Use of Force

Dr. C J Rawandale, Symbiosis Law School, NOIDA

6. Use of Force
6.1. 6.2. 6.3. 6.4. Introduction UN Principles on the Use of Force Prohibition on Use of Force Military and Para-Military Activities in and Against Nicaragua (Nicaragua v United States) Humanitarian Intervention- A Brief Survey Legality of Use of Force: NATO Action in Kosovo Use of Force and Self Determination Use of Force and Self Defence Legality of the Threat or Use of Nuclear Weapons ICJ Advisory Opinion, 1996
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6.5. 6.6.
6.7. 6.8. 6.9. 6.10.
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Introduction

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One of the promising developments of the 20th Century in inter-State relations has been the proliferation of international organizations. Tunkin has defined international organisation as:

an association of states established on the basis of a treaty in accordance with International law in order to achieve specific objectives. It possesses a system of organs and rights and duties that are distinct from those of member States.

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The above definition contains the following elements: a. International organisations are the associations of States. b. International organisations are set up by the States through a treaty which is the constituent instrument and character of the international organisation. c. International organisations are established for specific purposes. d. International organisations possess international personality by virtue of having distinct rights and duties. e. International organisations are created in accordance with the rules of International Law. It implies that their activities are generally confined within the generally recognised principles and norms of International Law.
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UN Principles on the Use of Force

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Preamble of the United Nations

One of such important international organisation is the United Nations. The Preamble of the United Nations is preceded by the words Charter of the United Nations.
The Preamble of the UN Charter has set forth the basic aims of the United Nations which are: a. to save succeeding generations from the scourage of war; b. to re-affirm faith in fundamental human rights;

c. to establish justice and respect for international obligations;

d. to promote social progress and better standard of life.

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The Preamble also affirms that in order to achieve these ends, the peoples of the United Nations are determined: To practice tolerance, To live in peace as good neighbours, To unite to maintain peace and security, To ensure that armed forces shall not be used except in the common interest, and To employ international machinery for the social and economic betterment of all peoples.
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Purposes of the United Nations

The purposes of the United Nations are laid down in Article 1 of the Charter, which are as follows: a. To Maintain International Peace and Security Article 1 Para 1 of the Charter provided that the primary purpose of the UN shall be to maintain international peace and security, and to take effective collective measuresfor the suppression ofbreaches of the peace. In order to achieve the above purpose, the Organisation shall prevent or remove threat to the peace, breach of the peace or acts of aggression by taking effective collective measures.

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This purpose of the UN is fulfilled primarily by the Security Council.

In discharging these duties the Council is required to act in accordance with the purposes and principles of the United Nations.

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b. To develop friendly relations among nations In order to prevent clashes between nations, it was thought essential to develop friendship among nations, i.e. friendship based on respect for the principles of the equal rights and the equal rights of self-determination of peoples.

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3. To Achieve International Co-Operation Article 1, Para 3 lay down two closely related purposes of UN. Firstly, to achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character, and Secondly, international co-operation in promoting and encouraging respect for human rights, and for fundamental freedoms for all without distinction to race, sex, language or religion.

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4. To Make the United Nations an International Forum for Harmonisation Article 1 Para 4 of the Charter states that the United Nations, being the principal World Organisation shall serve as centre for harmonizing the actions of nations in order to achieve these common ends. The United Nations represents the entire international community. However, harmonisation of actions of nations can take place only if the States are willing to accommodate their policies and actions in favour of the will of the World Community.

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Principles of the United Nations

Under Article 2 of the UN Charter, basic principles on which the organisation is founded are laid down. The principles are the general obligations which bind each Member State and the Organisation as a whole.
1. The Principle of Sovereign Equality Article 2, Para I of the UN Charter lays down that the UN is based on the sovereign equality of all its members. In other words, all the members of the UN are equal irrespective of their size and resources.

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2. The Principle of the Fulfilment of Obligations Article 2, Para 2 of the Charter lays down that all members of the United Nations shall fulfil in good faith the obligations assumed by them in accordance with the Charter. It stands for pacta sunt servanda.

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3. The Principle of Peaceful Settlement of International Disputes Article 2, Para 3 of the Charter provides that all members shall settle their international disputes by peaceful means and in such a manner that international peace and security, and justice, are not endangered.

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4. The Principle of Non-Use of force Article 2, Para 4 of the Charter stipulates that all members shall refrain in their international relations from the use of force or threat of force against territorial integrity or political independence of any State, or in any other manner not consistent with the purposes of the UN.

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The principle of non-use of force is related mainly with one of the purposes of the Untied Nations, i.e. to maintain international peace and security.
Being the important principle, it has been referred to as Universal Norm, a Universal International Law, a universally recognised principle of International law and a principle of jus cogens.

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Declaration on the non-use of force in international relations

This declaration was adopted on November 18, 1987. some of the provisions of the declarations are:
a. Every State has the duty to refrain in its 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 United Nations purposes. Such a threat or use of force constituted a violation of International Law and the Charter and entail international responsibility. b. States should fulfil their obligations under International Law to refrain from organizing, instigating, assisting or participating in paramilitary, terrorist or subversive acts including acts of mercenaries, in other States or acquiescing in organised activities within their territory towards the commission of such acts.
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c. The Principle of refraining from the threat or use of force in international relations is universal in character and binding regardless of each States political, economic, social or cultural system or relations of alliance. d. No consideration of whatever nature may be invoked to warrant resorting to the threat or use of force in violation of the Charter. e. All peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development. f. Neither acquisition nor any occupation of territory resulting from the threat or use of force in contravention of International Law will be recognised as legal or occupation.
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5. The Principle of Assistance to the United Nations Article 2, Para 5 of the Charter, lays down two way by which a State may assist the United Nations. Firstly, no member shall assist any State against which the United Nations is taking preventive and enforcement action, and Secondly, all the members shall support the Organisation in any action that it takes in accordance with the Charter.

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6. The Principle for the Non-member States The purpose of the United Nations to maintain peace and security is not restricted to the relations among member States only. Article 2, Para 6 of the Charter lays down that the obligations which are to be carried on by the non-members of the United Nations by stating that the Organisation shall ensure that States which are not Members of the United Nations act in accordance with these Principles so far as may be necessary to maintain international peace and security.

Illustration
A series of embargo against South Rhodesia were imposed between 1965 and 1977 when it was not a member of the United Nations.
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7. Principle of Non-intervention in Domestic Matters of a State Article 2, Para 7 of the Charter lays down that the UN shall not intervene in matters which are essentially within the domestic jurisdiction of any State, or compel any member to submit such matters to settlement by the UN. Exception This general principle shall not prejudice the application of enforcement measures as provided under Chapter VII of the UN Charter.

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A matter is essentially of domestic concern if it is incapable by its very nature of assuming an international complexion. In other words, if a matter is not likely to have international repercussion, or if it does not affect international peace and security, or if it is not a subject of the UN Charter, it may be regarded as domestic matter. In the Tunis-Morocco Nationality Decree case (PCIJ Series B, No. 4, pp.23-24), the Permanent Court of International Justice observed that the question whether a certain matter is domestic or not is essentially relative, and depends upon the development of international relations.

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In modern age of inter-dependence, many matters which on the face are essentially domestic have, in fact, become international. Therefore, no clear cut demarcation can be made between domestic matters and other matters. Thus a civil war or any other situation which may take place within a State may be interpreted by the competent organs of the UN as a threat to international peace and security, and consequently, even in such cases, intervention on the part of the organisation would not be prohibited according to the express provision of Article 2, Para 7.

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Prohibition on Use of Force

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Use of Force as such is prohibited under the UN Charter. There are only two circumstances in which the use of force is permissible: 1. When the Security Council has directed or authorized use of force to maintain or restore international peace and security; and 2. In collective or individual self-defense against an actual or imminent armed attack.

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1. Use of Force and Maintenance or Restoration of International Peace and Security

Article 24, Para 1 of the Charter lays down that in order to ensure prompt and effective action by the United Nations, its Members confer on the Council primary responsibility for the maintenance of international peace and security The Council performs the functions relating to the maintenance of international peace and security in two ways: a. By Peaceful Means; b. By Taking Enforcement Action.

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a. By Peaceful Means
Chapter VI of the Charter provides the various modes by which the Council settles the disputes which are likely to endanger international peace and security.
The Council comes to know about a dispute which is deemed to have threatened international peace and security: i. When any member of the UN, whether a party to a dispute or not, brings any dispute before it under Article 35, Para 1; ii. When a non member of the UN brings any such dispute under Article 35, Para 2;

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iii. When all the disputant parties refer a dispute under Article 38; iv. When one of the disputant States refers a dispute under Article 37 Para 1;

v. When the General Assembly calls the attention of the Security Council under Article 11 Para 3 to situations which are likely to endanger international peace and security;
vi. When the Secretary General of the UN under Article 99 of the Charter brings to the attention of the Council any matter which in his opinion may threaten the maintenance of international peace and security.

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If the Security Council determines that a dispute might endanger international peace and security, it may take following measures to settle the dispute: i. To call upon the Parties to Settle the Dispute Peacefully (Article 33 Para 2)

Article 33 Para 1 of the Charter mentions peaceful means as negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements.
Illustration: In a conflict between Iran and Iraq it adopted Resolution 475 on September 28, 1980 requesting the parties to refrain from the use of force and to settle their dispute by peaceful means.
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ii. Investigation of the Dispute (Article 34) Illustration In the Indo-Pakistan question (1948), the Council established an independent Commission for India and Pakistan to investigate the facts. iii. Recommendations for the Appropriate Procedures or Methods of Adjustments (Article 31) iv. Recommendation for the Terms of Settlement (Article 37) Illustration

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b. By Taking Enforcement Action

Once the Council has determined that there is a threat to peace or breach of the peace or an act of aggression has been committed, it decides as to what measures are to be taken in accordance with Articles 41 and 42 of the Charter, to maintain or restore international peace and security. It is to be noted that before making the recommendations for measures to be taken under Article 41 and 42, the Council is empowered to take provisional measures as provided under Article 40 of the Charter to prevent an aggravation of the situation such as cease-fire, withdrawal of troops from occupied territory, the setting of an interim demarcation line, the establishment of a demilitarized zone, a buffer zone etc.

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i. Measures involving Non-Use of Force

Article 41 of the Charter lays down that the Security Council may call upon the members of the UN to take measures to involving the use of armed force. Such measures include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio and other means of communication and the severance of diplomatic relations.

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Economic Sanctions Against Iraq After the Iraqs invasion of Kuwait in 1990, the Council imposed mandatory economic sanction against Iraq. (Security Council Resolutions 661 (1990) dated August 6, 1990) Arms and Air Embargo Against Libya Following the destruction of the two civilian aircraft- Pan American which exploded over Lockerbie (Scotland) on December 21, 1988, and UTA explosion in Niger on September 19, 1989 and the resultant loss of life, the Security Council on January 31, 1992 adopted a resolution wherein it condemned the Libyan act. When Libya failed to comply with the above resolution, the Council imposed an aerial embargo against Libya on March 31, 1992 preventing Libya from receiving arms and related materials of all types, prohibited air traffic to or from that country.
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Trade Sanctions Against Cambodia A peace Treaty to end the 13 year conflict in Cambodia and to prepare for elections was signed in Paris on October 30, 1991. As Khmer rouge, was not observing the Paris Agreement but was putting obstacles in the way of the UN officials to keep the peace processes on schedule, trade sanctions were imposed by the Council against them on October 23, 1991. Arms Embargo in Liberia A complete embargo on the delivery of weapons and military equipment to Liberia was imposed by the Security Council on November 19, 1992 after condemning the cease fire violations and attacks on West-African peace keeping forces.

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Arms Embargo Against Rwanda The Security Council on May 17, 1994 decided that all States shall prevent the sale or supply to Rwanda by their nationals or from their territories or using their flag vessels or aircrafts of arms and related material of all types, including weapons and ammunition, military vehicles and equipment, paramilitary police equipment and spare parts. Diplomatic Sanction Against Sudan On April 26, 1996, the Security Council by adopting resolution 1054 imposed diplomatic sanction against Sudan for giving shelter to three Egyptians who were wanted in connection with the assassination attempt on the life of Egyptian President Hosni Mubarak in June 1995.

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Petroleum and Arms Embargo against Sierra Leone After the democratically elected Government was toppled on May 25, 1997 in coup detat, the Security Council on August 6, 1997 stated that the military junta should take immediate steps to bring about the unconditional restoration of the democratically elected Government of President Ahmed Tejan Kabbah. When it did not take place, the Security Council, acting under Chapter VII of the UN Charter imposed the petroleum and arms embargo on October 8, 1997. The Council also decided that all States should prevent the entry into or transit through their territories of members of the junta or adult members of their families, except for verified humanitarian purposes.

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Arms Embargo on Yugoslavia The Security Council by adopting a resolution 1160, on March 31, 1998 imposed an arms embargo on the Federal Republic of Yugoslavia.

The Council decided that all States shall for the purposes of fostering peace and stability in Kosovo, prevent the sale and supply to Yugoslavia, including Kosovo, by their nationals or from their territories or using their flag vessels and aircrafts, of arms and related material of all types, such as weapons and ammunition, military vehicles and equipment and spare parts for the aforementioned and shall prevent arming and training for terrorist activities there. The arms embargo shall extend to the nationals of all States.
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Arms Embargo on Taliban The Security Council by adopting a resolution 1333 (2000) imposed sanctions which included arms embargo covering all types of weapons and related matters, as well as ban on the provision of technical training or advice related to the military activities of armed personnel under Taliban Control. On the diplomatic level, States with ties to the Taliban were urged to reduce the number and level of staff at Taliban missions and to restrict the movement of the remaining staff. The sanctions also require freezing of all funds and other financial assets of Bin Laden and individuals associated with him.

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ii. Measures Involving Use of Armed Force

If the Security Council considers that:

measures provided for in Article 41 are not adequate or they have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security as provided under Article 42. These may include demonstrations, blockade, and other operations by air, sea or land forces of the Members of the UN.

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Special Agreements Action under Article 42 could be undertaken by the Security Council only in accordance with special agreements contemplated by Article 43 which provides under Para 1 that all members of the UN, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security. Article 42 Para 2 provides that such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided.
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Collective Action in Gulf Crisis Iraq and Kuwait-the two neighbouring States of the Persian Gulf, were the members of the UNO. On August 2, 1990 Iraqi tanks and troops invaded and occupied Kuwait and subjugated its sovereignty. The Emir of Kuwait fled to neighbouring Saudi Arabia. A week after occupation, Kuwait was annexed, and later it was made the 19th Province of Iraq comprising of three districtsKazimah, Al Jahra and Al Nidah.

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Iraqi invasion, occupation and annexation were condemned severely by the Security Council. On August 2, 1990, in an emergency meeting, in response to Kuwaits urgent request, the Security Council promptly adopted a resolution, wherein it condemned the invasion and it demanded unconditional withdrawal of all Iraqi forces from Kuwait.

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Later, on August 9, 1990 the Council adopted another resolution by which it decided that annexation of Kuwait by Iraq under any form and whatever pretext has no legal validity and is considered null and void. It also called upon all States, international organisations, and specialised agencies not to recognise that annexation and to refrain from any action or dealing that might be interpreted as an indirect recognition of the annexation. On September 25, 1990 the Council imposed more sanctions against Iraq by Resolution 670.

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When the measures taken under Article 41 were found inadequate to restore the political independence and sovereignty of Kuwait, the Council moved to take action involving use of force under Article 42 of the Charter. On November 29, 1990 the Council adopted a Resolution 678 which authorised member States co-operating with the Government of Kuwait to uphold and implement the Security Council resolution unless Iraq withdraw from Kuwait on or before January 15, 1991 on its own.

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On February 27, 1991 Kuwait was liberated. Multinational forces were ordered thereupon to suspend offensive combat operations.
On April 3, 1991 Security Council adopted a resolution wherein in Part A, the Council demanded that Iraq and Kuwait respect the inviolability of the 1963 international boundary between the two countries and called upon the SecretaryGeneral to help demarcate that boundary.

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Military and Para-Military Activities in and Against Nicaragua (Nicaragua v United States) 1984 ICJ 392 (June 27 1986)

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In 1986, in the case between Nicaragua and the United States of America, the ICJ decided that the USA had breached International Law by having mined Nicaraguan water and by supporting the so called Contra Guerillas, and therefore it must pay reparation to Nicaragua for causing damages.
The United States lost the argument that the ICJ lacked jurisdiction to hear the case, and refused to participate.

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The court found in its legal verdict that: the US was in breach of its obligations under customary international law not to use force against another State", "not to intervene in its affairs", "not to violate its sovereignty", "not to interrupt peaceful maritime commerce", and "in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956."

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Later, when Nicaragua brought the matter before the Security Council for the enforcement of the judgment, it was vetoed by the USA, and thus the judgment of the Court could not be enforced.

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Explanation: Enforcement of ICJs Decision

If any party to a case before the Court fails to perform its obligations under a judgment of the Court; the other party may bring the matter before the Security Council in accordance with article 94, Para 2 of the Charter. The Security Council is empowered by the Charter to make recommendations or decide upon measures to be taken to give effect to the judgment. Decision to this effect may be made by a vote of nine members including the concurring votes of the permanent members. It means the decision of the Council has to cross the barrier of the veto. Hence the judgment of the Court cannot be enforced against permanent members of the Council or their client States.

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Although Nicaraguas claim to reparation was pending before the Court, it did not in fact receive it. On September 12, 1991 Nicaragua informed the Court that it has decided to renounce all further rights of action based on the case and did not wish to go on with the proceedings and requested that an order be officially made recording the discontinuance of the proceedings and directing the removal of the case from the list. Consequently, the President of the Court made an order recording the discontinuance of the proceedings and directing the removal of the case from the Courts list.

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Humanitarian InterventionA Brief Survey

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Legal norms tending to support humanitarian intervention include: the norms of international human rights law, international humanitarian law, and international criminal law.

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U N Charter: For Humanitarian Intervention

The Article 1, Para 3 of the U.N. Charter itself proclaims as a fundamental purpose of the U.N. the achievement of international cooperation in . . . promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion. As per Article 55, the United Nations shall promote . . . universal respect for, and observance of, human rights and fundamental freedoms for all. and Under Article 56 all Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of this purpose.

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In 1948, the U.N. General Assembly adopted the Universal Declaration of Human Rights, which in turn was followed by the promulgation of numerous international human rights treaties, many of which have been widely ratified by U.N. member states. In keeping with these human rights norms, the international community has adopted a number of treaties relating to the conduct of war and providing protections for civilians and other vulnerable individuals, the most important of which being the Fourth Geneva Convention of 1949.

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And certain treaties, including those on genocide and torture, as well as the four Geneva Conventions, now require states to prosecute and punish individuals who commit particularly egregious violations of international human rights law and international humanitarian law. The existence of this expanding corpus of legal norms guaranteeing a minimal level of respect for human rights and human dignity suggests that in some cases military intervention in defense of these norms may be legitimate, and perhaps even required, under international law.

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U N Charter: Against Humanitarian Intervention

At the same time, various norms in the U.N. Charter and contemporary international law appear to disfavour humanitarian intervention. These include the norms of: State sovereignty, Domestic jurisdiction, Non-intervention, The pacific settlement of disputes, The non-use of force, Self-determination, and (in the case of U.N. humanitarian intervention) U.N. impartiality.
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Article 2(1) of the U.N. Charter affirms that the U.N. is based on the principle of the sovereign equality of all its Members.
Article 2(7) declares that the U.N. may not intervene in matters which are essentially within the domestic jurisdiction of any state, with the exception of enforcement measures taken by the Security Council under Chapter VII of the Charter. Article 2(3) and Chapter VI (Articles 33-38) of the Charter encourage states to settle their disputes peacefully and counsel against the resort to force.

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Moreover, Article 2(4) of the Charter specifically declares that members of the U.N. may not threaten or use force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
This provision might be interpreted as prohibiting humanitarian intervention by states without Council authorization.

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The Article 1 Para 2 of the U N Charter also establishes as a purpose of the U.N. the development of friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples. Humanitarian intervention by outside forces may be seen as interfering with the exercise of such a right of self-determination. Finally, humanitarian intervention may be perceived as violating a principle of U.N. impartiality, which is reflected in many Charter provisions.

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Traditional peacekeeping operations began in 1956, when Secretary- General Dag Hammarskjld formulated a plan for the United Nations Emergency Force in the Sinai (UNEF I). He defined the mission of U.N. peacekeeping as: the interposition of U.N. troops between parties to a conflict to supervise an agreed truce or police a ceasefire line.

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In contrast to this traditional peacekeeping paradigm, the new postCold War peacekeeping operations were not limited to the military function of monitoring a cease-fire line. Instead, they involved the coordination of a broad array of non-military tasks, including humanitarian relief, electoral monitoring, and civilian policing. These multifaceted missions are often referred to as secondgeneration peacekeeping operations. In addition, in many cases the Security Council exercised its powers under Chapter VII of the Charter (Articles 39 and 41) to mandate large-scale economic sanctions against states committing gross human rights abuses.
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Some of the illustrative examples of forcible intervention on humanitarian grounds are: 1. The safeguarding of humanitarian efforts and the deterrence of attacks against safe areas in Bosnia-Herzegovina (Bosnia);

2. The delivery of humanitarian relief, and the promotion of national political reconstruction, in Somalia;
3. The maintenance of public order and the protection of civilians in Rwanda following the devastating outbreak of genocide in that country in early 1994;

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The restoration of the democratically elected government of Haiti in late 1994; and
The deployment of the multinational Kosovo Force (KFOR) in Kosovo in June 1999 following the NATO bombing campaign to allow a safe return of Kosovo Albanian refugees and to assist in rebuilding Kosovos civilian institutions. In the last case, the NATO bombing campaign humanitarian intervention was conducted without authorization by the Security Council.

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Legality of Use of Force: NATO Action in Kosovo

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Background
Kosovo was an autonomous province within the former Yugoslavia from 1974 until 1989. From 1986 to 1990, growing Albanian nationalism and separatism in Kosovo led to increased tensions between Serbs and Albanians. In 1990, Slobodan Milosevic took over the governance of Kosovo and greatly reduced the autonomy of the province. Kosovos political institutions were abolished and its assembly and government were formally disbanded.

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Moreover, because much of Kosovos industry was stateowned, reduced autonomy meant drastic changes within the employment market. Albanian cultural autonomy was also drastically reduced. For instance, Albanian was abolished as an official language of the province. By 1996, a punitive regime was imposed on the province, which was widely condemned as a police state. Poverty and unemployment reached record levels: approximately 80 per cent of Kosovos population lost their jobs.

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Escalation of violence
In 1997 Slobodan Milosevic was promoted to the position of president of the Federal Republic of Yugoslavia. Continuing repression had led to the emergence of radical groups of Albanians.
On April 22, 1996, these groups staged four attacks on Serbian civilians and security personnel in Kosovo. An organization calling itself the Kosovo Liberation Army claimed responsibility for the attacks.

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Most Albanians saw the KLA as legitimate freedom fighters while the Yugoslav government viewed them as terrorists who were attacking police and innocent civilians. By the end of 1997, the KLA was able to establish control over several areas within Kosovo. In February 1998, President Milosevic sent Serbian troops to retake KLA-controlled areas. Eighty people were killed in the ensuing battle, including many women and children. The government-sponsored violence against Albanian civilians sparked rioting by outraged Kosovans and marked an escalation of the conflict.

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International Response

The violence also gave cause for intervention by NATO, which, until that point, had never stepped into the middle of a conflict between a sovereign nation and its own citizens. In justifying its involvement, NATO cited the responsibility of protecting fellow human beings from crimes against humanity.

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After months of unsuccessful attempts at restoring peace to Kosovo, including both economic sanctions and diplomatic negotiations, UK Prime Minister Tony Blair Friday May, 14 1999 stated that It is no exaggeration to say what is happening in Kosovo is racial genocide. No exaggeration to brand the behavior of Milosevic's forces as evil. It is something we had hoped we would never experience again in Europe. Thousands murdered. One hundred thousand men missing. Hundreds of thousands of people forced to flee their homes and their country, robbed of anything of value at gun-point.

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NATO initiated military action in the spring of 1999. On March 24 it launched an air campaign that would last for 78 days. Serbia finally agreed to sign a UN-approved peace agreement with NATO on June 9, 1999. Yugoslavia instituted proceedings before the International Court of Justice on April 19, 1999, against Belgium, Canada, France, Germany, Italy and the Netherlands, Portugal, Spain and the United Kingdom and the United States of America in their capacity as NATO member states. The main conflict between Yugoslavia and the United Kingdom centres on the issue of whether NATOs intervention in Kosovo can be considered a humanitarian intervention, and if so, the legality of such an intervention under international law.

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Yugoslavias Arguments
Yugoslavia invoked various bases of jurisdiction to establish the Courts jurisdiction in each of these cases, relying on Article 36, paragraph 2 of the ICJ Statute in the case against the United Kingdom, as well as Article IX of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.

Yugoslavia petitioned that the Court hold each of the respondents individually responsible for certain breaches of international law arising from their participation in the NATO air campaign in March and April 1999.

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In the case of the United Kingdom, they claim that the UK violated the obligation not to violate the sovereignty of another state, the obligation not to use force against another state, the obligation to protect the civilian population and civilian objects in wartime (by taking part in the bombing of civilian objects, including historical monuments), the obligation to protect the environment, the obligation relating to free navigation on international rivers, the obligation to respect fundamental human rights and freedoms, and the obligation not to deliberately inflict conditions of life calculated to cause the physical destruction of a national group.

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United Kingdoms Arguments

The United Kingdom argued that the reservations it had submitted in relation to Article 36, paragraph 2 of the ICJ Statute excluded from the Courts jurisdiction disputes where the other party accepted jurisdiction less that twelve months prior to filing of the application bringing the dispute before the Court.
Moreover, the UK invoked resolutions of the Security Council and the General Assembly of the United Nations in support of their argument that the Federal Republic of Yugoslavia is not a member state of the United Nations or a party to the ICJ Statute, and that Yugoslavia cannot, therefore, rely on the Courts Statute in establishing jurisdiction in these cases. Moreover, the United Kingdom contends that it violated none of its obligations under international law.
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None of the treaties which were the basis for the Former Yugoslavias substantive claim contain provisions conferring jurisdiction on the International Court and the two bases for jurisdiction advanced by the Former YugoslaviaArticle IX of the Genocide Convention, 1948 and Article 36 (2) of the Statute of the Court i.e. Optional Clause were rejected by the Court.

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Use of Force and Self Determination

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Article 1, Para 2 of the UN Charter laid down that to develop friendly relations among nations based on the principle of equal rights and self-determination of peoplesshall be one of its purposes. Article 55, Chapter XI (Non-Self governing Territories) and Chapter XII (International Trusteeship System) also deal with notion of self-determination. In Portugal v. Australia (Case concerning East Timor) (1995), the ICJ observed that the principle of selfdetermination of peoples has been recognised by the UN Charter and is one of the essential principles of contemporary international law.

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Meaning of self determination

Meaning of the term self-determination has not been made clear either in UN Charter nor in any resolution adopted by the General Assembly.
The principle of self-determination has two aspects i.e. external and internal. By virtue of external aspect, the people of a nation determine their international political status themselves either by secession or by formation of an independent status. The internal aspect recognises their right in their economic, social and cultural fields. It also extends to the right of a State to exercise sovereignty over natural resources within its territory.

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One must understand that the principle of self-determination applies to the colonial peoples i.e. people of trust territories and non-self governing territories. The principle is regarded to be fulfilled for the trust territories is fulfilled either by self-government or independence and for non-self governing territories, either by emerging as a sovereign and independent State, or free association with an independent State or integration with another State. In the Namibia Case (1970) and in the Western Sahara Case (1975), the ICJ found that the declaration of the General Assembly only affirmed the principle of equal rights and selfdetermination as a policy in relation to trust and non-self governing territories.

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Use of Force and Self Defence

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Article 51 of the UN Charter recognizes the inherent right of self-defense. It states: 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.

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Under Article 51, the triggering condition for the exercise of self-defense is the occurrence of an armed attack (if an armed attack occurs). Notwithstanding the literal meaning of that language, some, though not all, authorities interpret Article 51 to permit anticipatory self-defense in response to an imminent attack. In other words, Self-defense is justified only when the necessity for action is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.

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Oppenheims in International Law: Ninth Edition, 1991, p. 412 gives the modern view on this point: The development of the law, particularly in the light of more recent state practice, in the 150 years since the Caroline incident suggests that action, even if it involves the use of armed force and the violation of another states territory, can be justified as self defence under international law where: (a) an armed attack is launched, or is immediately threatened, against a states territory or forces (and probably its nationals);

(b) there is an urgent necessity for defensive action against that attack;

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(c) there is no practicable alternative to action in self-defence, and in particular another state or other authority which has the legal powers to stop or prevent the infringement does not, or cannot, use them to that effect; (d) the action taken by way of self-defence is limited to what is necessary to stop or prevent the infringement, i.e. to the needs of defence

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U S Attack on Iraq
The application of the basic law regarding self-defense to the present U.S. confrontation with Iraq is straightforward. Iraq has not attacked any state, nor is there any showing whatever that an attack by Iraq is imminent.

Therefore self-defense does not justify the use of force against Iraq by the United States or any state.

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Also relevant is that the Security Council authorized an armed response to Iraqs invasion of Kuwait in 1990, and then after the termination of hostilities required Iraq to end its missile and chemical, biological, and nuclear weapons programs.
Thus under Article 51 the Security Council has taken measures necessary to maintain international peace and security, and the right of self-defense against an armed attack, applicable until the Security Council has done so, is no longer in effect.

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There is no basis in international law for dramatically expanding the concept of self defense, as advocated in the Bush administration's September 2002 "National Security Strategy," to authorize "pre-emptive" - really preventive strikes against states based on potential threats arising from possession or development of chemical, biological, or nuclear weapons and links to terrorism. Such an expansion would destabilize the present system of UN Charter restraints on use of force. Further, there was no claim or publicly disclosed evidence that Iraq is supplying weapons of mass destruction to terrorists.

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The Bush administration's reliance on the need for regime change in Iraq as a basis for use of force is barred by Article 2(4) of the UN Charter.
It prohibits the threat or use of force against the territorial integrity or political independence of any state.

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Legality of the Threat or Use of Nuclear Weapons

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On the 16th of July 1945 at 5:29:45 am exactly, the "Nuclear Age" mushroomed upon the world.
That was when the world's first nuclear device was detonated marking the successful outcome of the epochal Manhattan Project.

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Hiroshima 6 August 1945 8h15 Watch of Kengo Futagawa who died on 22 August 1945. [The Hiroshima Peace Memorial Museum]
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Three weeks later, following the destruction of Hiroshima and Nagasaki, war and peace had been transformed beyond recognition.
Indeed, peace could no longer be a tranquil, threat-free, condition; henceforth the failure of peace could mean the total destruction of Humanity.

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Something, a radical something had to be done and it had to be quickly done... Yet, since, what has been done has not been far from radical, also it took its time coming. The "bomb" was allowed to grow in destructive power; it was also allowed to multiply. Now connected to ever-improved delivery systems (in terms of range and radar evasion capabilities), the "bomb" has been introduced in the arsenals of an increasing number of States and not only is there the continued danger of nuclear war between States there is also a credible threat from nonState actors (notably through the use of so-called "dirty bombs"). [Kim Gordon-Bates, ICRC and the Nuclear Weapon: The Story of an Uncomfortable Paradox at www.icrc.org (18-03-2003)]

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ICJ Advisory Opinion, 1996

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The World Health Organization, an agency of the U.N., and the United Nations General Assembly requested advisory opinions of the International Court of Justice (ICJ) on the legality of nuclear weapons under international law.
Forty-five nations presented written or oral testimony to the court, far more than in any previous case before the ICJ.

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Among the nations that made statements before the Court were the United States, the United Kingdom, Egypt, France, Russia, Australia, New Zealand, Zimbabwe and Japan -- who also brought the mayors of Hiroshima and Nagasaki to testify. The declaration that nuclear weapons are illegal will have farreaching implications. A resolution was introduced to the United Nations General Assembly by Malaysia, welcoming the advisory opinion and calling for negotiations to begin on a treaty to eliminate nuclear weapons.

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The International Court Justice issued one of the most significant decisions in its history on Monday, July 8, 1996. The ICJ held that: 1. There is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons; 2. There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such; 3. A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4 of the United Nations Charter and that fails to meet all the requirements of Article 51 is unlawful;

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4. A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons; 5. It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law. However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake;
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6. There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all aspects under strict and effective international control.

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Effect of the ICJ Opinion

This ruling confirms the illegality of any threat or use of nuclear weapons, and specifies a small set of scenarios in which a state could legally countenance their use.
It would clear and pave the way to a formal convention banning nuclear weapons, as chemical and biological weapons have already been proscribed by the UN. Such an opinion, although not formally binding, could nevertheless undermine the legal basis for deterrence policies and lend authority to advocates for disarmament and new definitions of national and global security.

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Obviously, outlawing nuclear weapons cannot ensure against their use -- any more than banning torture can prevent its practice. But this does not mean that the proceedings in the Peace Palace were fruitless. They have offered citizens and small countries the possibility of using international institutions to call the world powers to account. They have given the world an opening to reassert the rule of law over the rule of nuclear terror.

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Thank You!

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