Author:- “law of war” refers to two rules,

Author:-  Mohit
Kumar

Title of the Paper:- “Use of Force Against
ISIS”

Roll No.:- 14252197

Subject:- Law of International
Organization and Human Rights

Course- LL.M. (3YR)

Year of Study- First
Year

Contact No.:- 9999474586

E-mail- [email protected]

 

Introduction

 

The purpose of this
study is to give a clear understanding of the international law that governed
the use of force by the states for self defense. These rules are challenged with
the emergence Non-State Actors and there was a dispute as to whether the
rules/laws should be modified or redefined.

 

In its Resolution in
September 2005, the UN General Assembly said that the relevant provisions of
the UN Charter are adequate to counter the full range of threats to
international peace and security but the resolution does not say that when it
is 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 is
important that there should be clarity in relation to the rules of use of force
by the states in International Relation.

 

The
use of force

 

The term “law of
war” refers to two rules, First one governs
the use of force and the Second one governs
the effective conduct of force in international law.

 

The rules governing the
use of force form a central element of international law. These norms, as well
as other principles such as territorial sovereignty, independence and equality
of states, constitute the framework of international order. While a national
(domestic) system prescribes a monopoly on the use of force by a state, to
allow the state to maintain its authority and maintain control over its
territory, and on the other hand international law seeks to minimize it and
regulate it in international sphere to preserve and maintain peace and security
in the global community.

 

The position of
international law over the use of force by states has not been the same in
history.

 

Rules
related to Use of Force before 1945: –

 

Earlier in the world,
war was conducted for various reasons and causes without distinction and was
carried out without limits or control. The distinction between “Just War” and
“Unjust War” was there in Christianity The doctrine of “Jus War” was
based on the conviction that force could be used if it conformed to divine
will. The right war should be used as the last sanction for the maintenance of
an orderly society. The use of force must be strictly controlled. St. Thomas Aquinas in the thirteenth
century made a new step in the definition of a just war, stating that war could
be justified on condition that it was directed by sovereign authority,
accompanied by a just mandate.

 

The teachings of
Christianity on the distinction between Just War and Unjust War have been
adopted by the classical authors such as Alberico
Gentili (1552-1608) and his successor Hugo
Grotius (1583-1645). However, all of these authors adopted a different
approach on this subject in the light of the emergence of European nation
states and ultimately changed the doctrine of the Just War. Therefore, the
doctrine of the Just War could not be objectively applied to determine whether
a war was just or not. Eventually, in the eighteenth century, the distinction
was abandoned.

 

In the nineteenth
century, the war in the practice of the European States often represented as
the last resort, as a means of settling disputes. It had to be justified if it
had fought for the defense of certain vital interests. Each state remains the
sole judge of its vital interests. Vital interests were a source of political
justifications and apologies used for propaganda purposes, not as a legal
criterion for the legitimacy of the war.

 

International jurists
of the nineteenth century abandoned the emphasis on the legality of war and
focused 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 in
general in order to minimize the use of war or at least limit its application
with some legal consequences.

 

The suffering of the
World War- I, has brought about a revolutionary change in attitudes towards
war. The doctrine of Just War was re-affirmed. The League of Nations, while not
forbidding the use of war absolutely, introduced a different attitude to the
subject of war in international law than existed before. The General Treaty for
the Renunciation of War 1928 (known Briand-Kellogg Pact or Paris Pact) also
adopted to totally prohibit the use of force. This multilateral treaty condemns
the use of war to resolve international conflicts and bind the state to settle their
disputes or conflicts solely by peaceful means.

 

Use
of force under the Charter of the United Nations:-

 

The Charter of the
United Nations makes a fundamental distinction between the legal and illegal
use of force. With this, in a sense, the old distinction between Just and
Unjust War has been resurrected/re-affirmed in international law. It also goes
beyond the position of classical international law towards the use of force.
While classic international law does not limit the right of States to use force
and go to war, the Charter of the United Nations establishes measures to
control the use of force, on the one hand it prohibits the use of force, and on
the other hand, it allows the use of force in exceptional cases.

 

A.
The prohibition of the use of force: –

 

The preamble to the UN
Charter begins with the determination of the peoples of the United Nations to
preserve succeeding generations from the scourge of war and their desire to
practice tolerance and live in peace with others, as good neighbors and without
using armed force unless it is not in the common interest.

 

Article 2(4) of the UN
Charter:

“All
members must refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state,
or any other manner incompatible with the purposes of the United Nations.”

 

This article
establishes the principle of the use of force in international law by requiring
the Members States of the United Nations the fundamental obligation to avoid
the threat or use of force in their international relations. The provision of
this article is universally valid and it is considered as a principle of
customary international law.

 

The 1970 Declaration on
the Principles of International Law states that the threat or use of force is a
violation of international law and the Charter of the United Nations and should
not be used as a means to resolve international conflicts. Each State must
refrain/abstain from organizing, instigating, assisting or participating within
its territory in spreading the acts of terrorism in another state, or allowing
activities organized in its territory to begin such acts.

 

 

B.
Exceptions to the prohibition of the use of force:

There are certain exceptions
to the Prohibition of the Use of Force as provided in UN Charter and General
Assemble Resolutions:-

I.                  
Use of force in the
exercise of the right of individual or collective self-defense U/a 51 of the UN
Charter.

II.              
Use of force with the authorization
of the Security Council under Chapter VII of the UN Charter.

III.           
Use of force on the
recommendation of the General Assembly as provided in Resolution “Unity for
Peace” in 1950.

IV.           
Authorizes persons
deprived of power to exercise the right to self-determination, or under
colonial rule, to try to achieve their objectives in self-determination and
independence provided by 1974 General Assembly Resolution.

 

(1)
The right to self-defense: – Article 51 of the Charter of the United Nations
establishes:

 

“Nothing in this
Charter shall undermine the intrinsic right of individual or collective
self-defense if an armed attack occurs against a Member State of the United
Nations until the Security Council has taken the necessary measures to maintain
international peace and security.” It indicates that this right is
reserved insofar as it is qualified in it and in other parts of the UN Charter.

 

There are two
contrasting interpretations of the right of self-defense enunciated in Article
51 of the UN Charter, namely, the restrictive view and the broad view.

The
restrictive view:- It indicates that all use of force is illegal,
except when it is exercised as a right of self-defense if an armed attack
occurs. This right is not available against an action that does not constitute
an armed attack, regardless of the nature and scope of such attacks. In
addition, this also implies that preventive self-defense is not allowed U/a 51
of the UN Charter. The argument in favor of this view is that the principle of
effectiveness requires a restrictive interpretation of Article 51.

 

The
broader view:- It indicates that the use of force in self-defense is
excluded from the purview/ambit of the Article 2 (4). The right to
self-defense, which existed as a natural and intrinsic right in the customary
international law, goes beyond the specific provisions of Article 51. The right
to self-defense is allowed against an armed attack and any other hostile action
that is not an armed attack. This implies that preventive self-defense is allowed
U/a 51.

 

Regardless of the
opinion of self-defense, it is well known that the exercise of this right in customary
international law has three fundamental legal requirements:

·       
The use of peaceful
procedures, if available.

·       
Necessity.

·       
Proportionality.

These three requirements
are the fundamental elements that must be respected in customary international
law to legitimately invoke the right of self-defense against illegally launched
force.

 

(2)
Use of force with the approval of the Security Council: –

 

The second exception to
the principle of prohibition of the use of force in international spheres is
established U/a 42 of Chapter VII of the UN Charter. Article 42 states that “the
Security Council can take military action by air, sea or land, as necessary and
adequate to maintain or restore international peace and security these actions
includes demonstrations and blockades etc”. This means that only the Security
Council has the power to order or authorize the use of force in international
sphere, however, the Council is required to follow the prescribed procedures as
provided in Chapter VII of the UN Charter.

 

(3)
Use of Force in a recommendation of the General Assembly: –

 

The resolution “Uniting
for Peace”  has adopted by General
Assembly in 1950, it grants them the capacity to maintain international peace
and security in addition to Security Council. This resolution provides that the
General Assembly can make recommendations on everything which the Security
Council can do under Chapter VII. The Assembly may make appropriate
recommendations to members for collective action, including the use of armed
forces, if the Security Council fails to take any step.

 

(4)
Use of force by the peoples for self-determination and independence:-

 

Article 7 of the
General Assembly Resolution of 1974 “On the Definition of Aggression” guarantees
to the disadvantaged peoples their right to self-determination, freedom and
independence, especially people under colonial and racist regimes or other
forms of foreign domination, the right to fight for self-determination, freedom
and independence. This implies that these people can use armed force in their
struggle.

 

 

How
the war against IS changed the international law on the use of force.

 

Brief
history of events:-

 

In 2014, a terrorist
group Islamic State (ISIS) occupied more than 30% of Syria and Iraq, including
oil fields and refineries, banks and antiques, tanks and weapons, and threatened
the peace and security of the Middle East. With the help of some Western and
Arab countries, the United States launched an invasion (Operation Inherent Resolve)
on ISIS in Iraq and Syria, to overthrow ISIS. When Iraq consented to the attacks
on its territory, the Syrian Government opposed the attack on its territory and
argued that it was an inappropriate violation of international law.

 

According to
international law, a state can use military force in the territory of the other
state in three situations:

I.                  
With that country’s consent.

II.              
With the authority of
the Security Council.

III.           
When acting in self defense
against an armed attack.

 

The use of force in
Iraq is in line with the principles of international law, but the use of force
in Syria is not in accordance with the law. Except the Russian intervention as
it was authorized by the Syrian government

 

The United States and
its 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 of
Hot Pursuit and finally the Collective Self-Defence on behalf of Iraq. President
Obama authorized the attack on ISIS: “When we have the unique ability to
stop the massacre, then the United States can not close its eyes.”

 

The whole scenario has
been changed after ISIS has bombarded a Russian airplane and killing around 224
passengers and attack in a Concert in Paris killing around 130 people, in
response to these atrocities, the Security Council unanimously adopted a
“Resolution 2249”, announcing that ISIS is a threat to international peace and
security and has called for the measures to eliminate safe havens established by
ISIS in Syria.

 

 

The
changing law of self-defense against non-state actors:-

 

The Syrian government
has shown that it can not and does not effectively address/eliminate these safe
haven of ISIS. As a result, the United States has launched necessary and
proportionate military actions in Syria to eliminate the threat of ISIS in
Iraq, protecting Iraqi citizens from further attacks and allow Iraqi forces to
resume control of the Iraqi border.

 

The United States has
argued that it can attack ISIS targets in Syria without the consent of Syria
because:

I.                  
ISIS threatens Iraq.

II.              
Iraq has sought help
from the United States.

III.           
ISIS has secured safe
havens in Syria.

IV.           
The Syrian government
was unable to deal effectively with ISIS.

 

United States in
particular has not argued that the Syrian Government effectively control ISIS,
and its argument is in derogation of customary law as maintained in Nicaragua
case that “the victim state may not use force in response to attacks by
non-state actors, unless these actors have actually been controlled by that
state. ”

 

Use
of force against Non-State Actors before 9/11: –

 

Article 2 (4) R/w
Article 51 of the UN Charter prohibits the use of force at international level
on one hand, and allow it on the other hand in some exceptional circumstances as
in the event of an armed attack. But the problem is that the whole charter nowhere
defines 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 trigger
the right to use force in self-defence”. In addition, the ICJ also expressed
the view that small-scale attacks may in aggregate constitute an armed attack. The
ICJ has ruled the doctrine of state attribution, that unless the actions of
non-state actors are attributable to territorial states, the use of force
against non-state actors in that state is illegal and contrary to customary
international law. The use of self-defense force against that State may collide
with other principles of international law such as the sovereignty of States
and the prohibition on the use of force in international law. In addition to
this ICJ held in the Oil Platforms Case, The Congo Case and the Wall Case that
the use of force against Non-State Actors whose conduct is not attributable to
the State would itself constitute and unlawful armed attack.

 

New
emerging trends in the use of force after 9/11:

 

The emergence of the
Non-State Actors is new kind of threat to the peace and security of the World
as these Non-State Actors have no limits and they are capable of destroying any
place in the world with the assistance of latest technology. These Non-State
Actors 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 a
state has the capacity to carry out an armed attack against another state, to
grant the right to use force to defend itself. Because these new entities have many
of the attributes of state such as wealth, voluntary forces, training and
potential access to weapons of mass destruction and if these entities commit a
series of attacks against a State and the acts are sufficient to constitute an
armed attack, then the use of force in self-defense must be allowed against
those who pose a constant threat. Many countries have accepted this idea and
have affirmed the United States’ agenda against Al Qaeda. In accordance with these
developments, the Security Council adopted Resolution 1368, which condemned the
attacks of 9/11 and recognized the natural right of self-defense (individual or
collective). It is a confirmation that the United States could have the right
to respond with the use of force for against the Al Qaeda despite the fact that
it was a non-state actor, other countries with words and actions expressed
support for the operation. It clearly a radical departure from the Nicaragua
verdict and the new tendency was based on the verdict of Corfu Channel Case “that
any state does not knowingly allow its territory to be used for acts contrary
to the rights of other states”. The Security Councils’ Resolution 1373 has also
confirmed this development in International Law. It establishes the right to
self-defense against Non-State Actors and at the same time prohibits the state
to allow its territory to be used as a refuge by the Non-State Actors.

 

Some Academics and some
members of the ICJ have pointed out that the ICJ was in contradiction with
customary international law on self-defense, the Caroline case, confirmed the
preventive self-defense and consider it legal against non-state actors whose
conduct was not attributable to a state. In The Wall case, Judge Higgins said
that “there is nothing in the text of Article 51 that establishes that
self-defense is only available when a state arms an armed attack.” In Congo
case, Judge Koojimans said “it is not reasonable to deny that the right to
self-defense is not available just because there was no attacker state.”
Judge Simma in the Congo stated that “Security Council resolutions 1368
and 1373 can only be read as statements of opinion that large-scale attacks by
non-state actors can be considered armed attacks under Article 51”.

 

Though the law had not been
clearly established on the eve of the US attack on ISIS in Syria in 2014, but
this event provided the final push to crystallize the new self-defense rule.

 

 

Validity
to the new emerging trend: –

 

The Security Council
unanimously approved Resolution 2249 after the bombing by ISIS on Russian
Jetliner and attacks on stadium and in concert in Paris in the late 2015, the
resolution states that “ISIS is a global threat for international peace
and security and has called for all necessary measures to eradicate the safe
harbor established in Syria.” The attacks of 31.10.2015 and 13.11.2015
marked a turning point. These attacks have shown that ISIS is the richest and
technologically advanced terrorist group in the world, and no longer limits its
territorial acquisition goals in Syria and Iraq, but has adopted the model of
another terrorist group that focuses on addressing vulnerable targets all
around the world.

 

Conclusion:

 

In this paper I have examined
whether the use of force against ISIS has changed the international law and
establishes a new international customary law by recognizing the Right of Use
of Force against the Non-State Actors in the territory of the host state. In
general, customary international law requires many decades to crystallize. But
in this context, 14 years would be almost instantaneous, as in the cases of the
establishment of Nuremberg Tribunal and the Yugoslavia Tribunal.

 

These Non-State Actors
are seen as a new type of threat, where a non-state actor has many of the
attributes of a state: enormous wealth, sophisticated training and
organization, and access to destructive weapons. To respond to the fundamental
change presented by these new entities, the United States has argued that it is
now possible and also lawful to attack such non-state actors when they are
present in a state that can not or will not stop them (Unable or Unwilling). In
light of the invasion of the Afghanistan in 2001 for the reduction of Al Qaeda
and no major protests against the drone attacks against the leaders of Al Qaeda
in Pakistan, Somalia, Iraq and Yemen, the International Law seemed to be moving
rapidly towards the adoption of the principle of “Unable and Unwilling”
in “Self-Defense”.

 

This right is subject
to several limitations that prevent the possibility of abuse:-

I.                  
The individual or
aggregate actions of non-state actors must be equivalent to an armed attack to
activate the right to use of force in self-defense.

II.              
The use of force must
be directed against non-state actors only, not against the state or its armed
forces, unless the state has effective control over non-state actors.

III.           
Military actions must
respect the principles of necessity and proportionality.

 

Other limitations are
likely to develop in the future according to the international response to invocation
and application of this the new rule.