
that the use of force was permissible in only two cases: enforcement
action ordered by the Security Council under Article 42, and in
conformity with Article 51, individual or collective self-defense in the
event of armed attack.

11

Author Lillich made the following statement in his book:

Two provisions make it very doubtful whether forcible self-help to
protect human rights is still permissible under international law. In the
first place, all states by Article 2(4) renounce the threat or use of force
against the territorial integrity or political independence of any state
subject of course to the self-defense provision contained in Article 51.
Secondly, Article 2(7) prevents intervention by the United Nations in
matters which are essentially within the domestic jurisdiction of any
state except for the application of enforcement measures under
Chapter 7.12
There are scholars and diplomats who advocate interventionism in aid
of human rights protection. It has been claimed that Article 2(7) of the
Charter has never been interpreted by the General Assembly and the
Security Council as preventing action by the U.N. in serious cases of
human rights violation.
In 1963 discussions of the 6th Committee of the U.N. General
Assembly the representative of Cyprus stated, Article 2 paragraph 7
of the Charter has repeatedly been interpreted by the General
Assembly as allowing the United Nations to intervene in the internal

11 U.N. GAOR 6th Comm., 18th Sess., at 113, U.N. Doc. A/C6/SR806 (1963) [hereinafter U.N. Doc.
A/C6/SR806]. On this view, one might find it difficult to justify peacekeeping operations that do not
necessarily fall under Chapter 7 enforcement action but sanctioned by the Security Council

12 Richard B. Lillich, Intervention to Protect Human Rights, 15 McGill L.J. 205, 20809 (1969)

affairs of a state in case of a flagrant violation of human rights or the

prohibitions of the Charter.

13

It has also been claimed by eminent scholar that

the right to self-

determination and the protection of human rights in matters of

discrimination as far as gross violations or consistent patterns of
violations are concerned are no longer essentially within the domestic
jurisdiction of [s]tates.14
Hence, from above discussion it is cleared that there exist two distinct
schools of thoughts regarding the scope of this doctrine. Lets discuss
the two approaches of interpretation for arriving at conclusion.

5.

Approaches of Interpretations

The approaches for interpretation of these doctrines are:

(i)

Extensive Approach: Interpreting the rule of prohibition of

Use of Force in the most flexible manner possible. In this way,
doctrines such as preventive self-defense, the implicit
authorization

of

the

Security

Council,

or

the

right

of

humanitarian intervention, for example, can be accepted as

(ii)

conforming to the rules.

Restrictive Approach: Interpreting the rule in the strictest
way possible. Making it much less likely that new exceptions
will be viewed as acceptable.

15

The following table will further demonstrate and explain the differences
between these two approaches. These two approaches signify two
different poles of thought process or in common parlance two different
schools of thought. The researcher tried to maintain a balance between
these two approaches to reach at a conclusion of the working
hypothesis mentioned in the abstract because inclining towards one
13 U.N. Doc. A/C6/SR806, supra note 56, at 230
14 Felix Ermacora, Human Rights and Domestic Jurisdiction, 124 Recueil des Cours 375, 436 (1968)
15 T. Franck, Recourse to Force. State Actions Against Threats and Armed Attacks
International Law and the Use of Force (2nd edn. 2004).

(2002) and C. Gray,

approach would create a fallacy in the research as domain of

international

law

is

very

vibrant

and

complex

and

these

two

approaches signifies two different theoretical poles which are not

possible in practical world.

Status of custom

Understanding of
the constitutive
elements of
custom

Extensive
approach
Privileged source
Formal and
material source
Policy-oriented or
objectivist
tendencies Practice
as the dominant
element; the role of
political organs
Instant or rapidly
evolving custom
Dominant role of
major states

Restrictive16
approach
Equality between
sources
Formal source
Voluntarist or
formalist
tendencies
Opinio juris as the
dominant element;
the role of legal
discourse
Custom evolves
gradually
Equality between
states

6.

Conclusion

From above discussion it is cleared that there exist two distinct schools
of thoughts regarding the scope of this doctrine. Scholars following
restrictive

approach

advocate

complete

ban

on

Humanitarian

Interventions because of the fear that the sanctioning of humanitarian

intervention would lead to frequent abuse and misuse for other
purposes or motives but it would be wrong if we fail to recognize an
inherently just principle merely because of the possibility that others
might invoke it for non-genuine purposes (Extensive Approach).
Hence, it can be safely concluded after perusal of both approaches and
merits and demerits of Humanitarian Interventions that Doctrine of
Humanitarian Intervention can be misused by strong nations with
malafide intentions or with a motive of neo-colonization but this
16Olivier Corten The Controversies Over the Customary Prohibition on the Use of Force: A Methodological
Debate EJIL (2005), Vol. 16 No. 5, 803822

possibility does not mean that world should turn a blind eye towards
the gross human rights violation and mass genocide. So there is need
of middle path wherein Humanitarian Intervention should take place
under the control of Security Council with keeping UN principles in
mind.

7.

Bibliography

Books
1. Buergenthal, T. & Maier H. G. PUBLIC INTERNATIONAL LAW,
(WestsNutshell series)

2. Ermacora, F. Human Rights and Domestic Jurisdiction, (Recueil

des Cours ,1968)
3. Franck,T. Recourse to Force. State Actions Against Threats and

Armed Attacks, (2002)

4. Gray, C. International Law and the Use of Force, (2nd edn.,

2004)

Journals
1. Corten, O.

The Controversies Over the Customary Prohibition

on the Use of Force: A Methodological Debate EJIL (2005), Vol.

16 No. 5, pp. 803822
2. Lillich, R. B. Intervention to Protect Human Rights, 15 McGill
L.J. 1969 pp 205, 20809

Non Periodical Documents

1. Letter from Daniel Webster, U.S. Secy of State, to Lord
Ashburton, British Special Minister (July 27, 1842), in 4
TREATIES AND OTHER INTERNATIONAL ACTS OF THE UNITED
STATES OF AMERICA: 183646, at 449 (Hunter Miller ed., 1934),
available

at

http://avalon.law.yale.edu/19th_century/br

1842d.asp.

UN Reports and Resolutions

1. U.N.

GAOR

6th

Comm.,

18th

Sess.,

at

113,

U.N.

A/C6/SR806 (1963) [hereinafter U.N. Doc. A/C6/SR806].

2. U.N. Doc. A/C6/SR806, supra note 56, at 230
3. U.N. Charter art. 51; 59 Stat. 1031, 104445 (1945)

Doc.

4. G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 18, at 338,
U.N. Doc. A/8082 (1970).

Case
1.

Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14

(June 27)