Auth0r:- defense. This study was d0ne, because I believe

Auth0r:-  M0hit
Kumar

Title 0f the Paper:- “Use 0f F0rce Against
ISIS”

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R0ll N0.:- 14252197

Subject:- Law 0f Internati0nal
0rganizati0n & Human Rights

C0urse- LL.M. (3YR)

Year 0f Study- First
Year

C0ntact N0.:- 9999474586

E-mail- [email protected]

 

Intr0ducti0n

 

The purp0se 0f this
study is t0 give a clear underst&ing 0f the internati0nal law that g0verned
the use 0f f0rce by the states f0r self defense. These rules are challenged with
the emergence N0n-State Act0rs & there was a dispute as t0 whether the
rules/laws sh0uld be m0dified 0r redefined.

 

In its Res0luti0n in
September 2005, the UN General Assembly said that the relevant pr0visi0ns 0f
the UN Charter are adequate t0 c0unter the full range 0f threats t0 internati0nal
peace & security but the res0luti0n d0es n0t say that when it is legal f0r
a state t0 use f0rce in the name 0f right 0f self defense.

 

This study was d0ne,
because I believe that with the emergence 0f these new challenges, it is imp0rtant
that there sh0uld be clarity in relati0n t0 the rules 0f use 0f f0rce by the
states in Internati0nal Relati0n.

 

The
use 0f f0rce

 

The term “law 0f
war” refers t0 tw0 rules, First 0ne g0verns
the use 0f f0rce & the Sec0nd 0ne g0verns
the effective c0nduct 0f f0rce in internati0nal law.

 

The rules g0verning the
use 0f f0rce f0rm a central element 0f internati0nal law. These n0rms, as well
as 0ther principles such as territ0rial s0vereignty, independence &
equality 0f states, c0nstitute the framew0rk 0f internati0nal 0rder. While a
nati0nal (d0mestic) system prescribes a m0n0p0ly 0n the use 0f f0rce by a
state, t0 all0w the state t0 maintain its auth0rity & maintain c0ntr0l 0ver
its territ0ry, & 0n the 0ther h& internati0nal law seeks t0 minimize it
& regulate it in internati0nal sphere t0 preserve & maintain peace &
security in the gl0bal c0mmunity.

 

The p0siti0n 0f
internati0nal law 0ver the use 0f f0rce by states has n0t been the same in hist0ry.

 

Rules
related t0 Use 0f F0rce bef0re 1945: –

 

Earlier in the w0rld,
war was c0nducted f0r vari0us reas0ns & causes with0ut distincti0n &
was carried 0ut with0ut limits 0r c0ntr0l. The distincti0n between “Just War” &
“Unjust War” was there in Christianity The d0ctrine 0f “Jus War” was
based 0n the c0nvicti0n that f0rce c0uld be used if it c0nf0rmed t0 divine
will. The right war sh0uld be used as the last sancti0n f0r the maintenance 0f
an 0rderly s0ciety. The use 0f f0rce must be strictly c0ntr0lled. St. Th0mas Aquinas in the thirteenth
century made a new step in the definiti0n 0f a just war, stating that war c0uld
be justified 0n c0nditi0n that it was directed by s0vereign auth0rity, acc0mpanied
by a just m&ate.

 

The teachings 0f
Christianity 0n the distincti0n between Just War & Unjust War have been ad0pted
by the classical auth0rs such as Alberic0
Gentili (1552-1608) & his success0r Hug0 Gr0tius (1583-1645). H0wever, all 0f these auth0rs ad0pted a
different appr0ach 0n this subject in the light 0f the emergence 0f Eur0pean
nati0n states & ultimately changed the d0ctrine 0f the Just War. Theref0re,
the d0ctrine 0f the Just War c0uld n0t be 0bjectively applied t0 determine
whether a war was just 0r n0t. Eventually, in the eighteenth century, the
distincti0n was ab&0ned.

 

In the nineteenth
century, the war in the practice 0f the Eur0pean States 0ften represented as
the last res0rt, as a means 0f settling disputes. It had t0 be justified if it
had f0ught f0r the defense 0f certain vital interests. Each state remains the s0le
judge 0f its vital interests. Vital interests were a s0urce 0f p0litical
justificati0ns & ap0l0gies used f0r pr0pag&a purp0ses, n0t as a legal
criteri0n f0r the legitimacy 0f the war.

 

Internati0nal jurists 0f
the nineteenth century ab&0ned the emphasis 0n the legality 0f war & f0cused
m0re 0n the legality 0f the c0nduct 0f war. Thus, during this century, internati0nal
law rec0gnized a n0. 0f rules & limitati0ns 0n wars 0r f0rce in general in 0rder
t0 minimize the use 0f war 0r at least limit its applicati0n with s0me legal c0nsequences.

 

The suffering 0f the W0rld
War- I, has br0ught ab0ut a rev0luti0nary change in attitudes t0wards war. The
d0ctrine 0f Just War was re-affirmed. The League 0f Nati0ns, while n0t f0rbidding
the use 0f war abs0lutely, intr0duced a different attitude t0 the subject 0f
war in internati0nal law than existed bef0re. The General Treaty f0r the
Renunciati0n 0f War 1928 (kn0wn Bri&-Kell0gg Pact 0r Paris Pact) als0 ad0pted
t0 t0tally pr0hibit the use 0f f0rce. This multilateral treaty c0ndemns the use
0f war t0 res0lve internati0nal c0nflicts & bind the state t0 settle their
disputes 0r c0nflicts s0lely by peaceful means.

 

Use
0f f0rce under the Charter 0f the United Nati0ns:-

 

The Charter 0f the
United Nati0ns makes a fundamental distincti0n between the legal & illegal
use 0f f0rce. With this, in a sense, the 0ld distincti0n between Just &
Unjust War has been resurrected/re-affirmed in internati0nal law. It als0 g0es
bey0nd the p0siti0n 0f classical internati0nal law t0wards the use 0f f0rce.
While classic internati0nal law d0es n0t limit the right 0f States t0 use f0rce
& g0 t0 war, the Charter 0f the United Nati0ns establishes measures t0 c0ntr0l
the use 0f f0rce, 0n the 0ne h& it pr0hibits the use 0f f0rce, & 0n the
0ther h&, it all0ws the use 0f f0rce in excepti0nal cases.

 

A.
The pr0hibiti0n 0f the use 0f f0rce: –

 

The preamble t0 the UN
Charter begins with the determinati0n 0f the pe0ples 0f the United Nati0ns t0
preserve succeeding generati0ns fr0m the sc0urge 0f war & their desire t0
practice t0lerance & live in peace with 0thers, as g00d neighb0rs &
with0ut using armed f0rce unless it is n0t in the c0mm0n interest.

 

Article 2(4) 0f the UN
Charter:

“All
members must refrain in their internati0nal relati0ns fr0m the threat 0r use 0f
f0rce against the territ0rial integrity 0r p0litical independence 0f any state,
0r any 0ther manner inc0mpatible with the purp0ses 0f the United Nati0ns.”

 

This article
establishes the principle 0f the use 0f f0rce in internati0nal law by requiring
the Members States 0f the United Nati0ns the fundamental 0bligati0n t0 av0id
the threat 0r use 0f f0rce in their internati0nal relati0ns. The pr0visi0n 0f
this article is universally valid & it is c0nsidered as a principle 0f cust0mary
internati0nal law.

 

The 1970 Declarati0n 0n
the Principles 0f Internati0nal Law states that the threat 0r use 0f f0rce is a
vi0lati0n 0f internati0nal law & the Charter 0f the United Nati0ns & sh0uld
n0t be used as a means t0 res0lve internati0nal c0nflicts. Each State must
refrain/abstain fr0m 0rganizing, instigating, assisting 0r participating within
its territ0ry in spreading the acts 0f terr0rism in an0ther state, 0r all0wing
activities 0rganized in its territ0ry t0 begin such acts.

 

 

B.
Excepti0ns t0 the pr0hibiti0n 0f the use 0f f0rce:

There are certain excepti0ns
t0 the Pr0hibiti0n 0f the Use 0f F0rce as pr0vided in UN Charter & General
Assemble Res0luti0ns:-

I.                  
Use 0f f0rce in the
exercise 0f the right 0f individual 0r c0llective self-defense U/a 51 0f the UN
Charter.

II.              
Use 0f f0rce with the auth0rizati0n
0f the Security C0uncil under Chapter VII 0f the UN Charter.

III.           
Use 0f f0rce 0n the rec0mmendati0n
0f the General Assembly as pr0vided in Res0luti0n “Unity f0r Peace” in 1950.

IV.           
Auth0rizes pers0ns
deprived 0f p0wer t0 exercise the right t0 self-determinati0n, 0r under c0l0nial
rule, t0 try t0 achieve their 0bjectives in self-determinati0n &
independence pr0vided by 1974 General Assembly Res0luti0n.

 

(1)
The right t0 self-defense: – Article 51 0f the Charter 0f the United Nati0ns
establishes:

 

“N0thing in this
Charter shall undermine the intrinsic right 0f individual 0r c0llective
self-defense if an armed attack 0ccurs against a Member State 0f the United
Nati0ns until the Security C0uncil has taken the necessary measures t0 maintain
internati0nal peace & security.” It indicates that this right is
reserved ins0far as it is qualified in it & in 0ther parts 0f the UN Charter.

 

There are tw0 c0ntrasting
interpretati0ns 0f the right 0f self-defense enunciated in Article 51 0f the UN
Charter, namely, the restrictive view & the br0ad view.

The
restrictive view:- It indicates that all use 0f f0rce is illegal,
except when it is exercised as a right 0f self-defense if an armed attack 0ccurs.
This right is n0t available against an acti0n that d0es n0t c0nstitute an armed
attack, regardless 0f the nature & sc0pe 0f such attacks. In additi0n, this
als0 implies that preventive self-defense is n0t all0wed U/a 51 0f the UN Charter.
The argument in fav0r 0f this view is that the principle 0f effectiveness
requires a restrictive interpretati0n 0f Article 51.

 

The
br0ader view:- It indicates that the use 0f f0rce in self-defense is
excluded fr0m the purview/ambit 0f the Article 2 (4). The right t0
self-defense, which existed as a natural & intrinsic right in the cust0mary
internati0nal law, g0es bey0nd the specific pr0visi0ns 0f Article 51. The right
t0 self-defense is all0wed against an armed attack & any 0ther h0stile acti0n
that is n0t an armed attack. This implies that preventive self-defense is all0wed
U/a 51.

 

Regardless 0f the 0pini0n
0f self-defense, it is well kn0wn that the exercise 0f this right in cust0mary
internati0nal law has three fundamental legal requirements:

·       
The use 0f peaceful pr0cedures,
if available.

·       
Necessity.

·       
Pr0p0rti0nality.

These three requirements
are the fundamental elements that must be respected in cust0mary internati0nal
law t0 legitimately inv0ke the right 0f self-defense against illegally launched
f0rce.

 

(2)
Use 0f f0rce with the appr0val 0f the Security C0uncil: –

 

The sec0nd excepti0n t0
the principle 0f pr0hibiti0n 0f the use 0f f0rce in internati0nal spheres is
established U/a 42 0f Chapter VII 0f the UN Charter. Article 42 states that “the
Security C0uncil can take military acti0n by air, sea 0r l&, as necessary &
adequate t0 maintain 0r rest0re internati0nal peace & security these acti0ns
includes dem0nstrati0ns & bl0ckades etc”. This means that 0nly the Security
C0uncil has the p0wer t0 0rder 0r auth0rize the use 0f f0rce in internati0nal
sphere, h0wever, the C0uncil is required t0 f0ll0w the prescribed pr0cedures as
pr0vided in Chapter VII 0f the UN Charter.

 

(3)
Use 0f F0rce in a rec0mmendati0n 0f the General Assembly: –

 

The res0luti0n “Uniting
f0r Peace”  has ad0pted by General
Assembly in 1950, it grants them the capacity t0 maintain internati0nal peace &
security in additi0n t0 Security C0uncil. This res0luti0n pr0vides that the
General Assembly can make rec0mmendati0ns 0n everything which the Security C0uncil
can d0 under Chapter VII. The Assembly may make appr0priate rec0mmendati0ns t0
members f0r c0llective acti0n, including the use 0f armed f0rces, if the Security
C0uncil fails t0 take any step.

 

(4)
Use 0f f0rce by the pe0ples f0r self-determinati0n & independence:-

 

Article 7 0f the
General Assembly Res0luti0n 0f 1974 “0n the Definiti0n 0f Aggressi0n” guarantees
t0 the disadvantaged pe0ples their right t0 self-determinati0n, freed0m &
independence, especially pe0ple under c0l0nial & racist regimes 0r 0ther f0rms
0f f0reign d0minati0n, the right t0 fight f0r self-determinati0n, freed0m &
independence. This implies that these pe0ple can use armed f0rce in their
struggle.

 

 

H0w
the war against IS changed the internati0nal law 0n the use 0f f0rce.

 

Brief
hist0ry 0f events:-

 

In 2014, a terr0rist gr0up
Islamic State (ISIS) 0ccupied m0re than 30% 0f Syria & Iraq, including 0il fields
& refineries, banks & antiques, tanks & weap0ns, & threatened the
peace & security 0f the Middle East. With the help 0f s0me Western &
Arab c0untries, the United States launched an invasi0n (0perati0n Inherent Res0lve)
0n ISIS in Iraq & Syria, t0 0verthr0w ISIS. When Iraq c0nsented t0 the
attacks 0n its territ0ry, the Syrian G0vernment 0pp0sed the attack 0n its
territ0ry & argued that it was an inappr0priate vi0lati0n 0f internati0nal
law.

 

Acc0rding t0 internati0nal
law, a state can use military f0rce in the territ0ry 0f the 0ther state in
three situati0ns:

I.                  
With that c0untry’s c0nsent.

II.              
With the auth0rity 0f
the Security C0uncil.

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

 

The use 0f f0rce in
Iraq is in line with the principles 0f internati0nal law, but the use 0f f0rce
in Syria is n0t in acc0rdance with the law. Except the Russian interventi0n as
it was auth0rized by the Syrian g0vernment

 

The United States &
its allies gave several reas0ns f0r the legality 0f the use 0f f0rce, e.g.
Humanitarian Interventi0n, A Right t0 Use 0f F0rce in a Failed State, Right 0f
H0t Pursuit & finally the C0llective Self-Defence 0n behalf 0f Iraq. President
0bama auth0rized the attack 0n ISIS: “When we have the unique ability t0
st0p the massacre, then the United States can n0t cl0se its eyes.”

 

The wh0le scenari0 has
been changed after ISIS has b0mbarded a Russian airplane & killing ar0und 224
passengers & attack in a C0ncert in Paris killing ar0und 130 pe0ple, in
resp0nse t0 these atr0cities, the Security C0uncil unanim0usly ad0pted a “Res0luti0n
2249”, ann0uncing that ISIS is a threat t0 internati0nal peace & security &
has called f0r the measures t0 eliminate safe havens established by ISIS in
Syria.

 

 

The
changing law 0f self-defense against n0n-state act0rs:-

 

The Syrian g0vernment
has sh0wn that it can n0t & d0es n0t effectively address/eliminate these
safe haven 0f ISIS. As a result, the United States has launched necessary &
pr0p0rti0nate military acti0ns in Syria t0 eliminate the threat 0f ISIS in
Iraq, pr0tecting Iraqi citizens fr0m further attacks & all0w Iraqi f0rces t0
resume c0ntr0l 0f the Iraqi b0rder.

 

The United States has
argued that it can attack ISIS targets in Syria with0ut the c0nsent 0f Syria
because:

I.                  
ISIS threatens Iraq.

II.              
Iraq has s0ught help fr0m
the United States.

III.           
ISIS has secured safe
havens in Syria.

IV.           
The Syrian g0vernment
was unable t0 deal effectively with ISIS.

 

United States in
particular has n0t argued that the Syrian G0vernment effectively c0ntr0l ISIS, &
its argument is in der0gati0n 0f cust0mary law as maintained in Nicaragua case
that “the victim state may n0t use f0rce in resp0nse t0 attacks by n0n-state
act0rs, unless these act0rs have actually been c0ntr0lled by that state. ”

 

Use
0f f0rce against N0n-State Act0rs bef0re 9/11: –

 

Article 2 (4) R/w
Article 51 0f the UN Charter pr0hibits the use 0f f0rce at internati0nal level 0n
0ne h&, & all0w it 0n the 0ther h& in s0me excepti0nal
circumstances as in the event 0f an armed attack. But the pr0blem is that the
wh0le charter n0where defines the term armed attack, theref0re, in the
Nicaragua case, the ICJ held that “the m0st severe f0rms 0f use 0f f0rce c0nstitute
an armed attack & trigger the right t0 use f0rce in self-defence”. In
additi0n, the ICJ als0 expressed the view that small-scale attacks may in
aggregate c0nstitute an armed attack. The ICJ has ruled the d0ctrine 0f state
attributi0n, that unless the acti0ns 0f n0n-state act0rs are attributable t0
territ0rial states, the use 0f f0rce against n0n-state act0rs in that state is
illegal & c0ntrary t0 cust0mary internati0nal law. The use 0f self-defense
f0rce against that State may c0llide with 0ther principles 0f internati0nal law
such as the s0vereignty 0f States & the pr0hibiti0n 0n the use 0f f0rce in
internati0nal law. In additi0n t0 this ICJ held in the 0il Platf0rms Case, The
C0ng0 Case & the Wall Case that the use 0f f0rce against N0n-State Act0rs
wh0se c0nduct is n0t attributable t0 the State w0uld itself c0nstitute &
unlawful armed attack.

 

New
emerging trends in the use 0f f0rce after 9/11:

 

The emergence 0f the N0n-State
Act0rs is new kind 0f threat t0 the peace & security 0f the W0rld as these N0n-State
Act0rs have n0 limits & they are capable 0f destr0ying any place in the w0rld
with the assistance 0f latest techn0l0gy. These N0n-State Act0rs 0ften 0perate
fr0m a failed state with0ut the supp0rt 0f the g0vernment. The 9/11 attacks f0rced
states t0 reassess the antiquated idea that 0nly a state has the capacity t0
carry 0ut an armed attack against an0ther state, t0 grant the right t0 use f0rce
t0 defend itself. Because these new entities have many 0f the attributes 0f
state such as wealth, v0luntary f0rces, training & p0tential access t0 weap0ns
0f mass destructi0n & if these entities c0mmit a series 0f attacks against
a State & the acts are sufficient t0 c0nstitute an armed attack, then the
use 0f f0rce in self-defense must be all0wed against th0se wh0 p0se a c0nstant
threat. Many c0untries have accepted this idea & have affirmed the United
States’ agenda against Al Qaeda. In acc0rdance with these devel0pments, the
Security C0uncil ad0pted Res0luti0n 1368, which c0ndemned the attacks 0f 9/11 &
rec0gnized the natural right 0f self-defense (individual 0r c0llective). It is
a c0nfirmati0n that the United States c0uld have the right t0 resp0nd with the
use 0f f0rce f0r against the Al Qaeda despite the fact that it was a n0n-state
act0r, 0ther c0untries with w0rds & acti0ns expressed supp0rt f0r the 0perati0n.
It clearly a radical departure fr0m the Nicaragua verdict & the new
tendency was based 0n the verdict 0f C0rfu Channel Case “that any state d0es n0t
kn0wingly all0w its territ0ry t0 be used f0r acts c0ntrary t0 the rights 0f 0ther
states”. The Security C0uncils’ Res0luti0n 1373 has als0 c0nfirmed this devel0pment
in Internati0nal Law. It establishes the right t0 self-defense against N0n-State
Act0rs & at the same time pr0hibits the state t0 all0w its territ0ry t0 be
used as a refuge by the N0n-State Act0rs.

 

S0me Academics & s0me
members 0f the ICJ have p0inted 0ut that the ICJ was in c0ntradicti0n with cust0mary
internati0nal law 0n self-defense, the Car0line case, c0nfirmed the preventive
self-defense & c0nsider it legal against n0n-state act0rs wh0se c0nduct was
n0t attributable t0 a state. In The Wall case, Judge Higgins said that
“there is n0thing in the text 0f Article 51 that establishes that
self-defense is 0nly available when a state arms an armed attack.” In C0ng0
case, Judge K00jimans said “it is n0t reas0nable t0 deny that the right t0
self-defense is n0t available just because there was n0 attacker state.”
Judge Simma in the C0ng0 stated that “Security C0uncil res0luti0ns 1368 &
1373 can 0nly be read as statements 0f 0pini0n that large-scale attacks by n0n-state
act0rs can be c0nsidered armed attacks under Article 51”.

 

Th0ugh the law had n0t been
clearly established 0n the eve 0f the US attack 0n ISIS in Syria in 2014, but
this event pr0vided the final push t0 crystallize the new self-defense rule.

 

 

Validity
t0 the new emerging trend: –

 

The Security C0uncil
unanim0usly appr0ved Res0luti0n 2249 after the b0mbing by ISIS 0n Russian
Jetliner & attacks 0n stadium & in c0ncert in Paris in the late 2015, the
res0luti0n states that “ISIS is a gl0bal threat f0r internati0nal peace &
security & has called f0r all necessary measures t0 eradicate the safe harb0r
established in Syria.” The attacks 0f 31.10.2015 & 13.11.2015 marked a
turning p0int. These attacks have sh0wn that ISIS is the richest & techn0l0gically
advanced terr0rist gr0up in the w0rld, & n0 l0nger limits its territ0rial
acquisiti0n g0als in Syria & Iraq, but has ad0pted the m0del 0f an0ther
terr0rist gr0up that f0cuses 0n addressing vulnerable targets all ar0und the w0rld.

 

C0nclusi0n:

 

In this paper I have examined
whether the use 0f f0rce against ISIS has changed the internati0nal law &
establishes a new internati0nal cust0mary law by rec0gnizing the Right 0f Use 0f
F0rce against the N0n-State Act0rs in the territ0ry 0f the h0st state. In
general, cust0mary internati0nal law requires many decades t0 crystallize. But
in this c0ntext, 14 years w0uld be alm0st instantane0us, as in the cases 0f the
establishment 0f Nuremberg Tribunal & the Yug0slavia Tribunal.

 

These N0n-State Act0rs
are seen as a new type 0f threat, where a n0n-state act0r has many 0f the
attributes 0f a state: en0rm0us wealth, s0phisticated training & 0rganizati0n,
& access t0 destructive weap0ns. T0 resp0nd t0 the fundamental change
presented by these new entities, the United States has argued that it is n0w p0ssible
& als0 lawful t0 attack such n0n-state act0rs when they are present in a
state that can n0t 0r will n0t st0p them (Unable 0r Unwilling). In light 0f the
invasi0n 0f the Afghanistan in 2001 f0r the reducti0n 0f Al Qaeda & n0 maj0r
pr0tests against the dr0ne attacks against the leaders 0f Al Qaeda in Pakistan,
S0malia, Iraq & Yemen, the Internati0nal Law seemed t0 be m0ving rapidly t0wards
the ad0pti0n 0f the principle 0f “Unable & Unwilling” in
“Self-Defense”.

 

This right is subject t0
several limitati0ns that prevent the p0ssibility 0f abuse:-

I.                  
The individual 0r
aggregate acti0ns 0f n0n-state act0rs must be equivalent t0 an armed attack t0
activate the right t0 use 0f f0rce in self-defense.

II.              
The use 0f f0rce must
be directed against n0n-state act0rs 0nly, n0t against the state 0r its armed f0rces,
unless the state has effective c0ntr0l 0ver n0n-state act0rs.

III.           
Military acti0ns must
respect the principles 0f necessity & pr0p0rti0nality.

 

0ther limitati0ns are
likely t0 devel0p in the future acc0rding t0 the internati0nal resp0nse t0 inv0cati0n
& applicati0n 0f this the new rule.

x

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