The use of force has been a long-standing phenomenon in international
relations and has been considered to be directly linked to the sovereignty
of states-the limitless power wielded by states to use all possible means to
guard and protect their interests.
With the founding of the United Nations, the legitimacy of the use of force
by individual states under international law has been substantially
narrowed. The Charter of the UN states in its Preamble that the UN is
established to save succeeding generations from the scourge of war
its substantive provisions obligate the Member States of the UN to settle
their international disputes by peaceful means (Article 2(3)) and to
refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any State, or
in any manner inconsistent with the Purposes of the United Nations
UN Charter Article 51 provides that self-defence can be invoked only in
response to an armed attack against a UN member state. Because Charter
Article 2(4) prohibits the use of force in international relations, the
author of an armed attack is traditionally understood as another state and
not a non-state actor such as a terrorist group.
The implication of this state-centric reading is that states cannot invoke
the use of force in self-defence against non-state actors unless the actions
of the group can be attributed to a state under the law of state
responsibility. If a state is the victim of a terrorist act by a group that
is in the territory of another state it can protect itself by entering into
cooperation with the territorial state – which could lead to intervention by
invitation or with the consent of the territorial state – or by referring
the matter to the UN Security Council – which could eventually trigger an
authorization to use force under UN Charter Article 42.
Osama Bin Laden was killed on 2 May 2011 in the course of an operation by US
special forces (Navy Seals) in Abbottabad, Pakistan. The death of Bin Laden
renewed questions about the legality of such operations during armed
conflicts and during peacetime. Such cases appear to challenge the
above-described interpretation of Article 51 and the applicability of the
right to self-defence. The author has made an attempt to delve into the
underline concepts of use of force and relate it with the contemporary
- To understand the rules governing the law on the use of force and
- To analyse case examples relating to the use of force in
international law and be able to critically analyse how the rules of
international law have been (mis)applied in particular situations
- To understand how international law regulates the conduct in wars of
both international and non-international character
- To understand the key challenges to the operation of the rules on
the use of force in the contemporary international setting
Law includes a system of authorized coercion in which force is used to
maintain and enhance public order objectives and in which unauthorized
coercions are prohibited. Thus, law and coercion are not dialectical
On the contrary, formal legal arrangements are not made when there is a
spontaneous social uniformity; then there is no need for law. Law is made
when there is disagreement; the more effective members of the group
concerned impose their vision of common interest through the instrument of
law with its program of sanctions. Law acknowledges the utility and the
inescapability of the use of coercion in social processes, but seeks to
organize, monopolize, and economize it.
The international legal system diverges from these general legal features
only in terms of degree of organization and centralization of the use of
coercion. In national systems, coercion is organized, relatively
centralized, and, for the most part, monopolized by the apparatus of the
state. In the international system, it is not. Individual actors
historically have reserved the right to use force unilaterally to protect
and vindicate legal entitlements.
In 19th century, war was considered to be the last resort for dispute
settlement in Europe. It was an attribute of statehood and conquest produced
title. States reserved the right to wage war without any internationally
agreed regulatory framework. The concept of just and unjust war emerged.
The three criteria for just war given by St. Augustine and St. Thomas
Aquinas, the latter famously stated in Summa Theologica are:
- it should be waged by a sovereign authority (prohibition2 of waging
a private war)
- it must have a just cause (punishment of wrongdoers)
- a just cause must be accompanied by the right intention.
Together with the rise of independent states in Europe, the doctrine began
to evolve. In light of the growing number of sovereign states, wars started
to be seen and defined as a state of legal affairs rather than a matter of
subjective moral judgment. States no longer found themselves in a position
to judge if another states reason for resorting to force was just or not.
This approach was supported by the rise of positivism, which strongly
focused on the idea of sovereignty and by the Peace of Westphalia 1648,
which established the European system of the balance of power. This system
survived in Europe until the beginning of the twentieth century, effectively
coming to an end with the outbreak of the First World War.
In the aftermath of the First World War efforts were made to rebuild
international relations between states through the establishment and
operation of an international institution which would play a central role in
ensuring that such acts of aggression would not occur again. The League of
Nations (LON) was created in 1919 with a view to achieving this aim. Under
the 1919 Covenant of the League of Nations, member states were required to
submit any inter-state disputes for arbitration or seek other forms of
judicial settlement at the Leagues Council. However, the Covenant did not
in fact revoke the right of states to resort to war, although it subjected
this provision to some limitations.
In 1928, another attempt at the legal regulation of the use of force was
made, in the form of the General Treaty for Renunciation of War as an
Instrument of National Policy, more commonly referred to as the Kellogg–Briand
Pact. Parties to this treaty declared that they condemn recourse to war
and agreed to renounce it, as an instrument of national policy in their
relations with one another (Article 1). They agreed that settlement of
disputes arising among them shall never be sought by pacific means
(Article 2). The Pact had 63 states parties and is still in force. This
pact was the foundation of the prosecution case on waging aggressive war at
International Military Tribunals in Nuremberg and Tokyo.
The pact was a realistic and comprehensive legal regime. US invoked it in
relation to hostilities between China and USSR in 1929, in 1931 in relation
to conflict between china and Japan, 1933- Leticia dispute between Peru and
Ecuador. The Pact even played a role in 1939, when cited by League Assembly
in condemnation of Soviet action against Finland.
Post 1945 legal framework- UN Charter and its articles
The current legal framework regulating the use of force in international law
is enshrined in the UN Charter. Article 2(4) is regarded as a principle of
customary international law and as such binding upon all states in world
community. It is the cornerstone of UN Charter. It was elaborated as a
principle of international law in the 1970 Declaration on principles of
All Members shall refrain in their international relations from the threat
or use of force against the territorial integrity or political independence
of any state, or in any other manner inconsistent with the Purposes of the
As the wording of Article 2(4) suggests, the force is permissible in
circumstances consistent with the purposes of the UN. Chapter VII of the UN
Charter (Action with Respect to Threats to the Peace, Breaches of the
Peace, and Acts of Aggression), outlines when a state can resort to the use
of military force against other states.
Force may be used against another
- such an act is authorised by the UN Security Council as part of
collective security mechanism
- a state is acting in self-defence.
The threat or use of force
is confined solely to armed force used directly
or indirectly (state participation in the use of force by another state or
by irregulars, mercenaries or rebels).it does not extent to political or
Article 2(6) of UN Charter provides that UN shall ensure that non UN state
member to act in accordance with the principles of international law for
maintenance of international peace and security.
The rules of the Charter on the use of force are brief and cannot constitute
a comprehensive code. Article 2(4) and 51 are very much response to World
War 2 and are accordingly directed to inter-state conflict. It is now a
common place that large scale inter-state conflicts are less and civil wars-
with or without state intervention have outnumbered traditional inter state
wars. Cross border guerrilla incursions and limited inter state fighting in
border areas have been the norm rather than all-out wars between states.
The apparently simple words of the Charter have given rise to fundamental
differences between states. The prohibition in use of force led to
fundamental divisions as to whether the prohibition of use of force
includes economic coercion, scope of right of self defense, the right to use
force to further self determination and to intervene in civil wars. With the
dominance of USA as a super-power and virtual end of decolonisation, there
is a call for reappraisal of international law on use of force.
How far should the Charter be interpreted to allow the use of force to
restore or further the democracy, to restore order in a state without an
effective government, to further the right to self-determination outside the
decolonisation context and to respond to terrorist attacks? How far should
the UN Security Council exercise centralised control over these and other
uses of force?
The International Court of Justice in Nicaragua case regarded the Charter
provisions as dynamic rather than fixed, and thus is capable of change over
time through state practice.
Authorization By UN Security Council
The Security Council is empowered to adopt measures involving the use of
force pursuant to Article 42 in Chapter VII of the United Nations Charter.
This is one of few circumstances where the use of force is accepted as
legally justified. Article 42 remained inoperative during most of the Cold
War, as the Councils five permanent members used their veto to block nearly
every attempt to adopt a resolution authorizing force. Thus, the Council was
seldom able to take effective action in accordance with its primary
responsibility for the maintenance of international peace and security
pursuant to the UN Charter Article 24(1). The end of this era enabled the
Security Council to be considerably more active, and it has adopted a large
number of resolutions.
Decisions of the Security Council in accordance with the UN Charter are
binding upon all Member States pursuant to Article 25. According to Article
103, this has the consequence that a Council resolution will prevail in the
event of a conflict with obligations Members may have under other
agreements. Hence, a Council resolution may impose exceptions from treaties,
i.e. oblige States to act contrary to international agreements by which they
Chapter VII of the UN Charter contains provisions concerning: Action with
Respect to Threats to the Peace, Breaches of the Peace and Acts of
When the Security Council has determined the existence of one
of these situations under Article 39, it can decide provisional measures
under Article 40.
Pursuant to Article 41, the Council can decide what measures not involving the use of armed force
to be applied in order to give effect to its decisions
. If such
measures under Article 41 prove to be inadequate or the Council consider
them to be so, it may take actions involving the use of armed force. Article
42 of the Charter states that the Council may take such action by air, sea or land forces as may be necessary
to maintain or restore international peace and securit
y. So far, measures
not involving armed force has initially been applied in every situation
where force has finally been authorized by the Council.
Article 39- determination provision
- threat to the peace
- breach of the peace
- act of aggression
Threat to the peace
This is the broadest of the three categories, and it is difficult to find a
precise definition. Shaw notes that in a sense it constitutes a safety net
for the Security Council where the conditions needed for a breach of the
peace or act of aggressions do not appear to be present. Practice since
the Kuwait crisis in 1990 has shown that the range of situations the Council
has determined to constitute threats to international peace and security has
At its most basic, the concept is intended to enable a response to imminent
armed conflict between states. Severe intrastate violence (Balkan war prior
to splintering of Yugoslavia), serious violations of human rights and
humanitarian law (Somalia and other east/central African nations during
early 1990s) and terrorism have been designated as threats to peace.
In Resolutions 1368 and 1373, adopted after the September 11 terrorist
attacks in the United States, the Security Council stated that such acts,
like any act of international terrorism, constitute a threat to
international peace and security
The concept includes not only situations in which the use of armed force
appears imminent, but where factors subsist that may lead to use of force.
Breach of peace
Breach of peace = hostility between armed units of two states. In SC
Resolution 502, the Security Council considered the Argentine invasion of
the Falklands to be a breach of the peace even prior to UKs counter
offensive. In Resolution 660 the Council determined that the Iraqi
invasion of Kuwait was a breach of the peace.
Act of aggression
In 1974, the General Assembly adopted Resolution 3314 on the definition
Article 1 states that aggression is the use of armed force by a state against the sovereignty, territorial integrity or political independence of
another State, or in any other manner inconsistent with the Charter of the
. Furthermore, Article 2 of the resolution says that the
first use of armed force by a State in contravention of the Charter shall
constitute prima facie evidence of an act of aggression.
The Council has determined acts of aggression only three times. This was in
relation to Israel, South Africa and Southern Rhodesia.
The inter state use of force in the years since 1991 has not produced
anything like the international response triggered by Iraqui invasion of
Kuwait. The conflicts which broke out between Ethiopia and Eritrea, Armenia
and Azebaijan, Cameroon and Nigeria, Israel and Lebanon, and Ethiopia and
Somalia did not provoke the UN to identify an aggressor and to authorize
action against it. The reaction of Security Council to the outbreak of
inter-state conflict has generally been to avoid condemnation and the
attribution of responsibility and rather to call for a ceasefire and the
restoration of peace. With regards to Iraq, resolution 678 (1990) authorized
member states to use all necessary means
to ensure Iraq immediately and
unconditionally withdrew all forces from Kuwait and to restore international
peace and security in the area.
Case of Libya
UN Security Council Resolution 1973 is an example of the authorisation of
the use of force by the UN Security Council. On the 17 February 2011, soon
after the outbreak of protests in Egypt and Tunisia, which marked the
beginning of The Arab Spring, Libyans in Benghazi joined in peaceful
protests against the oppressive rule of Colonel Muammar Gaddafi.
demanded that he step down after 42 years of ruling Libya and called for an
open, democratic and inclusive Libya. They demanded the end of an era of
oppression and gross human rights violations in the country, such as those
committed in 1996 in the Abu Salim prison. The response of Gaddafi to this
protest with armed violence against civilian protesters ignited a civil war
between the government forces in support of Gaddafi and the opposition armed
forces formed by the rebels.
On 17 March 2011, the UN Security Council, acting under Chapter VII of the
UN Charter, adopted Resolution 1973 authorising member states to take all
necessary measures […] to protect civilians and civilian populated areas
under threat of attack in the Libyan Arab Jamahiriya, including Benghazi,
while excluding a foreign occupation force of any form on any part of Libyan
Self Defence And Pre-Emptive Use of Force Against Terrorism
The traditional definition of the right of self defence in customary
international law arose out of Caroline case.British subjects seized and
destroyed vessel in American port because Caroline was supplying groups of
American nationals who conducted raids into Canadian territory.
The US Government declared that the attack on the vessel constituted an
attack against the American territory. The British Government responded by
claiming the right to self-defence. The subsequent diplomatic correspondence
between the parties contained an outline of the key elements for legitimate
self-defence. The US Secretary of State, Daniel Webster, emphasised that for
the self-defence to be lawful in international law, the British Government
must prove the-necessity of self-defence, instant, overwhelming, leaving no
choice of means and no moment for deliberation and the act justified by the
necessity of self-defence, must be limited by that necessity, and kept
clearly within it. These principles were accepted as customary
Debate over 51
Article 51 of the UN Charter provides for the right of self defence. There
has been extensive controversy as to the extent of this right. The words
nothing in the present Charter shall impair the inherent…self defence are
given different meanings. Some group of writers say that provision preserves
the pre-existing rights of states without express provision. Others say that
the right of self-defence arises only if an armed attack occurs and the
provision should be narrowly constructed. The limits imposed on self defence
in article 51 would be meaningless if wider customary law right to self
defence survives unfettered by these restrictions.
It is argued that the literal construction of Article 51 simply ignores the
reality that the Cold War and other political considerations have often
paralyzed the Security Council and that, in practice, states have continued
to use force pre-emptively at times in the UN era and the international
community has continued to evaluate the legitimacy of those uses by the
traditional constraints of necessity and proportionality.
In practice, states try to invoke article 51 to justify their use of force
by giving it wider ambit of including anticipatory self defence or forcible
response to terrorism.
In Oil Platforms case and many other such judgements, the courts have
held that in order to be able to resort to force in self-defence, a state
has to be able to demonstrate that it has been the victim of armed
attack and it bears the burden of proof. It is necessary to show that the
state has been intentionally attacked which was not proved in this case
against US. In seeking to determine how serious an attack must be in order
to validate a self defense response, the court in Nicaragua case
distinguished the most grave forms of use of force from other less grave
forms. Also, it is difficult to determine the moment when an armed attack
has commenced in order to comply with the requirements of article 51.
USA and Israel had invoked article 51 to justify the use of force in
response to terrorist attacks. Force was used in response to past terrorist
attacks by Israel in 1968 against Beirut, 1985 against Tunis and by USA
against Libya in 1986, Iraq in 1983, Sudan-Afghanistan in 1998 etc.in these
cases, force was used against the state allegedly harbouring the terrorist
These episodes were justified by the states using force as self defence but
the actions were more like reprisals, because they were punitive rather than
defensive. Even if the actions were aimed at those actually responsible for
terrorist attacks and the force used could be proportionate but how use of
force was necessary when the attacks on nationals had already taken place.
USA and Israel said that their actions were pre-emptive because there was a
danger of furture terrorist attacks.
The question arises whether armed attack
in article 51 extends to non
-state actors. The test generally accepted was that in the Definition of
Aggression taken by ICJ in Nicaragua case : use of force by individuals
constituted an armed attack only when there had been sending by or on
behalf of state of armed bands, groups, irregulars or mercenaries, which
carry out acts of armed force, against another state of such gravity as to
amount to acts of aggression. After 9/11 President Bush announced that
the USA would make no distinction between terrorists and those who harboured them, and that it would treat any nation that harboured
terrorists as a hostile regime.
The question whether a right of anticipatory self-defence has survived the
UN Charter remains controversial, among States and among authors. During the
Cold War, one side seemed to take the position that action in self-defence
was only lawful if an armed attack had actually been launched. The
United States, the United Kingdom and others maintained what might be termed
the Caroline approach, that is, that force may be used in self-defence in
the face of an imminent attack. The International Court of Justice has not
yet addressed the matter; indeed it has expressly left the question open.
The end of the Cold War, and the new threats have not, yet, led to general
agreement among States on the question of anticipatory self-defence.
What constitutes an imminent attack in the context of transnational
terrorist groups and weapons of mass destruction?
The Caroline language is
familiar: a necessity of self-defence, instant, overwhelming, leaving no
choice of means, and no moment for deliberation
The commentary, after referring to the Caroline formula, notes that in
the context of contemporary threats imminence cannot be construed by
reference to a temporal criterion only, but must reflect the wider
circumstances of the threat.
A key element is whether it is believed that
any further delay in countering the intended attack will result in the
inability of the defending State effectively to defend itself against the
attack. In this sense necessity will determine imminence.
Whether an attack may be regarded as imminent falls to be assessed by
reference to the immediacy of the attack, its nature and gravity. There must
be a reasonable and objective basis for concluding that at an attack will be
launched, while bearing in mind that terrorists typically rely on the
unpredictability of attacks in order to spread terror among civilians. Armed
force may only be used when it is anticipated that delay would result in an
inability by the threatened state effectively to avert the attack.
Whether international law currently allows the pre-emptive use of force by a
nation or group of nations without Security Council authorization is not
clear. That would seem to be permissible only if Article 51 is not read
literally but expansively to preserve as lawful the use of force in
self-defense as traditionally allowed in customary international law. As
noted, the construction of Article 51 remains a matter of debate.
But so construed, Article 51 would not preclude the pre-emptive use of force
by the U.S. against Iraq or other sovereign nations. To be lawful, however,
such uses of force would need to meet the traditional requirements of
necessity and proportionality.
If customary international law governing the pre-emptive use of force does
remains valid, a primary difficulty still remains of determining what
situations meet the test of necessity. the judgment of necessity becomes
increasingly subjective; and there is at present no consensus either in
theory or practice about whether the possession or development of weapons of
mass destruction by a rogue state justifies the pre-emptive use of force.
Most analysts recognize that if overwhelmingly lethal weaponry is possessed
by a nation willing to use that weaponry directly or through surrogates,
some kind of anticipatory self-defence may be a matter of national
survival; and many contend that international law ought, if it does not
already do so, to allow for the pre-emptive use of force in that situation.
But many states and analysts are decidedly reluctant to legitimate the
pre-emptive use of force even in that situation on the grounds the
justification can easily be abused.
Osama Bin Laden assassination
Osama Bin Laden was killed on 2 May 2011 in the course of an operation by US
special forces (Navy Seals) in Abbottabad, Pakistan. (operation Neptune
The US argued that the action in killing Bin Laden was in exercise of its
right to national self-defence under article 51 of the UN Charter. It is
unclear whether Pakistan consented before or endorsed the action
afterwards. If it did consent, there is no jus ad bellum issue [ but
technically it cannot because Pakistan ratified ICCPR on 23 June, 2010 and
it cannot consent to violations of international humanitarian law on its
territory]. US officials publicly stated that the US neither sought nor
obtained consent from Pakistan.
If it didn't consent then prima facie the actions of the US would be a clear
breach of the prohibition of the use of force in Article 2(4) UN Charter and
a violation of Pakistan's sovereignty. The starting point is that the
host State is under an obligation to deal with threats and attacks to other
States emanating from the activities of non-state actors on its territory.
However, it is arguable that a State's right of self-defence can be
exercised in the territory of another State if that other State is unable or
unwilling to deal with the source of the attacks and the source continues to
pose a significant danger.
The military action taken would be based on the
arguments that (i) Pakistan either knew or should have known of Bin Laden's
presence and was unable or unwilling to capture him; (ii) Bin Laden had led
an organization which had attacked the US, that he continued to pose an
imminent threat to the US, and (iii) that armed force was necessary and
proportionate in addressing that threat.
Once a state concludes that it has a right of self-defense, it must assess
what specific types of actions it can take in response, including whether it
can use force. The standard inquiry has three elements: whether the use of
force would be necessary; whether the level of force contemplated would
be proportionate to the initial armed attack (or imminent threat thereof);
and whether the response will be taken at a point sufficiently close to the
armed attack (i.e., whether it would be immediate).
Unwilling or unable test
If there is no consent of the state (in this case Pakistan), the unwilling
or unable test is applied to assess whether it is prepared to suppress the
threat. If the territorial state is either unwilling or unable, it is
reasonable for the victim state (USA) to consider its own use of force in
the territorial state to be necessary and lawful (assuming the force is
proportional and timely). If the territorial state is both willing and
able, the use of force would be unlawful.
The key principles that the international community might expect a state
using force to follow are:
- ask the territorial state to address the threat and provide adequate
time for the latter to respond;
- reasonably assess the territorial states control and capacity in
the region from which the threat is emanating;
- reasonably assess the territorial states proposed means to suppress
the threat; and
- evaluate its own prior interactions with the territorial state.
Based on the facts that have come to light to date, US appears to have
strong arguments that Pakistan was unwilling or unable to strike against Bin
Laden. US has put an argument that asking the Government of Pakistan to act
against Bin Laden could have undermined the mission. The size and location
of the compound and its proximity to Pakistani military installations has
cast strong doubt on Pakistans commitment to defeat al Qaeda. US seems to
have suspected that certain officials within the Pakistani government were
aware of Bin
and might have tipped him off to the imminent U.S. action if they had known
about it in advance.
Pakistan might argue that it would have been able to stage an effective
mission or that US should have constructed the mission as a joint operation,
given that the two countries work closely together in other intelligence and
military contexts. However, Pakistans defense of its sovereignty in this
case, while understandable from a political perspective, seems weak as a
matter of international law.
Balakot Strikes 2019
The United Nations Charter authorises one state to use force in another
states territory only in self-defence or with the approval of the UN
Security Council. In addition to self-defence, the International Law
Commissions Articles on Responsibility of States for Internationally
Wrongful Acts permit the extraterritorial use of force by a state if it is
executed under certain circumstances, such as (1) with the other states
consent, (2) out of distress, (3) out of necessity, (4) as a countermeasure,
or (5) in response to situations which are beyond the states reasonable
control (force majeure).
Given the element of subjectivity, it is hardly surprising that almost
every instance of the use of force generates debate and there is often
little consensus among various international
stakeholders. Traditionally, these debates have been the sharpest when
the target consists of non-state armed groups, as in this case. However, in
light of state practice and certain Security Council resolutions –
particularly the ones adopted in response to the 9/11 attacks – the use of
force against militant groups in self-defence is increasingly considered an
12 Mirage 2000 fighter aircraft to attack the Jaish-e-Mohammed terrorist
camp in Balakot on February 26, 2019 by Indian Air Force.
On 14 February 2019, a dastardly terrorist attack was carried out on Indias
security personnel, in the Pulwama district of Kashmir. The Jaish-e-Mohammed
(JeM), a United Nations (UN) designated terrorist organization, claimed
responsibility for the attack. The Pulwama attack is the latest in a long
list of attacks, attempted or executed, by the same terrorist outfit against
Indian soldiers and civilians in Kashmir and elsewhere.
The official statement from the Air force after the operation used terms
non military pre-emptive action that clarifies that the target of the
attacks was non state actors, and not the military or the civilian
population of Pakistan. This clarification manifests Indias position that
the air strikes sought to simply destroy the terror camps of JeM, without
delving into questions of attribution and state responsibility of Pakistan
for the acts of the NSA operating from within its territory.
Indias official statement mentions that the pre-emptive strikes were
undertaken in the face of imminent danger, which was based on credible
intelligence that the JeM was planning another terror attack against the
country. It is argued that the usage of the phrase pre-emptive strikes
hovers between two variations of the right of self-defence – anticipatory
and preventive. While anticipatory self-defence recognises the existence of
the right in the face of a manifestly specific and imminent attack. The
concept of preventive self-defence does not seek to rely on any concrete
threat of an armed attack, and operates in the realm of contingency and
conjecture (eg. Japans attack on Pearl Harbour).
Furthermore, solely relying on the phrase imminent danger, in the absence
of any concrete evidence of the imminent threat, not only leaves the
lawfulness/legality of the air strikes in doubt, but also fails to clear the
confusion highlighted in the previous paragraph.
India relied on unwilling or unable test as a justification by seeking to
establish the unwillingness or inability on the part of Pakistan in taking
action against the JeM despite the sharing of location intelligence on JeM
terror camps, and urging Pakistan to take action against the JeM.
Despite Indias position, the distinction between the attack on the State
and the attack on the non-state actor does not absolve the attacking State
from the UN Charter framework on the use of force. The International Law
Association rightly observed that using force within the territory of
another state-even if the forcible measures are limited to strikes against a
non-state actor-must be considered as within the notion of force as it
exists in Article 2(4) of the Charter.
India seems to consider its 26 February 2019 aerial strikes at Balakot as
non-military and thus do not attract the legal framework on the use of
force, i.e., UN Charter provisions. They may be considered as law and order
measures undertaken on the territory of another State. However, this
requires further clarification from India for the purpose of placing it in a
legal context, because this position is unusual from the standpoint of
The support that India has received for its right to self defence after the
Pulwama attack, the absence of any condemnation by other states as well as
the UN subsequent to the Balakot air strike suggests the recognition of the
right of self-defence against non state actors.
- W. Michael Reisman, Criteria for the Lawful Use of Force in
International Law, (1985) 10 YJIL 279.
- James Crawford, Brownlies Principles of Public International
Law (8th edn, Oxford University Press, 2012)745; Gallant, The Principle
of Legality in International and Comparative Criminal Law (2005)
- Malcolm N Shaw, International Law(6th edn., Cambridge University
- Armed Activities on the Territory of the Congo (Democratic Republic
of the Congo v. Uganda),  ICJ Reports 168.
- Charter of the United Nations, article 51.
- Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. US),  ICJ Reports14.
- Malcolm N Shaw, International Law(6th edn., Cambridge University
- United Nations Security Council threat to international peace and
security caused by terrorist acts (12 September 2001) UN Doc S/Res.
- United Nations Security Council threat to international peace and
security caused by terrorist acts (28 September 2001) UN Doc S/Res.
- United Nations Security Council Falkland Islands (Malvinas) (3
April 1982) UN Doc SC Res 502
- United Nations Security Council Iraq-Kuwait (2 August) (2 Aug.
1990) UN Doc S/Res. 660
- United Nations General Assembly Definition of Aggression (14
December,1974) UN Doc GA/Res 3314 (XXIX)
- United Nations Security Council Israel Tunisia (4 October 1985) UN
Doc S/Res. 573
- United Nations Security Council Angola- South Africa (31 March
1976) UN Doc18 S/Res. 387
- United Nations Security Council South Rhodesia- Zambia (23
November, 1979) UN Doc.S/Res. 455
- Caroline Case,(1840) 29 BFSP 1137
- Christine Gray, International law and use of force (3rd edn,
Oxford University Press,2008)127
- Oil Platforms (Iran v. US), ICJ Reports  161
- Nicaragua case,  ICJ Reports 14
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