This article has been written by Rutuparna Sahu from KIIT School of Law, Odisha. This article talks about the Lawful Recourse to Force.
The main objective of International law is to deal and resolve conflicts related to any kind of economic, cultural, social or humanitarian barriers among the states. States signing in as a member of the UN Charter have to abide by the preamble of the UN Charter and the rules and regulations prescribed under it. The preamble sets out an objective “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”. The goal is worldwide peace.
Having said that, the aggravating factors which play a major role in the destructive conflicts within the states are:
The states have been granted an exclusive inherent power under International law. The states are free to use their right to self-defence against any other state for any kind of armed attack. It is clearly a matter of necessity where the victim state in order to safeguard its sovereignty and security has to use power or force to stop the violence keeping aside all the international responsibilities for the time being. However every act carried out by the victim state should be of lawful conduct and should be proportionate to the forces used against them. The states are entitled to use the power of self-defence only if there is a situation of emergency or an armed attack or if there is an immediate danger to the territory of the state. The reason behind the immediate action is the same as it is for any other offences against humans. So self defence can be used immediately before, during or after the attack to their territory.
It is a universal fact that every power comes with a lot of restrictions, and the victim states while using their power of self defence should always consider the dos and don’ts and act accordingly. In addition to that, if at all there is an armed attack the victim state has to prove that the facts stated by them are true and genuine.
- Right to Self-defence is one of the exceptions to the prohibition against the use of force under Article 2(4) of the UN Charter and customary international law. It is not mistaken with the norm. The treaty law, including the Charter of the UN under Article 51 have clearly spoken that every country under international law has an inherent right of self-defence which can be used only in an actual position of aggression.
- The act of self-defence under international law has been generally prohibited both under treaty law, customary international law and general principles of international law. Preemptive or anticipatory self-defence are not allowed in international law and this rule derives its legitimacy from the famous Caroline case of 1837 involving Britain, United States and Canadian independence movement was a diplomatic crisis where Canadian rebels fled to an island in the Niagara River, with support from US citizens in the ship. British forces crossed the Niagara River, to board and capture the vessel where it was moored, at Schlosser’s Landing, in the US territory. There was trading of bullets going on which was taking the form of a war during which one US citizen, a watchkeeper, was killed. British forces set fire to the Caroline and set it adrift in the Niagara River, about two miles above Niagara Falls.
This action of the British forces outraged civilians on both sides of the US-Canadian border. In retaliation, a private militia comprised of both the US citizens and the Canadians attacked a British vessel and destroyed it. The diplomatic crisis was defused by the negotiations that led to the Webster-Ashburton Treaty in 1842, in which both the US and the British admitted to their respective misconducts.
In the light of this incident there was an emergence of a principle named as “Caroline Test”. The principle states that the necessity for self-defense must be “instant, overwhelming, leaving no choice of means and no moment for deliberation,” as formulated by Daniel Webster in his response to British claims that they attacked Caroline in self-defense.
If we go by the literal meaning of aggression, it’s something that involves violence in it. According to international law, it is a crime against peace. It involves violence against a state by any person or a group of people using the state’s military force without permission which violates the UN Charter. The violence is termed as aggression based on the gravity of the particular offence. The word aggression was first introduced in the constituent instrument establishing the Nuremberg International Military Tribunal (ITM), the London Charter, 1945 at the end of World War II and it was further included in the Charter of the Tokyo International Military Tribunal for the Far East (IMTFE) and Control Council Law No. 10, 1945. The criminalization of aggression contains the culmination of a process that started at the end of World War II with the impeachment of the German emperor Wilhelm II due to the provision under Article 227 of the Peace Treaty of Versailles. Although the crime of aggression is treated as a part of the customary law with no opposition on the part of states, the individual criminal responsibility of each state is still in dispute.
Emergence of International Criminal Court
No prosecution for aggression followed the inactive and stringent methods of the Nuremberg and Tokyo trials giving rise to the emergence of the International Criminal Court (ICC) in 1998.
ICC includes aggression as a statute among the crimes within the ambit of court’s jurisdiction under Article 5. But at the same time it sets out another rule under Article 5(2) that the jurisdiction of the court would not be exercised for aggression until there’s a generally accepted definition of the particular crime is adopted.
Aggression is a crime under the Rome Statute of the International Criminal Court. There are certain provisions that the court has to follow while exercising its jurisdiction in the following ways:
Article 15 is under the Rome Statute of the International Criminal Court.
Court’s power to exercise its jurisdiction over the crime of aggression (State referral, proprio motu).
- The Court is entitled to exercise jurisdiction on the crime of aggression in accordance with Article 13, subject to the provisions of the Article.
- The Court can also exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty states.
- The Court usually exercises jurisdiction over the crime of aggression, subject to a decision that is to be taken after 1st January 2017 by the same majority of thirty states.
- In case of a crime of aggression where a state is wholly responsible for the crime, the court may take jurisdiction in that case unless there’s a declaration previously lodged with the registrar about the state party’s willingness of not accepting such jurisdiction. The declaration can be withdrawn or revoked at any time required and the state party has to comply with it within three years.
- The court here is not entitled to take jurisdiction in case of aggression that is created by a state within its territory which is not a party to this statute.
- The prosecutor may proceed with the investigation of a crime of aggression if he thinks fit on reasonable grounds and primarily with a knowledge about the current acts that have been determined with the confirmation of the security council as per every state concerned. The prosecutor is required to notify the secretary-general of the UN first and further to the court and serve all possible documents and information.
- The prosecutor may proceed with the investigation regarding the crime of aggression once such determination has been made.
- If in case the determination is not been taken into consideration within a period of 6 months even after the notification, the prosecutor is entitled to proceed with the investigation of that particular crime of aggression with a prior authorization of the pre-trial division, for the commencement of the procedure of investigation in respect of crime of aggression.
- A determination of the crime of aggression by any private body which is nowhere related to the Court proceeding should not be prejudiced with the court’s research process under this statute.
- This Article in no way prejudices the provisions relating to jurisdiction contained within Article 5.
Article 15 under the Rome Statute of the International Criminal Court.
Court’s power to exercise its jurisdiction over the crime of aggression (Security Council referral)
- The Court may exercise its jurisdiction over the crime of aggression in accordance with Article 13.
- The court may exercise its power of jurisdiction only in cases of crime related to aggression which is committed 1 year after 30 state parties have already accepted or ratified the amendments to the statute.
- The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States as is required for the adoption of an amendment to the statute.
- A determination of an act of aggression by an organ outside the court shall be without prejudice to the Court’s own findings under this statute.
- This Article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in Article 5.
Brief analysis of the Rome statute
The court takes the jurisdiction only when there is a crime of aggression with the acceptance or ratification by the majority, which is about thirty states. A question can be raised in respect of the court’s jurisdiction that, is the court entitled to judge every matter relating to aggression? No doubt the court is entitled to take jurisdiction for the crime of aggression unless any state party already has declared of not accepting such jurisdiction by lodging the same with the registrar in accordance to Article 12. The declaration can be withdrawn anytime if needed and the state part has to abide by it within 3 years. These provisions are applicable only to the states which are party to the statute. In order to investigate matters related to the crime of aggression, the prosecutor shall first notify the matter to the general-secretary of the UN and further to the court and serve all possible documents and information. Nothing contained in the Article violets any of the provisions relating to jurisdiction including Article 5.
Interventions are the uninvited interference of one state in the matter of another state and this is also led by a group of states acting for a common goal. It has another part to it that is nonintervention which avoids such interferences. But here, we are going to concentrate only on interventions because this is one of the major factors which is responsible for the disturbances within the world.
But yes, absolute remedy is never served for interventions because there are situations and facts where the victim state permits the interference of other countries and when the state itself gives the consent for interference that won’t violate any international law.
Provisions against interventions
Article 2 under the UN Charter codifies the principle of territorial integrity of states. And the Article completely prohibits interventions by any individual states into any other state.
Kinds of interventions
Internal interventions– It is the interference by any state into the internal matters of another state’s territory or airspace with the help of military forces.
External interventions– It is basically having a hostile relationship with another state and the motive behind this kind of intervention is generally to wage a war against the other state.
Punitive– It is an intervention done with a motive of retaliation. Where a state retaliates to the actions of another, it may be a neighbouring state which has failed to obey any kind of international law or norm.
Finally after discussing all these criteria which plays a major role in disturbing the world’s peace and tranquillity, we can conclude that international law is not in shortage of rules or provisions. These laws are competent enough to regulate all the international issues but it’s the respective state’s responsibility to try out ways to deal with any state related matter peacefully. And also the states need to make their own rules which would help in making people aware of the consequences.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: