The prohibition of the use of force in institutional perspective

When it comes to the prohibition of the use of force in international law, many complexities can arise. It is important to take into account not only the texts and provisions of the relevant international instruments, but also the competencies of the different role players like the Security Council, the ICJ, the General Assembly of the UN, and, as will be seen in later Chapters, the ICC.

Christine Gray points out that one should not assume that the Security Council has (or should have) the final say as to the legality or illegality of the use of force, or on the content of the norms in question.180 _{She asks:}

‘How far is the law developed by institutions? That is, do states acting collectively through the UN have a more important role than they do outside the UN in the interpretation and application of the UN Charter? Does the Security Council have the final say as to not only what is an act of aggression, threat to the peace or breach of the peace under Chapter VII of the Charter, but also as to what is a threat or use of force under Article 2(4) or an armed attack and as to whether a state is acting in self-defence under Article 51?’181

179 _{Legality of the Threat or Use of Nuclear Weapons case (supra) par 40-41.}

180 _{Christine Gray International law and the use of force (2000) Oxford University Press, Oxford 9.} 181 _{Gray (supra) 9.}

The primarily political role of the Security Council in determining whether conduct amounts to prohibited conduct under Article 39 of the UN Charter seems to be still an outstanding characteristic of not only the collective security system, but also the international use of force regime. The role of the ICJ as a forum for judicial review of Security Council decisions (notably under Chapter VII of the Charter) is debatable and the ICJ itself has not pronounced in clear terms on its relationship with the Security Council in this regard.182

Apart from the ICJ’s seeming unwillingness to play a significant role in terms of Article 39 determinations (regarding acts of aggression, breaches of peace or threats to peace), the Court does seem to play an increasingly active role in terms of Article 2(4) questions on the prohibition of the use of force.183 The important case of Nicaragua v United States184 not only provided a judicial interpretation of the prohibition of the use of force under the UN Charter, but also delineated the respective roles of the ICJ and the Security Council in determining various aspects of the UN Charter on the use of force. Nicaragua alleged that the US violated Nicaragua’s sovereignty, territorial integrity and political independence with an ‘army’ of mercenaries. Nicaragua alleged that these mercenaries were trained and supplied by the US and ‘directed their attacks against human and economic targets inside Nicaragua’.185

182 _{See Gray (supra) 9 – 10.}

183 _{Gray (supra) 11 – 12. Gray refers to a number of ICJ cases post Nicaragua where the Court were approached}

by states to rule on the legality of the use of armed force.

184 _{Case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v United States of}

America) Merits, Judgment, ICJ Reports 1986, p 14; 25 ILM 1023 (1986).

185 _{See Nicaragua v United States (Judgment on Jurisdiction) (supra) par 85. For more historical and political}

background on this, see Max Hilaire International law and the United States military intervention in the

Gray pointed out that it was the United States that tried to portray the situation in Nicaragua as one relating to Chapter VII of the Charter (threats or breaches of peace or acts of aggression). However, the ICJ held that it was in fact an Article 2(4) matter (prohibition of the use of force). On the basis of this jurisdictional finding the matter could be brought before the ICJ, ‘the principal judicial organ of the UN’.186

Gray concludes that ‘[the] implication seems to be that matters under Chapter VII could not properly be entertained by the Court.’187 Gray observed that the ICJ can at present play an important role in the development of the law on the use of force – not an exclusive role, but alongside the Security Council. Put differently, issues involving the use of force fall not only within the political domain of the Security Council, but the ICJ is quite willing to assert its right to hear matters arising from the use of force by states and resolve the legal implications of such conduct.188 This view is in line with the ICJ’s interpretation of its role vis-à-vis the Security Council:

‘The Charter … does not confer exclusive responsibility upon the Security Council for the purpose [maintenance of international peace and security]. While in Article 12 there is a provision for a clear demarcation of functions between the General Assembly and the Security Council, in respect of any dispute or situation, that the former should not make any recommendation with regard to that dispute or situation unless the Security Council so requires, there is no similar provision anywhere in the Charter with respect to the Security Council and the Court. The Council has functions of a political nature assigned to it, whereas the Court

186 _{Gray (supra) 11.} 187 _{Gray (supra) 11.} 188 _{Gray (supra) 11 – 12.}

exercises purely judicial functions. Both organs can therefore perform their separate but complementary functions with respect to the same events.’189

Two decades after the judgment in the Nicaragua case, in Democratic Republic of

Congo v Uganda (hereinafter ‘DRC v Uganda’)190_{, the ICJ had to consider, inter}

alia, the legality of military interventions by Uganda in the DRC and whether that

constituted a violation of Article 2(4) of the UN Charter. Perhaps it is an indication of the ICJ’s sensitivity to not taking on the conflict resolution or collective security responsibilities of the Security Council that the Court declared in DRC v Uganda:

‘The Court is aware of the complex and tragic situation which has long prevailed in the Great Lakes region. There has been much suffering by the local population and destabilization of much of the region. In particular, the instability in the DRC has had negative security implications for Uganda and some other neighbouring States … The Court is aware, too, that the factional conflicts within the DRC require a comprehensive settlement to the problems of the region … However, the task of the Court must be to respond, on the basis of international law, to the particular legal dispute brought before it. As it interprets and applies the law, it will be mindful of context, but its task cannot go beyond that.’191

Two decades after the Nicaragua case the different, but complimentary roles of the Security Council and the ICJ in matters of the use of force by states, are still in place. The Security Council still has the primary political function to determine under Article 39 of the UN Charter whether there is a threat or breach of peace, or an act of aggression. The Security Council can then act in terms of Chapter VII to

189 _{Nicaragua v United States (Judgment on Jurisdiction of the Court) (supra) par 95 [emphasis in the original].} 190 _{Case concerning armed activities on the territory of the Congo (Democratic Republic of Congo v Uganda) 45}

ILM 271 (2006).

maintain peace and security. This is not to say that the Security Council action under Chapter VII cannot involve criminal liability for perpetrators of international crimes through criminal tribunals like the Rwanda Tribunal and the Yugoslav Tribunal.192 The ICJ on the other hand is the primary judicial organ under the UN Charter. It is the duty of the ICJ to settle disputes between States in terms of its powers under the Charter. Thus, a dispute regarding the use of force by a state in contravention of Article 2(4) of the Charter falls within the jurisdiction of the ICJ.193

2.4 The role of the General Assembly in relation to UN Charter provisions on the