Chapter 13 Audio podcast

On January 3^rd, close to the international airport in Baghdad, Iraq, an American drone armed with missiles killed the Iranian General Qasem Soleimani.

The General was the commander of Iran’s Quds force, and he was considered one of the most powerful individuals in Iran.

After the strike,the American defense department stated that, at the direction of the President, the United States military has taken decisive defensive action to protect US personnel abroad, by killing Qasem Soleimani. This statement also said that United States will continue to take all necessary action to protect our people and our interest wherever they are around the world.

In this episode of the International Law Podcast, episode 13, we’ll focus on those parts of international law that regulates when a state is entitled to use force against another state. And as always, I have chosen three particular topics that I will focus on.

The first of these topics concerns the system for the regulation of the use of force that is set up in the UN Charter. Because it was not until 1945,after the end of World War II, that international efforts were made to fully regulate the use of force.In 1928, in the so-called Kellogg – Briand Pact, contracting parties had made a solid place to renounce war as an instrument of dispute settlement, but that was also it. The UN Charter was created in 1945 with the primary purpose of upholding international peace and security, and to avoid yet another major conflict.

The Charter establishes a completely new system for regulating international force. And the key to understanding that system is to understand that the intention back in 1945 was that, from then on, the use of force should be a collective effort. The Charter therefore establishes a system,where as the international community, in practice, acting through a new collective organ,the Security Council, that will decide what measures are needed to keep or restore international peace and security. And it is up to that organ, the Security Council, to authorize the use of force that is required to restore or uphold the peace.

And, and this is important,a lesser state has been the victim of an armed attack, in which case the state is entitled to defend itself militarily, international force must be used only in the common interest of the international community. And that is through the Security Council.

The cornerstone, then, in the new system for the regulation of force that was introduced in the UN Charter is an overall ban on the use of force.Therefore, in what is potentially the single most important provision in all of International Law, Article 2(4) of the Sharter stipulates that all members of the United Nations:

shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state on any other manner inconsistent with the purposes of the United Nations.

Now, my reading that article is that it prohibits all instances where a state uses force against another state against the latter’s will.However, use of force that has been authorized by the Security Council does not violate the prohibition in Article 2(4). Again,here,one must remember that the whole idea is to give the council wide ranging powers. The council is responsible for maintaining international peace and security, and, as a point of departure, the council can take all the measures it believes is required to fulfill that role.

When the council wants to authorize the use of force, it must begin withArticle 39.Here,it is stated that the council determines the existence of ‘any threats to the peace,breach of the peace, or an act of aggression’.

Under Article 40, the Council can call on the parties to a dispute, to comply with any immediate measures that the council believes are necessary to prevent that the situation escalates any further. According to Article 41, the Security Council may take non forcible measures, such as imposing sanctions on the parties, and, if that is not enough under Article 42, the Security Council can authorize the initiation of military operations.Here,what the council will do in practice these days is to authorize states that have expressed a willingness to use force to use the means that are required to restore or uphold peace and security.

The second issue that I will focus on in this episode is the right to self-defence. And to be more precise, I will focus on the rights of self-defence against attacks by private actors. As I noted earlier, it follows from the system set up in the United Nations Charter that a state is entitled to use force to defend itself in response to an armed attack. And the relevant provision here is Article 51 of the Charter.

In the most important parts,the article states that:

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.

Now, there are many questions that surround the right to self-defence that is not one hundred percent clear, and states do not agree on all the elements of right.

For one thing, while everybody seems to agree that the right to self-defence is triggered by an ‘armed attack’, not everyone agrees,if attacks from private actors, such as international terrorists, can also constitute ‘armed attacks’ that trigger a right to self-defence under Article 51. Or, does Article 51 require that acts are perpetrated by states.

Now I will submit that Article 51 is also available in cases of acts perpetrated by private actors, if, of course, they are sufficiently grave to qualify as armed attacks in themselves.After the terrorist attacks on the United States on September 11, 2001, no one seems to have seriously question whether or not the United States was entitled to use force against the Al Queda terrorists who perpetrated the attacks to defend itself against further attacks.

The same seems to be the case in relation to the acts perpetrated by the group that calls itself the Islamic state, or ISIS.When ISIS, in 2014, moved across the border from Syria and into Iraq and there occupied large areas of Iraqi territory,no one seems to have questioned if Iraq was entitled to use force against ISIS to stop its activities, including using force in Syria.

Here, I have to be fair though, I have to stress that the ICJ has not fully endorsed the right to self-defence against private actors. Thus, there is still some uncertainty about where the law stands.

Accepting a right to self-defence against private actors does not mean that the exercise of such a right cannot be subject to stricter criteria than if the self-defence is exercised against the state. Now, all use of force must be necessary and proportionate. And this follows from the so-called Caroline principles. Self-defence against the private actor that is located in another state requires that the authorities of the host state is either ‘unwilling or unable’ to stop the private actor’s activities. Therefore, before resorting to the use of force against the private actor in another state, the victim state should, therefore, request the host state to intervene on its own, and stop the private actor’s activities.

The third and last topic that I will cover in this episode is the controversial issue of the legality of unilateral humanitarian interventions. To be clear, what I'm referring to here is this: One state's use of force in another state without consent from the territorial state or mandate from the Security Council to stop massive human rights violations perpetrated against the local population.

The question of the legality of humanitarian intervention unfortunately seems to come up every now and again, as another dictator brutalizes its own population.For the last decade or so, it does mean the atrocities committed by the Bashar al-Assad regime in Syria that has been driving the discussion of the legality of humanitarian intervention. In fact, on more than one occasion, Western states have threatened to use force against the Assadregime if it did not stop killing its own population in the most brutal ways possible. And twice the American Trump administration conducted missile strikes against Syrian forces to make it stop using chemical weapons in the civil war in Syria.Despite the obvious humanitarian considerations that may lie behind a wish to conduct the humanitarian intervention, it remains my view that such uses of force are not allowed in international law. In fact, I simply cannot see how they can be lawful if that is one remains loyal to legal doctrine.

As I noted earlier in this episode, it is my view that all uses of force seems to be prescribed under Articles 2(4) of the UN Charter. And that includes force used for humanitarian purposes.

Now, I will also submit that there is simply not sufficient state practice, nor opinio juris to support an argument that the right to unilateral humanitarian intervention without sanctioning from the United Nations Security Council has a reason in customary international law.And no, the adoption of the responsibility to protect doctrine,the RTP, does not alter that conclusion. I should note here to end, that so far, only three states have explicitly argued for the existence of a right to unilateral humanitarian intervention. Those States are Belgium, Denmark, and the United Kingdom. Not even the Americans are willing to endorse a legal right to such human certain interventions. It seems that the position in the US is that:(1)human attorney's interventions are unlawful without the sanctioning for the Security Council;(2) the US is nevertheless willing to break the rules if the circumstances are sufficiently dire.