Use of Force and State Responsibility in International Law

Introduction

This essay discusses the law of use of force and state responsibility in international law and applies this law to the problem question that involves the two states of Elbonia and Vosinia. There are two issues that are involved in this essay. First, whether Vosinia’s liability arises under law of use of force and whether the act of Vosinia amounts to state intervention. Second, whether Elbonia is liable under the principles of state responsibility for the actions of the extremist groups leading to killings of Voisinian people and the destruction of their properties.

With respect to the first issue, related questions are whether lack of intervention would amount to any violation by Vosinia, whether the lack of intervention by Elbonia against terrorist attacks on Voisinian citizens amount to armed attacks, whether an attack on Voisinian citizens abroad amount to an armed attack on the state, and whether an act of self-defence in response to armed attackes violates use of force principles under international law by Vosinia.

The principles related to the use of force are contained in the UN Charter, Article 2(4) and Chapter VII. The use of force is prohibited under Article 2(4), which prescribes a duty on states to refrain from the threat or use of force against other states. Furthermore, the 1970 Declaration of Principles of the International Law explains Article 2(4) by noting that use of force constitutes wars of aggression, crimes against peace, reprisals, deprivation of the right to self-determination, and organising, instigating assisting or participating in a civil war. Aggression is therefore relevant to discussing use of force. Aggression is defined in the UN General Assembly Definition of Aggression Resolution, Article 5(2). The UNGA Resolution 3314 in 1974 defines aggression 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.”

There are two exceptions under which aggression is permitted under the international law, these being individual or collective self-defence for the states, and Security Council use of force. UN Charter, Article 51 provides the framework within which self-defence can be justified. It gives states the right of self-defence as a response to an armed attack. Traditionally, self-defence was considered unlawful if in response to non-state actors. However, if the controlling state, that is, the state in whose territory the non-state actors are located, is not willing or able to prevent their unlawful acts or suppress the threat posed by them while they are operating within its borders, the threatened state may use self-defence. Greenwood has argued that the right to self-defence under the international law is not formalistic, rather it is flexible and allows action even if the attacks against itself are not imputed to state; he notes:

“It would be a strange formalism that regarded the right to take military action against those who caused or threatened such actions as dependent upon whether or not their acts could be imputed to a state. There is, however, no reason to think that international law adopts such a formalistic approach. On the contrary, the famous Caroline dispute itself shows that an armed attack need not emanate from a State.”

Caroline judgment held that action in self-defence can be taken against non-state actors if the controlling state does not take any action to control the threat posed by them. In this case, the right of anticipatory self-defence was recognised against a threatened armed attack. The principles that allow the use of anticipatory self-defence were that the actor should believe that an attack was imminent, and overwhelming, and left them no choice other than an attack against the threat. Thus, action in self-defence can be taken against non-state actors if the controlling state does not suppress the threat posed by them. Jurists identify the right of self-defence for protection of nationals residing abroad, if there is an imminent threat to them, and military action is restricted to the rescue; this is illustrated by the Entebbe hostages case related to the Israeli mission in Uganda, 1976.

The principle related to non-intervention is laid down Article 2(7) of the UN Charter. Principle of non-intervention is provided in Article 2(7) of the UN Charter as per which, states are prohibited from intervening in matters that are essentially within the domestic jurisdiction of the other state. However, an exception to this principle can be found in the responsibility to protect in responding to a humanitarian crisis. Humanitarian intervention is the "use of armed force by one state against another to protect the nationals of the latter from acts or omission of their own government which shock the conscience of mankind.” The principle of responsibility to protect allows the use of intervention on the basis of humanitarian causes; this has been used in Kosovo (NATO) and East Timor (Security Council). The state using responsibility to protect as a ground to use force or intervention against another state must show that it tried but failed to resolve the humanitarian crisis issue through diplomatic and non-military avenues. Intervention in cases of a humanitarian crisis is now recognised as an exception to the principle of non-intervention under Article 2(7) of the UN Charter.

Defence against the use of force can be made out in the case of an attack on citizens and military forces abroad. An attack on the citizens and military of the state can be considered to be an attack on the state. There are cases that show state practice with reference to attack citizens and military. The Anglo-French intervention in Egypt 1956 is one example and the US intervention in the Dominican Republic in 1965 is another example which shows state practice in this context. States can take action against aggression, even if it is threatened against its citizens in a foreign country. The British intervention in Egypt in 1956 was justified on the basis of a threat to the lives of British citizens in that country.

With respect to the second issue, that is, state responsibility, the main issue is whether Elbonia is liable under the principles of state responsibility for the actions of the extremist groups leading to killings of Voisinian people and the destruction of their properties. State responsibility arises if there is a either a customary international law or treaty obligation between the states, and one state has committed an act or omission in breach of that obligation, which has led to the loss to another (causation).

The international law of state responsibility is provided in the 2001 International Law Commission (ILC) Articles on State Responsibility. As per this, states are responsible for wrongful acts, including the wrongful or negligent acts of its nationals, when such acts injure another state. The general framework on state responsibility is part of the traditional law, consisting of customary rules and case law, and the laws evolved in recent times. The latter consists of treaties and conventions. For instance, the Fourth Hague Convention of 1907 on the Laws and Customs of War on Land, which provided the responsibility of belligerent parties to compensate the other for the violation of the provisions of the treaty by its armed forces.

The 2001 International Law Commission (ILC) Articles on State Responsibility related to the international law of state responsibility for actions and ommissions amounting to international wrongs. These are adopted by the ILC and are endorsed by UN General Assembly. Article 1 defines wrongful acts of the states that can lead to state responsibility under international law. Article 2 defines intentionally wrongful acts as those that constitute a breach of international obligations of the state and can be attributable to the state under international law. Wrongful acts that are directly not committed by the state can still be imputed to the state if these involve the acts of the officials, private persons, and insurrectionary. It is possible that the act of the officials may be ultra vires, that is, the person may be acting outside the scope of his powers or not acting as per the powers and functions; however, as per the principle laid down in Youmans Claim,in which case it was held that Mexico was responsible to pay compensation for the acts of killing of American citizens by the Mexican Military forces under command of an officer. Article 7 also provides that such acts are imputable to the state. States are responsible for acts of mobs or non-state actors if they effectively control them, or exercise overall control over them.

The principal features of the international customary laws on state responsibility are explained as follows. The state was responsible for malicious as well as negligent acts of the officials, although the latter case was not always clearly answered. It may be noted that in Union Bridge Company Case (1924), the US-UK Arbitral Tribunal decided that UK was responsible for the appropriation of the US neutral property in South Africa during the Boer War even if the officer was not aware that the property was neutral. Secondly, the state was held responsible as per its ‘collective responsibility’ as a state for the wrongful act of an individual, except for piracy and war crimes. Thirdly, states were responsible for breaches of international rules that imposed upon the states the duty to respect the rights and property of foreign nationals.

The defences for state responsibility are provided in the 2001 International Law Commission (ILC) Articles on State Responsibility. Article 21 relates to self-defence. Article 25 relates to necessity as a defence against state responsibility. The state is not responsible if its actions in violating international law are the consequence of the state’s exercise of the right to self-defence or if the actions were necessitated. The state is however responsible for its actions violating international law if there was no justification for its actions or omissions. Moreover, if the state is under specific international law obligations that it fails to meet due to its actions or omissions, then it shall be responsible. In particular, states are not to use their own territory in such a manner or allow nationals to use its territory in such a manner that causes injury to a neighbouring country.

Elbonia can claim that Vosinia used force against it; however, the ground of self-defence may be taken by Vosinia to justify its actions. Self-defence is allowed even in case of actions of non-state actors as discussed in the section above provided that the threat is instant, overwhelming, and imminent, which leaves them no choice of means and no moment for deliberation but an attack against the threat. In this case, the fact that there is a continued threat to the 200,000 Vosinian citizens in Elbonia and no action was taken by Elbonia to counter these threats may be used by Vosinia to claim self-defence.

With respect to possible claims of intervention by Elbonia against Vosinia, the latter can claim that it acted in pursuance of the responsibility to protect its citizens. The actions of Vosinia were taken 10 days after the traumatic event when there is continued harassment of theVoisinian citizens in Elbonia and a continued reluctance on the part of the Elbonian government to take action against the extremists. The principle of responsibility to protect is applicable in cases of humanitarian crisis such as that witnessed in Elbonia. The Vosinian government has taken action after it has waited for a reasonable time for Elbonia to respond to the crisis and diplomatic efforts have failed to make Elbonia take action against the continued harassment of Vosinians in Elbonia. In other words, the government in Elbonia has acted when it felt that it could not passively witness the humanitarian crisis against its citizens in Elbonia.

The ground of responsibility to protect intervention may not extend to the actions of Vosinia relating to sending agents into Elbonia. These agents were involved in secret investigation in Elbonia, they captured two leaders of the extremist group and smuggled them out of Elbonia and imprisoned them.

With respect to responsibility of Elbonia, the principles of international law and juristic writings discussed in the previous section show that Elbonia is responsible for the acts of the extremist groups that had first organised demonstrations in which property of Voisinian citizens was destroyed and Voisinian citizens were killed, tortured and raped. 20 Voisinian military troops were also killed in these attacks. Moreover, there is evidence of continued harassment of Voisinian citizens. Even though the extremists were non-state actors, the fact that the police did not prevent their actions, and the Elbonian Minister of the Interior made a statement to the press that did not authorise the police to take action against these extremists; this indicates that the state was unwilling to take action in this case against the people responsible. As per the principles of the 2001 International Law Commission (ILC) Articles on State Responsibility provide the draft Articles on Responsibility for International Wrongful Acts and the cases discussed in the section above, it can be argued by Vosinia that Elbonia is responsible for the actions.

Conclusion

To conclude this essay, Elbonia may be made liable for its omissions to protect the lives and properties of the Vosinian citizens in its territory from the violent actions of mobs and extremists. Vosinia may be able to justify its own intervention in Elbonia on the ground that it was acting in pursuance of the responsibility to protect its citizens. Anticipatory self-defence may be used by Vosinia to justify its actions if it can prove the elements of the Caroline case. In such a situation, Vosinia will have to show that the threat from Elbonian mobs and actors was imminent and despite the actions already taken by the mob to harm the property of Vosinians and kill Vosinians including the military personnel, there was no action against the extremists. Vosinia can even take the justification of the principle of responsibility to protect in cases of a humanitarian crisis. Vosinian action may be justified on the basis that it was necessary to act in the face of the humanitarian crisis against its citizens in Elbonia. However, one possible problem with this justification is that it may not excuse the actions of Vosinia in secretly sending agents into Elbonia. Vosinia may not be able to justify its action because it may not be able to show that it had attempted to resolve these issues through diplomatic and non-military avenues first before taking the action that it did.

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