Use of Force Guidelines in the United Nations Charter

Introduction

The Prohibition on the use of force in Article 2(4) of the UN charter 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 any other manner inconsistent with the purposes of the United Nations,” is arguably very narrow in circumstances, allowing for only 2 exceptions (self-defence and under the auspices of a UN Security Council authorization to use force .) However, since the problem of international terrorism arose, specifically since the September 11th 2001 terrorist attack (9/11) there have been attempts to include ‘terrorist attack’ within the definition of ‘armed attack’ under article 51 so that states can use the exception of self-defence to fight the ‘war against terror.’

The Nicaragua case awarded an “authoritative interpretation to the meaning of armed attack,” by emphasising the UN’s 1974 Definition of Aggression where it was held that the meaning of ‘armed attack’ had been expanded to include “indirect aggression” or “indirect use of force” and was customary international law. Some international scholars have argued that this definition can be applied to modern terrorist situations as long as the terrorists are sent on by or behalf of the state or if the attack was of the same scale and effect of an actual armed attack conducted by armed forces.

The position established in the Nicaragua case was reaffirmed by the International Court of Justice (ICJ) in the Oil Platforms Case; the court adjudicated that “To establish that it was legally justified in attacking the Iranian platforms in exercise of the right of individual self-defence, the US has to show that attacks had been made upon if for which Iran was responsible,” Moreover, it was further reiterated by the ICJ after 9/11 in the Palestinian Wall Advisory Opinion that “For use of force against a state on account of terrorist attacks to be lawful, it must be proven beyond reasonable doubt that the terrorist attacks must be tantamount to an ‘armed attack’ under international law and an act of a state or attributable to a state.”

From this, it can be determined that the ICJ are reluctant to widen the definition of armed attack to include terrorist attack. This could be seen as beneficial as to widen the definition may lead to abuse by states, such as what occurred in Iraq in 2003 whereby the USA led an invasion, without authorisation of the Security Council, because they believed that Saddam Hussein was preparing weapons of mass destruction. President Bush attempted to justify his actions by stating “terrorists and terror states do not reveal these threats with fair notice, in formal declarations – and responding to such enemies only after they have struck first is not self-defence, it is suicide” and “some have said we must not act until the threat is imminent. Since when have terrorists and tyrants announced their intentions, politely putting us on notice before they strike?” However, other states were bitterly divided on the legality of the use of anticipatory force against Iraq. NATO, Russia, China and several EU States were against the unauthorised force being used as to do so would set a dangerous precedent and a “messy world would become a lot messier.”

Also, the Bush doctrine would allow for no measure of proportionality as anticipatory force is used before the threat has manifested, meaning that often the level of force used in the worst-case scenario is applied. This is dangerous as it could lead to states using force that is extremely disproportionate against a threat that may not even occur, potentially harming innocent lives in the process.

Whilst some argue that pre-emptive force against terrorist attacks is necessary to save lives, it is a flawed argument as it is not up to one state to decide who’s lives have superiority over another or to take preventative measures when there is no certainty an attack will occur and harm civilians as the potential threat is based on uncertainty. For example, 2977 innocent people died on September 11th, 2001 , whereas an estimated 461’000 innocent people have died as a consequence of the Iraq War on Terror , this is evidentially grossly disproportionate and unnecessary as the ‘weapons of mass destruction’ Hussein was allegedly constructing, were never found and it was quite clear in late 2003 that they did not exist, 8 years before the war on Iraq ended. Whilst it could be said that if an attack is likely to occur there may be some basis for anticipatory self-defence, the use of force should only be used as a last resort and there are other, more reasonable steps that could be taken instead.

The Security Council

There have been some debates over whether, post 9/11, the security council wields as much power as it was established with; especially since the American government failed to acknowledge its role when invading Iraq in 2003. The then UN secretary-general, Kofi Annan, pre-warned the US and their allies that their action would be in breach of the Charter, but they continued regardless . Since then, Amman has argued against anticipatory force on two grounds ; firstly, that pre-emption undermines collective security and the security council as historically threats to the peace have been dealt with through the security council, and pre-emption would weaken the unity of the UN. Secondly, pre-emption undermines international stability and may lead to a proliferation of uncontrolled use of force, with or without justification.

By failing to use Security Council procedures, the US undermined its authority as the primary body for breaches of the peace. It can be argued that the security council would have never authorised the US to invade Iraq, however, the role of the security council is to negotiate between states and avoid the use of force. The US may have been more successful and avoided more casualties had they used the proper systems in place.

Furthermore, it has been argued that there is a new system in place for combating international terrorism, which may encourage states not to follow the precedent set by America and instead continue to use the collective security system, which is supposedly now functioning to suit the differences between inter-state conflict and international terrorism.

Some argue that due to the security council’s liberal interpretation of its powers under Chapter VII of the convention and its role in the fight against terrorism, it is probable that states will have the blessing of the UN to use force against terrorists (however this has not been utilised in practice thus far.) Tams argues that “no one seriously questions the council’s right to qualify as a ‘threat to peace’ situations which have nothing to do with the use of inter-state force, which made it possible for the council to take a leading role in the fight against terrorism.” And they have “uncoupled article 42 and 43 of the UN charter” which previously would have limited the potential for collective action against terrorism.” He also argues that “practice since 1989 makes it abundantly clear that acts of terrorism can amount to threats to peace in the sense of article 39,” specifically citing Resolution 1566 (2004) where the council “condemns in the strongest terms all acts of terrorism irrespective of their motivation, whenever and by whomsoever committed, as one of the most serious threats to peace and security.” Nevertheless, others disagree and argue that practice since 1989 demonstrates that the council are reluctant to authorise forces against terrorists, as they would not authorise force against Iraq in 2003 nor Afghanistan in 2001. Additionally, Resolution 1566 reaffirms Resolution 1373 (2001) and Resolution 1373 only states that the 9/11 attacks were a threat to national peace and security and may trigger security council enforcement measures under the charter, not that use of force can be used against terrorists in self-defence so it is ambiguous whether either Resolution shows the Security Council’s stance on the use of force against terrorism.

‘All Necessary Means’

Ambiguity is extremely common with security council resolutions. In 2015, the council adopted Resolution 2249 which condemned terrorist attacks by Islamic State (IS). The Resolution calls upon states to “take all necessary means”, yet the wording of the resolution is written in a way that legitimises and supports use of force against IS, without actually authorising any action or any use of force against Syria nor Iraq. Whilst this Resolution was not adopted under Chapter VII of the Charter, the ICJ’s Namibia Advisory Opinion states that lack of reference to Chapter VII does not mean it is to be regarded as not binding or that it does not have any legal effect (but for the resolution to been binding or have legal effect the council must decide to do or authorise something.) This is not the first time that the Security Council has referenced and supported the right of states to use force, without actually authorising it. Previously in Resolution 1368 and 1373 (which declared the right to self-defence post 9/11) the use of force in Afghanistan was not authorised but was legitimised. This ambiguity could be to reflect compromises made in the negotiation process, allowing for Security Council members to argue for wider or narrow interpretations and for allowing states to explain why it was necessary to do so and to hold them accountable for their actions. However, these ambiguities are confusing and create uncertainty in the law, as it scarcely clear whether the Security Council are authorising the force or not; In Afghanistan, it appeared the council supported the use of force, however they later declared it illegal. This confusion may cause states to ignore and undermine the security council as they are confused over whether the council support or authorise the use of force or not.

Self Determination and Territorial Integrity

Since the 9/11 attacks, the question of self-determination concerning terrorism has arisen. The issue lies with the fact that often terrorists are not operating on behalf of a state, just in their territory yet the ICJ held in the Nicaragua case that terrorists must be controlled and acting on behalf of the state for it to be liable for self-defence action on its territory. This view is seen as narrow and demanding too-high thresholds of when self-defence action can be taken. Although, post 9/11, development means that it is now widely accepted that force can be used against non-state actors.

Western states such as the UK and the USA have been the driving force behind arguments in favour of using force against states who are “unwilling or unable to preclude attacks from its territory.” The White House ‘Legal and Policy Framework’ suggested that force should be used against unwilling or unable states when they have “lost control or abandoned effective control over the portion of its territory from which the non-state actor operates.” Or where “a state is colluding with or harbouring a terrorist organisation operating within its territory and refuses the address the threat posed.” However, despite their best efforts, these powerful western states have not been able to change international law, which suggests reluctance by other states (presumably smaller non-western ones) to give more influential states access to use force against their territory under the guise of self-defence which given their colonialist history, is arguably understandable. Yet, this change is arguably necessary as if a state is willingly enabling a terrorist organisation to function on their territory, and won’t intervene, then it is to be expected a third state may intervene to prevent harm to others; the state is just as complicit in the harm caused as the terrorists who carried it out. Yet if the state is just unable to control the terrorists, then it could be argued that third-party states should only intervene when permitted by the state, as a third-party state may have better a military, either by funding or numbers, enabling them to be more successful in regaining control.