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.

Title page…………………………………………………………                i
Table of content………………………………………………….                 ii
Abstract…………………………………………………………..                iii
1.1  Use of force by states…………………………………….                     1
2.1       Actions authorized by the UN Security Council………                    3
2.2       Self Defence under Article 51 of the UN Charter…….                    6
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 5:                        Conclusion and Recommendation…….         15
Bibliography………………………………………………………        16


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.
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

            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.
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.

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.

            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

Dupuy, P-M. “The Constitutional Dimension of the Charter of the United Nations Revisited”. Max Planck UNYB (1997), pp21.

Defences in International Criminal Law by Elies Van Sliedregt. of force by states and crimes Against Humanity © 2005 Gale Cengage.
Krisch, Nico and Frowein. The Charter of the United Nations. A Commentary New York, NY:CH.Beck Verlay 2002
Morgen Thau, H. Politics Among Nations (1948). P. 380.
The true challenge to the United Nations system of the use of Force: The Failure of Kosovo and Iraq and the Emergence of the African Union. Max Planck UNYB 8 (2004) by Jean Allain.

West urges CAP. 7 UN Actions on Syria After Bomb by Reuters 07/15/2012.16:47. Article. Aspx/id = 277958.

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 case, see notes 5 (94, Para.176); and Legality of the Threat or use of Nuclear Weapons, ICT Reports 1996, 220 et seqs (245) para.41
9 B. simma (ed), the charter of the United Nation: a commentary, 1995, 677.
10 Nicaregua case, see note 5, 104 para 195.
10 1949 Law Reports of the trials of the war criminals 11:1
11 1948 Law Reports of the Trials of the war criminals 4:411
12 (1948( Trials of the war criminals. 9: 1438.
13 (1948). Law reports of the Trials of the War Criminals 4:411.
12 Case no. IT-96-21-T;Judgement 16 Nov. 1998
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