Legal Debate On The Issue Of Unlawful Armed Reprisals And Humanitarian Interventions: US Action In Syria And International Law {By-Dr.S.Krishnan (Associate Professor) & Ms. Nighat Nazir (Research Scholar)}
Legal Debate On The Issue Of Unlawful Armed
Reprisals And Humanitarian Interventions: US Action In Syria And International
Law
Authored By
|
Dr.S.Krishnan
Associate
Professor
Seedling
School of Law and Governance, Jaipur National University, Jaipur
|
Ms. Nighat
Nazir
Research
Scholar
International
Islamic University, Islamabad.
|
Abstract
The nature of warfare is changed:
and the old conventional techniques of warfare are
replaced with new tactics and tools of
warfare. It is common fallacy
that armed reprisals
comes under the ambit of ‘self-help’
and this is absolutely
erroneous observation. In 19th century, international law presumably
regulated the use of force while the resort to war
remained outside the scope of legal restraint. In theory permissible
self-help was generally
identified in three forms, armed reprisals,
armed intervention and Pacific blockade, which served as sanctions
to enforce obligations
where important interests were at stake. Self-
defense is permissible for the purpose to protect the security of the state and the essential rights-particular the right of territorial integrity and political independence. In contrast,
reprisals are punitive in character-to impose reparation for the harm done, or to compel
the settlement of dispute created by the initial illegal act or to compel delinquent state to abide by law in future. In addition, when the harm has already been inflicted, reprisals
cannot be characterized as means of protection. If the self-defense is permissible
use of
force and reprisals
are not the distinction between two is vital. According
to Hans Kelsen: law/legal
mechanism to specify a society, by restricting violence. So the law intends to
enforce conditions
that foster peace in the community.
The difference between the right of self-defense and right of retaliation is quite obvious
to legal scholars.
Indeed,contemporary international law categorically denies and reject the right of retaliation. But reprisals
and self-defense are the forms of same generic remedy of self -help and have
same
common preconditions.
The dividing line between protection and retribution become more obscure. The state of
antagonism between the state with recurring
the act of violence, the
act of reprisal may be regarded as in both forms the punishment
and best form of deterrent against
the further act violence by
other state. The argument of ‘anticipatory’ self-defense is no longer permitted under the UN Charter since required
actual “armed attack”.
In the same manners,
there practices are very common such as in early 2017, the United States (US)
President Donald Trump ordered an unprecedented at
tack by U.S Navy, fired fifty-nine Tomahawk cruise missiles from ships in the Mediterranean on Syrian airbase.
Trump Administration announced that the attack was response
to the alleged
use of
chemical weapons by Syrian government. Though Syria denied carr ying out the chemical
attack on its own people while US offered no public justification for its actions.
In another episode, on April 14, 2018, the United States and European allies launched airstrikes and
fired over 100 missiles on Friday night against Syrian research storage and others military targets. The President Trump pursued to punish President
Bashar al -Assad for this
suspected chemical attacks.
These retaliatory attacks on Syria clearly prohibited
by International Law generally and particularly prohibits use of force except in self-defense with UN Security Council’s
authorization. Reprisal, retaliation and actual armed conflict do not come under the
exception
for self-defense and would this need USNC* 1 or an invitation to join a lawful use of force in case of Syria. Now question arises, if the Syrian state is responsible for using chemical weapons against own citizen,
is the U.S reprisal is justifiable under the
international law of force? Therefore,
to evaluate the legitimacy
of use of force and more particularly, U.S popular unlawful armed reprisal on sovereign
Syrian territory.
KEYWORDS:
Reprisals, use
of force, JUSTWAR, UNSC. international law.
Introduction
The nature of warfare is changed: and the old conventional techniques of warfare
are replaced with new tactics and tools of warfare. For instance, hybrid warfare. Information warfare, asymmetric warfare and media propaganda filling the gap, blurring
the lines between combatant
and noncombatant. it also cumulative misperception in the unlawful
armed reprisals 2 and humanitarian
interventions during armed conflict which highlight
the loops whole in international legal
mechanism.
According to Hans Kelsen: law/legal
mechanism to specify a society,
by restricting violence. So the law intends to
enforce conditions that foster
peace in the community.
Whereas, the armed reprisals
have punitive nature and only allowed when harm have been done and others resolving methods of dispute have been
failed to produce the satisfactory end. 3
. In 19th century, international law presumably regulated the use of force while the resort to war remained outside the scope of legal restraint.
In theory permissible
self-help was generally identified in three forms, armed reprisals,
armed
intervention and pacific blockade, which served as sanctions
to enforce obligations where important interests were at stake. 4 Self-defense is permissible for the purpose to protect the security
of the state and the essential rights -particular the right of
territorial
integrity and political independence. In contrast,
reprisals are punitive in character-to impose reparation for the harm done, or to compel the settlement of dispute created by the initial
illegal act or to compel delinquent state to abide by law in future.
In the same
manners, there practices are very common such as in early 2017, the United States (US)
President Donald Trump ordered an
unprecedented attack by U.S Navy, fired fifty-nine Tomahawk cruise missiles from ships in the
Mediterranean on Syrian
airbase. Trump Administration
announced that the attack was response
to the alleged use of chemical weapons by Syrian government.
Though Syria denied carrying out the chemical attack on its own people while US offered
no public justification for its actions. In another
episode, on April 14, 2018, the United States and European
allies launched airstrikes and fired over 100 missiles
on Friday night against Syrian research storage and others military targets. The
President Trump pursued to punish President
Bashar al-Assad for this suspected chemical attacks. 5
Britain and France joined the United States and coordinated operation that was envisioned
to show western face of what the leaders of the three nations called
persistent
violations of international law. Only United Kingdom attempted to allude to a legal basis for the
resort to force. Prime Minister Theresa May’s office
issued a statement
the missile attacks were justified as “humanitarian intervention”.6 While the US representative Nikki Haley said
it was “justified, legitimate and proportionate” without legal grounds. These retaliatory attacks on Syria clearly prohibited
by International Law generally and particularly prohibits use of force
except in self-defense with UN Security
Council’s authorization. Reprisal,
retaliation
and actual armed conflict do not come under the exception
for self -
defense and would this need USNC* 7 or an invitation to join a lawful use of force in case of Syria. Now question arises, if the Syrian state is responsible for using
chemical weapons against own citizen, is the U.S reprisal is justifiable under the international law of force? Therefore,
to evaluate the legitimacy
of use of force and more particularly, U.S popular unlawful armed reprisal on sovereign
Syrian
territory
In 21st century, the pattern of wars has been changed now. Wars are not declared or waged in conventional manners instead conflicts are instigated through covert
agents by using military, nonmilitary, media, information operations, cyber tools non state actors, intelligence agencies, economic tools, propaganda, terrorism and insurgency or rebel movements.
The new strategies of war are opposed to
conventional warfare, the lines between peace time and war time and between
combatants and civilians
are blurred.
This research will explore the legitimate
grounds and loopholes of legal
justification of armed reprisal and what the law actually requires. The 1 st Section provides brief overview the law of warfare and the concept of war and prohibition on the use of force. While the relevant law of warfare in general and armed reprisal
particular.
The 2nd Section of this paper will then discuss the legal justification for the use of force under international law. Section 2.1 will examine the use of force under self - defense.
Section 2.2 will briefly
describe the use of force under
the invitation
of state and section 2.3 will explain the ambiguity
the legal use of force following
UNSC authorization. The section 3 of this paper will evaluate other
justification for using force against the sovereign
territory in the form of armed reprisal in the
context of self-defense exception.
Historical Overview On The
Prohibition Of Armed Reprisals
In 21st century,
most issues profoundly debated among legal scholars is the legality
of use of force and relevant circumstances in which the use of force is permitted
by customary and statutory international law. In this regard, the
just war doctrine historically attracted much attention from scholars. just war doctrine address to the question justification of war. For this
purpose, it represents
the two distinct and mutually exclusive,
but intertwined concept of ‘ Just ad bellum’ and ‘Jus in bello’. The idea of Jus ad bellum defines the preconditions for engaging in
war
while the other hand Jus in bello provides regulations for the conduct of warring parties and their obligations during war. Legal scholars and intellectual have relied on jus ad bellum and jus in
bello since 300 BC, starting from Aristotle and further move
towards ancient, classic, Roman, Christian and medieval
ages to the twenty century
and the contemporary era for regulating the conduct of war. 8
For centuries, states have resorted the force in order to achieve particular desired aims. Sates reserved
the right to wage war without any internatio nal framework. However,
over the time
concept of war got changed and the ‘just and unjust war’ emerged.9 The basic distinction between can be traced back to ancient Rome and the Fetials (fetiales), a group of priests who were accountable for maintaining peaceful internal and external relations and who gave rise to fetial law (ius fetiale) –
religious law regarding the process of creation,
interpretation and application of treaties
and regulations on the declaration of war. With the passage of time, the concept of holy war is to be replaced with just war doctrine. 10 Under the cover of this idea, the use of force deemed to be permissible where the just cause was
existed.
8 See for the details interpretation and excellent discussion
of the legal prospect related to the use of force and the use of
force in self-defense and the notions
of jus ad bellum and jus in bello. In the present
age, the United Nations Charter fundamental entity that
regulates states conducts in war. As certain provisions of UN Charter have also added the
essentials of jus ad bellum
while customary international law integrated
the elements of jus in bello.
The author provided an
elucidation of the historic development of the notion just war and also offered
brief critical and logical in-depth
analysis of the contemporary norms and principles related to the permissibility
of the use of force in self-defense.
Dr. Waseem Ahmad Qureshi, Just War Theory
and Emerging Challenges in an Age of Terrorism
(National Book Foundation:2017). Carsten Stahn, ‘Jus ad bellum’, ‘jus in
bello’ . . . ‘jus post bellum’? – Rethinking
the Conception of the Law of Armed Force” (The European Journal of
International Law Vol. 17 no.5- EJIL
2007). Online Available at: https://watermark.silverchair.com/chl037.pdf?token=AQECAHi208BE49Ooan9kkhW_Ercy7Dm3ZL_9Cf3qfKAc485y sgAAAp4wggKaBgkqhkiG9w0BBwagggKLMIIChwIBADCCAoAGCSqGSIb3DQEHATAeBglghkgBZQMEAS4wEQQMMsV bqTvv4mfF9lmSAgEQgIICUZK4B0pai4i4uow7Lfb3tBUbXJUKlLPM1jXMXWz8z67iMUZB9XZrVpjQ9Z3Mjy_ZRM99v4M RBGtWZW_GftMsHOoD91zQLjOYM4Q6icRz-_GSuTn-DWH-
_KEW2aI67FXV1kRJotAyoULFr2rnLs2RAaLt4F32IDIZ00TfIqzL7IzoUJrPflPqMCPdIQLFKimr9tuWSZbHXkPFlqecC5UFx1 VhITRskfdnSo5FLfgifhXSmYd1SLPI-SkBYiB7RXCQuEN0lknig-IevSdr9ivTd-ip- jSwXyBjXASpkvh3MCgWBfWD3mzS4_9QWN30kmwXejUg9P7-NwfMMaUJ1eML6uJXIyEMMrrMuyClmRgub-GIR4x- 36rhz4aO4MDT6yUAcxeYPjj4aGmo3FeVFHuMvg- 51MX4ZnUQNiNuSSyrpNSKD9cDeeMFBaR2e4qWFMIGhZD6TzGYpcxQD1f6oA1s3o9YBXf5TBkP7cWOD65FJeEePGFX
qstCrioj7IRt493731GRaYglfRMIdb6Uu7MceLvSIjZUqfCf19AfDOHhLJ3U64ibWLt8_s- 1zfePar35l4eSaYue2VG5RjPfx2_IGSFfISi- FvabRFzrwps7nGVOQ8DUDA8oYfVjRyFzmTboe8dTQw5eSY0oq8uoUMKBQZT77AvDmppMmMPryDE- Tmxb4ZpMRNC9GrkuooOzpGdC5uki-AjKhSM6nrEdZdkupIbG7iey5XfvxaokY-- o8TBWRneSjhefImCrwbO3Wa5gmzAJwgToieqk4V_LGCcB_cw5. (Jun 25,2019).
While divine sanction was no longer regarded the just cause as the condition
sine qua non for the use of force. The development of the concept of just war
approach
based on three phases which are identified
as classic phase, the Christian
phase and secular phase. 11
Over the centuries, it became cleared that Augustine’s concept of ‘just war’ could be understand flexibly. Christian warriors prospered in establishing the Holy Roman Empire lasted crown of Charlemagne in 800 to the end of the thirty years’ war with signing the Peace of Westphalia in 1648. 12 During this long period,
many scholars formed link with morality
and legality of war. The doctrine of ‘just war’ was further influenced by Christian
theologians such as St. Augustine
and St. Thomas Aquinas, the latter famously stated in Summa Theologica
that the three criteria for just war
are: first, it should be waged by a sovereign
authority (prohibition of waging a private war). Second, it must have a just cause (punishment of wrongdoers). Third, a just cause must be accompanied by the right intention.
Hydrodynamic Explosive Munition (MAHEM), the horrors of
war have risen to unprecedented levels in modern era. Meanwhile
the world war II, the large number of countries
have resorted the use of force in different capacities, ranging
from minor conflicts
to major armed intervention and armed reprisals that have resulted in a large number of deaths and tremendous social upheaval.
The prohibition on the use of force basically belongs
to the small set of extraordinary legal norms. Historian of the international law on the use of force commonly trace the prohibition on force. fifth century, the teaching
of St.
Augustine, required to move his congregation away from the strict pacifism. Which
is being practiced by Christian
while Greek and Roman philosophy
and law justifying resort war for the achievement of peace. As peace was adhering the
highest values of Christian
therefore Augustine coherent that peace could be a just cause
of war for Christians. Towards conclusion using limited war necessary ‘a means of preserving or restoring peace’ that could be acceptable
to Christians to conform their religious belief.
15 Armed reprisals were regulated under different principles than the just war doctrine irrespectively, armed reprisals remained the subject to restrictive legal regime throughout the history of international law. Armed reprisals were lawful when
response
to prior wrong and other restrictions applied as well. The well-known
case ‘Naulilaa Case’ between Portugal and Germany. In 1914, German and Portuguese
troops met on the border of their neighboring colonies current names Namibia and Angola. Due to poor translation and misunderstandin g Portuguese
killed three
German officers.
Germany responded with retaliatory attacks against several
Portuguese outposts. Portugal claimed these attacks violated the international
law. The case of heard by the tribunal which established under the Treaty o f Versailles.
The competent tribunal agreed, that Germany failed to meet with the three conditions
of lawful reprisals.
First, Portugal had committed no prior wrong.
Germany was required to give notice of the wrong and claimed remedy, attempting
to resolve the dispute peacefully.
Second, if the attempt failed, the Germany
response had to be proportional to the wrong. Though, it was not proportional. 16
After the adoption of UN Charter in1945, rules regarding reprisals became
applicable to only coercive measures which are known as counter measures
today.
In the (Air Services Arbitration of 1978), the arbitrators
used the term
"countermeasure" which refer to
the wrong committed by United States against
France. The United States had fulfilled the other features of ‘Naulilaa
Case’ and notified the France that wrong had been committed and need for the remedy. The countermeasures established subsequent to the notice were found proportional to the wrong.
By the acceptance of General
Assembly, the Air Services
tribuna l's analysis in its Articles on State Responsibility the UN International Law Commission
confirmed that Lawful
measures taken in response
to a prior wrong include non - performance of treaty obligations or the imposition of economic sanctions.it not include armed attacks. The articles
provide that countermeasures are allowed
"against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations.
The Articles make clear, however,
that the legal regime of countermeasures does not in any way modify “the
obligation to refrain from the threat
or use of force as
embodied in the Charter of
the United Nations”. In 1939, U.S President Franklin Roosevelt commissioned the drafting the charter, and organized the final negotiating session in the San
Francisco.
The records from San Francisco confirmed that intended article:2(4) to be comprehensive on the use of force.
In 1970, the General Assembly
stated clearly in its Declaration on Principles
of International Law Concerning Friendly Relations and Cooperation among
States that among the fundamental rights and duties of states, is the ‘duty to refrain
from acts of reprisal
involving the use of force’ against other States. The
International Court of Justice found in its 1994 advisory opinion on the Legality
of Threat or Use of Nuclear Weapons that ‘armed reprisals
in time of peace […] are considered
to be unlawful. In the Oil Platforms case, it further held that US attacks on Iranian sites were not lawful acts of self-defense because of their retaliatory nature.
Despite the clear position
of the Security Council and General Assembly about the illegality
of reprisal by 1986, Ronald Reagan ordered an air attack on military sites of Libya’s.
This reprisal attack is followed
after terrorists bombing of Disco in Berlin. In response
as many as forty people died in U.S raids. United
States signified the legal justification
that it had clear evidence
that Libya planned more
acts of terrorism, therefore U.S actions
were law ful as self-defense under the Article 51 of UN Charter. This legal justification of United States not come under the requirements of self-defense. To begin with, the Berlin incident
did not amount to a significant armed attack per the requirement set out i n the Nicaragua case. The use of force is legal only to right of self-defense, invitation and UNSC
authorization. While any use of force to be legal must follow the humanitarian laws of using force, known as jus in bello. It’s clearly describe
the laws of war, that is how to conduct the use of force. The principle of necessity
under IHL entails that military action should only be taken when it is absolutely
necessary.
Whereas evidence for principle of necessity
for military action in self -defense owing to future attacks was inadequate. The UN General Assembly condemned the U.S attacks.
The International Court of Justice (ICJ), The judicial
organ of United Nations
has found armed reprisal unlawful. In 1996, ICJ advisory
opinion on the “Legality of Threat or
Use of Nuclear Weapons” 17 the court decided that armed reprisal
in time of peace are considered
to be unlawful. The ICJ consider
cases on the question
of illegal use of force that featured invitations. However, armed activities on the
territory
of the Congo (Armed Activities), Military and paramilitary activities and against Nicaragua (Nicaragua v. United States that invitation
is lawful basis for the use of force. In this case, when the invitation
is issued by government the most in control of most of the state or fighting with a likelihood
to maintain control against
armed non-state
actors. The International Court of Justice ruled on the other aspects of the use of force. In the ‘Nicaragua
Case’ the court found the additional
obligations
to limit the use of force in the term of “inherent
right” (droit natural) of UN Charter Articles 51as a reference
to additional restive principles
found in
international law outside the charter. The general principles
of international law are necessity,
proportionality and necessity required that any use of force in
self-defense be undertaken
as a last resort.
THE CONCEPT OF WAR AND PROHIBITION ON THE USE OF FORCE & ARMED
REPRISALS
HOW DID THE CONCEPT OF WAR DEVELOP?
CONSEQUENCES OF WAR?
WHAT ARE THE THING TO BE LOOKED INTO WAR IN TERMS OF CIVILIANS?
ONE HAS TO LOOK INTO BOTH SIDES (1) FOREIGN
INTERVENTION (2) AND
THE HOST COUNTRY
If we analyze the laws of war in general, it
is clear that prohibition on the use of force and its only exception in self-defense. Jus ad bellum does not allow any sort of use of force against other states while it does allow the right to use reciprocal
force to all states in self-defense if they are
victim to an armed attack. The main purpose for the creation of U.N was to prohibit the use of force so that the international
peace and security of the world could be maintained.
In the armed activities
on the terror of Congo, the international court of justice (ICJ) recognized
and stated that “the prohibition against the use of force is cornerstone of the United Nation Charter. Article 2(4) of U.N Charter clearly
explain that
“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 [p]urposes of the United Nation.”
18
There are some specific
aspects which are notable in this article. The first one is international force which means that domestic use of force does not come under the ambit of Article 2(4). While the article 2(4) does not explicitly use the word “war”.
The essence of this article prohibits
all uses of force even those that fall sort of
war. Therefore, war is also covered under the same banning.19 The third distinctive part of this article
2(4) is that it prohibits the
threat of force as well as the use of
force. The International Court of justice clearly elaborate
this point that only
unlawful threats to use of force are prohibited
by Charter. Grotius describes the
notion of jus ad bellum and jus in bello.
As jus ad bellum explains the requirement to judge the justification of war and jus in bello is about the conduct of war, which regularizes military action with regard to humanitarian rules. Since laws of nations
have improved drastically to incorporate both jus ad bellum and jus in bello.20
In 21st century, sovereigns
are regularized by the super sovereign
. The concept jus ad bellum enshrined in UN Charter which regulates who can use the force in which
conditions. The Geneva Conventions, Huge Conventions and humanitarian laws of wars encoded to prescribe the ways in which force cannot be used. The UNSC, the International Criminal Court (ICC) and the International Court of Justice (ICJ) seek to enforce
these international laws. In jus ad bellum under
the UN Charter prohibits all forms of use of force by sovereign states with the exception of the use of force in self-defense and with the authorization of UNSC in certain cases where
the peace and security of the international community is threatened.
In jus in bello the principles of proportionality, precaution and distinction protect the non-combatants from excesses of violence.
However, recently the war on terror and armed attack by NSAs transformed the dynamic of modern international law.
The line that marks difference between aggression and self-defense has been
blurred. This transformation is making difficult
for the international community to efficiently regularize war to restrict warfare violence. The Hobbesian theory of lawless war though refuted in the theory still holds ground in practice
By definition, reprisals are injurious act that ordinarily would be illegal but which become legal acts of enforcement by dint of the target state’s prior illegal act.
According to the Vattel: “Reprisals are used between nation and nation to do themselves
justice when they cannot otherwise obtain it.” Legal scholars divided into two main campuses. The first one argued from the community interest
perspective and another one argued from statist perspective.
The community
interest proponents assumed that
closely circumscribing the circumstances
which justified a legitimate
use of force constituted
the best way to minimize
the use of force. The community interest in containing the use of violence
superseded individual state interests
in redressing particular
wrongs. According to Derek Bowett:
“Not surprisingly, as states have grown increasingly disillusioned about the
capacity of the Security
Council to afford them protection
against what they would regard as illegal and highly injurious conduct directed against them. They have
resorted to self-help
in the form of reprisals and have acquired the confidence that, in so doing,
they will not incur anything more
than
a formal censure from the security
Council. The law reprisal’s
is because of its divorce from actual practice, rapidly degenerating to a stage where its normative character is in question.”
In the 19th Century, international law presumably regulated the use of force while the resort of war remained outside the scope of legal restraint.
Commentators have debate that short of war is the category of self-help
which is regulated
by twin
principles of necessity
and proportionality. Further, permissible self-help was generally
identified in separate
forms: (i) armed reprisals (ii) armed intervention
(iii) pacific blockade. In theory, these three forms of self –help served as sanctions
to enforce obligations where important interests were at stake. Though these
interests did not usually involve the security of state but state felt
the need to preserve though not at the cost of war. In practi ce, pacific blockade and armed intervention constituted doctrines without clear parameters which distinguished them from other measures of self-help
not enjoy the legal status.
The ‘Naulilaa Case’ decision
made definitive statement that under which condit ions acts of reprisal may
be taken limitations upon such acts. Firstly, to exercise
the customary right of reprisal
required the establishment
of target state liability for prior illegal act. 21 Conventionally, only states could be the subject of an
international claim .
In result of an act, it was
not sufficient that injury or damage which violated the
international law. Its cleared that
target state is responsible for the violation.
Imputability,22 established the connection
between act and damage.
Secondly, to exercise the lawful reprisal was the incapability
of injured state to secure reparation
from the offending state through peaceful means. To exercise the reprisal assumed that peaceful solution of the dispute would be sought first until
effort at peaceful solution proven unfruitful and the necessity
for forcible
enforcement did not arise. While interestingly in ‘Naulilaa
Case’ there was no precedents that claimant states must first seek peaceful
redress. These two conditions supposedly define necessity. 23
The pre-world war II era gives the additional
guide.
Most critics asserted
that not every breach of international o bligation
justifies a resort to armed reprisal but failed to postulate
the nature of conduct that would permit the use of force in response.
According to Oppenheim’s “ to permit a
forcible response to any delinquency that involved willfully malicious behavior.” 24
Self-defense, like reprisal is the form of self-help
governed by necessity
and
proportionality. It is common assumption that UN Charter made forcible reprisals
illegal while permit the self-defense. Its assumption that charter made forcible reprisals
illegal while permit the self-defense. In theoretical analysis, we can
distinguish both in terms of purpose and time frame. The purpose of self-defense is to protect and prevent damage to the essential rights of territorial integrity and political independence necessary to the existence
of the state. In contrast reprisals have a punitive
purpose, only allowed after the harm has been done and the others methods of
resolving the dispute have
failed to produce the satisfactory
end.
In response, the action entails immediately prior or immediate
response to the action
directed against the most vital interest of the state.
Legal Use
Of Force & Use Of Force In Self-Defense Expand And Explain In Deep The
Legality Of The Use Of Force
Whenever an armed conflict or warfare starts, the media
and the international community begin to assess its legitimacy
under the law. One side argues that the use of force is legal under international law, while the other side contends that it is illegitimate under the same rules because political understandings and
interpretations of law vary. Likewise,
in a similar way to the legitimacy
of commencing a war, the lawfulness of individual
incidents during it is also
scrutinized and documented to regularize
and humanize warfare, while protecting
the innocent people caught up in violence. For instance, in the discussion
on the legality
of airstrikes in Syria, the aggressor alliance of U.K, U.S., and France
argued that due to the presence
of persistent veto obstruction at the Security
Council, the airstrikes are justified to force Syria into compliance
with international obligation to not use chemical weapons.
25
The current legal framework regulating the use of force in international law is
enshrined in the UN Charter. The maintenance
of international peace and security
is the primary
purpose of the UN (Article 1(1) UN Charter).
Although states have
resorted
to the use of force in international relations on multiple occasions,
there have been only two cases in which the International Court of Justice (ICJ) has
found that there had been a violation of the prohibition of the use of force: Military
and Paramilitary Activities
in and against Nicaragua (Nicaragua v The United States of America) ICJ Rep 1986 and Armed Activities on the Territory
of the Congo
(Democratic Republic
of the Congo v Uganda) ICJ Rep 2005.
Legal justification to right to the use of force under UN Charter include the use of force in self -defense and the authorization of UNSC authorization. According to UN Charter and
the ICJ, it is the essential right of every
state to use force
to defend itself for its survival. Therefore, under
the right to self-defense, a victim state can legally use the defensive force to counter unlawful
force by aggression. Under the right to collective
self-defense, there allies may also employ the use of force. The UN Charter, is the one of governing
laws on the use of force which clearly defines the right to self-defense in Article 51. According to UN Charter article-51, self-defense means a lawful reaction to the ‘armed attack’
against the territorial integrity of the state which weakens the political
independence. By executing the right to use force in self-defense, states are conducting a unilateral
act.
Nothing in the present
charter shall impair the inherent right of individual
or collective self-defense if an armed attack occurs against a member of the United Nations, until he Security
Council has taken the measures necessary to maintain
international peace and security. Measures taken by members in the exercise of the 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 and shall 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.
The meaning of self-defense is derived from the Caroline
case (29 Brit &
For St
Papers). All principles
accepted by the British Government
and formed the part of customary
international law. It originated
from the dispute between the Br itish
Government
and the US Secretary
of State regarding
the demolition of an American vessel in an American port by British
subjects. The reason behind this act was the use of the vessel to transport munitions and groups of Americans, who were conducting
attacks on the Canadian
territory. The US Government
declared that the attack on the vessel constituted an attack against the American territory.
While The British Government
responded by claiming
the right to self-defense. The subsequent diplomatic correspondence between the parties contained an outline of the key
elements for legitimate self-defense.
The customary
nature of the right to use force in self-defence was further confirmed by the International Court of Justice (ICJ) in
the Nicaragua Case (Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v United States of America ICJ Rep 1986).
In order to exercise the right to self-defense, a state must be able to determine
that it has been a victim of an armed attack.
However,
all attacks will not be constituted an armed
attack while the only most gave nature of attack will qualify
(Nicaragua Case, para.191).
Additionally, the International Court of Justice held in the
Nicaragua
Case (Merits) that self-defense would warrant only measures which are proportional to the armed attack and necessary
to respond to it’ (para. 176). This statement set out two important
principles concerning use of force in international law. The principle of proportionality and the principle of necessity.
The right to self-defense
legally allows the use of force prohibited under Article 2(4), as an exception being attacked by an aggressor. It is pertinent to note that the use of force in self-defense must be counterattack in response to an aggressive act against state sovereignty. There must be a situation where both parties to a conflict are legally using force in self-defense. There must be always be an aggressor
state using unlawful force and victim state acting in self-defense. The court upheld the same reasoning in the ‘Ministries
Case of the Nuremburg
Trials’.
Under U.N Charter, Article 51, the defensive
use of force is required to be
in response
to an actual armed attack. The
ICJ in Armed Activities on the Territory of Congo, upheld this requirement, deciding that: “Article 51 may justify
a use of
force in
self-defense only within the strict confines there
laid down.it does
not allow use of force by a state to protect perceived security interests beyond these parameters”. Similarly, in the ‘Oil Platforms
Case’, the ICJ decided that the state using force in self-defense owes a duty to justify that it was being attack.
Furthermore, it is remarkable note that the right to self-dense
is only entrusted
to member of states of the U.N. This means that NSAs and organized
groups do not have the right to self-defense. Therefore, only States may legally use force in self- dense.
In conclusion, the Article 51
must be carried out as counterattack
to defend the State’s sovereignty against an aggressor. The use of force in self-defense can be either in
separately or collectively
applied by the allies
of the victim state. A state cannot be apprehended legally responsible for the actions of an NSAs because under Article 51, “an armed attack is limited to acts attributable to a state” NSAs have no right to self-defense under Article 51 of the U.N Charter.
The Discrepancy Between
Reprisal And Self-Defense
The core essence of this debate to distinguish and elaborate these legal
terminologies separately and rightfully. The United Nation Charter noticeably defined the use of force by the way of reprisal
is unlawful. Indeed, the words
‘reprisal’ and ‘retaliation’ are not to be found in the charter. The U.N Declaration
on Principles of International Law Concerning
Friendly Relations and Co -operation
among states, adopted by General Assembly Resolution
2625 (XXV), contains the following
statements: “Sates have a duty to refrain from act of reprisal involving the use of force.” The rules and regulations governing
the use of force and the maintenance of the peace during an act of aggression in international context are defined in the United Nation Charter. The main article of the charter that deals with the use of force is
Article 2 (4) which is
contained in chapter I. Moreover,
Chapter VII governs the actions of nation-states with regards to threats, breaches of peace, as well as acts of aggression. Article 2(4) explicitly talk about the use of
force and it is binding on all countries members or non-members. It states 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 purpose of the United Nations. The difference between two forms of self-help
is essentially lies in their aim or purpose. If self-defense is permissible use of force and reprisal is not the distinction
between two is vigorous. The difference between the right of self-defense and the right of
retaliation is quite obvious.
Indeed, contemporary international law categorically denies and reject the right of retaliation.
The recognition of the right of self -defense in Article 51 of the United Nation Charter ipso iure precludes
the right of
retaliation. Self-defense is permissible, particular the rights
of territorial integrity and political independence
in contrast reprisal are punitive in
nature which impose to reparation
for the harm done or compel the settlement
of t he dispute
Use of force is permitted
under self-defense but permissible in reprisal.
Self- defense and reprisal are the forms of same generic remedy self -help. Both have same common preconditions:
I. The target state must be guilty of prior
international d elinquency against the claimant state.
ii.
Any act by the claimant
state to obtain redress or protection by other means must be known to have
been made and failed, or
to be inappropriate or impossible in the circumstances.
iii.
The claimant’s state use
of force must be limited to the
necessities of the case and proportionate to the wrong done by the target state.
The remarkable
distinction between the two forms of self-help
essentially lies on aims and purpose. Self-defense is permissible for the purpose to protect the security
of the state while security
comes under the right of territorial
integrity and political
independence. In contrast reprisals are punitive and impose the reparation
for the damage or to compel the delinquent state to abide by the law in future. This distinction clearly elaborates the general theory that punishment is a matter for society as whole whereas
self-defense comes an interim measure of protection.
The dividing line between protection
and retribution became more obscure. In t he situation
of antagonism between states with ‘recurring
the acts of violence’
and ‘an act of reprisal
which may be regarded
as being at the same
time in the form of punishment
and the best form of deterrence
against the future
acts of violence by the other party. For the analysis of classic case that guerrilla
activity from sate A directed against state B, eventually
leads to a military
action within the state A’s territory by which state B hopes to destroy the guerrilla
bases from which the
previous attacks have come and purpose
to discourage furthers attacks.
At this point military action cannot be regarded as self-defense in the context of previous
guerrilla
activities. While in the broadens
context the entire situation between these two states cannot be said the destruction of the guerilla
bases which represents a proportionate means defense for the security of state is involved.
The argument of “anticipatory
self-defense” which was no longer
allowed under the charter since the Article (51) is required an actual “armed attack:”
is scarcely sufficient.
While it was never the attention
of charter to prohibit anticipatory self - defense and traditional right existed to an imminent attack. Moreover, the rejection of anticipatory right is totally impractical and inconsistent with general state
practice.
In historical context Security Council replete cases where states appealed self - defense in broader sense while majority of the council have rejected this
classification and regarded
their actions as unlawful r eprisals.
For instance,
reprisal actions in Arab-Israel
conflict have relevant background to the Armistice
Agreements of 1949, which are not precisely
forbid reprisals.
However,
it was Mediators firm recommendation that reprisals and retaliation should not be permitted.
This recommendation was accepted by the Security Council: No party is permitted
to violate the Truce on the ground that it is
undertaking reprisals or retaliation
against the other party. While the reservation to
the self-defense does not permit acts of retaliation
which have been repeatedly condemned by Security
Council. In argument on the Israel’s complaint of Egyptian
restriction on the passage of
ships through the Suez Canal in 1951.
Mr.Eban the representative of Israel countered
the Egyptian plea of self-defense by arguments
that as self-defense presupposed two conditions: first, an armed attack and second the absence
of assumption of responsibility by the Security Council.
No attempt was made by the Egypt to justify the action of reprisal
becau se the argument
was deemed bad in law and SC condemned
the Egyptian action on the permanent
character of Armistice
Agreements precluded any claim to belligerent rights or to a right of search and seizure of vessels in self-defense.
Humanitarian
Interventions
There is one additional
although controversial exception to the general prohibition against military force that is a so-called humanitarian intervention26 to stop
widespread attacks on a civilian population, including acts of genocide,
other
crimes against humanity, and war crimes. The norm of humanitarian intervention is contested because it is not clear in
the UN Charter. Although man y scholars and activists would claim it is supported by the Charter’s
central objective to protect human rights and fundamental freedoms. 27Over
the last two decades, legal jurists have debated and upraised question whether there are others
exceptions to the prohibition
on the use of force without aforementioned
UNSC authorization apart from self-defense. On this argument
some jurists suggest the acceptance of an exception
of ‘humanitarian intervention’ which justifies unilateral or multilateral use of force against the state in extreme cases to prevent a humanitarian catastrophe or to prevent widespread human rights abuses. 28
Theresa May
justified the air strikes on
Syria last week in humanitarian terms. She is right, of course, to draw our attention
to the h umanitarian dilemma of Syrian citizens at
the hands of the Syrian regime. 29 But the justification
of the strikes under international law is highly
questionable and it is very difficult
to identify what humanitarian benefits, if any, have been achieved
by th e strikes.30
In his legal opinion, the Attorney
General invoked
something called the ‘doctrine
of humanitarian intervention’. He argued that the government
is ‘permitted under international law, on an exceptional basis, to take measures
in order to devastat ing humanitarian suffering.
However the most fundamental objection on the doctrine of humanitarian intervention under current international law is legitimacy
of any such
intervention to identify true “humanitarian” crises necessitating the use of force. Notably, it’s difficult to identify
the just cause, one state’s “humanitarian” intervention is often another state’s aggression
falsely justified under a humanitarian pretext.
31 As a substitute, vague quantitative approach to determine
legitimate interventions, the Syria strikes represent an opportunity to consider
developing in the UN system qualitative
thresholds for authorizing unilateral humanitarian intervention in cases of Security Council paralysis. Under such a
framework, unilateral intervention in response
to CBW attacks on civilians could be authorized
even without approval by the full Security
Council. Further, this framework
for R2P 32 intervention against CBW use could require approval by super majority of
permanent Security Council members.
Such a framework would ensure that a single vetoing state could not paralyze UN members’ actions against CBW
engaging regimes. Responsibility to protect (R2P) is severely limited by the mechanism of representation in the UNSC. Due to the international politics an d veto power
invested to the permanent members,
the UNSC resolution
effecting power politics
is hardly passed. The right to humanitarian intervention bypasses this
handicap. Although humanitarian intervention should be authorized
by the UN and done multilaterally, the UN failure to take action has resulted (not permissible) in unilateral
humanitarian intervention in the past. In present case, humanitarian
intervention is a gray area of international law and its legitimacy lies in state practice
and not codified in international law.
Conclusion
Military forces are used in armed reprisals,
which are follow an incident usually to punish or retaliation or revenge,
which not comes under the exception to prohibition on the use of force for self-defense. Security Council authorization made to be
lawful while Security
Council has never authorized a reprisal
and will not in the case of Syria. Trump administration threatened Syria with a “Big price to pay” for an alleged chemical attack. In response Trump
authorized an attack 59 Tomahawk missiles. Only the French and German government responded with this statement it a ‘just and proportionate response’ that response
was
not justifiable. A unilateral use of force by the president, without congressional authorization would be
premised on an astonishingly broad conception of the president’s Article II powers.
The main issue is that places no limit at all on the president ability to use significant
military force unilaterally.
The act of air strikes is the violation of international law. International laws have three exceptions in this regard, which are not implicated
in present situation.
Firstly, strikes are not allowed without the consent of sate. Secondly,
U.N. Security Council has not authorized the strikes and thirdly, United States is not acting in self-defense.
The United Nations Charter prohibits “the threat or use of force
against the territorial integrity
or political independence of any state.” Indeed, in case of Syria neither unlawful
armed reprisal nor such humanitarian intervention provide the solution of
present situation
unless there is no guarantee that life
will be better for Syrian people in future. The most recent NATO humanitarian
intervention in Libya in 2011in which the U.S participated while could not achieved desire
result as what many hope. Though NATO intervened,
even country leader Muammar Gaddafi killed and his government
fell to pieces. The outcome was chaos and disorder. although the action was approved by United Nation Security
Council.
Last but not least, contemporary and upcoming air strikes elevate the foreseeable possibility of sparking more dangerous
conflict with Russia or Iran or both. In
February,
U.S strike killed the number of Russian mercenaries in Syria. In reprisal Russia did little but there is no guarantee the identical response in future if the same occurrence
observes. Recently, Israeli strike in Syria reportedly
killed four Iranian militaries
personal. These strikes and unlawful armed reprisals by United States on Syria could bring the U.S to war with no one but possibly with three
foreign states: Syria, Russia and Iran.