USE OF FORCE [UOF] AND LAW OF ARMED CONFLICT [INT.

HUMANITARIAN LAW]
History of the law on the use of force
For centuries, states have resorted to force in their international relations in order to achieve
particular, desired aims. The use of violence has proved to be an accepted, although tragic in its
consequences, method of resolving disputes between states. States reserved the right to wage war
without any internationally agreed regulatory framework. Nevertheless, over time, the concepts of
‘just and unjust war’ emerged. The distinction between the two can be traced back to ancient Rome
and the Fetials (fetiales), a group of priests who were responsible 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. The
concept of ‘just war’ has changed over centuries (Von Elbe, 1939).
The post-1945 legal framework
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). This includes:
prevention and removal of threats to the peace, [...] the suppression of acts of aggression or other
breaches of the peace, [...] and in conformity with the principles of justice and international law,
adjustment or settlement of international disputes or situations which might lead to a breach of the
peace.
The UN Charter provides 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 purposes of the United Nations. (Art. 2(4), UN Charter)
• Nothing in the present Charter shall impair the inherent right of collective or individual self-
defence if an armed attack occurs against a member of the United Nations, until the Security
Council has taken the measures necessary to maintain international peace and security.
Measures taken by members in exercise of this right of self-defence shall be immediately
reported to the Security Council and shall not in any way affect the authority and
responsibility of the Security Council under the present Charter to take at any time such
action as it deems necessary in order to maintain or restore international peace and security.
(Art. 51, UN Charter)
• “Threat or Use of Force” – in the case of Nuclear Weapons Advisory Weapons the notions of
threat and use of force u/Art.2(4) of the Charter stand together in the sense that if the use of
force itself in a given case is illegal – for whatever reason – the threat to use such force will
likewise be illegal. In short, if it is lawful, the declared readiness of a State to use force must
be a use of force in line with the Charter. For the rest, no State – whether or not it defended
the policy of deterrence – suggested to the Court that it would be lawful to threaten to use
force if the use of force contemplated would be illegal.

• jus ad bellum refers to the conditions under which States may resort to war or to the use
of armed force in general.
• The prohibition against the use of force amongst States and the exceptions to it (self-
defence and UN authorization for the use of force), set out in the United Nations
Charter of 1945, are the core ingredients of jus ad bellum.
 • jus in bello regulates the conduct of parties engaged in an armed conflict. (IHL is
synonymous with jus in bello)
It seeks to minimize suffering in armed conflicts, notably by protecting and assisting all victims of
armed conflict to the greatest extent possible
Jus ad bellum – it sets the normative boundaries as to when a state may resort to use of force.
Generally, the raison d’etre of IL is to abolish or (at least) restrict violence. Yet, there is always a
resort to war, and it has to be considered legally permissible as an attribute of Statehood. This has
historical evolved from the “just war theory” i.e., St. Augustine state wars are necessary to amend an
evil.
St. Augustine and St. Thomas Aquinas (c. 1200) gave 3 criteria for just war –
• Just authority – war should be waged by a legitimate authority.
• Just cause – self-defence, resisting aggression etc.
• Just intentions – the object of war is peace.
It is important to remember that the prohibition on the use of force is not absolute. As the wording of
Article 2(4) suggests, the force is permissible in circumstances consistent with the purposes of the
UN. Chapter VII of the UN Charter (‘Action with Respect to Threats to the Peace, Breaches of the
Peace, and Acts of Aggression’), outlines when a state can resort to the use of military force against
other states. Force may be used against another state when:
 such an act is authorised by the UN Security Council as part of collective
security mechanism
 a state is acting in self-defence.

The use of force authorised by the UN Security Council

The UN Security Council plays a major role in the global collective security system by deciding
whether force may be used against other states. Should a situation that threatens international peace
and security occur, it is within the Security Council’s mandate to ‘determine the existence of any
threat to the peace, [...] or act of aggression’ as well as to ‘make recommendations, or decide what
measures shall be taken in accordance with Articles 41 and 42’ (Article 39 UN Charter). In such a
situation, a state (or group of states) does not act unilaterally (as in the case of self-defence), but rather
states act collectively by resorting to force acting under the authority of the international organisations
(e.g. the UN Security Council).
The use of force in self-defence
States may legitimately resort to the use of armed force in self-defence (Article 51 UN Charter). But
what is the meaning of ‘self-defence’?
Self-defence is a lawful reaction to the ‘armed attack’ against the territorial integrity of a state, which
also diminishes its political independence (acts forbidden in Article 2(4) UN Charter). By executing
the right to use force in self-defence, states are conducting a unilateral act. The traditional meaning of
the right to self-defence originates from the Caroline case (29 Brit & For St Papers) (Box 3); these
principles were accepted by the British Government at the time and formed a part of customary
international law
This case sets out a customary international law definition of the right to self-defence. It originates
from a dispute between the British Government and the US Secretary of State regarding the
destruction 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. The British Government responded by claiming
the right to self-defence. The subsequent diplomatic correspondence between the parties contained an
outline of the key elements for legitimate self-defence. The US Secretary of State, Daniel Webster,
emphasised that for the self-defence to be lawful in international law, the British Government must
prove the: necessity of self-defence, instant, overwhelming, leaving no choice of means and no
moment for deliberation and that assuming such a necessity existed at the time: the act justified by the
necessity of self-defence, must be limited by that necessity, and kept clearly within it.
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). This is one of the key
judgments in international law.
Conditions for Use of Force

1. There must be an armed attack,

In order to lawfully exercise the right to self-defence, a state must be able to demonstrate that
it has been a victim of an armed attack. The burden of proof in such a case lies with the state
seeking to justify the use of force in self-defence. Nevertheless, not all attacks will constitute
an armed attack for the purposes of Article 51: only the most grave forms of attack will
qualify (Nicaragua Case, para.191).
2. The response was/should be necessary and proportionate
the ICJ held in the Nicaragua Case (Merits) that ‘self-defence would warrant only measures which are
proportional to the armed attack and necessary to respond to it’ (para. 176). This statement sets out
two important principles in international law concerning the use of force: the principle of
proportionality and the principle of necessity. In this context, proportionality means that the response
to an armed attack must be reflective of the scope, nature and gravity of the attack itself. On the other
hand, the principle of necessity guards against the use of measures which are excessive and not
necessary in response to an armed attack.
War on Ukraine

The Russian invasion of Ukraine flagrantly violates the post-second world war international legal order. The
Russian invocation of individual or collective self-defence is of no legal merit. This remains the case even if you
accept the most elastic interpretation of the notion of “imminent attack” which Russia might use to justify
invading – such as “anticipatory” or even “preventive” self-defence. Similarly, Russian references to “genocide”
in eastern Ukraine to justify its intervention cannot be substantiated and offer no justification for military action
under international law.

Instead, Russia has violated the principle of jus ad bellum (the law relating to the prohibition of recourse to
force). Its action constitutes an act of aggression in breach of the cornerstone legal principle of the prohibition of
use of force, laid down in the UN Charter. The UN General Assembly has demanded that Russia immediately
cease its illegal use of force against the territory of Ukraine in the strongest terms.
Apart from jus ad bellum, which makes the invasion itself illegal, the conduct of the war raises serious concerns
with respect to jus in bello. This is the body of international law related to the way war is waged.

• Right to self-determination of Russian-speaking Ukrainians in Donbas

• No! With the possible exception of gross HR violation (even this is contested)
• There was nothing as such in Ukraine. Bona-fide secession wasn’t initiated.
• This was exactly what the charter meant to prevent.
• Charter allows use of force in - i) self-defense, ii) in response to UNSC authorization
• Contested notion of humanitarian intervention (when one state is carrying out extinction of minorities)
— this didn’t happen in Ukraine.
And this isn’t accepted by the UN Charter (the concept of Hum. Int.)
• Law of War / International Humanitarian Law
• No unnecessary suffering by combatants (weapons
• Principles of distinction (no civilian targets)
• N.B.: It isn’t a violation of law of war if civilians die in a war.
• But if military advantage is taken out, it is.
• Principle of proportionality (disproportionate attack)
• Principle of precaution (military attack should aim minimizing civilian casualties)
In the Russia-Ukraine War, there is no[t much] deliberate target of civilians.
• However, there is indiscriminate use of force.
• There is also lack of precautions.
And the attack is not proportional
• Prospects of individual accountability
• ICL criminalizes certain violation of IHL
• HRC decided to create an individual commission
• ICC doesn’t have jurisdiction – traditional POV
• none of the countries are parties to the statute
• either by a national of a state party
• or by the territory of a state party
• security council ko referral would be met w/russian veto.
• BUT, ICC still opened investigation! And issues arrest warrants!! HOWW???

3. There must be a report to the Security Council

Report should be submitted to UNSC within 24hrs. UN Security Council Resolution 1973 of 17
March 2011 is an example of the authorisation of the use of force by the UN Security Council. , the
UN Security Council, acting under Chapter VII of the UN Charter, adopted Resolution 1973
authorising member states ‘to take all necessary measures […] to protect civilians and civilian
populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while
excluding a foreign occupation force of any form on any part of Libyan territory.’
Self-defence against non-state actors
The question of whether it is lawful to use force in self-defence against an armed attack by a non-
State actor is contentious.
9/11 x Al-Qaeda x USA x UNSC resolutions – UN Security Council Resolution 1368 (2001) –
recognised the right of the US To individually, and collectively, use the right to self-defence, with any
act of international terrorism, in the light of 9/11. UNSC Resolution 1373 (2001) – reaffirmed the
inherent right of individual or collective self-defence against terrorist attack – allowed the US to
violate the state sovereignty of the country.
If the armed attack being defended in attributable to the State, then defensive force can be used
against the controlling State. If the armed attack is not attributable, then the force can be used only
against non-state actors within that state. It has to meet necessity & proportionality test and this
defensive force should be limited and targeted using force against and only against the source of non-
state actors.
Judge Simma: An armed attack could come from a non-State actor, giving rise to a right to respond
with force in self-defence
State practice in response to the 9/11 attacks and to the activities of Islamic State would also seem to
suggest that where a host state is ‘unwilling or unable’ to control the acts of non-State groups on its
territory, a State might be able to use force in self-defence against that non-State group, even on the
territory of another State (without that State’s consent).
Pre-Emptive Self-Defence
This is also known as anticipator self-defence and remains highly controversial. The supports of pre-
emptive self-defence state that the right to self-defence encompasses within it, the right to pre-emptive
self-defence. The opposers call this principal incompatible with the wording of Art.51 which refers to
an actual armed attack. There is another response from some parties who state that limited pre-
emptive self-defence against a manifestly imminent armed attack should be allowed.
Test for anticipatory self-defence – This is, as extrapolated from the Caroline Test, as follows – “a
necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for
deliberation.”
In the case of DRC v Uganda, the ICJ, on pre-emptive self-defence, stated that Art.51 may justify a
use of force in self-defence within the strict confines there laid down. It does not allow the use of
force by a State to protect perceived security interests beyond these parameters. Other means are
available to a concerned State, including, in particular, recourse to the UNSC.
There is an absence of any linearity in state practice and therefore this could not lead to an inclusion
of any detailed statement in the UNGA resolutions. Before 9/11, majority of the States rejected
anticipatory self-defence, and this has been rarely invoked. The States usually rely on self-defence in
response to an armed attack, if they possibly can. They rather prefer to take a wide view of ’armed
attack’ than openly accept anticipatory self-defence. There are some examples of actions that can be
counted as ostensibly pre-emptive, but have not been claimed as such i.e., 1967 Israeli air strike on
Arab neighbours, and the 1962 Cuban missile crisis.

 1967 Israeli strike on Arab neighbours – Egypt, Jordan, and Syriac – did not rely on
anticipatory self-defence but rather argued that the previous acts by Arab States amounted to an armed
attack (blocking of Straits of Tiran, expulsion of UN Peacekeeping forces, …)
 1962 Cuban missile crisis – Cuba importing missiles from the USSR – USA forcible
intercepted the missiles on high seas. USA did not rely on anticipatory self-defence but rather relied
on “regional peacekeeping” under Chp.VIII.
There is one example of pre-emptive self-defence that was claimed as such but condemned by the
collective of nations. The 1981 Israeli attack on Iraqi nuclear reactor. Israel claimed anticipatory self-
defence as it had acted to remove a nuclear threat under the claim that the under-construction Iraqi
reactor was designed to produce nuclear bombs to be used to attack Israel. It relied on scholarly
literature to support anticipatory SD but could not prove State practice and the UNSC condemned it as
a violation of the Charter.
Bush Doctrine Post-9/11 - National Security Strategy of the United States of America, 14 September
2001
Malcolm Shaw on “imminence” in pre-emptive self-defence
The concept of “imminence” within the context of anticipatory self-defence is relative. It depends
upon the nature of the threat and the possibility of dealing adequately with it at any given stage. What
is imminent will vary as technology evolves. The aim of self- defence is to defend the territory and
population of a state and the extent to which this is feasible will be dependent upon the character of
the attack (foot soldiers, chariots, tanks, planes, missiles) as well as the vulnerability of the target state
and the intention of the attackers. Russia and China can absorb initial attacks and be in a position to
regroup and counter-attack even if hundreds of miles of territory have been lost. Other states, not so
well endowed geographically, cannot and thus must act in time to prevent the anticipated destruction,
such as may have been the case with regard to Israel in 1967. “Imminent” will also need to be
interpreted in the light of changing threats in the light of changing practice.83 Today, of course,
terrorist threats are high on the agenda and after 11 September 2001 and other outrages, no longer to
be hived off as the problem of a few relatively unimportant states.
However, “imminent” does not mean “perhaps sometime in the future”. A forceful action to disrupt an
imminent terrorist act being prepared in a neighbouring state may well be legitimate; force to attack
person who may in the future contemplate such activity is not. Distinguishing the two is not easy.
Relevant factors would include the pattern of events to date, statements and threats made, the level of
the threat (e.g., preparations for the use of a ‘dirty bomb’ in a city) and the realistic possibility of
averting the threats by non-forcible means. Current events have highlighted the issue of evidence.
Clearly credible evidence reasonably believable in the circumstances is required and it may be that the
test of this has or will harden in the light of the Iraq situation. In such situations, it is difficult to
envisage in all reality judicial tests of “beyond reasonable doubt” determined by objective bodies as
being the sole determinant. While it is easy to say that hindsight will determine the issue and the
consequences will be drawn at that stage, it is important that those responsible for taking the measures
in question have assured themselves as to reasonable and adequate evidential methodologies.
Malcolm Shaw on proportionality and necessity
Proportionality means that there has to be a sense of relationship between the threat and the response.
What is proportionate will depend upon the nature of the threat faced and the means available in
practice to counter it, as well as the requirements of law.105 Case law is vague on the precise
conditions required. Time may also alter the equation. Israel was roundly condemned for bombing the
Iraqi nuclear reactor just before it went critical in 1981. I suspect that such criticisms faded as from
1990.
The first issue will be to determine against what the proportionate response is to be measured since
simply to pronounce that the action must be proportionate to the armed attack begs the question.
Indeed, it seems to me that the appropriate determinant is not the armed attack as such but the totality
of the threat that this represents. An analysis of the threat needs to be considered and realistic. Is the
aim to grab a few miles of land or to extinguish the target state or murder large numbers of the
population or “ethnically cleanse” the territory in question? Is the aim to attack a military location or a
city?
The different levels of threat will of necessity require a different response. Reasonable evidence will,
of course, be critical and may condition the reaction of third states after the event, but such evidence
is time-conditioned in that the test will be what is reasonable at the time in the light of knowledge
known or reasonably to have been known at the time of response.
Proportionality, then, refers to a similarity in scale between the attack and the response.
Necessity is linked to proportionality in that the response has to be limited to measures appropriate in
order to deal with the threat. Indeed, necessity is a gloss on proportionality and restricts the response
to the elimination of the threat. Necessity will also relate to the means available so that the kinds of
forces and the level of armament to hand will be relevant to the type and intensity of response that it
would be reasonable to expect, as well as the realistic possibilities of resorting to non-military means
in the circumstances. What this means in practice is, however, uncertain. Tanzania in responding
legitimately to a Ugandan attack upon the Kagera salient in 1978 continued to Kampala and
overthrew the regime. There was little meaningful criticism. Again, the UN authorised coalition
forces in 1991 stopped at the Iraqi border after expelling invading troops from Kuwait.
Humanitarian Intervention
Humanitarian intervention is an exception to Art.2(4) allowing UoF on humanitarian considerations.
The argument is that H.I. can allow a State to protect people from gross and systemic HR violations,
when the target State is unable and unwilling. This is controversial because this allows for unilateral
intervention, thereby making it open to abuse.
E.g., NATO intervention in Kosovo: In 1999, NATO intervened in Kosovo (then a province of FRY)
via a 78-day aerial bombardment. It gave convoluted legal justifications which were mostly on
grounds of humanitarian intervention and implied UNSC authorization. Belgium and UK justified it
“as an exceptional measure to prevent an overwhelming humanitarian catastrophe….Every means of
short of force has been tried to avert this situation. In these circumstances, and as an exceptional
measure on grounds of overwhelming humanitarian necessity, military intervention is legally
justifiable.” Subsequently, UNSC Res. 1244 welcomed the withdrawal of Yugoslav forces from
Kosovo and established the UN Mission in Kosovo This case went to the ICJ, called Legality of Use
of Force, however, none of the cases went passed the jurisdiction stage. The International
Commission on Kosovo concluded that the NATO military intervention was “illegal but legitimate”.
After this, however, the UN Sec-Gen Kofi Annan in 2000 stated that – if humanitarian intervention is,
indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, a Srebrenica –
to gross and systemic violations of human rights that affect every precept of our common humanity?
A response to this challenge was led by Canada (+ some major foundations) who proposed the
establishment of ‘International Commission on Intervention and State Sovereignty’ and prepared a
report called ‘Responsibility to Protect’ (R2P).
The Responsibility to Protect Report – This report rejected the doctrine of ‘humanitarian
intervention’ and stated that “state has the duty to protect but if unable and unwilling, then the
principle of non-intervention yields to the international R2P – to prevent, to react, and to rebuild”.
R2P DOCTRINE
• Each individual State has the responsibility to protect its populations from genocide, war
crimes, ethnic cleansing and crimes against humanity.
• This responsibility entails the prevention of such crimes, including their incitement, through
appropriate and necessary means.
• States accept that responsibility and act in accordance with it.
• The international community should, as appropriate, encourage and help States to exercise
this responsibility and support the United Nations in establishing an early warning capability.
• The international community, through the United Nations, also has the responsibility to use
appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters
VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic
cleansing and crimes against humanity.
• R2P is about taking collective action, in a timely and decisive manner, through the Security
Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and
in cooperation with relevant regional organizations as appropriate, should peaceful means be
inadequate and national authorities manifestly fail to protect their populations from genocide,
war crimes, ethnic cleansing and crimes against humanity.
• There is a need for the General Assembly to continue consideration of the responsibility to
protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity
and its implications, bearing in mind the principles of the Charter and international law.
• The idea is to help States build capacity to protect their populations from genocide, war
crimes, ethnic cleansing and crimes against humanity and to assisting those which are under
stress before crises and conflicts break out.
 • Pillar I: The protection responsibilities of the state – "Each individual state has the
responsibility to protect its population from genocide, war crimes, ethnic cleansing, and
crimes against humanity".
• Pillar II: International assistance and capacity-building – States pledge to assist each other in
their protection responsibilities.
• Pillar III: Timely and decisive collective response – If any state is "manifestly failing" in its
protection responsibilities, then states should take collective action to protect the population.
Above mentioned Pillars must be used in chronological order Pillar 2 must be used on exhaustion if
Pillar 1 similarly, pillar 3 must be used on exhaustion of pillar 2.
The key distinction b/w R2P and humanitarian intervention -
UNSC resolution before intervening.
the requirement that collective action by the int. community must be undertaken pursuant to UNSC
authorization under Chp.VII. In short, there is an affirmative burden on the international community
to protect civilians, with force if necessary, when individual nations fail to do so. Humanitarian
intervention principle came into play because certain countries thought that it was imperative to allow
other States to intervene into the affairs of a country on grounds of human rights violations. This was
met with a lot of backlash, as it was at odds with the state sovereignty principle. Canada then
proposed “responsibility to protect”, which while stays like humanitarian intervention, now requires a
UNSC resolution before intervening.
Humanitarian intervention principle does not really protects, humanitarian intervention only refers
to the use of military force, whereas R2P is first and foremost a preventive principle that emphasizes a
range of measures to stem the risk of genocide, war crimes, ethnic cleansing or crimes against humanity
before the crimes are threatened or occur. The use of force may only be carried out as a measure of last
resort, when all other non-coercive measures have failed, and only when it is authorized by the UN
Security Council.[22] This is in contrast to the principle of 'humanitarian intervention', which claims to allow
for the use of force as a humanitarian imperative without the authorization of the Security Council.

while humanitarian interventions have in the past been justified in the context of varying
situations, R2P focuses only on the four mass atrocity crimes: genocide, war crimes, crimes
against humanity and ethnic cleansing. The first three crimes are clearly defined in international law
and codified in the Rome Statute of the International Criminal Court, the treaty which established the
International Criminal Court. Ethnic cleansing is not a crime defined under international law, but has
been defined by the UN as "a purposeful policy designed by one ethnic or religious group to remove
by violent and terror-inspiring means the civilian population of another ethnic or religious group from
certain geographic areas".R2P does not fulfil political purpose but protects.
Finally, while humanitarian intervention assumes a "right to intervene", the R2P is based on a
"responsibility to protect".[22] Humanitarian intervention and the R2P both agree on the fact that
sovereignty is not absolute. However, the R2P doctrine shifts away from state-centered motivations to
the interests of victims by focusing not on the right of states to intervene but on a responsibility to
protect populations at risk.[25] In addition, it introduces a new way of looking at the essence of
sovereignty, moving away from issues of "control" and emphasising "responsibility" to one's own
citizens and the wider international community.