UN Conflict Prevention

Introduction

One of the principal objectives for why the United Nations (UN) came into being was to prevent armed conflict and to save the coming generations from the scourge of war. Article 2(4) of UN Charter clearly articulates this objective in the principle of non-use of force. It calls on State Parties to the UN Charter to refrain from use of force or threat of force against the integrity of other states. This essay critically discusses whether Article 2(4) has been effective for the purpose of preventing the scourge of war.

Principle of non-use of force

The UN Charter prohibits use of force, save for self defence and actions taken under UNSC authorisation for collective security. Use of force was a common feature in international relations directly associated to the sovereignty of the states until the early 20th century; there was a shift in international consensus on use of force in the period after First World War. The establishment of the UN Charter marks the most definitive shift in this area with Article 2(4) clearly enunciating the principle of non-use of force, which seeks to save and protect the upcoming generations from the “scourge of wars.”

Article 1(1) of the UN Charter provides the objectives of the UN. It states that the UN was established for the objective of maintaining international peace and security. For achieving this objective, Article 1(1) further provides that the UN can take the following steps: take effective collective measures in response to threats to the peace and acts of aggression; and bring about settlement of international disputes by peaceful means. The principle of non-use of force which is provided in Article 2 (4) needs to be seen in the light of the objectives of establishment of the UN as clarified in Article 1 (1).

Two points are important here. First, principle of non-use of force does not mean that states will not respond to threats to peace, meaning that under certain circumstances, states will be allowed to use force, particularly, in self-defence. Second, in order to avoid war and conflict, there are provisions in the UN Charter, which encourage use of peaceful settlement of disputes, which can also be seen as supporting the principle of non-use of force. With reference to the first point, it becomes pertinent to discuss the just reasons for which use of force may be permitted. In order to do that, reference may be made to the ‘just war’ doctrine in which the historical background for self-defence as an exception to non-use of force may be found.

Just war doctrine: Historical background for self-defence as an exception to non-use of force

Principal theories related to war and use of force were formulated in the initial era of Christianity. Waltzer writes that the question of whether war is right or wrong has been asked for as long as there has been a discussion or a discourse on war even though there is a futility attached to the moral discourse on the question of war as indicated by maxim inter arma silent leges, which means in the time of war even the law is silent. St. Augustine argued that even just war is a tragedy as it leads to destruction. He argued that a due consideration given to the destruction caused by war should lead to stronger determination to avoid war. However, he also noted that war could at times be necessitated by injustice.

The issue of whether or not recourse to war was genuine was referred from two viewpoints. The recourse to a shared or collective violence was condemned by the pacifists regardless of its purpose and objectives while on the other hand the doctrine or policy of “Just War” allowed use of force given that the reason of war is just. War and use of force was common and often erupted due to disputes related to religion, politics, and economy.

In the late 19th and early 20th century, a consciousness on establishment and development of law of war or humanitarian law developed amongst the European nations. The first attempt to restrict use of force was in the Hague Peace Conferences of 1899 and 1907. The establishment of the League of Nations was the next important step which came in the wake of World War I with the adoption of the 1928 “Kellogg-Briand Pact”. The creation of the United Nations and the adoption of the UN Charter after the World War II established the principle of non-use of force definitively in Article 2(4) and Chapter VII of the UN Charter. Under these provisions, there is a general restriction and prohibition on the use of force by one state against another.

Interpretation of principle of non-use of force

The principle of non-use of force has been explained in different judgments of the International Court of Justice (ICJ). In Corfu Channel Case: United Kingdom v Albania, the ICJ held UK to be in breach of the principle of non-use of force for its actions in territorial waters of Albania. The ICJ observed that interference in the territorial sovereignty and integrity is an expression of force, and that respect for sovereignty of other territory is essential foundation for the establishment of international relations. In Case Concerning the Military and Paramilitary

Activities in and against Nicaragua the ICJ rejected any rights of states to intervene in support of any armed rebellion or opposition in another state as part of the obligation to not use force against other states. In Case concerning Armed Activities on the Territory of Congo, the ICJ held that states have no right in contemporary international law to support armed opposition in other states.

There is some divergence on the point of whether principle of non-use of force is a jus cogens, that is, status of peremptory norm in international law, with some scholars stating that it has peremptory norm status, while some argue that it does not. In any case, it can be definitely said to be an important principle adopted expressly in the UN Charter and therefor creating binding obligations for states to follow the principle. Proceeding from this point, it may be said that if effective, this principle saves generations from the scourge of war. However, as this essay argues, the effectiveness of this principle is limited and while there are a number of reasons why the principle may be said to be effective, but there are also gaps in the principle which allow states to use force against other states.

Gaps in principle of non-use of force: Areas that weaken the effectiveness of the principle

The gaps in the principle of non-use of force under Article 2 (4) comes from the exceptions to the principle which allow use of force for justified causes but may be taken advantage of for unjustified causes as well. The exceptional areas under which use of force can be permitted under the UN Charter are related to the right to self-defence primarily, but have also been argued in cases of humanitarian intervention.

Right to self-defence as a gap in effectiveness of principle of non-use of force

In Nicaragua, the ICJ held that right to self-defence is an intrinsic right both under the UN Charter as well as customary law. The right to self-defence was acknowledged by Daniel Webster, the US Secretary of State in Caroline, where the essentials of self-defence were also mentioned. Self-defence is only allowed where use of force or threat of force is irresistible and immediate and there was no other feasible alternative action or measure. However, controversy may be involved in context of principle of non-use of force in the name of pre-emptive self defence against perceived threat of force which may be temporarily remote. This is discussed later in this essay in the context of US “War on terror” approach.

The underlying principle of just war, that is, war which is justified by some reasons or justifications as understood in nineteenth-century in formal and righteous sense, can be seen as a background for understanding self-defence. As per the ‘just war’ doctrine states can go war if it is justified and backed by lawful reasons. This requirement is also made essential in Article 2 (4) which allows states to respond to perceived or intended use of force. At the same time, unlike in the earlier system, where legality of use of armed forces had minor meaning in the wider context of the war, the contemporary UN system emphasises on legality of use of force. Thus, in order to prove legality of use of force, states are required to establish the need for self-defence and self-protection. The right to self-defence responds to the right of the state to respond to attacks against its territorial integrity and sovereignty.

Clearly, it has never been intended that the principle of non-use of force be used to disallow states to take action even when they are threatened in their territorial sovereignty by armed attacks. Therefore, states do have the right to self-defence. However, this right also constitutes a gap which states may take advantage of, as in the case of pre-emptive self defence justification in American ‘War on terror’. In the period after September 11, 2001 attacks against the US, the American government applied a ‘war on terror’ approach to take pre-emptive action against Iraq. Self-defence was used as a justification, but there are commentators who point out that American actions were taken in self-interest in the Iraqi economy particularly in oil. The self-defence argument has seemed more hollow after no weapons of mass destruction were found in Iraq, with Chowdhry and Nair (2002) critiquing American actions: “imperialism constitutes a critical historical juncture in which postcolonial national identities are constructed in opposition to European ones, and come to be understood as Europe’s ‘others’; the imperialist project thus shapes the postcolonial world and the West”. Article 2 (4) failed to prevent suffering of generations of Iraqis from the scourge of war.

Humanitarian intervention as a gap in effectiveness of principle of non-use of force Areas under which states have taken action involving use of force are also related to use of force used in response to humanitarian conditions or grave violations of human rights. Humanitarian conditions have led UN or states collectively taking action involving use of force against countries where massive human rights violations are taking place. A recent example can be given of the intervention in Libya following the Libyan civil war under the 2011 United Nations Security Council Resolution 1973, which authorised the use of force for the purpose of protection civilian population in Libya. This intervention involved use of force by the international community as response to excesses by the Libyan government against its own citizens. Resolution 1973 was taken under the principle of responsibility to protect (R2P), which allows international community to take action against a state if that state has not been able to or is unwilling to protect its civilian populations.

The principle of R2P is an example of the development of an exception to the principle of non-use of force so as to draw a balance between the principle of sovereignty of state and the responsibility of states to protect human rights. It may be argued that intervention in the state is a violation of principle of non-use of force, but it may be counter argued that humanitarian intervention extends the principle of non-use of force by taking action against states using force against their own citizens. The principle of R2P has been related to just war or just causes for use of force as a “modern rendering of those movements and advocates who have called for action to redress suffering abroad” in the earlier times when principle of just war was used to justify action involving armed force. However, humanitarian intervention can also be used as an excuse for use of force in self-interest. An example can be seen in the NATO use of force in Kosovo.

The Kosovo crisis in 1999 saw action by NATO intervention when US and UK argued that such action was necessary. However, the illegality of the use of force in Kosovo has been an issue because of the interpretations of principles of non-use of force (Article 2(4), UN Charter) and non-intervention (Article 2(7), UN Charter), and humanitarian intervention. On the other hand, conflict in Syria despite being a humanitarian crisis did not see much intervention. The disparate application of humanitarian intervention is also subject to criticism. It is argued that the premise under which the principle of ‘responsibility to protect’ was introduced by the International Commission on Intervention and State Sovereignty is not being met. This premise is based on the need to prevent genocide, war crimes, ethnic cleansing and crimes against humanity. However, powerful states only apply R2P when their own self-interest is involved. Moreover, despite there being international acceptance of humanitarian intervention for the purpose of protecting nationals from the excesses of their own states, there are still areas of controversy involved here because there is “ tension between two fundamental principles of international law: on the one hand, the prohibition of the use of force, and, the obligation to respect and protect human rights, on the other”.

The problem of self-interest of powerful states and the ineffectiveness of Security Council

Due to the controversies in the use of force based on the self-interest of the powerful states concerned and not the genuine desire to save humanity from the scourge of war, it is argued that international events have led to the erosion of the prohibition of use of force. The NATO action in Kosovo was an important event that signifies trend in erosion of the prohibition of use of force. NATO interference in Yugoslavia during the Kosovo crisis became a source of critical and crucial concern in international law. While the intervention was justified on humanitarian grounds by states concerned, subsequent scholarship on the issue of intervention in Yugoslavia has prompted such justifications in many writings and scholarly work. Self-interest of the states comes across as one of the most important areas of concern in the erosion of the principle of non-use of force. Moreover, the inability of the Security Council to respond to violations of the principle of non-use of force has also become a bone of contention. This needs to be discussed further.

Repetitive violations of Article 2 (4) by states, especially members of the Security Council fuel this criticism. Chapter VII is significant to this discussion. Chapter VII of the UN Charter allows the Security Council to take certain collective measures involving use of military force against states who have breached peace or threatened to breach peace. Collective security is a system in which each state “accepts that the security of one is the concern of all, and agrees to join in a collective response to threats to, and breaches of, the peace”. Security Council is given primary responsibility to take action in response to threats to peace or breach of peace, but the processes of the Security Council are not just legal, they are political. The process is carried out under Chapter VII. The Security Council has taken action in case of intrastate violence (Balkan War before Yugoslavia’s fragmentation), violation of international humanitarian law and even acts of terrorism. Security Council declared the Argentine invasion of Falklands and the Iraqi invasion of Kuwait as breach of peace. However, no such declarations were made in the case of the US-UK invasion of Iraq in 2001.

Action of the Security Council hinges on the definition of aggression, which was provided in the UNGA Resolution 3314 in 1974 as:

“the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state or in any manner inconsistent with the Charter of the United Nations, as set out in this definition.”

The Rome Statute of the International Criminal Court, Article 8bis(2) defines aggression as the planning, preparation, initiation or execution of an act of aggression by a person in control over the territory, which constitutes a manifest violation of the Charter. UNGA definition is addressed to state, and ICC definition is addressed to a ‘person in position’. In any case, action can be taken by the Security Council involving measures not involving use of force (article 41) or measures that involve the use of force (article 42). Security Council took action in 1991 in Operation Desert Storm to repel the Iraqi forces from Kuwait in 1990 but failed to take any action when Iraq became the victim of US-UK coalition army aggression in 2001. Such double standards make it hard to accept the complete effectiveness of Article 2 (4) in preventing scourge of war for succeeding generations.

On the other hand, there is support for the contention that Article 2 (4) has saved succeeding generations from scourge of war, because it has ensured the restriction on use of force without justification, without compromising on sovereign states’ right to defend themselves in case of illegal use of force by other states. In this argument, an attempt is made to show that self-defence is not a gap in the principle of non-use of force which is being taken advantage of by unscrupulous countries, but a method for ensuring peace and security without compromising on interests of states. Moreover, Article 2 (4) is also said to save future generations from scourge of war by allowing ‘humanitarian intervention’ in situations where citizenry of one country is either not protected by its own state or the state is unable to protect them. In this context, Iraq and Kosovo are cited as examples of humanitarian intervention where Article 2 (4) was effective in promoting international peace.

To discuss the above theme further, Article 2 (4) is said to not prohibit individual or collective action involving use of force when this is justified under Chapter VII of the UN Charter. Individual and collective action is recognised under the customary international law and Article 51 of the UN Charter. State practice and opinio juris establishes use of force as “defensive” measures and also allows "intervention" under specific conditions. The ICJ has not lined out the usage of preventive equipped force to interfere in the circumstance of an imminent carrying weapons attack. Opinio juris has generally advises against right to pre-emptive use of force.

Critical analysis

The provision of self-defence, which was contained in Article 51, might justify the use of military or armed force. Article 51 can be seen as a complementing provision to Article 2 (4), for it enables states to defend themselves against use of force against themselves in violation of Article (2). The gaps in the principle of non-use of force are due to the ambiguities in the definition of ‘force’, the extent or the scope of the restriction and prohibition on use of force, and the conditions under which states can be justified in their use of force against another.

An issue that is raised with the use of force is self-defence is whether Article 51 incorporate the complete regulations of self-defence, which can be allowed to states. The UN Charter can be considered to provide a complete framework for responding to conflicts. However, the actual events of the recent history may belie that claim. In particular, the principle of self-protection when confronted with looming threats of global terrorism or weapons of mass destruction, is not necessarily allowing of ‘war on terror’ as conceptualised by the US in the aftermath of the September 11, 2001 terror attacks. That the right of self-protection and pre-emptive self-defence can be matter of exploitation is seen in the way war on terror has unfolded, especially in Iraq, so that it has been used to justify American actions under a mere assumption that an attack might be carried out against itself; this is inadequate justification but falls in the gaps of the principle of non-use of force. On the other hand, it may be pragmatic to recognise and qualify the right to preventive self-defence rather than simply denying it recognition, as some countries prefer to do.

Another area of concern in the discourse on principle of non-use of force is the controversial claims of "National Liberation Movements" to use force in their struggle against colonial regimes, or against regimes based on racism or international occupation. Such a right was advocated specifically throughout the 1970s, even at the level of General Assembly and has always been controversial. With the gradual disappearance of the colonial regimes as well as the apartheid system, and with the international recognition of the rights of self-determination of the citizens of Palestine, the exclusion for use of force for National Liberation Movements is no longer pertinent. Nevertheless, it remains an area that is not clearly defined.

The 20th century had brought the remarkable curtailing of the right to use arms and force in international relations ranging from the procedures of institutionalised global conflicts settlement in the Hague Peace Conferences of the 19th century, a qualified restriction or the ban on war throughout the period of League of Nations to the more strict prohibition of use of force or even threat or use force under the UN Charter, Article 2 (4). Therefore, it cannot be denied that there is an evolution made in the law of war with the introduction of these restrictions on right to use force.

However, the principle of non-use of force is not impervious to violation and breach as successive events in recent history have proved. These events are frequent indications that countries take into account the restrictions and prohibition on use of force under Article 2 (4) but also find ways to breach these restrictions and justify the breach. This brings into doubt the veracity of the contention that Article 2 (4) has prevented generations from the scourge of war. Therefore, the attempts to violate the principle of non-use of force have been made a number of times. States violating the principle have stretched analysis and interpretation of the UN Charter provisions related to “armed or weaponised attack” and self-defence, with the help of claims of developing new UN regulation under the procedure of “Uniting for peace” and claims with regards to the legitimacy of the efforts and struggle of “National liberation movements”. Though the evolution and the development of several doctrines such as “'pre-emptive strikes”, and “humanitarian intervention” may suggest noble motives, such as, promotion of human rights, it is not always noble motives under which states take steps of force; motives for such use of force may also include effecting change in current regimes, implementation of democracy, and ‘war on terror’.

Ultimately several actions have been taken that involve use of force, without or without the permission of the UN, including by permanent members of the UN Security Council who are primarily charged to maintain peace and security and take collective action against breach of peace by any state. Despite Article 2 (4) and the sanctions under Chapter VII of the UN Charter, such contraventions of Article 2 (4) have largely gone unheeded. Chapter VII which requires Security Council to take collective action in cases of breach of peace, so that states involved in war or armed conflict are restricted for maintenance of peace and security, is not always successful in this objective.

Finally, it is pertinent to also note the areas where Article 2 (4) has been successful. Successes of the principle of non-use of force are also to be seen in the context of conflicts that were resolved through peaceful means. Use of peaceful means can be a practical solution to resolve conflicts, and reduce economic impact of international disputes. The principle of non-use of force and its extension through peaceful means of settlement of disputes in Chapter VI of the UN Charter has played a significant role in reducing international conflicts. The principle of non-use of force can also be seen in the context of the UN measures for peacekeeping. At the same time, frequent violation and failures to abide by the obligations under Article 2 (4) makes the effectiveness of this principle doubtful.

Conclusion

The broader arguments on the effectiveness of Article 2 (4) in preventing the succeeding generations from the scourge of war, show that effectiveness is only up to a certain point; the multiple violations of the Article 2 (4) as well as the failure of the Security Council to take steps against violations are fair grounds to argue that the principle of non-use of force is not as effective. The principle of non-use of force does not completely bar states from use of force. States are allowed to use force for self-defence and humanitarian intervention. While these exceptions are useful in allowing states to protect their sovereignty as well as respond to grave violations of human rights, there is also scope for misuse of these exceptions by powerful states who act more in their self-interest. Therefore, there has been disparate application of R2P principles, where states have chosen to respond to some humanitarian crisis where it suits their interest and ignore others. Pre-emptive self defence has also been used wrongly by the US in war on terror, without any repercussions in international law, exposing the principle of non-use of force to claims of being ineffective in preventing armed conflicts.

Bibliography

Books

• Bellamy AJ, Responsibility to Protect (Cambridge: Polity Press 2009).
• Buchan R, International Law and the Construction of the Liberal Peace (Oxford: Hart Publishing 2013).
• Charlesworth H and Farrall J, ‘Regulating the rule of law through the Security Council Charlesworth’ in H Charlesworth and J Farrall (eds.), Strengthening the Rule of Law through the UN Security Council (Routledge 2016).
• Chesterman S, Just War or Just Peace: Humanitarian Intervention and International Law (Oxford University Press 2001).
• Chowdhry G and Nair S, Power, Postcolonialism and International Relations: Reading Race, Gender and Class (London and New York: Routledge 2002).
• Cohen R, ‘From sovereign responsibility to R2P’ in Andy Knight and Frazer Egerton (eds.), The Routledge Handbook of the Responsibility to Protect (Oxon: Routledge 2012).
• Conforti B and Focarelli C, The law and practice of the United Nations (BRILL 2016).
• Crawford J, Brownlie’s Principles of Public International Law (Oxford University Press 2012).
• Elshtain JB, Peter Augustine Scott, and William T Cavanaugh, The Blackwell Companion to Political Theology (London: Blackwell 2004).
• Fastenrath U, Relative normativity in international law Sources of International Law (Routledge 2017).
• Francioni F and Bakker C, Responsibility to protect, Humanitarian intervention and Human rights: Responsibility to protect, Humanitarian intervention and Human rights: Lessons from Libya to Mali (Transworld 2013).
• Franke U, ‘The United Nations and regional security organizations in Africa, Europe and the North-Atlantic region’ in Inter-organizational Relations in International Security (Routledge 2018).
• Goodwin C, ‘An International Morality?’ in Routledge Revivals: The Morality of Politics (Routledge 2018).
• Hehir A, Humanitarian intervention: An introduction (London: Plagrave Macmillon 2013).
• Luard E, A History of the United Nations: Volume 2: The Age of Decolonization, 1955–1965 (Springer 2016).
• Roberts A and Zaum D, Selective Security: War and the United Nations Security Council since 1945 (Routledge 2008).
• Schabas WA, ‘Origins of the Criminalization of Aggression: how crimes against peace became the “supreme international crime’ in The International Criminal Court and the Crime of Aggression (Routledge 2017).
• Stokes D and Raphael S, Global energy security and American Title: hegemony (Baltimore: Johns Hopkins University Press 2010).
• Van der Linden H, Climate Change Mitigation and the UN Security Council: a Just War Analysis Pacifism, Politics, and Feminism (Brill Rodopi 2019).
• Walzer M, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books 2015).

Journals

• Donnelly J, ‘State Sovereignty and International Human Rights’ (2014) 28(2) Ethics & International Affairs 225.
• Fernandez CG and Fernandez DP, ‘The adoption of the Declaration on the Right to Peace by the United Nations: a human rights landmark’ (2017) 1(2) Peace Human Rights Governance.
• Garwood-Gowers A, 'The responsibility to protect and the Arab Spring: Libya as the exception, Syria as the norm’ (2013) 36 UNSWLJ 594.
• Green JA, ‘Questioning the Peremptory Status of the Prohibition of the Use of Force’ (2011) 32 (2) Michigan Journal of International Law 215.
• Helmersen ST, ‘The Prohibition of the Use of Force as Jus Cogens: Explaining Apparent Derogations’ (2014) 61 (2) Netherlands International Law Review 167.
• Heyns C and Gravett W, ‘To Save Succeeding Generations from the Scourge of War: Jan Smuts and the Ideological Foundations of the United Nations’ (2017) 39(3) Human Rights Quarterly 574.
• Jennings RY, ‘The Caroline and McLeod Cases’ (1938) 32 American Journal of International Law 82.
• Mikanagi T, ‘Establishing A Military Presence In A Disputed Territory: Interpretation Of Article 2 (3) And (4) Of The Un Charter’ (2018) 67 (4) International & Comparative Law Quarterly 1021.
• Nasser-Eddine M, ‘How R2P failed Syria’ (2012) FJHP 28.
• Ramsden M, ‘Uniting for Peace and Humanitarian Intervention: The Authorising Function of the UN General Assembly’ (2016) 25 Pac. Rim L. & Pol'y J. 267.
• Scharf MP, ‘Responding to Chemical Weapons Use in Syria’ (2019) 51 Case W. Res. J. Int'l L. 189.
• Trachtman JP, ‘Integrating lawfare and warfare’ (2016) 39 BC Int'l & Comp. L. Rev. 267.