ABSTRACT
The defenses to the use of force
has been a necessary instrument in ensuring public confidence and safety in the
United Nations Charter. States has been able to defend themselves in the face
of imminent danger without having any fear of being prosecuted. They is also
this safety that comes with the fact that the United Nations Charter has
authorized the UN Security Council to take appropriate steps in ensuring that states
that are vulnerable are not been taken advantage of. This paper looks at the
use of force by states, the admissible use of force and their defenses. The
methodology used in this work is through secondary source like textbooks,
article and on line internet materials. The conclusion and recommendation was
based on the giving effect to the true intent of those provisions in the UN
Charter and other enabling laws.
TABLE OF CONTENTS
Title page………………………………………………………… i
Table of
content…………………………………………………. ii
Abstract………………………………………………………….. iii
CHAPTER ONE: INTRODUCTION
1.1 Use of force by states……………………………………. 1
CHAPTER TWO: ADMISSIBLE USE OF FORCE
2.1 Actions authorized by the UN Security Council……… 3
2.2 Self Defence under Article 51 of the UN Charter……. 6
CHAPTER THREE: OTHER DEFENCES
3.1 The Superior
Orders Defence………………………….. 10
3.2 Duress……………………………………………………. 11
3.3 Military Necessity……………………………………….. 11
3.4 Insanity, Mental Defect or Mental Incapacity………… 12
CHAPTER FOUR: PURPOSES OF ADMISSIBLE
DEFENCES IN USE OF FORCE…….. 14
CHAPTER 5: Conclusion
and Recommendation……. 15
Bibliography……………………………………………………… 16
CHAPTER ONE
USE OF FORCE
BY STATES
The use of force by states
is controlled by both customary international law and by treaty law. The UN
charter reads in article 2(4):
“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 rule was “enshrined in the United Nations Charter
in 1945 for a goods reason to prevent States from using force as they felt so
inclined” said Louise Doswald-Beck, secretary-General International commission
of jurists.
Although
some commentators interpret Article 2(4) as banning only the use of force
directed at the territorial integrity or political independence of a state, the
more widely held opinion is that these are merely intensifiers, and that the
article constitutes a general prohibition, subject only to the exceptions
stated in the charter (self defense and chapter vii action by the security
council). The latter interpretation is also supported by the historic context
in which the charter was drafted, the
preamble specifically states that ‘to save scourge of war, which twice in our
lifetime has brought untold sorrow to mankind” is a principal aim of the UN as
such. This principle is now considered to be a part of customary international
law, and has the effect of banning the use of force except for the two
situations authorized by the UN charter.
CHAPTER TWO
ADMISSIBLE USE
OF FORCE
Despite the United Nations Charter’s
broad legal prohibitions against the use of force and other forms of
intervention, specific exceptions exist that justify a state’s recourse to the
use of force or armed intervention.
While
states have made numerous claims, using a wide variety of legal basis to
justify the use of force, it is generally agreed that there are only two exceptions
to Article 2(4) ban on the threat or use of force. They are:
1.
Action authorized by the United Nation Security Council under chapter
vii of the UN charter ; and
2.
Action that constitute act of individual or collective self defense
pursuant to Article 51 of the UN charter and / or constitute international law1.
2.1 Actions authorized by the UN Security
Council.
The UN charter grants the UN Security Council a
powerful vote in determining the existence of an illegal threat or use of
force, and wide discretion in mandating or authorizing a response to such
threat or use of force (enforcement).
The unique role is grounded primarily
in chapter vii of the UN Charter which demonstrates the charter’s strong
preference for collective responses to the illegal use of force over unilateral
actions in self defense.
Chapter v of the UN Charter
establishes the composition and powers of the Security Council. The Security Council
includes five permanent members (China,
France, Russia, the United kingdom and the United States),
and ten non-permanent, elected members. Due regard being specifically paid, in
the first instance to the contribution of members of the United Nations and the
maintenance of international peace and security and to the other purposes of
the organization, and also top equitable geographical distribution2.
The non-permanent members of
the security council shall be elected for a term of two years.
The members of the United
Nations confer on the Security Council primary responsibility for the
maintenance of international peace and security3
and members agree to accept and carry out the decisions of the security council
in accordance with the present charter4.
Chapter vii of the UN
Charter gives the UN Security Council authority to label as illegal, threats
and uses of force and then determine what measures should be employed to
address the illegal behavior. Before acting, the Security Council must first,
in accordance with article 39, determine, label the existence of a threat to
the peace, a breach of the peace or an act of aggression. Provided it makes
such a determination, the UN Charter gives the Security Council the ability to
do one of three things.
i. Make
recommendations pursuant to article 39; or
ii. Mandate non-military measures (ie diplomatic and economic
sanctions) pursuant to Art 41; or
iii. Mandate military enforcement measures (actions by air, land or
sea force) pursuant to article 42.
Articles 42 implies that Art
41 measures must be attempted (or at least considered) before security measures
available to it. It may take such actions by air, seas or land forces as may be
necessary to maintain or restore international peace and security. Such actions
may include demonstrations, blockade and other operation by air, sea or land
forces of members of the United Nations.
Chapter
vii also gives the Military Staff committee responsibility for strategic
coordination of forces placed at the disposal of the UN Security Council5.
Some of the UN Security council resolutions are
1. UN
Security Council Resolution 1267(Afghanistan)
2. UN
Security Council Resolution 82 (Korea)
3. UN
Security Council Resolution 1993 (Libya)
4. UN
Transitional Administration in East Timor.
5. UN
Operation in Somalia
II
6. UN Monitoring
Verification and Inspection Commission.
7. Oil
for Food Programmes
8. UN
Stabilization Mission in Haiti
9. UN
Mission in Sierra Leone
10. UN
Assistance Mission for Rwanda
2.2 Self Defence Under Article 51 of the UN
Charter.
Article 51 of the UN Charter
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 such action as it deems necessary in order to
maintain or restore international peace and security.
Article 51 of the UN Charter clearly recognizes “the
inherent right of individual or collective self defence” by anyone. The
language does not identity or stipulate
the kind of aggressor or aggressors against whom this right of self defence can
be exercised and certainly does not limit the right to self defence to attacks
by states.
ICJ”S
attempt to qualify the use of self defence under Article 51 as aggression committed
by a ‘state’ only is clearly an attempt to evade international law. The ICJ Bench
ignored repeated acts of terrorism from ‘Palestine’
as emanating from non- state entities and therefore inadmissible to the issue
of the security fence. ICJ’S opinion
engages in some highly questionable interpretations not only of it’s own
mandate, but also of the UN charter’s article on the right to self defence.
Isreal’s
right to self defence under Article 51 cannot be more apparent according to
international humanitarian law. Nothing can be more ludicrous than the ICJ
conclusion that because “Isreal does not claim that the attacks (by Palestinian
terrorists) against it is imputable to a foreign state” it lost it’s right to
act in self defence.
To further expose out the parameters of self
defence, consideration should be given to both what constitutes an “armed
attack” and what would be the legal
response to such an act.
In
the Nicaragua case which
revolved around the issue of the use of force by the United States and paramilitaries as
against this central American State during the 1980s, the ICJ stated plainly
that:
“In the case of individual self defence, the
exercise of this right is subject to the state concerned having been the victim
of an armed attack”. The court then goes on to say, “there appears now to be
general agreement on the nature of acts which can be treated as constituting
armed attacks. In particular, it may be considered to be agreed that an armed
attack must be understood as including not merely action by regular armed
forces across an international boarder, but also “ the sending by or on behalf
of a state of armed bands, groups, irregulars or mercenaries, which carryout
acts of armed forces against another state of such gravity as to amount to
(inter-alia) an actual armed attack conducted by regular forces or it’s
substantial involvement therein”. This description may be taken to reflect
customary international law6
Christine
Grey, for her part, notes that “the court’s description of the scope of armed
attack is consistent with state practice and with the practice of the security
counsel”7.
Finally,
two further items should be mentioned. First, as noted by the ICJ in the Nicaragua case,
there is a specific rule whereby self defence would warrant only measures which
are proportional to the armed attack and necessary to respond to it, a rule
well established in customary international Law8.
In considering the limitation’s on the right of self defence, Bruno Simma’s
commentary on the UN charter concludes by stating. “consequently, lawful self
defence is restricted to the repulse of an armed attack and must not entail
retaliatory or punitive actions. The means and extent of the defence must not
be dis-proportionate to the gravity of the attack, in particular, the means
employed for the defence have to be strictly necessary for repelling the
attack”.9
Second,
that self defence may transpire individually but also, as noted in Article 51,
as a collective response. In the Nicaragua case, the court dealt with the
issue, making plain that recourse to such collective self defence was only
possible if a state requested assistance, and that there” is no rule in
customary international law permitting another state to exercise the right of
collective self-defence on the basis of it’s own assessment of the situation.10
CHAPTER THREE
OTHER DEFENCES
1. THE SUPERIOR
ORDERS DEFENCE
The
perpetration of an international crime as the result of an order of a superior
appears to be excusable only if it is clear that the accused did not know the
order was manifestly illegal. This defence does not appear in the Genocide
convention, because any order to commit genocidal acts is considered to be
manifestly illegal. The Apartheid Convention
does not address this defence directly, for similar reasons, Article 2 of the
1984 Torture Convention explicitly excludes the use of this defence as a
justification of torture. Several judicial pronouncements of the post world war
II U.S. military tribunals, including United States v. Von Leeb10 (the German flight common trial) and
United States v Ohlendorf et al11 (the einsatzgruppen trial), did
explicitly exclude this defence.
A
review of scholarly opinions and judgments of Post World War II tribunals and
international instruments leads to the conclusion that “obedience” to superior
orders” is not a defence under customary international law to an international
crime when the order it manifestly illegal, even when the subordinate has no
moral choice with respect to either obeying or refusing to obey the order. In
cases where the subordinate is mentally compelled to fulfill the order, the
claim of duress, as a personal excuse, is the applicable defence.
2. Duress
The
defence of duress is offered as an excuse (as opposed to a justification) and
is based on an external circumstance that causes an extreme mental pressure
that the accused cannot reasonably be expected to have resisted. This defence
was referred to in the Nuremberg
judgments, albeit in conjunction with necessity. However, despite the fact that
the defence of duress to charges of war crimes was assessed by the United
States Military Tribunal in the German High Command Trials (in the Krupp12 and Einsatzgruppen cases13), it did not exempt the particular
accused in these cases, nor did it exonerate Adolf Eichmann during his trial in
Isreal in 1961, because he was shown to have willingly volunteered and never to
have protested against the heinous of crimes.
3. Military necessity
The defence of military
necessity relates to a choice of evil, similar to necessity as a criminal law
defence. The choice is between military and humanitarian law. It appears to be
admissible, even when it concerns a war crime charge. The distinguishing
characteristics of military necessity is that it is affiliated with the furtherance
of a specific interest of the state in the context of a particular armed
conflict, so that this defence can only be used to exonerate an individual in
his or her capacity as an instrument of the state.
The
ICC statute does not mention this defence explicitly in Art 31(1). However,
article 8(2) (e) xii) defines destruction of property as a war crime when it is
not justified by military necessity.
4. INSANITY, MENTAL
DEFECT, AND DIMINISHED RESPONSIBILITY
The defence of sanity or
mental incapacity as such has no origin in international law. Instead of that,
it was developed based on national criminal law codes especially framed on the
famous M’ Naghten case.
It is better to speak of
mental disease or defect, rather than insanity, and in fact this termindogy has
been adopted in Article 31 paragraph 1(a) of the ICC statute, which article
reflects the M’Naghten jurisprudence.
Although the M’ Naghten case was based on common law, the
civil law systems generally follow the same reasoning with regard to the defence
of mental diseases or defect.
The mental defect defence
should be distinguished form the defence of diminished mental capacity. To
claim mental defect requires the destruction not merely the impairment of the
defendant’s mental condition. Such a claim, if proven, may lead to an
acquittal.
In
Prosecutor v Delalic et al12, the
ICTY Trial chamber rejected the defence of diminished responsibility as put
forward by the accused, noting that the defence did not establish the fact that
the accused was unable to distinguish between right and wrong. The ICTY relied
on the expert opinions offered by three forensic psychiatrists who were called
by the accused to testify on his behalf, and a fourth who was called upon by
the prosecution to offer a rebuttal. All of the defence expert witnesses agreed
that the accused suffered from a personality disorder. The Trial chamber opined
that the burden of proof was not met by establishing a disorder as such, making
a distinction between suffering from a personality disorder on the one hand,
and being unable of control one’s physical acts on account of abnormality of
mind, on the other hand. Only the latter situation may justify this defence,
which may be invoked in defence against a charge of genocide or crimes against
humanity.
CHAPTER FOUR
PURPOSE OF
ADMISSIBLE DEFENCES IN USE OF FORCE
1. It protects a state from being vulnerable to a stronger
state. The state knowing that even if it engages in use of force in protecting
itself like in self defence, it will be protected under the law.
2. To insure public safety. The public knowing that they are
being protected by law in that the UN charter has authorized the UN Security
Council to act in any event of violence or exploitation on them.
3. To give fair warning of the nature of the conduct declared
to constitute an offence and of the sentences authorized upon conviction.
4. To define the act or omission and the accompanying mental
state that constitutes each offence and limit the condemnation of conduct as
criminal.
5. It helps in strengthening states with its allied
counterpart.
CHAPTER FIVE
CONCLUSION
The
defence to the Use of Force international humanitarian law which as enshrined
in Chapter vii and Art 51 of the UN Charter has been one of the good works done
by the United Nations. This defences has
aided states that are vulnerable to have
hope that even when they resort to the use of force, they will be immune from
prosecution as long as it is done under the dictates of the law.
This
will enable them protect their citizens and ensure public safety without fear
of being sanctioned by the United Nations. It also gives them confidence that
even when they are under attack by a group or bigger state, they know that the
United Nations Charter has authorized the UN Council to take necessary
steps/approach to prevent a state being domineered by another state
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1 As stated above, a monitory of states would include
humanitarian intervention as a separate exception to the rute of art 2(4). In
addition. Consent is sometimes stated as a separate exception. However, if a
state is using force with the consent of a host state, then there is no
violation of the host state’s territorial integrity or political independence
and therefore no need for an exception to the rule as it is not being violated.
2 Article
23(1) of the UN Charter
3 Article 24
4 Article 25.
5 Art 47
6 Case
concerning Military and paramilitary activities in and against Nicaragua,
ICJ Reports 1986, 14 et. seq(103,para.195)
7 C. Grey,
International law and the use of force, 2000,86-87.
8 Nicaragna
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9 B. simma
(ed), the charter of the United Nation: a commentary, 1995, 677.
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case, see note 5, 104 para 195.
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12 Case no.
IT-96-21-T;Judgement 16 Nov. 1998