The Legal Principles Regarding Legitimate Use of Force - Case Study Example

 «The Legal Principles Regarding Legitimate Use of Force» Classical realist Hobbes believed that humans were naturally anti-social creatures and that as a result, the natural state of human beings was that of being at war for survival. According to Hobbes, nature is scarce and “I put for a general inclination of all mankind, a perpetual and restless desire of power after power, that ceaseth only in death” (Hobbes, Leviathan, quoted in Morgan, 2001, p.523). Under Hobbes’ strand of realism, humans are only moral to the extent that they follow rules and regulations imposed by the state. However, in respect of foreign policy and international relations, Hobbes’ theory postulates that there is no common power over the nation states participating, and therefore no obligation to be moral, which in turn facilitates a self-interested approach to foreign policy. Conversely, Kant’s theory of international relations is the foundation of contemporary theoretical idealism, which directly undermines Hobbes’ realism. Kant asserts that “a true system of politics cannot… take a single step without first paying tribute to morality. For as soon as those two come into conflict, morality can cut through the knot which politics cannot unite”(Kant, translated by Nisbet, 1989). It is submitted at the outset that whilst this is clearly the ideal scenario for international relations and state foreign policy, Kant’s belief in the prevalence of innate human morality is arguably flawed and not reflected by the reality of the current political approach to foreign policy in international relations. To this end, it is arguable that Hobbes’ theory, whilst not necessarily ideal, is most commonly reflected in foreign policy, whilst often shrouded under guise of Kant’s “morality” as justification. The focus of this analysis is to critically evaluate Hobbes and Kant’s polarised theory in context of state foreign policy and consider which theory, if any is better placed to shape a nation’s international relations strategy. Whilst Kant’s theory is rooted in the assumption of innate human morality, the realist perception is that human nature cannot be trusted. Indeed, Hobbes’ supporter Donelan argues that there is “senselessness for survival of being moral when you can have no confidence that the other will be also; when there is no common power over you” (Donelan, 1990). Moreover, under Hobbes realism, individuals are all considered to be roughly equal in terms of strength and intellect, therefore there is no need or desire to placate other individuals by behaving kindly towards them (Donelan, 1990). If this is applied to issues of foreign policy, Hobbes theory argues that states are not of equal power to one another; indeed some are clearly more powerful than others and some are less. Therefore states have “no spontaneous concern for others” (Donelan, 1990). Thus human nature as perceived by Hobbes’ realism, clearly impacts a state foreign policy of self interest rather than international aid (Jackson and Sorenson, 1999). Moreover, under Hobbes’ realism theory in context of foreign policy, the “state is the pre-eminent actor in world politics”, and therefore whilst other parties may have importance, this is negligible in context of the nation state in the international hierarchy (Morgan, 2001). As such, the states are “engaged in power politics and as such, the foreign policy becomes a political battle for supremacy, with the biggest states fighting for top place” (Donelan, 1990, p.29). Whilst such moves are often disguised under justifications of national security, realists argue that “the national interest is the final arbiter in judging foreign policy” (Morgan, 2001). Conversely, Kant argues the following a priori principles of international relations: 1) The Freedom of every member as human being; 2) The equality of each with all the others as a subject; and 3) The independence of each member of a commonwealth as a citizen (Kant, 74). Kant’s theory regarding the moral development of the state weighs heavily on the presumption that the civil state will uphold these rights and claims “no-one can compel me to be happy in accordance with his conception of the welfare of others, for each may seek his happiness in whatever way he sees fit, so long as he does not infringe upon the freedom of everyone else within a workable general law…. he must accord others the same right as he enjoys himself” (Kant 74). Kant extended his idealist theory to postulate the “original contract” between man and civil society (Kant, 79), which Kant argued was vital for man to maintain his freedom (Kant, 46). However, whilst Kant’s assertions may be realistic within the state’s internal framework, it is questionable how far this notion of an innate human need for mutuality extends beyond a state’s border in international relations vis-à-vis other states. Kant put forward the argument that man would inherently be in favour of complying with this “implied contract” to prevent the anarchic state and that the sacrosanct status of the original contract extended to international relations with other states (Kant, 46). This idealism was rooted in Kant’s belief that an evolved moral state would become disgusted with war in the international system and that the idealism would result in an end to war (Kant, 125). If we consider this practically; post-holocaust, the international community gravitated towards a human rights culture with the emphasis on outlawing scope for genocide, torture and human rights abuses. The preamble of the United Nations Charter (the Charter) highlighted the purpose of the UN as “saving succeeding generations from the scourge of war” and to ensure that member states “settle their international disputes by peaceful means” (UN Charter Preamble, Article 2(3) 1945). Prior to 1945 there was no unified international prohibition on unilateral resort to force and the UN Charter sought to radicalise international politics through a general prohibition on the use of unilateral force by member states. The prohibition was officially enshrined in Article 2(4) of the Charter, which provides that: “All member states 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”(UN Charter Article 2(4) 1945). This move to create an internationally accountable system to prevent against the injustices of the Second World War arguably support Kant’s idealist vision of the “cosmopolitan constitution” (Kant, 105). Clearly, such an approach to foreign policy is desirable from a theoretically ideal perspective and Hobbe’s realism is cynical in undermining any concept of morality in man. However, despite the purported ban on unilateral use of force under the UN charter, the parameters of Article 2(4)’s applicability have remained uncertain, with some questioning its practical efficacy as a protective measure against unilateral use of force (Dixon 2004). This is further highlighted by Reisman’s view that “Article 2(4) was never an independent ethical imperative of pacifism” (Reisman 1984). Indeed the wording of Article 2(4) would appear to underline this as the prohibition appears to be subject to the caveat that the unilateral force must not be “inconsistent with the Purposes of the United Nations” (UN Charter Article 2(4) 1945), which does not actually rule out any force. This ambiguity is compounded by failure to clarify what is a legitimate purpose of the United Nations, coupled with the right of member states to self defence under Article 51 (UN Charter, Article 51 1945). Furthermore, it is further submitted that whilst the notion of a cohesive international political framework based on Kant’s theory is clearly a wonderful ideal for the basis of foreign policy, the political lessons learned from history clearly support Hobbes realism. As such, foreign policy whilst holding on to some ideological concepts arguably needs to incorporate a realistic approach to protect the state on the international stage. Moreover, the exploitation of the ambiguity in Article 2(4) further undermines Kant’s theoretical ideal and suggests that Hobbes’ realist vision appears to be more significant in shaping foreign policy in international relations. Indeed, the aftermath of September 11 has been utilised as a basis for reshaping the dimensions to the “legitimate” use of force under international law, with the legal definitions of self defence being extended de facto to cover pre-emptive strikes (Dixon and McCorquodale, 2003). The most significant issues are the undermining of the legal validity of the right to self-defence under international law, which has been brought to the fore by military actions across borders against non-state sectors hiding out in foreign territories, such as the US military strikes against Al Qaeda in Pakistan. This clearly changes the legal dynamic, whereby the target state is active against hiding such non-state sectors. This further supports the realist interpretation of international relations, which argues that the balance of power, which is to prevent other states gaining advantage (Weber, 1946) is considered key in shaping national foreign policy. Moreover, according to Donelan “Their efforts result in a stalemate in which they survive” (Donelan, 1990). Thus according to Hobbes’ theory of realism, every state works with self interest to be better than others with a rough balance of power resulting in stalemate, where foreign policy and international politics is locked in a repetitive cycle (Donelan, 1990). Moreover, Hobbes’ realist theory believes that national security is vital and therefore the “power of the state is not a domestic power…..but primarily an international relations power”. The successful realist leader will then both control the people living in the state and protect others from other nations and from those living outside the state. This is imperative for state citizens as Hobbes argues that “the final cause, end, or design of men…. Is the foresight of their own preservation…”(Hobbes, Leviathan, ch 17, quoted in Morgan, 2001, p. 546). Hobbes further believed that citizens were obliged to do whatever the sovereign said or wanted, provided the sovereign protected the state. However, as between states, there is no moral duty or extension of Kant’s “original contract” and therefore States can do anything to prevent the other gaining control (Jackson & Sorrenson, 1999). Jackson and Sorrenson further comment that “All states must be prepared to sacrifice their international obligations on the altar of their self-interest if the two come into conflict” (Jackson and Sorenson, 1999, p.69). This means therefore that progress in international relations cannot be made unless the international situation of each state is peaceful as if the state is suffering internal crisis then submit to self interest before international politics. Therefore realists believe that foreign policy and international relations are ultimately stuck in a repetitive cycle, since progress can only be made when every state’s internal situation is peaceful, and such progress may be instantly undone if national interests’ threatened (Jackson and Sorenson, 1999). Indeed, if we consider the legal right to self-defence under international law, the initial problem with Article 2(4) as an absolute preventative measure against unilateral force is the inherent uncertainty in its wording. The reference to “purpose of the United Nations” clearly grants an element of discretion to member states to interpret and justify their actions as being in accordance with the purpose of the United Nations. Not only does this suggest that the ban is not outright, it also creates potential for abuse in the absence of clear guidelines as to what constitutes legitimate use of force (Steiner H & Alston P 2000). It is arguable that the crime of aggression strengthens the argument for Article 2(4) as an outright ban on unilateral force however the lack of definition as to what constitutes an act of aggression, coupled with Security Council (SC) restrictions on ICC jurisdiction question its practical benefit as a curb on unilateral force (Ferencz 1999). In general terms the crime of aggression is the attribution of criminal responsibility to an individual for an act of aggression, which is committed by a state (United Nations General Assembly Resolution 3314, 1974). In order to properly define the crime of aggression, it is essential to define the act of aggression, which is one of the elements of this crime. However, states systematically avoided adopting a binding definition of the act since the creation of the United Nations (“UN”). The problem is compounded by the blur between state responsibility and individual responsibility and what constitutes an individual for the purpose of state responsibility. As aggression deals with crimes by states and not individuals, it has been argued that as such, and without appropriate reference to the act of the individual it is not much use (Both, 2008). This in turn has been utilised to exploit the right to self defence as embodied in Article 51 of the UN Charter. Furthermore, The UN charter grants discretion to the SC (under Article 39 of the Charter) to determine the existence of an act of aggression and shall make recommendations or decide what measures shall be taken to maintain or restore international peace and security, however it still does not define ‘act of aggression”. Moreover, Nuremberg also asserted that liability for aggression could only be established if the accused party were leaders or accomplices who had personal knowledge that aggression was contemplated and had helped to plan or wage the crime of aggressive war (Charter of the International Military Tribunal, 8 August 1945). The weakness of the leadership principle lies in the practical limitations of member states bringing national leaders to account for aggressive conduct. Aside from the implications this has for democracy, it also highlights the conflict between international law and domestic law, which facilitates potential abuse of the right to self defence in international law particularly against non-state sectors. This is highlighted by the House of Lords decision in R v Jones (UKHL 16, 2006), the House of Lords rejected an appeal of peace protesters who claimed that the Iraq war was an illegal crime of aggression under international law. Lord Bingham asserted that “I am of the clear opinion that the crime of aggression is not a crime in the domestic law of England and Wales”. The House of Lords reiterated that the crime of aggression under international law was not a crime under domestic law and that they lacked jurisdiction to advise on the legality of the war (UKHL 16, 2006). The Lords’ decision upholds the Court of Appeal’s ruling and echoes the government’s claim at the hearing that anarchy would prevail if the anti-war protesters were allowed to act as they did and pursue their claim in court (Per Lord Bingham). Lord Bingham further added that it was not “for the judges to decided what conduct should be treated as lying so far outside the bounds of what is acceptable in our society as to attract criminal penalties” (per Lord Bingham). If we consider this reasoning by analogy to the right to self defence, it appears to give States carte blanche to use unilateral force against non-state sectors without legal recrimination, which is further compounded by the apparent limitation of application of Article 2(4). This in turn would seem to emphasise Reisman’s view that the Article is not absolute just in theory but also in practice. Enforcement of Article 2(4) and other Charter provisions are wholly dependant on member state co-operation and the decision raises wider issues of conflict between foreign policy and domestic policy. Although the Jones case was dealing directly with the concept of aggression, the reluctance of the House of Lords to incorporate international law into domestic law would indicate a high probability that any attempt to bring a claim for breach of Article 2(4) under UK law would also fail on similar grounds of lack of jurisdiction. This begs the question as to how prohibitions in international law can bind member states when domestic law claims to lack jurisdiction. This further emphasises the realist overriding importance of the “state”, which appears to take precedence in shaping foreign policy. Furthermore, there has never been a consistent opinion juris amongst UN member states on the extent of Article 2(4) and despite the apparent acceptance of this prohibition, post-war conflicts clearly question the weight attached to Article 2(4) by governments particularly when relying on Article 51 (Shaw 2003). Some argue that such a prohibition is too ambitious in its objective and does not account for every potential eventuality as the complexities of international conflict are impossible to legislate for. The International Court of Justice (ICJ) has a central role in enforcing Charter provisions and ensures that the use of force by member states is legal (UN Charter, Article 92). This again supports the view that Article 2(4) was never intended to be an outright prohibition and that it was clearly envisaged that circumstances would arise where the use of force would be considered legitimate. Indeed, Professor Simma states that the provisions of the Charter in Chapter VII are “the heart of collective security” (Simma 1999) in permitting use of force by authorisation. However, ICJ rulings on legitimate use of force are often ad hoc decisions after the event. Despite the obvious importance of having an established international judicial body, it is questionable how useful it is to have post-conflict determinations on whether use of force was legal. Authorisation for force is achieved through SC sanction. The SC has power to “determine the existence of any threat to the peace, breach of peace, or act of aggression” (UN Charter, Article 39) and measures that may require the use of force, if the circumstances are grave (UN Charter, Article 42) . However, the provision for Security Council sanction is not without problems. Firstly, there does not appear to be any distinct guidance on what is legitimate and herein lies the problem. It is perhaps impossible to legislate for what will constitute legitimate and proportionate force in any particular situation. Hence justification for the proposition that Article 2(4) is not and was never intended to be an outright prohibition on use of force. Further, the modus operandi of the SC is complex and many argue that internal complexities of the member states especially those with power at the SC can influence SC decisions according to their political motivations (Both 2003). It is also important to note that states that are not UN members do not have to report to the SC and therefore principles of international customary law will be applicable in this situation, further compounding the uncertainty as to what constitutes legitimate force (Dixon and McCorquodale 2003). In the international forum, the interpretation of Article 2(4) has also led some to argue that the Charter effectively renders force on grounds of humanitarian grounds illegal (Fenwick 2002). The UN has accounted for this problem through the use of mandates or co-operation with NATO to use force in such circumstances. Notwithstanding this anomaly created by literal interpretation, this does not as Cassese suggests infer that use of force is prohibited (Cassese 2005). The UN’s use of mandates and NATO to use force to restore peace, clearly contradicts the notion of an outright ban and a presumption in favour of Kant’s original contract. This is further evidenced by Article 51 of the Charter which provides that “nothing in the present Charter shall impair the inherent right of individuals or collective self-defence if an armed attack occurs against a Member State of United Nations, until the Security Council has taken measures necessary to maintain international peace and security” (UN Charter, Article 51). Cassese’s literal approach of Article 51 infers that the absence of the term “force” supports the argument that the Article 2(4) ban is outright as the self-defence provision only enables defence measures to be taken in the event of an armed attack. Cassese argues that in the absence of an armed attack, force is prohibited (Cassese 2005). However, Dixon and McCorquodale (2003) argue that some principles of customary law are still applicable notwithstanding the implementation of the Charter and that the scope to use force as self defence is wider than the Article 51 definition. Conversely, others argue that the Charter was intended to herald a “new beginning” (Dixon and McCorquodale 2003, p.520) and therefore customary rules did not go further than the scope for self defence under Article 51. These differing views highlight the conflict between the Charter and customary law and it is vital that policy and government consistency is maintained in the application of international principles. The landmark ICJ decision in Nicaragua v USA (ICJ Rep 1986 14), asserted that “the charter testifies to the existence of the right to collective self-defence in customary international law…,” (paragraph 104-105) and that there was no requirement for the States to be directly affected to participate in collective self-defence. The case also determined that self defence acts had to be discontinued as soon as the SC stepped in with measures to restore the security and in the event where the act of self defence filled its purpose (Cassese 1999). Moreover, in the case of Congo v Uganda (2005), the ICJ determined that Uganda could not use force under the right of self-defence in an action targeted against irregulars in the Congo. In doing so, Uganda had violated its territorial boundaries. In both cases, the target states were supporting irregulars hiding within their borders and as such, the attacking states created an artificial relationship of agency between the target state and irregulars to claim the right to use force. The rationale of the ICJ appeared to indicate that the harbouring non-state sectors did not constitute justification to rely on the right to self-defence unless it could be determined that it amounted to approval of terrorist attacks (Cassesse, 2000). The only exception is where the state has effectively become lawless and has failed to remove the terrorism from its territory, which has been manipulated by the US in justifying its attacks in Afghanistan and Iraq. However, the case did not explore the degree of force required to classify an “armed attack”. Leading academic MacClean (1997, p.296) has suggested that perhaps this case should be distinguished on its facts, which in itself highlights the unrealistic task of creating legal boundaries for the use of force in international conflict. Furthermore, if we follow the approach that the Charter has superseded customary law, then we are left in a position where the Charter does not define “armed attack” or circumstances where self-defence is justified and the legal position is now reliant on ad hoc post-conflict decisions of the ICJ (Higgins 1995). Customary law on the other hand had established principles prior to the Charter. As a result, the efficacy of Article 2(4) as a limit on disproportionate force is challenged in the absence of definitive rules clarifying the legal use of force as self-defence (Dixon 2004). This leaves the Charter principles open to abuse, with potential for perpetrators to justify extreme uses of force as self-defence (Harris 2004). This is also became apparent in 1994, when the UN General Assembly requested ICJ opinion on the question of whether “the threat or use of nuclear weapons in any circumstances are permitted under international law”(Quoted in Dixon and McCorquodale 2003, p534). Although the ICJ commented that the use of weapons contrary to the rules of Article 2(4) (which in itself suggests that it is not an absolute ban) and customary law are illegal, the ICJ failed to comment on the use of nuclear weapons in a pre-emptive attack, again obfuscating the fundamental issue as to what constitutes legal use of force particularly in the use of self-defence. Cassese also brings to our attention the fact that the SC have five permanent members in support of the use of nuclear weapons in cases of preventing “serious and imminent” nuclear attack and this highlights the danger of policy and external factors influencing interpretation of the law (Cassese 2005). For example, in the absence of Security Council backing, both the United States and the United Kingdom cited Article 51 as legal justification for attacking Afghanistan (Straw, 2001). In the absence of clarification as to what constitutes legal force as self-defence, there is no unequivocal answer regarding the limits of Article 51. A restrictive interpretation would eliminate the use of force in anticipatory self-defence. However, the post 9/11 era has highlighted the different world from when the Charter was implemented with the possibility of states attacking each other within minutes due to technological advances. It is unlikely that the Charter would intend that states wait for attack in order to use force as self defence in the event of unequivocal prior intelligence confirming armed attack. However, an expansive interpretation is flawed in effectively granting member states licence to determine when they face attack on a subjective basis, completely undermining the objectives of Article 2(4) and akin to leaving “to the two drivers in a motor vehicle collision, the, sole responsibility for apportioning liability, helped only by the unruly crowd gathered at the scene of the accident” (Franck 1970). As Thomas Franck suggests, despite the Charter’s express restriction, the unclear and flexible attitude to force has been exploited by member states such as the United Kingdom and the United States in asserting justification for their attack on Afghanistan on legal grounds. The NATO Treaty 1949 (“the Treaty”) has led to further exploitation of the lacuna in the Charter. The United States and the United Kingdom relied on Article 5 of the Treaty which provides that attack on one of the NATO members shall be considered as an attack on all members. However, the NATO treaty is subservient to the UN Charter as Article 103 of the Charter provides that “in the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”. The effect of Article 103 confirms legal precedence of the Charter in international law and therefore if the legality is questioned under the Charter, arguably a claim to legality under Article 5 of the Treaty is invalid (Cassese 1999). However, until the SC and the ICJ clarify the legal principles regarding legitimate use of force, the potential for exploitation through the Treaty remains a risk. Hobbes further argued that the lack of trans-national order and international relationships meant that there was a distinct difference between the order of domestic policy and foreign policy: “where there is no common power, there is no law, where no law, no injustice” (Morgan, 2001). This clearly contrasts with Kant’s ideal, however Kant’s ideal is flawed by the presumption of the moral state in Kant’s theory. Carr further undermines Kant’s theory by stating that “the illusion that priority can be given to power and that morality will follow is just as dangerous as the illusion that priority can be given to moral authority and that power will follow”. Accordingly, whilst Kant’s original contract and cosmopolitan constitution concept is clearly an ideal approach in shaping foreign policy it is inherently flawed by relying on the morality of human nature. As such, whilst Hobbes’ realism arguably swings the pendulum to far in the opposite direction and enables foreign policy justifications to be utilised for potential abuse of fundamental international law principles; the fractured nature of the international political framework seems to require Hobbes’ approach to foreign policy measures to protect the state. BIBLIOGRAPHY D, Ackerman (2003) International Law and the Pre-emptive use of force against Iraq. CRS Report for Congress. M, Both., (2003) Terrorism and the Legality of Pre-emptive Force. Vol. 14 No.2 EHIL 227. A, Cassese., (1999) Legal Response to Terrorism. 38 ICLQ 558. A, Cassese., (2005) International Law. 2nd Edition. Oxford University Press A. Cassese., (1999) “Ex injuria ius oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures In The World Community?” 10 European Journal of International Law 23 M, Dixon., (2005) Textbook on International Law. 5th Edition. Oxford University Press. 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