Use of force in the Gap between Articles 2(4) and 51 of the UN Charter

International law permits use of force in ‘law enforcement activities’ if it is unavoidable, reasonable and necessary but such action may not always be legitimate especially when threat of force has been used rather than mere law enforcement.53 In the Corfu Channel case, the UK justified its minesweeping action as a lawful measure responding to unlawful behaviour by Albania and, more specifically, as limited intervention in order to secure possession of evidence to be submitted to an international tribunal.54 The legal argument anticipated by UK was that the Article 2(4) prohibition is subject to an exception for certain ‘non-aggressive’ use of force.55 In order to satisfy the non-aggressive nature of use of force the states have to satisfy that the ‘threshold’ for ‘armed attack’ has not reached and such use of force is necessary for law enforcement purposes. Satisfaction of these requirements facilitate use of force ‘short of armed attack’ in the gap between Articles 2(4) and 51. Force can be used in this gap if it is a necessary action which is not to the gravity of an armed attack or which is a ‘reaction’ or ‘response’ to a non-armed attack. Use of force by way of retaliation or reprisal is generally unlawful56 but such unlawful acts can become lawful if they constitute a reaction to the delinquency by another state.57 However, such actions would not be legal if the only purpose was to take revenge.58 For example, sanctions and countermeasures against a delinquent state which has used force but not to the extent of an ‘armed attack’ is lawful as far as such sanctions and countermeasures are necessary to enforce the law but not to take revenge against the delinquent state.

51 _{The Daily mail, ‘US Airstrikes Destroy ISIS Targets in Syria’ (4 October 2014)}

<http://www.dailymail.co.uk/video/news/video-1122157/New-video-U-S-launches-airstrikes-against-ISIL- Syria.html> accessed 21 April 2017.

52 _{BBC News Desk, ‘Yemen Crisis: Who Fights Whom?’ (28 March 2017) <http://www.bbc.co.uk/news/world-}

middle-east-29319423> accessed 8 August 2017.

53 _{Guyana v. Suriname, Award of the Arbitral Tribunal, 17 Sept 2007, para 445.}

54 _{Christine Gray, ‘A Policy of Force’ in Karine Bannelier, Theodore Christakis, and Sarah Heathcote (eds), The}

ICJ and the Evolution of International Law. The Enduring Impact of the Corfu Channel Case (Abingdon:

Routledge 2012) 234-5.

55 _{Michael Reisman, ‘Coercion and Self-Determination: Construing Charter Article 2(4)’ (1984) 78 American}

Journal of International Law 642.

56 _{GA Res 2625 (XXV) of 24 Oct 1970 <http://www.un-documents.net/a25r2625.htm> accessed 20 August 2017.} 57 _{Antonio Cassese, International Law (2}nd _{edn, OUP 2005) 299.}

58 _{Robert Jennings and Arthur Watts (eds), Oppenheim’s International Law, vol 1, peace (Longman: London}

1992) 395; see also Noam Lubell, Extraterritorial Use of Force Against Non-State Actors (OUP 2010) 70; Derek Bowett, ‘Reprisals Involving Recourse to Armed Force’ (1972) 66 AJIL 1.

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The use of force, in this gap, is permissible although Article 2(4) prohibits threats or any sort of inter-state use of force against the territorial integrity and political independence of any state.59 This is because, without this it would not be possible to carry out law enforcement activities, stated above, where necessary. For example, where the victim state has not been subject to an ‘armed attack’ but mere interference of its sovereignty, such as border incidents or minor skirmishes.60 Therefore, non-aggressive limited use of force could be used in extreme circumstances where it is necessary. In the Eichmann case,61 _{for example, Israel’s action was} considered as a violation of Argentina’s sovereignty, not as a breach of jus contra bellum as such. In the Saiga case,62 the International Tribunal for the Law of the Sea qualified an excessive use of force as a violation of the law of the sea, not of Article 2(4) of the Charter. The same distinction was debated in other precedents, like the Fisheries case (Spain v.

Canada)63 or the Guyana/Suriname case.64

As a result, ‘necessity’ seems to be a very powerful tool to legitimate use of force in the gap between Articles 2(4) and 51 or which does not fall within the Charter system. Article 25 of the ‘International Law Commission (ILC) Articles on State Responsibility’ mentions ‘state of necessity’ as a general circumstance precluding wrongfulness.65 _{However, necessity alone} cannot legitimate use of force where there is an express legal requirement in place, such as the occurrence of an ‘armed attack’ in article 51 of the UN Charter.66 Therefore, the state of necessity can only be invoked on an exceptional basis.67 For instance, states and Regional Organisations are very much inclined to rely on self-defence according to Article 51 rather than ‘necessity’ alone. Examples include the Israeli Operation at Entebbe in 1976, 68 _the unsuccessful raid to rescue hostages in Iran in 1980,69 or the US military action against Sudan

59 _{See section 2.1.1 of this chapter (above).} 60 _{See section 2.1.2 of this chapter (above).} 61 _{SC Res 138 (1960) of 23 June 1960, para 1}

<http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/138(1960)> accessed 10 August 2017.

62 _{The M/V Saiga (Saint Vincent and the Grenadines v. Guinea) Judgment of 4 Dec 1997, ITLOS, paras 155-6.} 63 _{ICJ Rep 1998, 466, para 84.}

64 _{‘Arbitral Tribunal Constituted Pursuant to Article 287, and in Accordance with Annex VII of the UN}

Convention on the Law of the Sea (Guyana and Suriname)’ (2007) 139 ILR 566, para 445.

65 _{Annexed to GA Res 56/83 of 13 Dec 2001}

<http://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf> accessed 10 August 2017.

66 _{Yearbook of the International Law Commission, 2001, Vol II (2), 84, para 21}

<http://legal.un.org/ilc/publications/yearbooks/english/ilc_2001_v2_p1.pdf> accessed 11 August 2017.

67 _{Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovaki), ICJ Rep 1997, 40, para 51.}

68 _{S/PV. 1939 (9 July 1976) para 115 <http://dag.un.org/bitstream/handle/11176/70153/S_PV.1939-}

EN.pdf?sequence=17&isAllowed=y> accessed 11 August 2017.

69 _{Letter dated 25 April 1980 from the Permanent Representative of the USA to the UN addressed to the President}

of the Security Council, S/13908/780 (25 April 1980) <http://repository.un.org/handle/11176/67581> accessed 12 August 2017.

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and Afghanistan in 1998.70 The only example of an explicit and clear invocation of the state of ‘necessity’ can be found in the context of the war against Yugoslavia in 1999 where Belgium pleaded state of necessity if it had failed to plead humanitarian intervention.71 However, it is a very dangerous move by states or regional organisations to find legitimacy of the use of force solely on the basis of ‘necessity’ because such move is not only very weak but also demonstrates violation of the prohibition of use of force.

2.1.4 Use of force by the Security Council under Chapter VII of the UN