Summary on Use of Force and its relation with Self-Defense in Judgments of ICJ and SC Resolutions

1. Military and Paramility Activities in Nicaragua

For brief explanation of the case, click here.

Basically, this case talks about whether or not use of force is allowed and when is it allowed. ICJ ruled that the United States violated customary international law prohibiting the use of force. Regarding the use of force in customary international law, ICJ explains that the prohibition of use of force can only be done if it is a form of self-defense or collective self-defense. Not to mention, collective self-defense is not only governed by customary international law, but is also governed by Organization of American States Charter and the Inter-American Treaty of Reciprocal Assistance. The procedure that must be done before using force for collective self-defense according to these legal documents was to carry out the defense after receiving a request from the country that was attacked and it must also be reported to the Security Council.

Another important point in this judgment is the definition of armed attack. ICJ explained that it must be distinguished between “the most grave form attack” and the ones that aren't "most grave form" but cause armed attack. According to ICJ, armed attack includes the following actions.

"(1) Action by regular armed forces across an international border

(2) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of (sic) armed force against another State of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces, or its (the State’s) substantial involvement therein."

Keywords: Use of Force, Self-Defense, Collective Self-Defense, Armed Attack

2. Oil Platforms Case

The use of force in this case is related to the US attack on Iran. This attack was carried out towards two Iranian oil platforms. The first attack occurred in 1987 against Resalat and Reshadat, while the second attack occurred in 1988 against Salman and Nasr. The attack was conducted in response to laying out of mines in the Persian Gulf which is used as an international trade route.

The United States based its use of force as self-defense. According to the United States, self-defense conducted by the United States by invading Iran in 1987 was a response to a series of Iranian armed attacks by placing mines in international waters with the aim of destroying US ships and firing American planes without provocation. This is coupled with the attack on Sea Isle City, a Kuwaiti ship that reflagged into a US ship. The second attack in 1988 was made because one US ship, the USS Samuel B. Roberts, was hit by a mine suspected of being laid by Iran in the Persian Gulf. This second assault is part of Operation praying Mantis.

What then becomes an important point in this case is the United States plea of self-defense. Can these attacks be considered as self-defense that precluded United States from the prohibition of use of force? Firstly, ICJ did not consider that there is a fulfillment of the "most grave form of use of force" qualification. Apparently, United States cannot be precluded from the prohibition of use of force on the basis of self-defense. ICJ then stated that there are three criteria that must be met in self-defense: the existence of armed attack, necessity, and proportionality.

Regarding armed attacks, ICJ did not see that such acts had been proven to be conducted by Iran and that they meet the criteria mentioned in Nicaragua Case, thus requiring self-defense. Regarding proportionality, ICJ replied hypothetically. According to ICJ, if the attack on Sea Isle City and USS Samuel B. Roberts are considered as an armed attack and need to be replied, then United States’ response by attacking the Iranian oil platform is proportional.

Keywords: the existence of armed attack, necessity, and proportionality.

3. Security Council (SC) Resolutions in Gulf War

There are four Security Council Resolutions on Gulf War, namely SC Resolution 660, SC Resolution 661, SC Resolution 665, and SC Resolution 678. These four resolutions were adopted in 1990 until 1991 as a reaction towards Iraq’s military aggression or invasion towards Kuwait on August 2nd 1990. There are three issues that allegedly caused the war; first, it is said that the war happened due to the incapability of Iraq in paying its loan; second, the existence of oil reserve, and; lastly, the desire to annex Kuwait. The government of Iraq stated that this invasion was justified since ‘naturally’, Kuwait is a part of Iraq. Both were separated after the Anglo-Ottoman Convention of 1913. During this war, SC has issued around 12 resolutions.

Acting under Articles 39 and 40 of UN Charter, SC issued Resolution 660 which condemned Iraq’s invasion of Kuwait and called on Iraq to withdraw all of its troops from Kuwait. SC also called on both Kuwait and Iraq to intensively negotiate with a view to ending the conflict. SC furthermore called on both States to discuss and consider the next stage of their compliance towards this resolution. After Resolution 660 was issued and was not effective due to the fact that the invasion was still going on, SC issued Resolution 661.

United Nations logo taken from its YouTube channel

Resolution 661 called on all States to stop import all products from Iraq and/or Kuwait, prevent all export to Iraq or Kuwait, stop supplying weapons or selling weapons to Iraq or Kuwait, and restrict regulations on shipping to both States. This Resolution also called on all non members of United Nations to comply with SC Resolution 661 and to cooperate with the Committee enacted by SC to evaluate and observe the implementation of this Resolution. Finally, the Resolution urges not to recognize the occupying power regime and to assist the Kuwaiti government.

After the economic sanctions in Resolution 661 came into force, the invasion was still happening. Therefore, Resolution 665 was adopted. This resolution was aimed at States that set up their maritime forces in Kuwait to make every effort necessary to prevent shipping to and from Kuwait, and to inspect and verify cargo. Just like the previous Resolution, Resolution 665 also called for cooperation. Finally, Resolution 678 also called on Iraq to implement the previous Resolutions. SC then authorized States working with Kuwait to use any means necessary for such Resolutions to be implemented. SC also requested that always it is always informed about the developments on the situation.

It can be seen that the actual exceptions to the prohibition of use of force apply only in the case of self-defense. In the case of Iraq's desire to control oil reserves and annex Kuwait can not be done with the use of force. Besides use of force, another point to be taken from these resolutions are the dispute settlement mechanism within the UN.

Keywords: Self-Defense, UN Mechanism in Resolving Dispute, Use of Force.

REFERENCES

1. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgment. I.C.J. Reports 1986

2. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I. C. J. Reports 2003

3. Andrew Garwood Gowers, “Case Note: Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America) – Did the ICJ Miss the Boat on the Law on theUse of Force?”, Melb. J. Int’l. Law, Vol. 5, 2004.

4. “Gulf War”, accessed from https://www.saylor.org/site/wp-content/uploads/2011/06/Gulf-War.pdf

5. UN Security Council Resolution 660, 2 August 1990

6. UN Security Council Resolution 661, 6 August 1990

7. UN Security Council Resolution 665, 25 August 1990

8. UN Security Council Resolution 678, 29 November 1990

9. The ACUNS 2003 John W. Holmes Memorial Leture, “The Use of Force under the UN Charter: Restrictions and Loopholes by Nico Schrijver”