Use of Force Short of War | Judicial and Arbitral Settlement | PUBLIC INTERNATIONAL LAW

Use of Force Short of War under International Law

In the realm of Public International Law, the issue of "Use of Force Short of War" pertains to state actions that involve the application of force but do not rise to the level of full-scale armed conflict or war. This issue is governed by both customary international law and treaty law, particularly under the framework of the United Nations Charter, various conventions, and judicial decisions by international courts.

Legal Framework Governing the Use of Force Short of War

1. United Nations Charter (1945)

   • The most significant legal instrument regarding the use of force is the UN Charter, which lays out the principles for state conduct in relation to the use of force.

     • Article 2(4): The foundational principle prohibiting the use of force states that:

       "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 clause establishes the general prohibition on the use of force in international relations but has certain exceptions, as discussed below.

2. Exceptions to the Prohibition on the Use of Force

   Under customary and conventional international law, there are limited exceptions to the prohibition on the use of force. These exceptions may allow states to engage in actions that involve force but fall short of an armed conflict.

   a. Self-defense (Article 51 of the UN Charter)

   • The right of self-defense is an exception to the prohibition under Article 2(4). Article 51 provides that:

     "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense 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."

   The invocation of self-defense may include not only armed force in response to an armed attack but also pre-emptive actions, depending on how self-defense is interpreted by the state invoking it. However, this right is conditioned by the requirement that the force used must be necessary and proportionate to the threat faced.

   • Preemptive or anticipatory self-defense: There is ongoing debate about whether states can engage in preemptive self-defense against an imminent threat, particularly where an armed attack has not yet occurred. Although not universally accepted, certain state practices and judicial decisions (such as in the Nicaragua case before the International Court of Justice) provide some recognition for preemptive actions, though this remains controversial.

   • Collective self-defense: States may also intervene to assist an ally or another state under attack, provided there is an express request for assistance.

   b. Use of Force Authorized by the UN Security Council (Chapter VII of the UN Charter)

   • The UN Security Council, under Chapter VII of the Charter, is empowered to determine the existence of any threat to peace, breach of the peace, or act of aggression. It may then take measures to restore international peace and security, which could include authorizing the use of force.
     • Article 42: If the Security Council considers measures not involving the use of armed force to be inadequate, it may take action by air, sea, or land forces as necessary to maintain or restore international peace and security.

   c. Humanitarian Intervention and the Responsibility to Protect (R2P)

   • Humanitarian intervention refers to the use of force by a state or group of states to prevent large-scale human rights violations, such as genocide, ethnic cleansing, or crimes against humanity. This doctrine is not explicitly provided for under the UN Charter and remains controversial due to concerns about abuse and violations of sovereignty.

   • The Responsibility to Protect (R2P), a more recent development in international law, emerged from the 2005 World Summit. Under R2P, the international community has the responsibility to intervene when a state is unable or unwilling to protect its population from mass atrocities. However, any use of force under R2P must still be authorized by the UN Security Council.

Use of Force Short of Armed Conflict (Gray Areas)

In modern international relations, states have resorted to actions that involve the use of force but do not amount to war or armed conflict. These gray areas include:

1. Non-Military Coercive Measures

   • States often engage in non-military actions that exert pressure on other states to achieve political or strategic objectives. These actions, while involving force, do not meet the threshold of armed conflict. Examples include:
     • Economic blockades: Although economic blockades do not involve military force, they can cause significant damage to the target state and raise issues under international law, particularly if they target civilian populations.
     • Cyberattacks: Cyber operations that disrupt infrastructure or military systems may be seen as acts of force under international law, but whether they constitute a "use of force" remains debated. States have increasingly resorted to cyberattacks, recognizing their capacity to harm without physical destruction.

2. Use of Force Below the Threshold of Armed Attack

   • The International Court of Justice (ICJ), in the Nicaragua v. United States case (1986), distinguished between uses of force that constitute an "armed attack" and those that fall short. Lesser uses of force (such as small-scale incursions, cross-border skirmishes, or certain types of support for rebel groups) do not trigger the right of self-defense but may still violate Article 2(4) of the UN Charter.
   • In its jurisprudence, the ICJ has emphasized that not every breach of sovereignty or territorial integrity constitutes an armed attack under Article 51. For example, mere border violations or indirect forms of force may not necessarily justify self-defense.

3. Proportional Responses

   • Reprisals: These are acts of force taken in retaliation for another state's unlawful conduct. Traditionally, reprisals were considered lawful, but under modern international law, armed reprisals are generally prohibited. Nevertheless, there remains some ambiguity regarding the use of force as a reprisal, particularly if it is deemed necessary and proportionate to counter an ongoing violation.

4. Use of Force in Territorial Disputes

   • In certain situations, states may use limited force to assert territorial claims, especially in disputed territories. While such use of force generally falls short of war, it raises complex issues of legality under international law. Examples include maritime confrontations over islands or natural resources.
   • States have sometimes engaged in limited military actions to protect their claims or interests in disputed regions without resorting to full-scale war. However, such actions may still be seen as violations of the prohibition on the use of force under Article 2(4), depending on the context and the extent of the force used.

Judicial and Arbitral Settlement of Use of Force Short of War

International courts and arbitral bodies play a key role in determining whether the use of force by states conforms to international law. The International Court of Justice (ICJ), in particular, has been involved in resolving disputes relating to the use of force short of war, such as:

1. Nicaragua v. United States (1986)

   • In this landmark case, the ICJ ruled that the United States' support for the Contras in Nicaragua and its mining of Nicaraguan harbors constituted a violation of international law. The Court held that the use of force, even if short of war, must still comply with Article 2(4) of the UN Charter.
   • The ICJ made an important distinction between use of force and armed attack, holding that not every instance of the use of force justifies the right to self-defense.

2. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004)

   • The ICJ gave an advisory opinion that considered the legality of Israel's construction of a wall in the Occupied Palestinian Territories. While the Court did not address the use of force directly, it touched on issues relating to the rights of states to protect themselves and the limits of actions that fall short of war but involve coercive measures.

3. Congo v. Uganda (2005)

   • In this case, the ICJ addressed the legality of Uganda's military intervention in the Democratic Republic of Congo. The Court found that Uganda had violated the prohibition on the use of force under Article 2(4) by conducting military operations in Congo without consent or a legitimate self-defense claim, even though it did not amount to full-scale war.

Conclusion

The "Use of Force Short of War" under Public International Law remains a complex and evolving area, characterized by the balance between state sovereignty, the prohibition on the use of force, and the right to self-defense. While the UN Charter lays down a general prohibition on force, states have navigated the gray areas of coercive measures, limited interventions, and reprisals to further their political objectives. International courts and arbitral tribunals play a critical role in clarifying the limits of permissible force and ensuring that state actions adhere to the established principles of international law.