Prepared by Amjad Ali Khoso

Use of Force
• It is the most misused and ambiguous area of International Law
• Force is regularly used in politics and it is a conventional practice
• Sometime state only use threat of use of force like US threatened to use force against
Pakistan if Pakistan did not support US war against terrorism
• Use of force can be termed as act of aggression as well as right of self-defense.
• State usually adopts defensive strategy for use of force than offensive.

Act of aggression
• The state which use force must give the reason behind it and the given reason must be
recognized and accepted, if it failed to satisfy international community then the act of
state will be considered as act of aggression.
• There are more chances for the smaller state to be called as aggressor if they use
force. While the major powers use force and just simply give explanation and they
don’t bother about its acceptance.

Evolution of Concept
• Use of force earlier developed in the form of Just war. The monarch used to justify
their use of force as their responsibility to correct the all wrongs and they claim that
God has given them divine authority.
• The concept of just war created a balance of power in Europe which was disturbed by
the Germany
• Later on League of Nations was formed where big powers used to justify their use of
force. Even the league failed due to the monopoly of power exercised by UK, France
and the uncheck use of force by Germany and Italy. German considered that it is their
responsibility to use force and correct the wrongs as they regarded themselves as most
civilized nation.
• League of Nations created a system for the use of force. States were not allow to use
force in the settlement of their disputes, they have to settle disputes by peaceful
means. They were not allowed to use force, but in one condition they were allowed to
use force until three months after the arbitral award. Conflicting parties were required
to submit their case to arbitral court which use to take three months in its creation,
further three months to reach the verdict and after three months of verdict state can
use force. This time period was regarded as cooling off period.
• No organization created a system where use of force regard as legal.
• US, France and Britain signed Kellogg Briand pact 1929 and declared war as illegal
and pledged that war must not be used as an instrument of national policy. Before this
pact War used to be imposed on the pretext of just war. It was simply a declaration.
No concrete result came out of it.
• With the establishment of United Nations, UN charter gives guideline for the use of
force.

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• In the contemporary world big powers require legal reasoning for their use of force.
Even their legislature demands reasons for the war such as US congress ask to explain
reasons if the President is going to wage war.

Legal definition
• Use of force means use of military force
• It also means physically crossing the border of other state.
• In the contemporary time, State use threat of use of force.
• Threat to use force has similar level of pressure as that of use of force.
• Big power usually use threat of use of force

Threat of use of force

Un Charter Article 2 (4) talks about the use of force

“All members 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”

In other words, neither threat nor use of force was acceptable under UN charter, along with
any other way, not only war, threat to force. The purpose of UN is to create and maintain
peace.
Article 2 (4) is further elaborated in declaration of principle of International law 1970

1. Wars of aggression constitute crime against peace for which there is responsibility
under international law
2. States must not threaten or use force to violate existing international frontiers or to
solve international disputes
3. States are under a duty to refrain from acts of reprisal involving the use of force
4. State must not use force to deprive people of right of self-determination and
independence
5. States must not support, organize, instigate or participate in civil war or strife in other
state

There are two exceptions

1. Collective measure
2. Right of self determination

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Different categories of use of force defined by Law

1. Retorsion
2. Reprisal
3. Self Defense

Retorsion: An option, an unfriendly and harmful act which although is legal means of
retaliation against an earlier act which is also legal.
It is the name of reaction.
Example: Expulsion of diplomats, Suspension of air corridor and suspension of aid.

Reprisal: reply to an earlier illegal act that is given in illegal manner.

Here action and reaction both are illegal. Disproportionate response is given to the illegal act.
Example: Naulila case, Invasion of Afghanistan

International tribunal in Naulila case gave three rules for the demand of compensation.

1. There had to be sufficient justification that previous act was contrary to International
law
2. It should also preceded by an unsatisfied demand of reparation
3. Accompanied by essence of proportion between offense and reprisal.

Right of Self defense

It is the area where use of force is acceptable.
Use of force is acceptable if it is in accordance with the article 51 of UN charter.

“Nothing in the present Charter shall impair the inherent right of individual or collective
self-defense if an armed attack occurs against a member of the United Nations, until the
security Council has taken the measures necessary to maintain international peace and
security, Measures taken by Members in the exercise of this right of self-defense shall be
immediately reported to the security council and shall not in any way affect the authority and
responsibility of the security council under the present Charter to take at any time such
action as it deems necessary in order to maintain or restore international peace and
security.”
• United Nations restricts State to seek it approval prior to use of force
• There are certain sensitive times when states are compelled to use force before getting
approval from the United Nations such as state like Pakistan with small strategic
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depth cannot wait for UN approval for the use of force in the case attack from India. If
Pakistan waits for the UN approval there are possibilities that India would cut
Pakistan into pieces.
• Use of force is only permissible by the UN if it is utilized in defensive strategy while
the offensive strategy is not allowed.
• State facing attack from other state can halt and drive out the enemy force but they
cannot further enter into the border of aggressor state.

Right to self-defense or collective defense is not confined to the defense of state territory only
but contemporary state also extends the scope of defense to promote their ideology, security,
investments, human rights, promotion of democracy.
Pre-Emptive Strike
It is the type of self-defense where force is used against the eminent threat. In other words it
is the use of force to neutralize the aggressor before it (aggressor) attack. State does not wait
for the actual attack to take place.
Example: Israel conducted preemptive strikes against its neighbor in 1967.

Problem in Preemptive Strike

Preemptive strike is only acceptable if the information is credible and accurate. Or if the
information is not accurate then the state which opts preemptive strike will be declared as an
aggressor.
Preemptive strike can be used if there are full preparation going on the other side of border.

Example: Israel bombed the Iraqi nuclear facility.

Preemptive strike can be used against the regular army as well as against the non-state actors.
Example: Israel cross Lebanon border targeted Palestinian refugee camps where Israel claim
the presence of Hezbollah.

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