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Kamran SHAFIEV
Judge at the Constitutional Court of the Azerbaijan Republic
(Baku, Azerbaijan).
THE FORCE OF LAW AND THE USE OF FORCE IN INTERNATIONAL RELATIONS
Abstract
This article analyzes the principle of the non-use of force and its place in the international relations system. It examines the possibilities of exercising the right
to self-defense, as well as the concept of humanitarian intervention. It justifies the need for avoiding double standards in conflict settlement.
Introduction
The 20th century was marked by two brutal world wars which resulted in major changes in the world balance of power among the largest military-political nations of that time. The Cold War that began (1946-1989) divided the world into two opposing sociopolitical camps; that is, it brought about the establishment of a new geopolitical bipolar world order. Correspondingly, after the end of World War II, significant changes also occurred in the international relations system, the main one being the establishment of the United Nations (U.N.). One of the main purposes of this organization was to maintain international peace and security and, to that end, take efficient collective measures for the prevention and removal of threats to peace and for the suppression of acts of aggression and other breaches of the peace.
The main principles of international law are set forth in the U.N. Charter, the most important of which are refraining from the use of force, the inviolability of borders, and territorial integrity. The principles of international law regulate the most important aspects of international law. They are fundamental, generally recognized regulations with the highest legal force and are universal in character.
The collapse of the Soviet Union and the end of the Cold War have greatly changed the breakdown in forces in international relations. Disputes are more likely to be resolved using force. This situation has prompted some legal experts to claim that the law is losing its influence in international relations.
Rigorous observance of the principles of international law is of particular significance in the Central Caucasian region, since for decades now, under the pretext of granting peoples the right to self-determination in the Nagorno-Karabakh region of Azerbaijan, and in Abkhazia and South Osse-tia (Georgia), plans to forcefully change the borders of these countries recognized by the international community are being implemented with the use of force.
So it seems important to analyze the principle of the non-use of force and its place in the contemporary international relations system. In this context, resolving the contradiction between the right of
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peoples to self-determination and the territorial integrity of states, which became aggravated at the end of the 20th-beginning of the 21st centuries, is also a very important issue today.
The Non-Use of Force
Establishment of the rule prohibiting the threat or use of force began way back in the past. The Covenant of the League of Nations limited the right of states to resort to war. Several documents of the League of Nations address the issue of a war of aggression; in particular, the draft of the Declaration concerning Wars of Aggression adopted by the League of Nations Assembly in 1927 defines it as an international crime. The Paris Agreement (Kellogg-Briand Pact) of 1928, providing for the renunciation of war as an instrument of national policy, was the first international agreement that renounced wars of aggression.1
The principle of the non-use of force or threat of force was first embodied in the UN Charter. Art 2 of the Charter says that "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."2
This principle was further specified in other international documents—the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations of 1970, the Declaration on the Definition of Aggression of 1974, and the Declaration on the Enhancement of Effectiveness of the Principles of Refraining from the Threat or Use of Force in International Relations of 1987.
The Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations says that every State has the duty to refrain in its 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. Such a threat or use of force constitutes a violation of international law and the Charter of the United Nations and shall never be employed as a means of settling international issues.
The Declaration on the Enhancement of Effectiveness of the Principles of Refraining from the Threat or Use of Force in International Relations states that the principle of refraining from the threat or use of force in international relations is universal in character and is binding, regardless of each State's political, economic, social or cultural system or relations of alliance.
In order to clarify the content of this principle, we must first clarify the meaning of force. It primarily means a war of aggression. According to the U.N. resolution of 14 December, 1974, aggression is the use of armed force by a State against the sovereignty, territorial inviolability or political independence of another State. The resolution contains a list of acts that can be qualified as an act of aggression. They include the invasion of or attack by the armed forces of a State on the territory of another State, or any military occupation, bombardment of territory, the blockade of ports, forming and sending of armed bands, and so on.
Thus, the occupation of Azerbaijani territory by Armenia, the occupation of Palestine, and similar acts by Iraq with respect to Kuwait in 1990-1991 can be qualified as acts of aggression. Despite the fact that the Armenian side categorically refuses to recognize its occupation of Azerbaijani territory, noting that Armenia is not mentioned in the corresponding resolutions of the U.N. Security Council (the body authorized to define aggression), the following must be noted. The term "aggression" is in general seldom used in international legal documents—its analogy is the concept "occupa-
1 See: Kellogg-Briand Pact 1928, available at [http://www.yale.edu/lawweb/avalon/imt/kbpact.htm].
2 [http://www.un.org/en/documents/charter/].
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tion," which is also used in the U.N. Security Council resolutions on the Armenian-Azerbaijani Nagorno-Karabakh conflict. In international legal practice, the term "occupation" is applied exclusively to interstate conflicts, while the term "controlled territories" is applied to domestic conflicts (which Armenia insists on). Moreover, the resolutions of several regional international organizations note the occupation of Azerbaijani territory by a neighboring state (for example, Resolution 1416 of the Parliamentary Assembly of the Council of Europe of 2005).
The principle of refraining from the use of force means prohibiting forceful acts against people fighting for liberation from colonial domination. From this viewpoint, the approach to national liberation movements is interesting. Such conflicts used to be considered intrastate. The situation changed when Additional Protocol I of 1977 to the Geneva conventions of 1949 was adopted. The Protocol applied the provisions of the conventions to armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations.
Wars against colonial domination were associated with the postwar era of decolonization and were waged by colonial peoples against state metropolises. The right of peoples to self-determination in the form of establishing independent states was applied to colonial territories. It was primarily directed against colonialism with the aim of liberating colonies from foreign domination. Decolonization itself, while ensuring the right to self-determination, did not violate the principle of territorial integrity. For example, the Declaration on the Granting of Independence to Colonial Countries and Peoples approved by Resolution 1514 (XV) of the U.N. General Assembly of 14 December, 1960 emphasizes that all peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. Whereby it is stipulated in particular that any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.
The Declaration on Principles of International Law of 1970 again enforces the following important restrictive provision: "Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour."3
After the collapse of colonial empires, the question of self-determination of peoples with respect to the establishment of independent national states was largely resolved. This principle was called upon to put an end to colonial domination and could not serve as grounds for dividing up independent countries. Today the right of peoples to self-determination must be resolved in the context of ensuring the territorial integrity of states. The intention to use it with respect to national minorities is an infringement on the right of peoples to live as they see fit within the state boundaries that exist.
This right prohibits occupying the territory of another state. The Declaration on the Enhancement of Effectiveness of the Principles of Refraining from the Threat or Use of Force in International Relations states that neither acquisition of territory resulting from the threat or use of force nor any occupation of territory resulting from the threat or use of force in contravention of international law will be recognized as legal acquisition or occupation. A similar thought is also expressed in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among
[http://www.unrol.org/files/3dda1f104.pdf].
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States in accordance with the Charter of the United Nations: "The territory of a State shall not be the object of military occupation resulting from the use of force in contravention of the provisions of the Charter. The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal."
So development of the principle of refraining from the use of force has logically led to recognizing the illegality of occupation, annexation, or other ways of alienating territory, as is the occupation by Armenia of Azerbaijani territory or the occupation of Palestinian land.
The principle of territorial integrity of states that protects a State's right to integrity and inviolability of its territory is a vital means of ensuring state sovereignty. Territory is the main prerequisite of a State's existence, the sphere of activity of its sovereignty. International law prohibits the use of force against the territorial integrity of states in the form of invasion, annexation, occupation, and so on.
However, international law does not entirely exclude the use of force. The U.N. Charter envisages two cases of legal use of armed force: for the purpose of self-defense (Art 51) and in compliance with a resolution of the U.N. Security Council in the event of a threat to peace, breach of peace, or act of aggression (Arts 39 and 42).
Art 41 of the U.N. Charter contains a list of measures "not involving the use of armed force. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations."
"Should the Security Council consider that measures provided for in Art 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations" (Art 42). The only exception from the prohibition to use force is self-defense of a state in the event of an armed attack on it by another state. In accordance with Art 51 of the U.N. 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 measures necessary to maintain international peace and security. That is, measures taken by Members in the exercise of this right of self-defense are only legal if an armed attack occurs against a state. Art 51 of the U.N. Charter directly excludes the use of armed force by one state against another in the event the latter exercises economic or political measures. In such situation or even if the threat of an attack is obvious, the state may resort to countermeasures only if the principle of proportionality is observed.4 The Declaration on the Enhancement of Effectiveness of the Principles of Refraining from the Threat or Use of Force in International Relations of 1987 says that States have the inherent right of individual or collective self-defense if an armed attack occurs, as set forth in the Charter. Thus, international law envisages individual and collective self-defense. Individual self-defense is carried out by the state that falls victim to a criminal armed attack on its own. On the other hand, it may make a decision on collective self-defense and ask other states to do the same. Without such a request, other states do not have the right to exercise collective self-defense measures. The International Court states in its judgment on the Nicaragua v. the United States Case (27 June, 1986) that "there is no rule permitting the exercise of collective self-defence in the absence of a request by the State which is a victim of the alleged attack, this being additional to the requirement that the State in question should have declared itself to have been attacked."5
An example of this self-defense is the measures carried out by states to assist Kuwait after Iraq attacked it in 1990. On 29 November, 1990, the U.N. Security Council adopted Resolution No. 678,
4 See: Mgzhdunarodnoe pravo, ed. by Iu.M. Kolosov, I.G. Kuznetsov, Mezhdunarodnye otnosheniia, Moscow, 1998, p. 37.
5 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), available at [http://www.icj-cij.org/docket/index.php?sum=367&code=nus&p1=3&p2=3&case=70&k=66&p3=5].
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in accordance with which, if Iraq did not fulfill the Security Council resolution as of 15 January, 1991, the states cooperating with Kuwait would have the authority to use all means necessary to maintain and execute Security Council resolutions. It was precisely in accordance with this resolution that the hostilities against Iraq began.
In order for the contemporary international security system to function efficiently, double standards must be avoided when executing U.N. Security Council decisions. For example, Security Council resolutions No. 678 of 29 November, 1990 On the Situation in Relations between Iraq and Kuwait and No. 1973 of 17 March, 2011 On the Situation in Libya were executed very quickly, while resolutions Nos. 822, 853, 874, and 884 of 1993 adopted in response to Armenia's aggression against Azerbaijan have still not been executed. In these resolutions, the U.N. Security Council confirmed Azerbaijan's territorial integrity and demanded the withdrawal of Armenian troops from the occupied Azerbaijani territories.
Self-Defense as Grounds for Using Force
In the practice of international relations of the 21st century, the concepts being examined tend to be broadly interpreted in the political interests of states. Furthermore, the representatives of interested states leave the question of the extent to which a specific situation corresponds to the legal use of force in the exercise of self-defense not only to the discretion of the Security Council, but also, in essence, to the discretion of the states themselves. This has led to formulation of the concept of preemptive use of force as a natural development of the concept of self-defense, which, admittedly, is contested by several countries and lawyers.6
As was noted earlier, the use of armed force in self-defense is legal only if an armed attack against a state occurs. The problem of contemporary international law lies in how to interpret the concept of an armed attack. Great Britain made use precisely of the right to self-defense against Argentina during the Falkland crisis in 1982. So any country which finds its territory occupied as the result of aggression has the right to use force as self-defense and liberate its territory. At the same time, there is an opinion that the right to self-defense may be exercised not only if an armed attack has occurred.
Today, the use of armed force is often justified by loosely interpreting the concept of armed attack. We are talking in this case about preemptive self-defense. Until recently, two viewpoints were singled out with respect to the right to self-defense. The advocates of the narrow approach think that self-defense may only be exercised if an armed attack has occurred. In their opinion, the U.N. Charter, having prohibited the use of force in international relations, permits states the unilateral use of armed force only for the purpose of self-defense after an armed attack has occurred. This position is also supported by the U.N. International Court, which stated in its judgment on the Nicaragua v. the United States Case that "whether self-defense be individual or collective, it can only be exercised in response to an 'armed attack'."7
The broad interpretation of the right to self-defense permits the possibility of exercising this right in the event of an imminent threat of an armed attack on a state. It is believed that in order to prevent an attack in the future, which could have onerous consequences, a state has the right to resort to preemptive self-defense. Countering threats posed by terrorism, including by terrorist organiza-
6 See: M.V. Oparina, "Pravovoe regulirovanie primeneniia sily v mezhdunarodnykh otnosheniiakh," Bulletin of the Russian State Humanitarian University, No. 4, p. 81.
7 Case concerning Military and Paramilitary Activities in and against Nicaragua.
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tions in the territory of foreign states, is one such justification for exercising preemptive self-defense. After the events of 11 September, 2001, the U.N. Security Council confirmed in its resolutions Nos. 1368 and 1373 that any act of international terrorism constitutes a threat to international peace and security and that states have the inherent right to individual or collective self-defense as recognized by the Charter of the United Nations. Thus, the U.N. Security Council equated an international terrorist act with an armed attack on a state in the sense enshrined in Art 51 of the U.N. Charter. In so doing, the Security Council broadly interpreted the concept "armed attack," including in it large-scale terrorist acts committed by an international terrorist organization clearly supported by the state authorities of a particular country or acting under its patronage against another state.
To sum up examination of this issue, it can be stated that international law permits the use of armed force for the purpose of self-defense against terrorist organizations. Furthermore, a terrorist threat must be real and the U.N. Security Council should be informed about the use of force. These measures should be carried out until the Security Council has taken measures necessary to maintain international peace and security. And most important, the adopted measures must be proportional to the threat, that is, there should be irrefutable proof of the imminence of a terrorist attack that could lead to onerous consequences for the population and the country's territorial integrity. It should be noted that there is also an opposite opinion that proceeds from the fact that Resolution No. 1368 of the U.N. Security Council only mentions the inherent right to self-defense in the preamble and does not sanction the use of force. The supporters of this viewpoint think that the U.N. Charter does not envisage the use of force against non-state organizations at all. To support their position, they refer to the judgment of the International Court on the Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), which expresses the opinion that Uganda did not have the right to use force in self-defense because the acts it referred to were committed by anti-Ugandan armed groups and not by the armed forces of the Congo.8 Moreover, the Ugandan side did not appeal to the U.N. Security Council and did not present corresponding facts that could justify recourse to the use of force in the territory of the Congo.
A proportional counterstrike must also be dealt, whereby it should not be detrimental to the peaceful population or state property. Things are more complicated when it comes to targeted killing in the international war against terrorism. In this case, strikes on terrorist camps must be distinguished from the targeted killing of a specific terrorist. In the latter case, the goal should be to arrest the terrorist and hand him over to the law. That is, catch the terrorist and bring him to justice. Otherwise, we will be dealing with a situation that is likened in the literature to the Wild West, when countries remove undesirable elements at their own discretion.
The U.N. Charter instituted a specific system for maintaining international peace and security— a collective security system. Collective coercive measures not relating to or relating to the use of armed forces against a state for the purpose of maintaining and restoring international peace and security may only be used in compliance with a Security Council decision in the event of actions by this state that threaten peace, are a breach of peace, or an act of aggression.
Individual self-defense is possible and permissible, but within a strictly limited framework and boundaries, until the collective security system recognized by the U.N. Charter comes into force; that is, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by members in exercise of this right to 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.
8 See: Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), ICJ, 19 December, 2005, available at [http://www.icj-cij.org/docket/files/116/10455.pdf].
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Humanitarian Intervention
The problem of humanitarian intervention is closely related to the principle of the non-use of force. Some international lawyers who are supported by politicians think that force may be used against a country for the purpose of protecting human rights both without a U.N. sanction and without permission from the legal government of the state in question. Nowadays, some states justify the use of their armed forces in the territory of another state for the purpose of protecting human rights in the context of so-called humanitarian intervention. In so doing, it should be noted that present-day international acts, including general (universal) and regional conventions or bilateral interstate agreements, do not use the term "humanitarian intervention." And on the whole, there is no one standard or legal definition of humanitarian intervention today. The cornerstone of the concept "humanitarian intervention" is the thesis that the observation of human rights cannot be considered a purely internal affair of a particular state and that the international community has the right to interfere in humanitarian crises. Some states directly permit the possibility of interference in internal conflicts under the pretext of humanitarian disasters without sanctions from the U.N. Security Council. The position of another group of countries places the emphasis on the inviolability of the principles enshrined in the U.N. Charter—in particular, on the exclusive prerogative of the U.N. Security Council to sanction measures of enforcement, including military force.
Be that as it may, this problem is also directly related to other important principles of international law, such as human rights, sovereignty, territorial integrity, and non-interference in the internal affairs of states. The proponents of humanitarian intervention refer to the protection of human rights, while its adversaries point to the protection of sovereignty, territorial integrity, and non-interference in the internal affairs of states. The U.N. Charter enforces all the above-mentioned principles of international law. Art 2 of the U.N. Charter states that 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. However, protection of human rights is named as one of the purposes of the Organization's Charter. According to Arts 55 and 56 of the Charter, on the other hand, all Members pledge themselves to take joint and separate action for the achievement of the purposes of the United Nations, including universal respect for, and observance of, human rights and fundamental freedoms. The principle of non-interference in the internal affairs of states proceeds from sovereignty, the basic element of which is the state's independence when exercising its internal function. The principle is called upon to protect the state's internal function, which is one of the aspects of the state's full and sovereign authority exercised by it in its own territory within the limits of its borders. In compliance with this principle, the state has the right to independently establish its political and economic systems, dispose of its natural resources, impose taxes and duties, customs regulations, that is, independently, without interference from the outside or under any pressure resolve the problems of the domestic life of its citizens in its own territory. One of the important documents enforcing the concept of sovereignty is the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States of 24 October, 1970. The Declaration states that no State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind. Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State.
The Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States of 9 December, 1981 states that no State or group of States has the right to intervene or interfere in any form or for any reason whatsoever in the internal and external affairs of other States, and that it is the sovereign and inalienable right of a State freely to determine its own political, economic,
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cultural and social system, to develop its international relations and to exercise permanent sovereignty over its natural resources, in accordance with the will of its people, without outside intervention, interference, subversion, coercion or threat in any form whatsoever.
The judgment of the U.N. International Court in the Nicaragua v. the United States Case says, ".. .a prohibited intervention must be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely (for example the choice of a political, economic, social and cultural system, and formulation of foreign policy). Intervention is wrongful when it uses, in regard to such choices, methods of coercion, particularly force, either in the direct form of military action or in the indirect form of support for subversive activities in another State."9
At the same time, the main documents within the framework of the protection of human rights and international humanitarian law were adopted after World War II. These are the Universal Declaration of Human Rights, the International Convention on Civil and Political Rights, the International Convention on Economic, Social, and Cultural Rights, the Convention on the Prevention and Punishment of the Crime of Genocide, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on Elimination of All Forms of Racial Discrimination, the Convention on Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, and several others. Four Geneva conventions of 1949 and two additional protocols to them of 1977 form the basis of international humanitarian law.
Whereas just recently it was thought, in accordance with the principle of state sovereignty, that the entire sphere of a state's interrelations with its own people was essentially an internal matter regulated at the national level, today state sovereignty in the world is no longer absolute. It is limited both from the outside, owing to the actual interdependence of countries and peoples, which is legally expressed in the subordination of states to international law and the appearance of international organizations with supranational powers, and from the inside, since the sovereignty of a state even in its own territory is restricted to inherent personal rights and freedoms and the state's responsibility to its citizens. In cases of genocide and the mass destruction of people, a state must not remain aloof, justifying its position by state sovereignty. Nor may a state, referring to its sovereignty, punish its citizens on the basis of political, race, or religious differences. Former U.N. Secretary-General Kofi Annan described humanitarian intervention in detail in his reports as follows:
"Some critics were concerned that the concept of 'humanitarian intervention' could become a cover for gratuitous interference in the internal affairs of sovereign states. Others felt that it might encourage secessionist movements deliberately to provoke governments into committing gross violations of human rights in order to trigger external interventions that would aid their cause. Still others noted that there is little consistency in the practice of intervention, owing to its inherent difficulties and costs as well as perceived national interests — except that weak states are far more likely to be subjected to it than strong ones.
"I recognize both the force and the importance of these arguments. I also accept that the principles of sovereignty and non-interference offer vital protection to small and weak states. But to the critics I would pose this question: if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica — to gross and systematic violations of human rights that offend every precept of our common humanity? We confront a real dilemma. Few would disagree that both the defense of humanity and the defense of sovereignty are principles that must be supported. Alas, that does not tell us which principle should prevail when they are in conflict.
"Humanitarian intervention is a sensitive issue, fraught with political difficulty and not susceptible to easy answers. But surely no legal principle — not even sovereignty — can ever shield crimes against humanity. Where such crimes occur and peaceful attempts to halt them have been exhausted, the Security Council has a moral duty to act on behalf of the international community. The fact that we
[http://www.icj-cij.org/docket/index.php?sum=367&code=nus&p1=3&p2=3&case=70&k=66&p3=5].
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cannot protect people everywhere is no reason for doing nothing when we can. Armed intervention must always remain the option of last resort, but in the face of mass murder it is an option that cannot be relinquished."10
Although speaking in favor of humanitarian intervention, Kofi Annan made several important reservations.
■ First, in his speech after the beginning of the operation in Kosovo, Kofi Annan emphasized that the Security Council as a structure directly and immediately responsible for maintaining international peace and security must be involved in any decisions on the use of force.
■ Second, as already mentioned above, he excluded the possible use of the concept of humanitarian intervention for unsubstantiated interference in the internal affairs of sovereign states, particularly of small states.
■ Third, humanitarian intervention "might encourage secessionist movements deliberately to provoke governments into committing gross violations of human rights in order to trigger external interventions that would aid their cause." For example, ethnic cleansing carried out by secessionist groups in controlled zones could provoke countermeasures by the central government under pressure from the population, particular refugees. It stands to reason that there is no point in talking about observing the regulations of international humanitarian law in such a conflict. In such cases, the principle of "an eye for an eye, a tooth for a tooth" will be followed, and one round of violence will provoke another.
Of course, standing aloof and watching a regime destroy its citizens is not only irresponsible, but also goes against the conscience and right of people to protect their lives. In such cases, the international community must protect the people from a regime of tyranny that intends to slaughter its own people. The U.N. has repeatedly examined situations with human rights in different countries and issued corresponding resolutions. Forceful measures were adopted in Haiti, Somalia, East Timor, and so on. In 1990, a regional organization—the Economic Community of West African States—interfered in the situation in Liberia with the aim of putting an end to the civil war. This armed act was later approved by the Security Council in Resolution 788.
Turkey's action in Cyprus in 1974, Tanzania's in Uganda in 1979, and Vietnam's in Cambodia in 1979 serve as examples of humanitarian intervention aimed at putting an end to citizen slaughter. It was Vietnam's humanitarian intervention which abolished Pol Pot's criminal regime that destroyed around three million Cambodians. Practice shows that human rights issues no longer relate to a state's domestic jurisdiction.
At the same time, an analysis of this problem reveals double standards in exercising "humanitarian intervention." Force is not always used on time and not necessarily in those instances when mass murder is committed. This intervention is used selectively. The world community essentially did not undertake decisive measures to stop the genocide in Rwanda. Humanitarian intervention is often carried out for the sake of resolving military-political tasks that meet a country's national interests, including to gain access to energy resources. Not infrequently, such tasks are related to a change in regime in the "country being humanized."
Despite its positive purposes, this action has paved the way to a loose interpretation of such fundamental provisions as sovereignty and the non-use of force in international relations, making the gloomiest presuppositions about the fate of Third World countries in the face of the world powers. It created a dangerous precedent which could have negative consequences in the future and become justification for unsubstantiated intervention in the internal affairs of states.11
10 Report of the U.N. Secretary-General We the Peoples: The Role of the United Nations in the Twenty-First Century, U.N. Document A/54/2000, Paragraphs 216-219.
11 See: W.E. Ratliff, "Madeleine's War" and the Costs of Intervention. The Kosovo Precedent. Harvard International Review. Winter 2001, pp. 70—75.
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The use of force might be justified for the purpose of protecting the peaceful population. But there can no legal grounds for military intervention when groups of militants who do not have anything to do with the political opposition fight against central authorities recognized by the world community. When the insurgents are not peaceful, but well-armed people who intentionally violate public order, it is the country's internal affair to set its government troops against them. In this case, there can be no talk about any liberating mission in the name of peace and protection of the population.
The U.N. International Court indicated in its judgment that "with regard to the practice of States, the Court notes that there have been in recent years a number of instances of foreign inverven-tion in one State for the benefit of forces opposed to the government of that State. It concludes that the practice of States does not justify the view that any general right of intervention in support of an opposition within another State exists in contemporary international law."12
The right to self-defense cannot serve as a way to change the regime using armed forces. Force may not be applied to a sovereign state with a government recognized by the world community without the presence of an internal ethnic conflict and which is not in a state of war with its neighbors. This would clearly contradict Art 2 of the U.N. Charter, which clearly guarantees territorial inviolability, political independence, and non-interference in the internal competence of any state.
Civil wars on the whole remain outside the regulating zone of international law (apart from areas relating to international humanitarian law, in particular methods of waging an armed struggle and protection of the civilian population). Nor does the U.N. Charter contain provisions relating to internal conflicts. English international lawyer Michael Akehurst says that international law contains no provisions against civil wars. "Art 2(4) of the U.N. Charter prohibits the threat or use of force in international relations only. It is possible that each side will regard the other side as traitors from the point of view of municipal law, but neither insurgents nor the established authorities are guilty of any breach of international law."13
C o n c l u s i o n
The globalization processes in today's world have raised the significance of international law. The foundation of present-day international law was laid by the U.N. Charter, one of the most important provisions of which is the principle of the non-use of force. In so doing, a universal collective security system was created that is based on the principles enshrined in the U.N. Charter. The collective security system consists of the joint efforts of states to prevent wars and armed conflicts. The principle of the non-use of force is the foundation of this system. Only the Security Council has the right to use force in the collective security system and only in the instances recognized by the U.N. Charter. The only exception is in the event of self-defense and even then only until the U.N. Security Council has taken the necessary measures.
In order for the collective security system to function effectively, the resolutions of the U.N. Security Council must be explicitly executed and double standards in conflict settlement avoided, whereby the use of force may not be exercised selectively.
[http://untreaty.un.org/cod/ICJsummaries/documents/english/ST-LEG-SER-F-1_E.pdf].
12
13 M. Akehurst, Modern Introduction to International Law, New York, 1997, pp. 318-319.
