The Influence of the US Pact on the Reformation of the Use of Force

Introduction

The purpose of this study is to give a clear underst&ing of the international law that governed the use of force by the states for self defense. These rules are challenged with the emergence Non-State Actors & there was a dispute as to whether the rules/laws should be modified or redefined. In its Resolution in September 2005, the UN General Assembly said that the relevant provisions of the UN Charter are adequate to counter the full range of threats to international peace & security but the resolution does not say that when it is legal for a state to use force in the name of right of self defense. This study was done, because i believe that with the emergence of these new challenges, it is important that there should be clarity in relation to the rules of use of force by the states in international Relation.

The Use of Force

The term 'law of war' refers to two rules. First one governs the use of force & the Second one governs the effective conduct of force in international law. The rules governing the use of force form a central element of international law. These norms, as well as other principles such as territorial sovereignty, independence & equality of states, constitute the framework of international order. While a national (domestic) system prescribes a monopoly on the use of force by a state, to allow the state to maintain its authority & maintain control over its territory, & on the other h& international law seeks to minimize it & regulate it in international sphere to preserve & maintain peace & security in the global community. The position of international law over the use of force by states has not been the same in history.

Rules Related to Use of Force Before 1945:

Earlier in the world, war was conducted for various reasons & causes without distinction & was carried out without limits or control. The distinction between “Just War” & “Unjust War” was there in Christianity The doctrine of 'Jus War' was based on the conviction that force could be used if it conformed to divine will. The right war should be used as the last sanction for the maintenance of an orderly society. The use of force must be strictly controlled. St. Thomas Aquinas in the thirteenth century made a new step in the definition of a just war, stating that war could be justified on condition that it was directed by sovereign authority, accompanied by a just mate.

The teachings of Christianity on the distinction between Just War & Unjust War have been adopted by the classical authors such as Alberico Gentili (1552-16o8) & his successor Hugo Grotius (1583-1645). However, all of these authors adopted a different approach on this subject in the light of the emergence of European nation states & ultimately changed the doctrine of the Just War. Therefore, the doctrine of the Just War could not be objectively applied to determine whether a war was just or not.

Eventually, in the eighteenth century, the distinction was abandoned in the nineteenth century, the war in the practice of the European States often represented as the last resort, as a means of settling disputes. it had to be justified if it had fought for the defense of certain vital interests. Each state remains the sole judge of its vital interests. Vital interests were a source of political justifications & apologies used for propag&a purposes, not as a legal criterion for the legitimacy of the war. International jurists of the nineteenth century ab&oned the emphasis on the legality of war & focused more on the legality of the conduct of war. Thus, during this century, international law recognized a no. of rules & limitations on wars or force in general in order to minimize the use of war or at least limit its application with some legal consequences.

The suffering of the World War- i, has brought about a revolutionary change in attitudes towards war. The doctrine of Just War was re-affirmed. The League of Nations, while not forbidding the use of war absolutely, introduced a different attitude to the subject of war in international law than existed before. The General Treaty for the Renunciation of War 1928 (known Bri&-Kellogg Pact or Paris Pact) also adopted to totally prohibit the use of force. This multilateral treaty condemns the use of war to resolve international conflicts & bind the state to settle their disputes or conflicts solely by peaceful means.

Use of Force Under the Charter of the United Nations:

The Charter of the United Nations makes a fundamental distinction between the legal & illegal use of force. With this, in a sense, the old distinction between Just & Unjust War has been resurrected/re-affirmed in international law. it also goes beyond the position of classical international law towards the use of force. While classic international law does not limit the right of States to use force & go to war, the Charter of the United Nations establishes measures to control the use of force, on the one h& it prohibits the use of force, & on the other h&, it allows the use of force in exceptional cases.

The Prohibition of the Use of Force:

The preamble to the UN Charter begins with the determination of the peoples of the United Nations to preserve succeeding generations from the scourge of war & their desire to practice tolerance & live in peace with others, as good neighbors & without using armed force unless it is not in the common interest. Article 2(4) of the UN Charter: 'All members must 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 incompatible with the purposes of the United Nations.' This article establishes the principle of the use of force in international law by requiring the Members States of the United Nations the fundamental obligation to avoid the threat or use of force in their international relations. The provision of this article is universally valid & it is considered as a principle of customary international law. The 197o Declaration on the Principles of international Law states that the threat or use of force is a violation of international law & the Charter of the United Nations & should not be used as a means to resolve international conflicts. Each State must refrain/abstain from organizing, instigating, assisting or participating within its territory in spreading the acts of terrorism in another state, or allowing activities organized in its territory to begin such acts.

Exceptions to the Prohibition of the Use of Force:

There are certain exceptions to the Prohibition of the Use of Force as provided in UN Charter & General Assemble Resolutions:

• Use of force in the exercise of the right of individual or collective self-defense U/a 51 of the UN Charter.
• Use of force with the authorization of the Security Council under Chapter Vii of the UN Charter.
• Use of force on the recommendation of the General Assembly as provided in Resolution “Unity for Peace” in 195o.

Authorizes persons deprived of power to exercise the right to self-determination, or under colonial rule, to try to achieve their objectives in self-determination & independence provided by 1974 General Assembly Resolution. (1) The right to self-defense: - Article 51 of the Charter of the United Nations establishes:

'Nothing in this Charter shall undermine the intrinsic right of individual or collective self-defense if an armed attack occurs against a Member State of the United Nations until the Security Council has taken the necessary measures to maintain international peace & security.' it indicates that this right is reserved insofar as it is qualified in it & in other parts of the UN Charter.

There are two contrasting interpretations of the right of self-defense enunciated in Article 51 of the UN Charter, namely, the restrictive view & the broad view. The restrictive view:- it indicates that all use of force is illegal, except when it is exercised as a right of self-defense if an armed attack occurs. This right is not available against an action that does not constitute an armed attack, regardless of the nature & scope of such attacks. in addition, this also implies that preventive self-defense is not allowed U/a 51 of the UN Charter. The argument in favor of this view is that the principle of effectiveness requires a restrictive interpretation of Article 51.

The broader view:- it indicates that the use of force in self-defense is excluded from the purview/ambit of the Article 2 (4). The right to self-defense, which existed as a natural & intrinsic right in the customary international law, goes beyond the specific provisions of Article 51. The right to self-defense is allowed against an armed attack & any other hostile action that is not an armed attack. This implies that preventive self-defense is allowed U/a 51. Regardless of the opinion of self-defense, it is well known that the exercise of this right in customary international law has three fundamental legal requirements:

• The use of peaceful procedures, if available.
• Necessity.
• Proportionality.

These three requirements are the fundamental elements that must be respected in customary international law to legitimately invoke the right of self-defense against illegally launched force.

Use of Force with the Approval of the Security Council:

The second exception to the principle of prohibition of the use of force in international spheres is established U/a 42 of Chapter Vii of the UN Charter. Article 42 states that “the Security Council can take military action by air, sea or l&, as necessary & adequate to maintain or restore international peace & security these actions includes demonstrations & blockades etc”. This means that only the Security Council has the power to order or authorize the use of force in international sphere, however, the Council is required to follow the prescribed procedures as provided in Chapter Vii of the UN Charter.

Use of Force in a Recommendation of the General Assembly:

The resolution 'Uniting for Peace” has adopted by General Assembly in 195o, it grants them the capacity to maintain international peace & security in addition to Security Council. This resolution provides that the General Assembly can make recommendations on everything which the Security Council can do under Chapter Vii. The Assembly may make appropriate recommendations to members for collective action, including the use of armed forces, if the Security Council fails to take any step.

Use of Force by the Peoples for Self-Determination & Independence:

Article 7 of the General Assembly Resolution of 1974 “on the Definition of Aggression” guarantees to the disadvantaged peoples their right to self-determination, freedom & independence, especially people under colonial & racist regimes or other forms of foreign domination, the right to fight for self-determination, freedom & independence. This implies that these people can use armed force in their struggle. How the war against iS changed the international law on the use of force.

Brief History of Events:

in 2014, a terrorist group islamic State (iSiS) occupied more than 3o% of Syria & iraq, including oil fields & refineries, banks & antiques, tanks & weapons, & threatened the peace & security of the Middle East. With the help of some Western & Arab countries, the United States launched an invasion (operation inherent Resolve) on iSiS in iraq & Syria, to overthrow iSiS. When iraq consented to the attacks on its territory, the Syrian Government opposed the attack on its territory & argued that it was an inappropriate violation of international law. According to international law, a state can use military force in the territory of the other state in three situations:

• With that country's consent.
• With the authority of the Security Council.
• When acting in self defense against an armed attack.

The use of force in iraq is in line with the principles of international law, but the use of force in Syria is not in accordance with the law. Except the Russian intervention as it was authorized by the Syrian government

The United States & its allies gave several reasons for the legality of the use of force, e.g. Humanitarian intervention, A Right to Use of Force in a Failed State, Right of Hot Pursuit & finally the Collective Self-Defence on behalf of iraq. President obama authorized the attack on iSiS: 'When we have the unique ability to stop the massacre, then the United States can not close its eyes.'

The whole scenario has been changed after iSiS has bombarded a Russian airplane & killing around 224 passengers & attack in a Concert in Paris killing around 13o people, in response to these atrocities, the Security Council unanimously adopted a “Resolution 2249”, announcing that iSiS is a threat to international peace & security & has called for the measures to eliminate safe havens established by iSiS in Syria. The changing law of self-defense against non-state actors:-

The Syrian government has shown that it can not & does not effectively address/eliminate these safe haven of iSiS. As a result, the United States has launched necessary & proportionate military actions in Syria to eliminate the threat of iSiS in iraq, protecting iraqi citizens from further attacks & allow iraqi forces to resume control of the iraqi border. The United States has argued that it can attack iSiS targets in Syria without the consent of Syria because:

1. iSiS threatens iraq.
2. Iraq has sought help from the United States.
3. ISIS has secured safe havens in Syria.
4. The Syrian government was unable to deal effectively with iSiS.

United States in particular has not argued that the Syrian Government effectively control iSiS, & its argument is in derogation of customary law as maintained in Nicaragua case that 'the victim state may not use force in response to attacks by non-state actors, unless these actors have actually been controlled by that state. '

Use of Force against Non-State Actors before 9/11:

Article 2 (4) R/w Article 51 of the UN Charter prohibits the use of force at international level on one h&, & allow it on the other h& in some exceptional circumstances as in the event of an armed attack. But the problem is that the whole charter nowhere defines the term armed attack, therefore, in the Nicaragua case, the iCJ held that “the most severe forms of use of force constitute an armed attack & trigger the right to use force in self-defence”. in addition, the iCJ also expressed the view that small-scale attacks may in aggregate constitute an armed attack. The iCJ has ruled the doctrine of state attribution, that unless the actions of non-state actors are attributable to territorial states, the use of force against non-state actors in that state is illegal & contrary to customary international law. The use of self-defense force against that State may collide with other principles of international law such as the sovereignty of States & the prohibition on the use of force in international law. in addition to this iCJ held in the oil Platforms Case, The Congo Case & the Wall Case that the use of force against Non-State Actors whose conduct is not attributable to the State would itself constitute & unlawful armed attack.

New Emerging Trends in the Use of Force after 9/11:

The emergence of the Non-State Actors is new kind of threat to the peace & security of the World as these Non-State Actors have no limits & they are capable of destroying any place in the world with the assistance of latest technology. These Non-State Actors often operate from a failed state without the support of the government. The 9/11 attacks forced states to reassess the antiquated idea that only a state has the capacity to carry out an armed attack against another state, to grant the right to use force to defend itself. Because these new entities have many of the attributes of state such as wealth, voluntary forces, training & potential access to weapons of mass destruction & if these entities commit a series of attacks against a State & the acts are sufficient to constitute an armed attack, then the use of force in self-defense must be allowed against those who pose a constant threat. Many countries have accepted this idea & have affirmed the United States' agenda against Al Qaeda. In accordance with these developments, the Security Council adopted Resolution 1368, which condemned the attacks of 9/11 & recognized the natural right of self-defense (individual or collective). it is a confirmation that the United States could have the right to respond with the use of force for against the Al Qaeda despite the fact that it was a non-state actor, other countries with words & actions expressed support for the operation. it clearly a radical departure from the Nicaragua verdict & the new tendency was based on the verdict of Corfu Channel Case “that any state does not knowingly allow its territory to be used for acts contrary to the rights of other states”. The Security Councils’ Resolution 1373 has also confirmed this development in international Law. it establishes the right to self-defense against Non-State Actors & at the same time prohibits the state to allow its territory to be used as a refuge by the Non-State Actors.

Some Academics & some members of the iCJ have pointed out that the iCJ was in contradiction with customary international law on self-defense, the Caroline case, confirmed the preventive self-defense & consider it legal against non-state actors whose conduct was not attributable to a state. in The Wall case, Judge Higgins said that 'there is nothing in the text of Article 51 that establishes that self-defense is only available when a state arms an armed attack.' in Congo case, Judge Koojimans said 'it is not reasonable to deny that the right to self-defense is not available just because there was no attacker state.' Judge Simma in the Congo stated that 'Security Council resolutions 1368 & 1373 can only be read as statements of opinion that large-scale attacks by non-state actors can be considered armed attacks under Article 51”.

Though the law had not been clearly established on the eve of the US attack on iSiS in Syria in 2o14, but this event provided the final push to crystallize the new self-defense rule. Validity to the new emerging trend:

The Security Council unanimously approved Resolution 2249 after the bombing by iSiS on Russian Jetliner & attacks on stadium & in concert in Paris in the late 2o15, the resolution states that 'iSiS is a global threat for international peace & security & has called for all necessary measures to eradicate the safe harbor established in Syria.' The attacks of 31.1o.2o15 & 13.11.2o15 marked a turning point. These attacks have shown that iSiS is the richest & technologically advanced terrorist group in the world, & no longer limits its territorial acquisition goals in Syria & iraq, but has adopted the model of another terrorist group that focuses on addressing vulnerable targets all around the world.

Conclusion:

in this paper i have examined whether the use of force against iSiS has changed the international law & establishes a new international customary law by recognizing the Right of Use of Force against the Non-State Actors in the territory of the host state. in general, customary international law requires many decades to crystallize. But in this context, 14 years would be almost instantaneous, as in the cases of the establishment of Nuremberg Tribunal & the Yugoslavia Tribunal.

These Non-State Actors are seen as a new type of threat, where a non-state actor has many of the attributes of a state: enormous wealth, sophisticated training & organization, & access to destructive weapons. To respond to the fundamental change presented by these new entities, the United States has argued that it is now possible & also lawful to attack such non-state actors when they are present in a state that can not or will not stop them (Unable or Unwilling). in light of the invasion of the Afghanistan in 2oo1 for the reduction of Al Qaeda & no major protests against the drone attacks against the leaders of Al Qaeda in Pakistan, Somalia, iraq & Yemen, the international Law seemed to be moving rapidly towards the adoption of the principle of 'Unable & Unwilling' in 'Self-Defense'. This right is subject to several limitations that prevent the possibility of abuse:

• The individual or aggregate actions of non-state actors must be equivalent to an armed attack to activate the right to use of force in self-defense.
• The use of force must be directed against non-state actors only, not against the state or its armed forces, unless the state has effective control over non-state actors.
• Military actions must respect the principles of necessity & proportionality. Other limitations are likely to develop in the future according to the international response to invocation & application of this the new rule.