International Law Governing Use Of Force: Are States Allowed To Act In Self-Defense?

INTERNATIONAL LAW GOVERNING USE OF FORCE: INTERNATIONAL LAW GOVERNING USE OF FORCE: ARE STATES ALLOWED TO ACT IN SELF-DEFENSE? By Barrister Zeeshan Adhi, of Lincoln's Inn International Law has played a pivotal role in promoting global peace and avoiding war by laying down principles of law governing the use of force. Article 2(4) of the United Nations Charter expressly prohibits use of force against other states. It reads, "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"1. However, the right to use force when acting in self-defense is also a recognized principle of customary international law established as far back as the Caroline incident of 18372. In addition, Article 51 of the United Nations Charter, reads "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the 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." Article 51 essentially codifies the principle of the right of States to use force in self-defense under international law. The parameters of "self-defense" with regards to use of force have expanded substantially in recent times3. For example, there is an increased use of anticipatory self defense or pre-emptive self-defense, which refers to use of force by a State in anticipation of a potential attack on its soil or assets4. Nation states have progressively started relying on their right to anticipatory self-defense and/or pre-emptive self-defense, when the legal basis of this concept is, at best, nebulous5. The leading judgment of International Court of Justice on the issue of self-defense, Nicaragua v. United States of America6, did not discuss the legality of anticipatory self-defense. One point of view is that anticipatory self-defense is in accordance with Article 51 of the Charter, as well as the principles of customary international law, so long as the threat of attack is imminent7. On the other hand, it has been argued that the concept of pre-emptive self-defense is patently illegal, since use of force when acting in self-defense is only allowed when there is an actual armed attack8, and not merely a possibility of one. Either way, it is a settled principle of international law that any use of force, even if acting in self-defense, has to be both necessary and proportionate9. In reality, however, these principles are often violated. This could seriously threaten world peace and security since prima facie, use of force violates the sovereignty of a nation state10. Use of force can be justified under international law if used against a state that is unable and/or unwilling to act, which is a legal test requiring detailed analysis11, and is a test in need of further development12. This involves a situation where the state from whose territory attacks emanate is either "unable" or "unwilling" to act against non-state actors. As is clear, this test is relevant when non-state actors are operating from a State's territory and the state itself is unable to handle the situation. In such a scenario, use of force by other States and/or international community has been considered warranted13. Use of force may not only be for the benefit of the State (or a group of states, as the case may be) who is taking the action, in fact, it can be equally beneficial for the residents of the State where use of force takes place. That is, the residents of the State (from which non state actors are operating) may be in dire need of help from other States and/or international players. This situation falls within the ambit of Responsibility to Protect14 under international law which requires intervention of international community, and according to some commentators potentially allows use of force, albeit as a matter of last resort and in extreme circumstances15. Indeed, what is defined as "use of force" under international law has evolved over time with cyber-attacks becoming increasingly common16, and so is the ambit of self-defensive force against cyber-attacks17. This adds a whole new dimension to the concept of use of force when acting in self defense under international law. Be that as it may, international law plays an increasingly important role in ensuring and promoting global peace. Any unabated and unjustified use of force by States, even if acting in self-defense, may be construed as violation of international legal principles, and therefore dilute the respect and widespread acceptance of international law. It may also undermine the very concept of rule of law. Furthermore, and more importantly, it may lead to unjustified casualties and loss of life including collateral civilian damage. An absolute ban on use of force when acting in self defense is neither possible nor lawful. States have a right to defend their rights, assets, citizens, and territory, from external aggression. To balance the right of use of force when acting in self defense with the potential legal implications outlined above, it is submitted that a multilateral agreement between States needs to be evolved which clearly outlines the situations under which use of force (whether reactive, anticipatory, or pre-emptive) is permissible. The agreement should lay out the dimensions of such force. Furthermore, such agreement may also provide for a mechanism to ensure checks and balances on use of force to ensure full compliance with international law. Finally, it is recommended that such agreement must provide for a mechanism to ensure that any use of force is proportional, necessary, for a limited time, and for a specific purpose. Most importantly, this agreement must guarantee that any casualties and loss of life, particularly collateral civilian damage, is kept to an absolute minimum, and preferably totally avoided. These steps will ensure that any use of force by States is in accordance with international law, principles of natural justice, and rule of law.