International Security Dersi 3. Ünite Özet

Introduction

The use of force (the use of power) has always been a critical issue for political, legal, and ethical reasons in world politics. This is why the society of states has resorted to international law in order to regulate the use of force In the following sections first we will analyze the concept of the use of force within the UN system because the UN Charter constitutes the main international treaty that lays down the basic principles on the legitimate use of force. Moreover, the UN Charter regulates the principles of individual and collective right of states to self-defense as well as the requirements for imposing sanctions on aggressors in the system. The chapter, in consistent with the recent developments in world politics, later explains the emerging principles of use of force beyond the Charter paradigm while surveying such issues as humanitarian intervention, defense of nationals (citizens) abroad, and treaty-based intervention.

The UN Charter and the Legitimate Use of Force

The UN Charter, which is the primary source from which we can discern today’s system of international security, places an emphasis on self-defense rather than collective security. Yet the UN Charter establishes a strong Security Council, where the Permanent 5 members (namely the US, China, the United Kingdom, France, and Russia) have had the veto power and acted somehow as arbitrators in the system. Besides the right of self-defense defined by the Charter, generally these veto states (the P5) decide when (and under which circumstances) the use of force in the system may be considered as legitimate as well as when the very UN members can resort to military force.

In principle, the UN Charter has outlawed initiating a war of aggression . In other words, it is against the UN-Charter principles for any state to wage an aggressive war. However, the UN does not outlaw the use of defensive force . We cannot too much stress the importance of this rule of the UN Charter; that is, the use of defensive force or waging a defensive war has not been outlawed by the UN. Therefore, it is one of the critical questions of international law today that under which circumstances the use of force by states can be considered as defensive rather than offensive. For this reason, below we will first reflect on those Charter principles that regulate the use of force.

Article 2/4 of the UN Charter: Article 2/4 of the UN Charter is the main rule that regulates the use of force in international relations. Accordingly, “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.” This rule, then, bans a member state from using force and from threatening other states to use force in such a manner that it would be: a) against the territorial integrity of member states; b) against the political independence of member states; and c) inconsistent with the aims of the UN Charter.

Article 2/6 of the UN Charter: Article 2/6 of the UN Charter stipulates that “the Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.” As such, Article 2/6 emphasizes that even those states that are not members of the UN must comply with the Charter’s rules and norms on peace and security as well as it provides a legal ground for UN members to impose sanctions on these states, if necessary.

Article 2/7 of the UN Charter: Article 2/7 has been one of the most controversial articles of the UN Charter. It is the embodiment of power struggle among the member states on those issues that are stipulated in in Article 2/4, Article 51 and Chapter VII of the Charter. According to Article 2/7, “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement of measures under Chapter VII.”

Article 51 of the UN Charter-The Right of Self-Defense: The right of self-defense is enshrined in Article 51 of the UN Charter. Article 51 provides that “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 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.” Article 51 also acknowledges that self-defense is a natural right in that in order for the state to exercise this right, the permission or the authorization of any organization or institution is not needed. However, as it may be predicted, whenever there is an agenda on the use of force by the states, the scope of right of self-defense and under which circumstances and conditions this right can be used is not clear. Another controversial issue on the natural right of self-defense as stipulated in Article 51 is whether a state must wait for an actual armed attack to occur against its territorial integrity or political independence in order to use its right of self-defense.

Article 53 of the UN Charter: According to Article 53 of the UN Charter, “The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council.”

However, Article 53 is not only unclear on such concepts such as “arrangements” and “regional agencies”, but also silent on the question of under which particular conditions the Security Council should ask help from these arrangements and agencies. Moreover, because Article 53 does not clarify what kind of regional actions can be carried out with or without the permission of Securtiy Council, the concept of “compelling measures” is also unclear.

Chapter VII Of the UN Charter And The Legitimate Use Of Force

Chapter VII of the UN Charter gives the authorization to the Security Council to take precautions of the implementation of necessary sanctions and coercive measures , including the use of force.

Accordingly, as it is defined in Article 41, the Council can call for “ the suspension of all or part of the economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations” under the circumstances of an international dispute or conflict. However, according to Article 42 “If the Security Council considers that measures provided by Article 41 would be inadequate or have proved to be adequate, it may take what steps are seen necessary.

The UN Peacekeeping Forces

In fact, the concept of, and the mission of, peacekeeping is something invented by the then UN Secretary- General Dag Hammarskjöld , because the Security Council had become paralyzed and perplexed due to the Cold War and especially to the conflictual relations between the two superpowers that made it impossible for the UN to implement the clauses of Chapter VII (Ndulo, 2011).

As a rule, the authority to decide on a peacekeeping mission or a military intervention rests with the Security Council. The UN Charter has taken into account the possibility that a conflict of powers may arise between the various organs of the UN, especially between the Assembly and the Council. Therefore, Article 12 states that “While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.” However, especially in gray times and in gray areas the General Assembly does not hesitate to seize opportunities toward exerting and widening its authority.

From 1948 onwards the UN has established seventy-one peacekeeping missions in various geographies to address many different problems (UN, 2018a). Out of these seventy-one missions, the following fourteen peacekeeping missions are still underway.

As can be understood from the titles of these missions, the primary function of the UN peacekeeping forces is neither using force nor participating in military conflicts. It is widely accepted in academia and political circles that two criteria must be met for a United Nations mission to be considered as a “peacekeeping mission.” First, all the parties (whether they are states or political groups) to the conflict must give their approval to the deployment of the UN peacekeeping forces. Second, the peacekeeping forces must not be in possession of heavy weapons and use force only for self-defense purposes.

Use of Force and Legitimacy Beyond the UN Charter Paradigm

The UN system makes it legitimate to use armed force only in two occasions: self-defense under Article 51, and interventions because of a UN Security Council resolution within the scope of Article 42. Below we will start reflecting on some philosophical and political underpinnings or reasons such as humanitarian intervention, protecting state citizens, and terrorism that would help legitimize the instances of use of force in international relations.

Humanitarian Intervention: The IR literature has failed to provide concrete criteria to decide on which situations call for a humanitarian intervention. As a result, the concept of, and the instances of, humanitarian intervention has created controversy and fierce philosophical discussion among the scholars, professional soldiers, and politicians.

Some interventions that had the approval of the UN are classified as “humanitarian intervention” in the IR literature. However, from a legal perspective, humanitarian intervention is an act of use of force carried out either unilaterally or multilaterally in an attempt to protect people in another state from severe human-rights violations without getting the approval of the UN.

It is also a fact that more and more scholars and politicians/practitioners support the idea today that under some specific circumstances and under the condition of minding the stability of the international system, it is possible to initiate a humanitarian intervention (See, Rodley and Çalı, 2007; Wolf, 1988; Dekker, 2001).

As for Turkey’s policies and stance on humanitarian intervention, from the operations it participated so far one can easily infer that Turkey prefers the authorization of such operations by a prior UN Security Council resolution. In the absence of an explicit UN authorization, Turkey approaches warily to any act of use of force or intervention in international relations.

Interventions Based on a Treaty:

The UN Charter is silent on interventions based on a treaty . However, given that treaty is one of the primary sources of international law, one can conclude that an intervention based on a treaty clause is legitimate. In Article 38 of the Statute of the International Court of Justice, which is an integral part of the UN Charter, international conventions (treaties), the general principles of law as well as international custom are listed as the main (primary) sources of international law. Besides, “judicial decisions and the teachings of the most highly qualified publicists” are subsidiary sources of international law (Pazarcı, 2011: 33-120; Bozkurt et al., 2009: 61-93). As such, international treaties are one of the primary sources for the determination of rules of law.

There are two main approaches in the IR literature with regard to military interventions or use of force based on a treaty. According to the first approach that supports such interventions, making a treaty is a matter within the exclusive jurisdiction of states. In other words, states, which is entitled to political sovereignty, can voluntarily sign a binding international treaty that may have a clause on how they should use or limit their sovereign rights in the future. Just as a state can create a new political institution in cooperation with another state or a group of states, in the same way it can agree to a clause that a military intervention may initiate against itself, if it does not implement the treaty.

The second approach to military interventions or use of force based on a treaty takes into account the concept of “ peremptory norm ” ( jus cogens ) and holds that a treaty that would eliminate the political sovereignty, territorial integrity, and political independence of states cannot be duly signed in international relations. Simply because the political sovereignty, territorial integrity, and political independence are the basic premises of being a state, any treaty clause that would eliminate them would go against the peremptory norms of international law (and of the Westphalian state system) (Wippman, 1995: 610-611).

Protection of State Citizens Abroad: This issue has been debated in reference to the right of “self-defense.” This right of states emanates from two basic sources: Article 51 of the UN Charter and customary international law. We have already discussed the norms that Article 51 evokes and what these norms may suggest for the use of force in world politics. International customary law, on the other hand, requires for resorting to force such legal principles as the urgency, the necessity, the proportionality as well as the bond of citizenship between the individuals to be protected and the state. Taken these principles together, one may conclude that if a state resorts to force to protect its citizens living in another state in such a way that would conflict with Article 51 and/or international customary law, then, this use of force would be illegal and illegitimate.

Two main approaches have tackled the legitimacy issue of state interventions or threats of intervention to protect the nationals. According to the rather narrow approach, such interventions are basically under the UN authority and the UN should decide on the use of force in a specific case except the use of force for self defense purposes, when an armed attack occurs against the territorial integrity of a member state. Besides, this approach holds that agreeing to such use of force by states would initiate a process that would encourage them to legitimize interventions in world politics. Those who argue against this rather narrow approach claim that customary international law allows such interventions.

Use of Force against International Terrorism:

The international society is yet to make the ultimate definition of international terrorism that would be binding for all states in their relations. Moreover, the UN organs also failed to make a multilateral treaty (convention) that could offer a definition of international terrorism. However, one cannot also say that there is not a general understanding on the basic attributes (characteristics) of international terrorism. As Oscar Schachter stated, the absence of a binding definition “does not mean that international terrorism is not identifiable. It has a core meaning that all definitions recognize” (Schachter, 1988- 1989: 309). Accordingly, international terrorism is the threat of violence or the use of violence to create fear in a target group toward achieving certain political objectives.

In general, non-state actors carry out international terror attacks. However, one can also observe that a state launches terror attacks against another state by establishing and using some certain non-state actors or groups. International terror attacks are carried out in two basic ways: either terror groups carry out terror acts in the country of a state through coming from another state’s territory or they target a state’s independence, security, citizens, or assets from abroad (Schachter, 1988-1989: 309-310).

The UN Security Council convened the day after the terror attacks on the US and passed Resolution 1368 that condemned both September 11 attacks and international terrorism. The UN Resolution 1368 called for the member states to collaborate on terrorism and stated that the organization “is ready to take the necessary steps to combat all types of terrorism” (UN Security Council, 2001a).

Moreover, the Security Council, through its Resolution 1373, adopted some measures to combat the financing of terrorism and established the Counter-Terrorism Committee in an attempt to coordinate the member states’ activities against terrorism (UN Security Council, 2001b). Furthermore, the Council passed Resolution 1540 where it adopted that “all States shall refrain from providing any form of support to non-State actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery.” The Council discussed and passed this Resolution under Chapter VII of the UN Charter; therefore, Resolution 1540 binds all member states in their relations with one another and with non-state actors. The Council has also established a separate committee, the 1540 Committee , for monitoring the subject matter (UN Security Council, 2004).

Within the framework of the United Nations, states have adopted the following major multilateral “legal instruments” (conventions and protocols) toward combating international terrorism. The international society so far has been able to create binding legal rules especially for promoting the safety of civil aviation and maritime navigation. It has also been instrumental in the signing of legal texts toward suppressing both terrorist bombings and financing of terrorism that are relatively more critical for some members’ national security. However, it is also a fact that the international society has failed to conclude a comprehensive international treaty against terrorism.

The terrorist attacks on the US on September 11, 2001 has had such a profound effect on international scholars and the states that they changed their approach to the use of force beyond national borders. In the aftermath of the 9/11 attacks , the UN Security Council, through Resolution 1368, not only condemned the attacks but also reaffirmed the right to self-defense in responding to terrorism. Moreover, NATO referred to the 9/11 attacks as a direct attack on the United States and invoked Article 5 of the Washington Treaty (the casus feoderis clause) for the first time in its history that paved the way for the deployment of its assets in support of the US. Therefore, a critical change that the 9/11 attacks have defined in international relations and international law is that acts carried out by a state or a group of states against terrorism may be considered as self-defense within the scope of Article 51 of the UN Charter (Stahn, 2003: 37).

In the post-9/11 world, the state that has been the target of international terrorism does not have to prove a direct relationship between the state protecting the terrorists (the host state) and the terrorist groups to launch cross-border military operations. For example, although it was not Afghanistan that carried out 9/11 acts against the United States, the coalition forces held Afghanistan responsible and started a military mission against the country because they concluded that it was Afghanistan through its Taliban regime who provided Al Qaeda with a safe heaven.