The Provision of use of force in UN charters
Dr. Prem Singh Basnyat
The rules prohibiting forcible intervention in civil conflict have been developed through United Nations General assembly Resolutions. Which has design to elaborate on the UN Charter rules on the use of force and to supplement the express prohibitions of interventions in the constituent instruments of the major regional organisations? The right and duties of the states have mentioned in the resolution as every state has the duty to refrain intervention in the international or the external affairs of any other state and that every state has the duty to refrain from fomenting civil strife in territory of activities calculated to foment to such civil strife.
The provision of the use of armed force in internal or civil conflicts is no longer confusion. Because it has been applying since long time e.g. then super powers of cold war era have used it in Africa, Latin America and Asia too.2 The main provisions are invitation by government, intervention and protection of nationals and intervention on humanitarian ground. Internal and civil conflicts have been raised after the Second World War and it has become a major problem rather any conventional battles among the hostile states. The civil wars are not only limited inside any particular nation, which has extended up to neighboring nations too. It is the main problems especially in developing nations. Mostly these nations are binding in cultural, political, social and economical realities. Which can caused the inter state conflicts with conjunction of internal or civil conflicts. So that, UN has been receiving this problem more than any particular conventional disputes.
At the Request of the Host State
It has been used in many nations. The basic principles of the right of a government to invite a third state to use force and the absence of any such right for an opposition may be accepted in theory. But it is complicated in its application and it is not simple. It is an important to notice that if there has been out side subversion against the government, then out side help to the government becomes permissible, whether or not there is a pre existing treaty provision for this. On the other hand, if the conflict is limited, then it will not be characterized as a civil war but merely as domestic unrest and so help will be permissible. Moreover it is not easy to define as the line between unrest and civil war. So that questions may arise that whether a conflict is actually a civil war or local unrest?
In the next hand, effective implementation of humanitarian law on international armed conflict has become an obstacle. Because if the conflict is a civil war, is it a purely civil war or has there been outside intervention? Then what has been the scope of the outsider intervention/ does it amount to an armed attack allowing collective self-defence or is the government using the armed against the own people with the right of self-determination? So these aspects are the main obstacles for third nations to intervene as the assistance to the government. Similarly, the condition on the lawfulness of states providing outside assistance was prohibited when a civil war was taking place and control of the state's territory was divided between warring parties.
Above mentioned relatively narrow conception of a civil war requires that the opposing force control territory, this shows the provision in the law of armed conflict set out in the 1997 Additional Protocol II to the 1949 Geneva convention relating to the protocol of non-International armed conflicts. Because Article I sets the some rooms for the existence of a non-international armed conflicts and the application of the protocol at the high level. Which requires that dissident armed forces or other organised armed groups exercise such control over part of its territory as to enable them to carry out sustain and concert military operation and to implement this protocol. But the protocol does not apply to internal disturbances and tensions e.g. acts of violence's, riots and similar other natures conditions. It is interesting to note that a foreign government may provide financial support, arms and ammunition or training team for further strengthen to requested government's armed forces. Accordingly foreign military bases or other forms of military presence may also provide armed support to requested nation.
The right of invitation to use the third state's armed force of a government in order to keep that government in power or to maintain domestic order has been taking place after 1945 if the domestic unrest falls bellow the threshold of civil war. The main examples of this provision have been given below.
Nepal launched an armed intervention against Sipahi Bidroha (Sepoy Mutiny) of India in 1857 at the request of then British Indian Government. France launched the intervention at the request of the government of Gabon to protect it against an army mutiny in 1964. Then France gave the justification on this issue as she had been invited to re-establish the elected government and to prevent disorder. France again used its armed forces in Chad in 1968 to re-establish order at the request of the Chad Government and the defence treaty of 1960. Again French intervention was launched to overthrow Emperor Bokassa in the Central African Republic in 1979 at the request of new ruler of the nation. Similarly, United Kingdom used armed intervention against army mutiny in the support of then existing governments e.g. in Uganda, Tanganyika and Kenya in 1964. The intervention of Senegal into Guinea - Bissau in 1998 to protect the government against an army rebellion is the recent example.
The next and interesting example is the former USSR intervention into Hungary in 1956 to repress the move away from one party rule was justified by the USSR as a response to a request from former Prime minister. It was highly condemned by UN general assembly. But it used veto to justify. USSR again intervened into Czechoslovakia in 1968 to deal with a similar attempt to move away from a one party rule and it did not deal with the right of invitation. But it claimed to portray the events in Czechoslovakia as an international conflict.
Another example is IPKF (Indian Peace Keeping Force) to Sri Lanka. As we know that Sri Lanka has been suffering from internal armed conflict. But it is more than a conventional war between Tamil and Sri Lankan government. These Tamils are closely related with Indian Tamils of Indian state Tamilnadu. Which is closer by distance too. Initially, Tamils LTTE (Liberations of Tamil Tiger Elam) was supported by India. India sent many armed items in the name of humanitarian support. Sri Lanka was closely watching these bad deeds. Sri Lankan then President J R Jaya Vardane decided to use Indian Army against India cultivated Tamils and it was quite tricky tactics of Jayavrrdane. Then official procedure was formally completed and Indian army were invited in Sri Lanka and about 65,000 troops landed in 1989. Now the LTTE became double-edged weapon for India. Many Indian troops lost lives and they were badly defected by Tamils. It was very big insult to Indian army. Finally, they withdrew in March 1990. After this operation Tamil turned against India and they assassinated Indian Prime Minister Rajiv Gandhi by a sucide bomber lady.
The recent example is the Iraq's invasion into Kuwait in 1990. It justified it as maintenance of order and said that her forces had responded to a request from the Free Provisional Government of Kuwait to assist it to establish security and order so that Kuwaitis would not have to suffer. But her claim was highly rejected by UN General Assembly.
Protection of Nationals
The use of force to rescue nationals in a foreign state with out the consent of that state is uncommon and has been used by several nations. Which falls under UN Article 51, the right of Self-defence too. The UK view in this aspect is "The better view is that the justification comes from UN Article 51 as a form of self-defence: An alternative, less satisfactory view is to seek to derive from customary international law a right of intervention to protect nationals".
It is still controversial in practical grounds. Some of them have started to say that their role is limited to the protection of foreign nationals with the consent of the government or to claim this as an additional justification to strengthen to other. For an example, USA has chosen this ground to offer a variety of legal arguments in justifications of its interventions. So that some writers argues that the use of protection of their nationals seize of this failure to condemn by the security Council and the failure to take any action against the state using force. The condition must be cleared as whether there is an imminent threat of injury to nationals, whether there is a failure or inability on the part of the territorial sovereign to protect the nationals in question and whether the measures of protection are strictly confined to the object of protecting them against injury? For an example UK's intervention into Suez in 1956 is a controversial case. However the International law itself is not strong enough as domestic law. So that it has been interpreted as the interests of powerful nations. Several incidents have occurred in these aspects and some of them have given bellow as an example.
The US and Belgian forces entered into Congo at the request of President Tshombe, who was faced with rebel seizure of Stanleyville. Their claims were that they were invited by Congo government and were also acting to protect the US nationals. Another example is France and Belgium used force in Zaire with the US logistic support in 1978 when the rebel threatened to bring down president Mobutu. Then Belgium claimed it as it actions was to limited to the evacuations of nationals and French claimed as its mission was re-establish security. Again France used armed force in Central African Republic in 1996 to protect its nationals. Another French intervention in Chad in 1992 was similarly claimed to the limited to the protection of the nationals. France, Belgium and Zaire launched another intervention in Rwanda on the ground of protection of nationals but their secrecy was to protect to Hutu government. U K launched an intervention into Sierra Leone to protect their nationals e.g. let them to live in the country. But it was also to support to government against rebel forces in critical situation.
The next example is Israel launched an intervention into Uganda known as Red in Entebbe in 1976 to protect their nationals. When the hijackers diverted an aircraft bound for Tel Aviv to Uganda, then Israeli forces mounted a rescue operation in Uganda. This action was overwhelmingly condemned by majority of states in UN.
An interesting another example is US intervention into Dominican Republic and Grenada in 1965 and 1983 accordingly were justified as they were invited by the governments as part of the regional peace keeping operation and also acting as the protection of US nationals. But it was just lame excused and aims were to over throw to old governments and to establish new governments. In fact US has been intervened on its own interpretation. Because, the intervention in the Dominican republic was the first overt military intervention by the USA after the Second World war and it really to designed to prevent the establishment of another communist government in the western hemisphere. All of the US interventions were badly criticized in UN Assembly Council. Similarly, US launched another intervention into Panama in 1989 and its claim was to protect its nationals and defence of the Panama Canal under the Canal Treaty-1977. But US all claim were beyond the protection of nationals and it was claimed just for the justification. Almost, all of the nations were against US interventions but their dissatisfactions were useless in front of veto. In another words US is causing damage to the effectiveness of United Nation.
It is another controversial issue. It has interpreted in different ways on the different grounds. In good term it is a humanitarian aid. It can be used with or without the consent of host state. It has two major difficulties to keep on balance e.g. national sovereignty and human right. On top of that if a government is not capable to control its territory and state has divided into many so called states and these are not legitimate to exist, in this condition it is another problem. Of course, any legitimate power may take initiative in humanitarian ground though it will be controversial.
In the past debate in humanitarian intervention has been primarily among legal scholars. But the principle shortcoming is vulnerability to abuse: powerful states with ulterior motives would be able to intervene in weaker in the pretext of protecting human rights. According to the resolution humanitarian intervention "it is unlikely that most government would approve a broad right of United Nations to introduce troops for humanitarian purpose against the wishes of the government" Moreover intervention might be the unilateral action of a state or group of allies or an operation conducted under the authority of United Nation. But the legal issues would be the different. United Nations intervention would have to be based on powers conferred by the UN charter. Whereas any right of unilateral intervention could only be derived from customary International law.
However the previous events of humanitarian intervention suggest to review and reconsider the traditional legality of humanitarian intervention. The era of cold war has over. So that, it has to be brought good assessment about a transformation in the political situation of the UN Security Council. Similarly, the possibility of the humanitarian intervention by that body can no longer be discounted. In fact, the world public opinion has been changed concerning the balance between respect for state sovereignty and humanitarian demands. On the other hand, it is also necessary to look more closely a claim that NATO is intervening in the internal affairs of a state over which it has no authority, for that is the premise on which much of the criticism rests. In this case, former UN Secretary-General Javier Perez De Cuellar's saying seems more important which is; we are witnessing what is probably an irreversible shift in public attitude towards the belief that the defence of the oppressed in the name of morality should prevail over frontiers and legal documents.
It is interesting to note that, up to 1990 humanitarian intervention had few proponents in international legal scholarship and no basis in post 1945 state practice. Since 1990, there have been some instances of forcible actions across the borders for humanitarian aims, most being carried out under UN Chapter VII mandate from the Security Council. The humanitarian grounds for Kurds in Iraq and Kosovo in former Yugoslavia have become hot cakes for different arguments. However, it is not a new in International history. Several examples can find and some of them have given below. The Crimean War was provoked by Russia asserting in 1853-854 the right to protect Christians persecuted by the Sultan of the Ottoman Empire. Similarly, Great Britain and France supported by Russia intervened to protect the Turkish sovereignty and independence.
Japan intervened into Manchuria, China in 1931 and her justification was humanitarian grounds. Another is, Hitler launched an attack into Czechoslovakia in 1938 and his claim was to protect the ethnic German. He meant, the minority of Germans had been denied the right of self-determination and suffering from mistreatments from the Czechs.
Finally, use of force by another nation is problem for national security, especially for developing nations. Justification of international law is ambiguous and mostly it has been used in favour of powerful nations. UN veto power and international law have multifaceted interpretation, which is a big challenge for national security.