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Use of Force in International Law

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; and 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 (Article 2(4)).

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 events.

Research Objectives
  • To understand the rules governing the law on the use of force and their evolution
  • 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

Introduction
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 opposites.[1]

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.

Historical Overview
1815-1945
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.[2]

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.[3] It is the cornerstone of UN Charter.[4] It was elaborated as a principle of international law in the 1970 Declaration on principles of International Law.

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 United Nations.

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 state when:

  • such an act is authorised by the UN Security Council as part of collective security mechanism
  • a state is acting in self-defence.[5]
     
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).[6]it does not extent to political or economic coercion.

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 are bound.

Chapter VII of the UN Charter contains provisions concerning:

Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression. 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 security. 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.[7] 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 broadened.

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[8] and 1373[9], 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.[10] In Resolution 660 the Council determined that the Iraqi invasion of Kuwait was a breach of the peace.[11]

Act of aggression

In 1974, the General Assembly adopted Resolution 3314[12] on the definition of aggression.

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 United Nations. 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[13], South Africa[14] and Southern Rhodesia[15].

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.

They 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 territory.

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.[16]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 international law.

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.[17]
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[18] 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 organisation responsible.

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.[19] 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.[20]

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.[21] 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.[22]

The commentary[23], 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.[24]

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.

Case Study:

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 spear)

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.[25] 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.[26] 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).[27]

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:

  1. ask the territorial state to address the threat and provide adequate time for the latter to respond;
  2. reasonably assess the territorial states control and capacity in the region from which the threat is emanating;
  3. reasonably assess the territorial states proposed means to suppress the threat; and
  4. evaluate its own prior interactions with the territorial state.[28]
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).[29]

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.[30] 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 accepted norm.

Operation Bandar

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.[31]

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.[32] 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).[33]

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.[34]

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 international law.[35]

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.

End-Notes:
  1. W. Michael Reisman, Criteria for the Lawful Use of Force in International Law, (1985) 10 YJIL 279.
  2. 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) 115-16,128,144
  3. Malcolm N Shaw, International Law(6th edn., Cambridge University Press) 814.
  4. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), [2005] ICJ Reports 168.
  5. Charter of the United Nations, article 51.
  6. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), [1986] ICJ Reports14.
  7. Malcolm N Shaw, International Law(6th edn., Cambridge University Press) 855.
  8. United Nations Security Council threat to international peace and security caused by terrorist acts (12 September 2001) UN Doc S/Res. 1368
  9. United Nations Security Council threat to international peace and security caused by terrorist acts (28 September 2001) UN Doc S/Res. 1373
  10. United Nations Security Council Falkland Islands (Malvinas) (3 April 1982) UN Doc SC Res 502
  11. United Nations Security Council Iraq-Kuwait (2 August) (2 Aug. 1990) UN Doc S/Res. 660
  12. United Nations General Assembly Definition of Aggression (14 December,1974) UN Doc GA/Res 3314 (XXIX)
  13. United Nations Security Council Israel Tunisia (4 October 1985) UN Doc S/Res. 573
  14. United Nations Security Council Angola- South Africa (31 March 1976) UN Doc18 S/Res. 387
  15. United Nations Security Council South Rhodesia- Zambia (23 November, 1979) UN Doc.S/Res. 455
  16. Caroline Case,(1840) 29 BFSP 1137
  17. Christine Gray, International law and use of force (3rd edn, Oxford University Press,2008)127
  18. Oil Platforms (Iran v. US), ICJ Reports [2003] 161
  19. Nicaragua case, [1986] ICJ Reports 14
  20. Murphy, Commentary Practice of US relating to International Law, (2002) 96 AJIL 237
  21. Michael Wood, International Law and use of force, what happens in practice? (2007) 11 SYBIL 1–14
  22. R.Y. Jennings, The Caroline and McLeod Cases, (1938) 32 AJIL 82
  23. Leiden Policy Recommendations on Counter-Terrorism and International Law, Netherlands International Law Review,(2010) 531; L. van den Herik, N. Schrijver, Counter-Terrorism Strategies in a Fragmented International Legal Order: Meeting the Challenges (2013),706
  24. Supra note.20
  25. Zardari (President of Pakistan), 'Pakistan Did Its Part' Washington Post, (Washington DC 3 May 2011)
  26. United Nations Security Council Israel Tunisia (25 April 1988) UN Doc S/Res/611 (condemnation of Israel's assassination of an individual in Tunisia of as an illegal act of aggression against the sovereignty and territorial integrity of Tunisia)
  27. Ashley S Deeks Pakistan's Sovereignty and the Killing of Osama Bin Laden(2011) 15 ASIL - https://www.asil.org/insights/volume/15/issue/11/pakistans-sovereignty-and-killing-osama-bin-laden accessed on 09 October, 2019
  28. Ibid
  29. Responsibility of States for Internationally Wrongful Acts 2001, Chapter V
  30. Shalini Iyengar, What International Law Tells Us About India's Recent Pre-emptive Strike,The Wire (19 June, 2015) accessed on 18 September,2019
  31. Dhruv Sharma, The Balakot Strikes: Analysing Indias Non-Military Pre-emptive Action, Opino Juris,(06 March 2019) accessed on 07 October 2019
  32. https://www.mea.gov.in/Speeches-statements.htm?dtl/31089/Statement+by+Foreign+Secretary+on+26+February+2019+on+the+Strike+on+JeM+training+camp+at+Balakot
  33. Supra note.31
  34. See http://www.ila-hq.org/index.php/committees; Supra note.27
  35. Srinivas Burra, Legal Implications of the Recent India-Pakistan Military, Opino Juris,(08 March 2019) http://opiniojuris.org/2019/03/08/legal-implications-of-the-recent-india-pakistan-military-standoff/

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Section 482 CrPc - Quashing Of FIR: Guid...

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The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of th...

How To File For Mutual Divorce In Delhi

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How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Whether Caveat Application is legally pe...

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Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as pro...

The Factories Act,1948

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There has been rise of large scale factory/ industry in India in the later half of nineteenth ce...

Constitution of India-Freedom of speech ...

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Explain The Right To Freedom of Speech and Expression Under The Article 19 With The Help of Dec...

Copyright: An important element of Intel...

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The Intellectual Property Rights (IPR) has its own economic value when it puts into any market ...

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