Introduction
The use or threat of use of force in the international community is a controversial topic that can be reviewed from different perspectives. Its primary legal basis – the UN charter – stands against the use or threat of force. According to Article 2(4) of the United Nations Charter (1945), members of the United Nations should refrain from using force or threatening the territorial integrity or political independence of other members. This definition strictly implies territorial integrity and political independence and proves that the charter does not cover all situations. This essay will review the legality of using force or threat of force that is not covered under the UN charter.
The Legality of Using Force
Self-Defense
The first possibility to legally use force can be in the case of self-defense. Article 51 of the UN Charter recognizes states’ rights to individual or collective self-defense (1945). It can be the use of force as a response to an armed attack in case the UN Security Council takes no proper measures.
The Caroline Case
The first case considered for self-defense stands to be the Caroline case (Gray, 2018), in which the British government attacked an ammunition ship of American troops. As to call this act self-defense, two main conditions were to be satisfied. Firstly, the act should be proved by the immediate necessity of self-defense, which would otherwise leave no choice for the actor. Secondly, self-defense must be limited within the boundaries of the given necessity.
The Nicaragua Case
In 1986, the Nicaragua case helped define the concept of self-defense in international law. The case confirmed that when facing an armed attack, whether it is actual or imminent, states have the right to employ force in self-defense. The International Court of Justice (ICJ) stressed that acts by irregular armed groups backed by another state could qualify as an armed attack (Bordin, 2018).
The necessity and proportionality of using force are additional requirements of the self-defense concept. The necessity was already discussed in the paragraph above, while proportionality requires the given reaction to be proportionate to the threat. At the same time, there is no proper definition of what should be considered a “proper” reaction. Thus, ICJ reviews each case individually.
The case also covered the topic of anticipatory self-defense, which allows for using force in the event of a coming armed attack. The ICJ clarified that anticipatory self-defense is only acceptable when the necessity and proportionality requirements are satisfied and when an actual armed attack is about to occur (Bordin, 2018). The court clarified that self-defense has restrictions and is subject to customary international law. With the help of self-defense principles, states cannot support rebel groups or mercenaries to act against other forces simultaneously, as it is impossible to attack foreign governments with such forces.
Security Council Authorization
Another possibility is the use of force authorized by the Security Council. The Security Council has the power to identify risks to peace and decide on responses, including the use of force, as stated in Chapter VII of the UN Charter (1945). The Security Council must preserve the general security of states, and thus, its direct responsibility would react to threats. It can approve the use of power if necessary for a state under threat. However, the legal structure forces the Security Council to adopt a resolution on each case.
An arms embargo, military intervention, no-fly zones, or other actions usually stand to be the essential part of adopting resolution. The Security Council’s approval depends on collective security needs; thus, the danger should be sourced from given examples or the one of states directly. The threat can be posed to one of the members of the United Nations or the region as a whole.
The Libya Case
The vital case for the consideration of authorization is the Libya case in 2011. The United Nations Security Council approved using force in Libya in 2011 through Resolution 1973 (Saba and Akbarzadeh, 2018). The resolution was passed on March 17, 2011, in reaction to the Muammar Gaddafi regime’s increasing violence and violations of human rights against the people of Libya. Member states are permitted by Resolution 1973 to take all necessary actions to defend Libyan civilians and civilian-populated areas. It established an aviation no-fly zone over Libya and gave member governments the power to enforce it. The resolution demanded an immediate halt to hostilities as well as a stop to violence against civilians.
A coalition of nations, including NATO members, launched military operations in Libya after the Security Council gave its approval. The majority of the intervention’s airstrikes were directed at Gaddafi’s military personnel and equipment, while the intention was to stop additional assaults on innocent bystanders and to establish a secure environment for the protection of the Libyan populace.
The use of force in Libya was to defend the principles of the responsibility to protect and safeguard people, but the involvement was also the subject of debate and criticism. Their concerns about probable collateral damage and the long-term effects of military involvement were expressed during discussions over the interpretation and execution of the Security Council mandate—the action aimed to defend people and impose a no-fly zone to stop further assaults. Regarding the meaning and effects of the intervention, however, arguments and disagreements continued.
Self-Defense Against Non-State Actors
International law prioritizes self-defense against non-state actors, particularly in the context of Chapter VII of the United Nations Charter. The 9/11 attacks, which took place on September 11, 2001, when the United States was assaulted by the terrorist organization Al-Qaeda, had a significant impact on how self-defense against non-state actors under Chapter VII was perceived and used. Following the 9/11 attacks, the US used its inherent right to self-defense, guaranteed under UN Charter Article 51 (Gray, 2018). The United States claimed that the attacks were an armed attack and used the defense of one’s self to justify taking military action against Al-Qaeda and the Taliban government in Afghanistan, which served as Al-Qaeda’s haven.
Although Resolution 1373 denounced the necessity of counter-measures regarding the 9/11 attacks, there were still issues with Security Council measures that did not approve the use of force against Al-Qaeda. Still, the USA managed to use the resolution as a legal basis to attack Al-Qaeda and Afghanistan. In contrast, the resolution supported the right to self-defense and prohibited further terrorist activities. Overall, the given case gave a newer definition of terrorism and created a preceding case for self-defense against non-state actors. The inherent right of nations to defend themselves from armed attacks, especially acts of terrorism, provides the legal justification for self-defense against non-state actors.
This fundamental right is acknowledged in Article 51 of the UN Charter, which permits states to employ force in self-defense until the Security Council takes action to maintain international peace and security. However, the laws of necessity and proportionality must be followed when using force in self-defense against non-state actors.
States must show that using force is essential to stop the armed attack or repel it, and the severity of the response must be commensurate with the threat, as in the case where the 9/11 attacks brought home how vital global collaboration and collective security are in combating terrorism. The world community moved to strengthen legal systems and increase cooperation in counterterrorism activities after realizing the importance of working together to combat terrorism.
Although examples of legal approval for using force are under the UN Charter, other possibilities exist. Article 2(4) considers military primary operations as using force, but non-military actions are not considered. It can be an economic use of force that can threaten the state’s government and cause a collapse of their markets.
Another example is the cybersecurity issues that can also be regarded as using force but lack proper legal cases and basis in the international arena. The issue with definitions is that no preferable countermeasures or principles guide the use of force (Corn and Jensen, 2018). Although states recognize that cyber attacks can cause similar damage to armed conflict, most do not possess proper defensive mechanisms and technologies. At this rate, the use of force can be considered partially legal since it can be controversial under the UN Charter.
Conclusion
Different factors can affect the presence and use of force perceived by international law. Although the UN Charter generally prohibits the use or threat of force, different legal cases were built upon the development of international law throughout the decades. The International Court of Justice also provided the basis for precedents when the use of force was either justified or authorized by an international committee, such as the Security Council. However, the charter definitions need to be reviewed to include modern methods of using force, such as cyber-attacks or economic sanctions.
Reference List
Bordin, FL (2018) ‘The Nicaragua v. United States Case: An Overview of the Epochal Judgments’ in Obregen, E.S. and Samson, B (eds) Nicaragua Before the International Court of Justice, Springer publishing, pp. 59–83.
Corn, G. and Jensen, E. (2018). ‘The use of force and cyber counter-measures.’ Temple International and Comparative Law Journal, 32, pp. 127-135.
Gray, C. (2018) International law and the use of force. Oxford: Oxford University Press.
Saba, A. and Akbarzadeh, S. (2018) ‘The Responsibility to protect and the use of force: An assessment of the just cause and last resort criteria in the case of Libya,’ International Peacekeeping, 25(2), pp. 242–265. Web.
United Nations (1945), Charter of the United Nations. San Francisco: United Nations Conference on International Organization. Web.