Use of Force and International Law

In the nineteenth century, States felt that there need to be some restrictions at least, since any small friction had the capacity to lead a full-fledged war that was not intended by either party. The result of this is the invention of concepts such as pacific blockade, embargo, retaliation, reprisal, intervention, etc. all hinting that these are not war, but methods of limited use of force. 

The concept of total war encompassing civilian life caused a huge amount of loss of life during the First World War and forced the States to reconsider the rules regulating resort to force. 

Among the major wars in modern history, World War II caused the biggest number of deaths ever (35-60 million people), which was followed by Second Sino-Japanese (15.7-20 million people) (S.4, Figure 1.2).

The League of Nations was founded as a post-First World War organization and included in the post- war peace treaties as a part of the peace deal. Its Covenant required the States to apply methods of pacific settlement of disputes before going to war against each other.

Article 11 stipulated that “Any war or threat of war, whether immediately affecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations. 

The Charter of the United Nations permitted use of force only in self-defense and in collective enforcement action.

There are also other concepts and terms used in the Charter that went without definition such
as “aggression”, “armed attack”, “breach of the peace”, “threat to the peace”, etc.

There are two transitionary exceptions made to the prohibition of the use of force. 

1. Transitional Security Arrangements (Article 106): Pending the coming into force of such special agreements referred to in Article 43 as in the opinion of the Security Council enable it to begin the exercise of its responsibilities under Article 42, the parties to the Four-Nation Declaration, signed at Moscow, 30 October 1943, and France, shall, in accordance with the provisions of paragraph 5 of that Declaration, consult with one another and as occasion requires with other Members of the United Nations with a view to such joint action on behalf of the Organization as may be necessary for the purpose of maintaining international peace and security.

2. Transitional Regional Arrangements (Articles 107 and 53): nothing in the Charter shall invalidate or preclude action taken or authorized as a result of the Second World War against a State which has been an enemy of any signatory of the Charter (Article 107), and Article 53 authorizes the Security Council to utilize regional arrangements or agencies for enforcement action.

According to Article 24, it is the Security Council that bears primary responsibility for maintenance of international peace and security.

Article 41 determines the Council’s authority to decide for measures not involving use of armed force.

According to Article 42, the Council may deem that the measures provided for in Article 41 would be inadequate or have proved to be inadequate, and may take action by air, sea, or land forces.

Article 39 gives the Council two duties: First, it needs to determine the existence of threat to the peace, breach of the peace, or act of aggression. Then, it needs to decide what kind of action is going to be taken by the UN and its member States.

Article 51 acknowledges the inherent right of self-defense, which is not without limits, saying "“the
inherent right of individual or collective self- defense if an armed attack occurs against a Member
of the United Nations”. 

The International Court of Justice confirmed that action taken in self-defense remains subject to the
requirements of necessity and proportionality (Keskin, 1998, 54).

Organizations of collective self-defense arises from the rule stipulated in Article 51. State practice shows that one State may defend the other upon its request. However, State claiming individual self-defense must declare this situation and ask for the help of the others. Other States cannot have the right of collective self-defense if there is not a call for help (Keskin, 1998, 59).

When a State injured by a violation of its rights, it is entitled to react by infringing some obligations. This is called a counter-measure.

The criteria offered under which armed force may become justified, even in the absence of any authorization by the Council were as follows:

- gross breaches of human rights involving loss of innocent life amounting to crimes against humanity,

- central authorities unable to put an end to those crimes or responsible of them itself,

- the Security Council unable to take coercive action because of the use of veto,

- exhaustion of all peaceful avenues,

- a group of States (not a single State) deciding to try to halt atrocities with the support or
at least the non-opposition of the majority of the member States of the UN,

- armed force being used exclusively for the limited purpose of stopping the atrocities and restoring respect for human rights, not for any goal going beyond this limited purpose.

NATO’s Kosovo intervention was fought also online with Serbian and Kosovar people uploading photographs and videos from the area. It is the first incident having this feature.

R2P refers to Responsibility to Protect

In 2001, one of the participants in the NATO intervention, Canada promoted the creation of an independent International Commission on Intervention and State Sovereignty (ICISS). It defined the responsibility to protect not as a right to intervene, but as a responsibility, contrary to the concept of humanitarian intervention.