I. Law and analysed systematically. First, wars of aggression

 I. The Use Of Force Under The Charter Of  United Nations

As
the Second World War was coming to an end, the delegates from 51 states
assembled in San Francisco in the spring of 1945 to draft the charter of the
new global organization. Pledging to “save succeeding generations from the
scourge of war,”6 the framers of the UN Charter sought to establish a normative
order that would severely restrict the resort to force. Under Article 2(4) of
the charter, declares that :

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“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.”

This
provision is regarded now as a principle of customary international law and as
such is binding upon all states in the world community.22 The reference to
‘force’ rather than war is beneficial and thus covers situations in which
violence is employed which fall short of the technical requirements of the
state of war. Article 2(4) was elaborated as a principle of international law
in the 1970 Declaration on Principles of International Law and analysed
systematically.

First,
wars of aggression constitute a crime against peace for which there is
responsibility under international law. Secondly, states must not threaten or
use force to violate existing international frontiers (including demarcation or
armistice lines) or to solve international disputes. Thirdly, states are under
a duty to refrain from acts of reprisal involving the use of

force.
Fourthly, states must not use force to deprive peoples of their right to
self-determination and independence. And fifthly, states must refrain from
organising, instigating, assisting or participating in acts of civil strife or
terrorist acts in another state and must not encourage the formation of armed
bands for incursion into another state’s territory. Many of these items are
crucial, but ambiguous.

Although
the Declaration is not of itself a binding legal document, it is important as
an interpretation of the relevant Charter provision. Important exceptions to
article 2(4) exist in relation to collective measures taken by the United
nations with  regard to the right of
self-defence.” Whether such an exception exists with regard to humanitarian
intervention is the subject of some controversy Article 2(6) of the Charter
provides that the UN ‘shall ensure that states which are not members of the United
Nations act in accordance with these Principles so far as may be necessary for
the maintenance of international peace and security’.

In
fact, many of the resolutions adopted by the UN are addressed simply to ‘all
states’. In  particular, for example, Security
Council resolution 757 (1992) adopted under Chapter VII of the Charter, comprehensive
sanctions upon the Federal Republic of Yugoslavia (Serbia and Montenegro).
However, the invocation in that decision was to ‘all states’ and not to ‘member
states’.

The
‘founding fathers’ of the United Nations opted in 1945 for the word ‘force’ as
a more encompassing term. Let us have a closer look at it. After first having
stipulated that all members of the new United Nations shall settle their
international disputes peacefully, Article 2, paragraph 4 of the UN Charter
unequivocally stipulates: ‘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 Nations1’.
Hence, in principle every use of force became prohibited but solely in the
relations among States. International law vests in principle each state with
the monopoly of force over its own territory.

 From this provision in the UN Charter, it
follows that the parties to the UN Charter, like the parties to the League
Covenant, aimed at the maintenance of the status quo. The prohibition to use
force was imposed to protect the territorial integrity and political
independence of sovereign States. Existing boundaries would be inviolable. In
rather broadly sketched terms, Article 2 (4) adds that no force may be used
against the purposes of the United Nations. Similarly, ensures that ‘armed
force will not be used, save in the common interest’. Nevertheless, there can
be no misunderstanding  that, as the
records of the San Francisco conference also show, the aim in 1945 was ‘to
state in the broadest terms an all-inclusive prohibition without loopholes.’

In
contrast to the Kellogg-Briand Pact, the use of force had now been embedded, at
least in principle, in the Charter’s collective security system that provided
for the possibility of collective sanctions against an aggressor state2.
It may be noted that the composition and the right of veto in the Security
Council make it unlikely that ever measures will be taken which are against the
interests of the Permanent Five. Nonetheless, the principle of decision-making
by a qualified majority, and in a Council with a limited number of members,
contrasts sharply with the League where voting by unanimity was the rule and
hence every member state had a veto right.

Article
2 (4) can be said to be the pivot of the UN Charter and serves as the backbone
of the envisaged system of collective security and peaceful relations among
states. It has been most notably confirmed and elaborated in the 1970 UN
General Assembly Declaration on Principles of International Law Concerning
Friendly Relations and the 1974 Definition of Aggression. Article 2(4) has also
been the subject of many extensive and learned analyses as well as judicial
scrutiny, including at the ICJ in the Nicaragua case, 1986; the Advisory
Opinion on Legality of Nuclear Weapons rendered upon request of UNGA, 1996;
ICJ, Yugoslavia v. NATO countries,
1999 onwards, Congo v. Uganda, 2000
onwards.3

Notwithstanding
all of this, its interpretation is still not devoid of ambiguities. While there
can be little doubt that the term “force” is meant to refer to ‘armed
force’, the scope of the prohibition of “the threat of force” is not
entirely clear and perhaps also not easy to capture in precise legal rules. For
example, to what extent is an ultimatum announcing recourse to military
measures if certain demands are not accepted or adhered to, lawful or unlawful
under Article 2(4) For example, NATO’s activation order against Yugoslavia in
November 1998.

 

II. The
Prohibition Of  The Use Of Force

The
prohibition of the threat or use of force in international relations against
the territorial integrity or political independence of any state, or in any
other manner inconsistent with the Purposes of the United Nations, as stated in
Article 2(4), is reinforced by other provisions of the Charter, particularly
paragraph 3 of the same article.  Article
2(3) imposes upon States the obligation to “settle their international disputes
by peaceful means in such a manner that international peace and security, and
justice, are not endangered4.” Furthermore,
this prohibition is elaborated as a principle of International Law in the 1970
General Assembly “Declaration on Principles of International Law Concerning
Friendly relations and Co-Operation among States in According with the Charter
of the United Nations.”

 The
1970 Declaration on Principles of International Law provides that the threat or
use of force constitutes a violation of International Law and the Charter of
the United Nations and should not be employed as a means of settling
international issues.  It declares that a war of aggression
constitutes a crime against peace, for which there is responsibility under International
Law.  It lists systematically the obligations of States in this
regard.  Every State has to refrain from propaganda for wars of
aggression.  It has to refrain from the threat or use of force to
violate the existing international boundaries of another State, or the
international lines of demarcation. It has to refrain from acts of reprisal
involving the use of force.  It has to refrain from any forcible
action which deprives peoples of their right to self-determination, freedom and
independence5.  It
has to refrain from organizing, instigating, assisting or participating in acts
of civil strife or terrorist acts in another state, or acquiescing in organized
activities within its territory directed towards the commission of such
acts.       

The
Declaration provides that the territory of a State shall not be the object of
military occupation or acquisition by another State resulting from the threat
or use of force, and that such territorial acquisition shall not be recognized
as legal6.

The
Declaration obliges all States to comply in good faith with their obligations
under the generally recognized principles and rules of International Law with
respect to the maintenance of international peace and security, and to make the
United Nations security system based upon the Charter more effective.  However,
provides that its provisions shall not construed as enlarging or diminishing in
any way the scope of the provisions of the Charter concerning cases in which
the use of force is lawful7.  By
this provision, the Declaration reaffirms the exceptions to the principle of
the prohibition provided for in the Charter of the United Nations.

 The
principle of the prohibition of the use of force in International Law, by
imposing upon the States members of the United Nations the basic obligation to
refrain from the threat or use of force in their international
relations.  The provision of this article, which marks the general
acceptance of the prohibition of the use of force in international relations,
is of universal validity.  The principle of prohibition of the use of
force bounds the States members of the United Nations and the United Nations
itself, as well as, the few States which are not members of this international
organization since it is a principle of customary international
law.  Article 2(4) mentions the use of force not the resort to war;
by this, it intends to include in the prohibition all sorts of hostilities,
short of war, in which States may be engaged.   It prohibits not
only the use of force but also the threat of force.  

i. The
prohibition to use force after Iraq

 The recent crisis in the United
Nations regarding Iraq could lead to a thorough reappraisal of fundamental
notions regarding peace and security, such as the ban on force and the notion
of collective security. Contrary to what President Bush, Prime Minister Blair
and also the Dutch government would have had us believe, the UN Security
Council resolutions passed since 1990 did not offer a sufficient legal basis
for military intervention in Iraq.

Resolution
1441 of 8 November 20028
did recognize a ‘material breach’ in Iraq’s responsibility to disarm and
threatens ‘serious consequences’ (i.e., military action), but it specifically
stipulated that the Council will reconvene and deliberate immediately about such
consequences should Iraq not cooperate with the weapon inspectors. Neither
could the resolutions from the previous Gulf war serve as the basis for the use
of force. With all necessary means’ Resolution 678 (1990) 9 of
the Security Council, passed on November 29th 1990, specifically dealt with the
termination of the illegal occupation of Kuwait. The phrase ‘to restore
international peace and security in the area’, as often referred to, had
nothing to do with the obligatory disarmament of Iraq. These words were added
to Resolution 678 with a view toward the security of other Gulf region states
(especially Saudi Arabia) and the Palestinian problem.

Besides,
the mandate in 678 referred to “Member States co-operating with the
Government of Kuwait”. President Bush also relied on Resolution 687, which
was passed on April 3rd 1991 after Operation Desert Storm and the liberation of
Kuwait10.
This resolution encompassed a far-reaching package of compulsory peace steps,
including the deployment of UN observers, compulsory boundary demarcation, a
continued scheme of economic and financial sanctions, inspection of all nuclear
materials in Iraq and destruction of all nuclear, biological and chemical and
long range weapons. To keep pressure on Iraq, the Security Council announced
that all previous resolutions remained valid.

The
possibility of further use of force was not raised in Resolution 687. Reliance
on a continuous mandate for the use of force on the combined effect of all Gulf
resolutions of the previous 12 years is a rather weak legal and political basis
for diverging from the cardinal principle of the prohibition to use force in
the UN Charter.

The
draft Security Council resolution, circulated by the Americans in cooperation
with the British and the Spanish, but eventually not tabled, was very unclear.
On the one hand, it wanted to establish that Iraq was guilty of ‘serious
breaches’ of Resolution 144111,
but on the other hand it did not specifically call for the use of military
force although it was obvious that that was the underlying wish. However, the
phrase ‘with all necessary means’ was the formula used by the Security Council
in earlier resolutions that dealt with Somalia, Haiti, East Timor and
Afghanistan.

The
draft resolution also never mentioned its goal. One simply had to assume that
the disarmament of Iraq was still the goal even though it was an open secret
that America wanted to effect a regime change. The shuffling with resolution
texts in order to read into them politically what cannot be read into them
legally, threatens to emerge as another method to circumvent the prohibition on
the use of force under the UN Charter.

 

 

 

1 Inis L. Claude, Jr., Swords into Ploughshares: The Problems and
Progress of International  30(New
York: Random House, 4th edn.,1971).

2 . LeRoy Bennet, International Organizations: Principles and
Issues36 (New Jersey: Prentice Hall, 5th edn.,1991).

3 Kosovo Report: Conflict, International Response, Lessons Learned (Oxford:
Oxford University Press, 2000).

4 J. L. Brierly, The Law of Nations 417,Oxford (6th
edn.,1963).

5 Malcolm N.Shaw , International Law , 1118( Cambridge , 6th
Edn., 2008).

6 Ibid.

7 Ibid.

8

9

10

11