Jus ad bellum - Is the use of force permissible under the UN principles?

by: Florentyna Martyńska

United Nations’ values

The United Nations (hereinafter “UN”), as a peaceful organization, was set up as a response to the cruelty of World War II to prevent prospective threats to peace. Its founding treaty, the UN Charter, known as the legal core of the organization, outlines the values and principles of the UN. Thus, some of the UN goals defined in the UN Charter intend to maintain international peace and security as well as suppress acts of aggression or other breaches of the peace[1]. The UN aims to bring peaceful measures and to ensure, by acceptance of principles and the institution of methods, that armed force shall not be used[2]. To fulfill its peace mission and to act under the principles of the UN Charter, the UN Security Council first recommends the use of peaceful measures to resolve a crisis before using inevitable necessity force[3]. However, the threat and 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” is strictly forbidden under art. 2(4) of the UN Charter[4].

Legality of the use of force

Nevertheless, contrary to the general understanding, not all UN principles prohibit the use of force. Specifically, there are two strict exceptions when the state can use force[5]. In this article, the author will address the subject of the legality of the use of force with particular emphasis on the right to self-defense under art. 51 of the UN Charter[6] and the UN Security Council's authorization of the use of force under art. 42 of the UN Charter[7].

Self-defense

The right to self-defense is indicated under art. 51 of the UN Charter[8]. Most importantly, it provides the UN’s member states with the right of individual or collective self-defense in case of an armed conflict against any UN member state[9]. Nonetheless, the state has the right to self-defense “until the Security Council has taken measures necessary to maintain international peace and security[10]”.

Example of the use of art. 51 of the UN Charter

The North Atlantic Treaty (9 Washington D.C. - 4 April 1949)[11], as the founding document of NATO, invoked art. 51 of the UN Charter[12] about self-defense[13]. Thus, "The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defense recognized by Article 51 of the Charter of the United Nations[14]”. The North Atlantic Treaty was the response of Western states to the Soviet aggression during the Cold War, and more specifically to the first Berlin crisis between 1948–1949. Nowadays, NATO has 30 member states and its references to the principles of the UN Charter, including the right to self-defense are still valid and taken into account[15].

The UN Security Council’s authorization of the use of force

In light of the UN Charter, the UN Security Council is primarily responsible for the maintenance of international peace and security[16]. Chapter VII of the UN Charter[17] states details about the authorization of the use of force. Although, art. 42 of the UN Charter[18] gives the Security Council the right to authorize military actions and by that allows to “take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security to restore international peace and security[19]”.

Example of the use of article 42 of the UN Charter

To illustrate the permitted use of force, the author will elaborate on the “Operation Desert Storm” that was authorized by the UN Security Council in Resolution 678 of 29 November 1990[20]. Under art. 42 UN Charter[21], the Security Council “authorizes Member States co-operating with the Government of Kuwait[22]” to “use all necessary means[23]”. This authorization has started the “Operation Desert Storm” (from 17 January to 28 February 1991) that aimed to liberate Iraqi-occupier Kuwait and was conducted by a coalition of 27 states, with the leading role of the US Armed Forces.[24]

Summary

As articulated above, the UN uses soft power in the first place and hard power only when absolutely necessary.

The UN implied various strategies to oppose military conflicts „softly”. Preventive diplomacy monitors threats to international peace and security and mediates in case.[25] Preventive disarmament is the following measure that "seeks to reduce the number of small arms in conflict-prone regions[26]" to minimize the chance of the outbreak of the conflict[27]. To promote responsibility and to protect the Special Adviser on the Prevention of Genocide to the UN is obliged "to alert relevant actors where there is a risk of genocide, and to advocate and mobilize for appropriate action[28]”. The author demonstrated only some instances of the peaceful measures used by the UN.

The hard power, the use of force can only be used on two occasions, namely self-defense and the UN Security Council's authorization of the use of force.

In conclusion, using diverse peace strategies, the UN fights to reduce the number of conflicts and maintain international peace and security. Considering potential conflicts, the principles exemplified would still be maintained.

Picture[29]:

[1] Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XIV. [2] Ibid. [3] Ibid. [4] Ibid, art. 2(4) [5] Ibid. [6] Ibid, art 51. [7] Ibid, art 42. [8] Ibid, art. 51. [9] Ibid. [10] Ibid. [11] NATO, ‘The North Atlantic Treaty’ (NATO) <http://www.nato.int/cps/en/natohq/official_texts_17120.htm> accessed February 12, 2022. [12]Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XIV, art. 51. [13] NATO, ‘The North Atlantic Treaty’ (NATO) <http://www.nato.int/cps/en/natohq/official_texts_17120.htm> accessed February 12, 2022. [14] Ibid. [15] “NATO / OTAN” (What is NATO?) <https://www.nato.int/nato-welcome/index.html> accessed February 7, 2022 [16] “Mandates and the Legal Basis for Peacekeeping” (United Nations) <https://peacekeeping.un.org/en/mandates-and-legal-basis-peacekeeping> accessed February 7, 2022. [17] Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XIV, Chapter VII. [18] Ibid, art 42. [19] Ibid. [20] UN SC Res 678 (29 November 1990) UN Doc S/RES /678. [21]Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XIV, art. 42. [22] UN SC Res 678 (29 November 1990) UN Doc S/RES /678. [23] Ibid. [24] Taylor A, “Operation Desert Storm: 25 Years since the First Gulf War” (The Atlantic, January 14, 2016) <https://www.theatlantic.com/photo/2016/01/operation-desert-storm-25-years-since-the-first-gulf-war/424191/> accessed February 7, 2022. [25] “Peace and Security” (United Nations) <https://www.un.org/en/global-issues/peace-and-security> accessed February 7, 2022. [26] Ibid. [27] Ibid. [28] Ibid. [29] Dicko H, “The Two Swedish Marines Served with the UN Multidimensional Integrated Stabilization Mission in Mali (MINUSMA) in 2018.” <https://www.un.org/sites/un2.un.org/files/styles/large-article-image-style-16-9/public/field/image/swedish-marines-in-mali-2018.jpg?itok=bRuJi6e-> accessed February 7, 2022.