#14983 - Use Of Force - Public International Law

The SC has primary responsibility for enforcement action to deal with breaches of the peace, threats to the peace or acts of aggression (Art 24 UN Charter). The aims of the drafters of the UN Charter was not only to prohibit the unilateral use of force by states in Art 2(4) but also to centralize control of the use of force in the Security Council under Chapter VII.

In authorizing the use of force under Chapter VII, the SC acts on behalf of the Members who agree to accept and carry out the decisions of the SC (Arts 25 and 48); further, binding decisions of the SC, being obligations under the Charter, prevail over obligations contained in any other agreement (Art 103) though presumably not over peremptory norms. Thus the SC could not direct a Member to commit or permit the occurrence of genocide (Genocide Convention).

Individual member states have the right to individual or collective self-defence, but only ‘until the Security Council has taken measures necessary to maintain international peace and security’. (Art 51)

Art 39 functions as the gateway to Chapter VII: before taking action, the Council must first determine the existence of a threat to or breach of the peace, or an act of aggression.

The tribunal in Tadic noted that declaration of a threat entails a factual and political judgment, not a legal one.

Severe interstate violence, serious violations of human rights and humanitarian law and terrorism have been designated as threats to the peace.

The concept has been further expanded to include not only situations in which the use of armed force appears imminent but those where factors subsist that may lead to the use of force. In 1992, the President of the Security Council stated that non-military sources of instability in the economic, social, humanitarian and ecological fields have become ‘threats to peace and security’, though the Security Council has yet to expressly utilize this ‘expanded’ mandate

Typically relates to hostility between the armed units of two states.

Art 1 of GA Resolution 3314 (‘Definition of Aggression’) defines ‘aggression’ broadly as:

Art 2 of the Resolution provides that:

Art 3 lists a series of acts considered instances of aggression.

Noteworthy is the final paragraph, which covers:

The phrase ‘or its substantial involvement therein’ indicates that the formulation extends to the provision of logistical support.

Following an Art 39 determination, the SC may decide that provisional (Art 40), non-forcible (Art 41), or forcible (Art 42) measures shall be taken to maintain or restore international peace or security.

Before making recommendations or deciding on measures under Art 39 the Security Council may order the imposition of provisional measures under Art 40.

Provisional measures leave unaffected the legal position of parties to the dispute. Thus the Security Council could not call on a Member to acknowledge its own breach of Art 2(4) or its violation of another Member’s territorial sovereignty. It can, however, call on Members to observe a ceasefire or withdraw troops from certain areas.

Measures under Art 40 can be binding on Members. The binding character of the measure will be predicated on the use of mandatory wording in the resolution, e.g. ‘orders’, ‘demands’ or ‘decides’ versus ‘calls for’ or ‘appeals’.

Generally, the resolutions passed under Art 41, in response to a violation of a SC requirement, specify the justification for the imposition of the measures and the action needed to secure their termination. But sometimes, it is unclear or controversial exactly what action would be required by the state subject to the Art 41 measures.

For example, the question of terminating the comprehensive sanctions against Iraq, in place since Resolution 661, led to divisions between members of the SC. The ceasefire Resolution 687 required the destruction of Iraq’s chemical, biological and nuclear weapons and long-range ballistic missiles and an undertaking by Iraq not to develop any such weapons in the future; when this was achieved the SC would lift the sanctions imposed in Resolution 661. Iraq repeatedly claimed to have complied with its disarmament obligations and was repeatedly found by the UN inspection team to have been concealing its weapons.

Nevertheless certain members of the SC were ready to consider lifting the sanctions. The humanitarian situation in Iraq posed a serious moral dilemma for the UN. The UN was accused of causing suffering to an entire population. Eventually, the USA and others turned to force in Operation Iraqi Freedom, rather than continue to rely on sanctions as a means of securing disarmament.

The increasing use of sanctions after the end of the Cold War intensified concern over effectiveness, humanitarian considerations of the impact of the measures on the population of the target state and the economic impact on neighbouring states. The Sec-Gen, in his Supplement to the Agenda for Peace, wrote of the difficulties of determining the objectives of Art 41 measures, of monitoring and of avoiding unintended effects. He described sanctions as a blunt instrument that may harm vulnerable groups, interfere with the work of humanitarian agencies, and conflict with the development objectives of a state. They may be counter-productive in that they may provoke a patriotic response as opposed to a rejection of those whose behaviour led to the imposition of sanctions.

The measures imposed on Iraq in 1990 prompted a reappraisal of SC sanctions. The SC shifted away from comprehensive sanctions to ‘smart’ or ‘targeted’...