Author:- MohitKumarTitle of the Paper:- “Use of Force AgainstISIS”Roll No.:- 14252197Subject:- Law of InternationalOrganization and Human RightsCourse- LL.M. (3YR)Year of Study- FirstYearContact No.
:- 9999474586E-mail- [email protected] Introduction The purpose of thisstudy is to give a clear understanding of the international law that governedthe use of force by the states for self defense. These rules are challenged withthe emergence Non-State Actors and there was a dispute as to whether therules/laws should be modified or redefined. In its Resolution inSeptember 2005, the UN General Assembly said that the relevant provisions ofthe UN Charter are adequate to counter the full range of threats tointernational peace and security but the resolution does not say that when itis 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 isimportant that there should be clarity in relation to the rules of use of forceby the states in International Relation. Theuse of force The term “law ofwar” refers to two rules, First one governsthe use of force and the Second one governsthe effective conduct of force in international law. The rules governing theuse of force form a central element of international law. These norms, as wellas other principles such as territorial sovereignty, independence and equalityof states, constitute the framework of international order.
While a national(domestic) system prescribes a monopoly on the use of force by a state, toallow the state to maintain its authority and maintain control over itsterritory, and on the other hand international law seeks to minimize it andregulate it in international sphere to preserve and maintain peace and securityin the global community. The position ofinternational law over the use of force by states has not been the same inhistory. Rulesrelated to Use of Force before 1945: – Earlier in the world,war was conducted for various reasons and causes without distinction and wascarried out without limits or control. The distinction between “Just War” and”Unjust War” was there in Christianity The doctrine of “Jus War” wasbased on the conviction that force could be used if it conformed to divinewill.
The right war should be used as the last sanction for the maintenance ofan orderly society. The use of force must be strictly controlled. St. Thomas Aquinas in the thirteenthcentury made a new step in the definition of a just war, stating that war couldbe justified on condition that it was directed by sovereign authority,accompanied by a just mandate. The teachings ofChristianity on the distinction between Just War and Unjust War have beenadopted by the classical authors such as AlbericoGentili (1552-1608) and his successor HugoGrotius (1583-1645). However, all of these authors adopted a differentapproach on this subject in the light of the emergence of European nationstates and ultimately changed the doctrine of the Just War. Therefore, thedoctrine of the Just War could not be objectively applied to determine whethera war was just or not.
Eventually, in the eighteenth century, the distinctionwas abandoned. In the nineteenthcentury, the war in the practice of the European States often represented asthe last resort, as a means of settling disputes. It had to be justified if ithad fought for the defense of certain vital interests. Each state remains thesole judge of its vital interests. Vital interests were a source of politicaljustifications and apologies used for propaganda purposes, not as a legalcriterion for the legitimacy of the war. International juristsof the nineteenth century abandoned the emphasis on the legality of war andfocused more on the legality of the conduct of war. Thus, during this century,international law recognized a no.
of rules and limitations on wars or force ingeneral in order to minimize the use of war or at least limit its applicationwith some legal consequences. The suffering of theWorld War- I, has brought about a revolutionary change in attitudes towardswar. The doctrine of Just War was re-affirmed.
The League of Nations, while notforbidding the use of war absolutely, introduced a different attitude to thesubject of war in international law than existed before. The General Treaty forthe Renunciation of War 1928 (known Briand-Kellogg Pact or Paris Pact) alsoadopted to totally prohibit the use of force. This multilateral treaty condemnsthe use of war to resolve international conflicts and bind the state to settle theirdisputes or conflicts solely by peaceful means. Useof force under the Charter of the United Nations:- The Charter of theUnited Nations makes a fundamental distinction between the legal and illegaluse of force. With this, in a sense, the old distinction between Just andUnjust War has been resurrected/re-affirmed in international law. It also goesbeyond the position of classical international law towards the use of force.While classic international law does not limit the right of States to use forceand go to war, the Charter of the United Nations establishes measures tocontrol the use of force, on the one hand it prohibits the use of force, and onthe other hand, it allows the use of force in exceptional cases.
A.The prohibition of the use of force: – The preamble to the UNCharter begins with the determination of the peoples of the United Nations topreserve succeeding generations from the scourge of war and their desire topractice tolerance and live in peace with others, as good neighbors and withoutusing armed force unless it is not in the common interest. Article 2(4) of the UNCharter:”Allmembers must refrain in their international relations from the threat or use offorce against the territorial integrity or political independence of any state,or any other manner incompatible with the purposes of the United Nations.
” This articleestablishes the principle of the use of force in international law by requiringthe Members States of the United Nations the fundamental obligation to avoidthe threat or use of force in their international relations. The provision ofthis article is universally valid and it is considered as a principle ofcustomary international law. The 1970 Declaration onthe Principles of International Law states that the threat or use of force is aviolation of international law and the Charter of the United Nations and shouldnot be used as a means to resolve international conflicts. Each State mustrefrain/abstain from organizing, instigating, assisting or participating withinits territory in spreading the acts of terrorism in another state, or allowingactivities organized in its territory to begin such acts.
B.Exceptions to the prohibition of the use of force:There are certain exceptionsto the Prohibition of the Use of Force as provided in UN Charter and GeneralAssemble Resolutions:- I. Use of force in theexercise of the right of individual or collective self-defense U/a 51 of the UNCharter.II.
Use of force with the authorizationof the Security Council under Chapter VII of the UN Charter.III. Use of force on therecommendation of the General Assembly as provided in Resolution “Unity forPeace” in 1950.IV.
Authorizes personsdeprived of power to exercise the right to self-determination, or undercolonial rule, to try to achieve their objectives in self-determination andindependence provided by 1974 General Assembly Resolution. (1)The right to self-defense: – Article 51 of the Charter of the United Nationsestablishes: “Nothing in thisCharter shall undermine the intrinsic right of individual or collectiveself-defense if an armed attack occurs against a Member State of the UnitedNations until the Security Council has taken the necessary measures to maintaininternational peace and security.” It indicates that this right isreserved insofar as it is qualified in it and in other parts of the UN Charter. There are twocontrasting interpretations of the right of self-defense enunciated in Article51 of the UN Charter, namely, the restrictive view and the broad view. Therestrictive view:- It indicates that all use of force is illegal,except when it is exercised as a right of self-defense if an armed attackoccurs. This right is not available against an action that does not constitutean armed attack, regardless of the nature and scope of such attacks.
Inaddition, this also implies that preventive self-defense is not allowed U/a 51of the UN Charter. The argument in favor of this view is that the principle ofeffectiveness requires a restrictive interpretation of Article 51. Thebroader view:- It indicates that the use of force in self-defense isexcluded from the purview/ambit of the Article 2 (4). The right toself-defense, which existed as a natural and intrinsic right in the customaryinternational law, goes beyond the specific provisions of Article 51. The rightto self-defense is allowed against an armed attack and any other hostile actionthat is not an armed attack. This implies that preventive self-defense is allowedU/a 51. Regardless of theopinion of self-defense, it is well known that the exercise of this right in customaryinternational law has three fundamental legal requirements: · The use of peacefulprocedures, if available.· Necessity.
· Proportionality. These three requirementsare the fundamental elements that must be respected in customary internationallaw to legitimately invoke the right of self-defense against illegally launchedforce. (2)Use of force with the approval of the Security Council: – The second exception tothe principle of prohibition of the use of force in international spheres isestablished U/a 42 of Chapter VII of the UN Charter.
Article 42 states that “theSecurity Council can take military action by air, sea or land, as necessary andadequate to maintain or restore international peace and security these actionsincludes demonstrations and blockades etc”. This means that only the SecurityCouncil has the power to order or authorize the use of force in internationalsphere, however, the Council is required to follow the prescribed procedures asprovided in Chapter VII of the UN Charter. (3)Use of Force in a recommendation of the General Assembly: – The resolution “Unitingfor Peace” has adopted by GeneralAssembly in 1950, it grants them the capacity to maintain international peaceand security in addition to Security Council. This resolution provides that theGeneral Assembly can make recommendations on everything which the SecurityCouncil can do under Chapter VII. The Assembly may make appropriaterecommendations to members for collective action, including the use of armedforces, if the Security Council fails to take any step. (4)Use of force by the peoples for self-determination and independence:- Article 7 of theGeneral Assembly Resolution of 1974 “On the Definition of Aggression” guaranteesto the disadvantaged peoples their right to self-determination, freedom andindependence, especially people under colonial and racist regimes or otherforms of foreign domination, the right to fight for self-determination, freedomand independence. This implies that these people can use armed force in theirstruggle.
Howthe war against IS changed the international law on the use of force. Briefhistory of events:- In 2014, a terroristgroup Islamic State (ISIS) occupied more than 30% of Syria and Iraq, includingoil fields and refineries, banks and antiques, tanks and weapons, and threatenedthe peace and security of the Middle East. With the help of some Western andArab countries, the United States launched an invasion (Operation Inherent Resolve)on ISIS in Iraq and Syria, to overthrow ISIS. When Iraq consented to the attackson its territory, the Syrian Government opposed the attack on its territory andargued that it was an inappropriate violation of international law. According tointernational law, a state can use military force in the territory of the otherstate in three situations:I. With that country’s consent.II.
With the authority ofthe Security Council.III. When acting in self defenseagainst an armed attack. The use of force inIraq is in line with the principles of international law, but the use of forcein Syria is not in accordance with the law. Except the Russian intervention asit was authorized by the Syrian government The United States andits 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 ofHot Pursuit and finally the Collective Self-Defence on behalf of Iraq. PresidentObama authorized the attack on ISIS: “When we have the unique ability tostop the massacre, then the United States can not close its eyes.” The whole scenario hasbeen changed after ISIS has bombarded a Russian airplane and killing around 224passengers and attack in a Concert in Paris killing around 130 people, inresponse to these atrocities, the Security Council unanimously adopted a”Resolution 2249″, announcing that ISIS is a threat to international peace andsecurity and has called for the measures to eliminate safe havens established byISIS in Syria. Thechanging law of self-defense against non-state actors:- The Syrian governmenthas shown that it can not and does not effectively address/eliminate these safehaven of ISIS.
As a result, the United States has launched necessary andproportionate military actions in Syria to eliminate the threat of ISIS inIraq, protecting Iraqi citizens from further attacks and allow Iraqi forces toresume control of the Iraqi border. The United States hasargued that it can attack ISIS targets in Syria without the consent of Syriabecause:I. ISIS threatens Iraq.II. Iraq has sought helpfrom the United States.III. ISIS has secured safehavens in Syria.
IV. The Syrian governmentwas unable to deal effectively with ISIS. United States inparticular has not argued that the Syrian Government effectively control ISIS,and its argument is in derogation of customary law as maintained in Nicaraguacase that “the victim state may not use force in response to attacks bynon-state actors, unless these actors have actually been controlled by thatstate. ” Useof force against Non-State Actors before 9/11: – Article 2 (4) R/wArticle 51 of the UN Charter prohibits the use of force at international levelon one hand, and allow it on the other hand in some exceptional circumstances asin the event of an armed attack.
But the problem is that the whole charter nowheredefines 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 and triggerthe right to use force in self-defence”. In addition, the ICJ also expressedthe view that small-scale attacks may in aggregate constitute an armed attack. TheICJ has ruled the doctrine of state attribution, that unless the actions ofnon-state actors are attributable to territorial states, the use of forceagainst non-state actors in that state is illegal and contrary to customaryinternational law. The use of self-defense force against that State may collidewith other principles of international law such as the sovereignty of Statesand the prohibition on the use of force in international law. In addition tothis ICJ held in the Oil Platforms Case, The Congo Case and the Wall Case thatthe use of force against Non-State Actors whose conduct is not attributable tothe State would itself constitute and unlawful armed attack. Newemerging trends in the use of force after 9/11: The emergence of theNon-State Actors is new kind of threat to the peace and security of the Worldas these Non-State Actors have no limits and they are capable of destroying anyplace in the world with the assistance of latest technology. These Non-StateActors 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 astate has the capacity to carry out an armed attack against another state, togrant the right to use force to defend itself. Because these new entities have manyof the attributes of state such as wealth, voluntary forces, training andpotential access to weapons of mass destruction and if these entities commit aseries of attacks against a State and the acts are sufficient to constitute anarmed attack, then the use of force in self-defense must be allowed againstthose who pose a constant threat. Many countries have accepted this idea andhave affirmed the United States’ agenda against Al Qaeda. In accordance with thesedevelopments, the Security Council adopted Resolution 1368, which condemned theattacks of 9/11 and recognized the natural right of self-defense (individual orcollective). It is a confirmation that the United States could have the rightto respond with the use of force for against the Al Qaeda despite the fact thatit was a non-state actor, other countries with words and actions expressedsupport for the operation. It clearly a radical departure from the Nicaraguaverdict and the new tendency was based on the verdict of Corfu Channel Case “thatany state does not knowingly allow its territory to be used for acts contraryto the rights of other states”. The Security Councils’ Resolution 1373 has alsoconfirmed this development in International Law. It establishes the right toself-defense against Non-State Actors and at the same time prohibits the stateto allow its territory to be used as a refuge by the Non-State Actors.
Some Academics and somemembers of the ICJ have pointed out that the ICJ was in contradiction withcustomary international law on self-defense, the Caroline case, confirmed thepreventive self-defense and consider it legal against non-state actors whoseconduct was not attributable to a state. In The Wall case, Judge Higgins saidthat “there is nothing in the text of Article 51 that establishes thatself-defense is only available when a state arms an armed attack.” In Congocase, Judge Koojimans said “it is not reasonable to deny that the right toself-defense is not available just because there was no attacker state.”Judge Simma in the Congo stated that “Security Council resolutions 1368and 1373 can only be read as statements of opinion that large-scale attacks bynon-state actors can be considered armed attacks under Article 51”. Though the law had not beenclearly established on the eve of the US attack on ISIS in Syria in 2014, butthis event provided the final push to crystallize the new self-defense rule. Validityto the new emerging trend: – The Security Councilunanimously approved Resolution 2249 after the bombing by ISIS on RussianJetliner and attacks on stadium and in concert in Paris in the late 2015, theresolution states that “ISIS is a global threat for international peaceand security and has called for all necessary measures to eradicate the safeharbor established in Syria.” The attacks of 31.10.
2015 and 13.11.2015marked a turning point.
These attacks have shown that ISIS is the richest andtechnologically advanced terrorist group in the world, and no longer limits itsterritorial acquisition goals in Syria and Iraq, but has adopted the model ofanother terrorist group that focuses on addressing vulnerable targets allaround the world. Conclusion: In this paper I have examinedwhether the use of force against ISIS has changed the international law andestablishes a new international customary law by recognizing the Right of Useof Force against the Non-State Actors in the territory of the host state. Ingeneral, customary international law requires many decades to crystallize. Butin this context, 14 years would be almost instantaneous, as in the cases of theestablishment of Nuremberg Tribunal and the Yugoslavia Tribunal. These Non-State Actorsare seen as a new type of threat, where a non-state actor has many of theattributes of a state: enormous wealth, sophisticated training andorganization, and access to destructive weapons. To respond to the fundamentalchange presented by these new entities, the United States has argued that it isnow possible and also lawful to attack such non-state actors when they arepresent in a state that can not or will not stop them (Unable or Unwilling).
Inlight of the invasion of the Afghanistan in 2001 for the reduction of Al Qaedaand no major protests against the drone attacks against the leaders of Al Qaedain Pakistan, Somalia, Iraq and Yemen, the International Law seemed to be movingrapidly towards the adoption of the principle of “Unable and Unwilling”in “Self-Defense”. This right is subjectto several limitations that prevent the possibility of abuse:-I. The individual oraggregate actions of non-state actors must be equivalent to an armed attack toactivate the right to use of force in self-defense.II. The use of force mustbe directed against non-state actors only, not against the state or its armedforces, unless the state has effective control over non-state actors.
III. Military actions mustrespect the principles of necessity and proportionality. Other limitations arelikely to develop in the future according to the international response to invocationand application of this the new rule.