The interpretation of the term use of force sets forth several questions, in which the issues of scope (how “comprehensive,” in duration and intensity, does an action have to be) and
means (what measures are considered forcible ones) intertwine.
2 I will not address separately the issue of “threats” of forcible intervention. It suffices to say that in instances where an intervention would be considered illegal in itself, a threat of intervention would also be illegal. Therefore, conclusions in this work regarding legitimacy of intervention apply, mutatis mutandis, to the threat of such intervention. See Legality of the Threat of Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ¶47 (Jul. 8); Dino Kritsiotis, Topographies of Force, in INTERNATIONAL LAW AND ARMED CONFLICT:EXPLORING THE FAULTLINES :ESSAYS IN HONOUR OF
YORAM DINSTEIN 29,49(Michael N. Schmitt & Jelena Pejic eds., 2007); For various interpretations on the prohibition on the threat of force see NICHOLAS STÜRCHLER, THE THREAT OF FORCE IN
For an action to be sufficient in scope to constitute a “use of force” – and thereby considered as a “forcible intervention” – it needs not amount to a full-scale war in the classic, technical meaning of the term.3 Accordingly, forcible acts which are “short-of- war” may also be considered as “uses of force.”4 This conclusion coincides with the general process that occurred since the coming into being of the U.N. Charter, in which the term war, in the legal sense, has been marginalized: this is mainly due to the fact that the prohibition on force was never made contingent, in Charter law, upon the existence of a formal state of war.5
Hence, according to Higgins, for an act to be controlled by Article 2(4) of the Charter, it does not make a difference “how brief, limited or transitory” it is; even a “simple aerial incursion” can forcefully violate the territorial integrity of a state.6 Thus, it suffices that the scope of actions, in order to be considered as forcible the purpose of Article 2(4), be brief and limited; and that the means employed include simple actions, such as aerial incursions, that do not necessarily involve the use of kinetic weapons.
This wide definition potentially encompasses grave instances of unorthodox use of deadly force – even if not “military” in the traditional sense – such as the methods used in the attacks against the September 11 attacks. The Security Council, in resolutions 1368 and 1373, as well as states and international organizations, found no difficulty to
3
For the traditional definition of the term war, requiring large-scale use of force see LASSA
OPPENHEIM,INTERNATIONAL LAW 202(1952). Compare YORAM DINSTEIN,WAR,AGGRESSION AND
SELF-DEFENSE 3–15 (5th ed. 2011). 4
See ANTHONY C.AREND &ROBERT J.BECK,INTERNATIONAL LAW AND THE USE OF FORCE: BEYOND THE U.N.CHARTER PARADIGM 30–31(1993).The distinction between “war” and acts “short of war” is relevant, according to Dinstein, to circumscribe the scope of the right to self-defense arising in each case – and specifically, the meaning of the “necessity” and “proportionality” qualifications imposed by the Caroline doctrine in each case. See DINSTEIN,supra note 3, at 242–267; but see Kritsiotis, supra note 2, at 40–45 (analyzing and criticizing the implications of Dinstein’s distinction).
5
See id. at 34–37. 6
ROSALYN HIGGINS,PROBLEMS AND PROCESS:INTERNATIONAL LAW AND HOW WE USE IT 240(1995). Higgins relies on the ICJ ruling in the Corfu Channel Case where it was held that British minesweeping activities taking place in Albanian territorial waters constitute a breach of the law on the use of force. The Corfu Channel Case (U.K. V Albania), 1949 I.C.J. 4 (April 9).
view such acts as giving rise to the right to self defense.7 This means that in certain grave situations, can be considered as forms of use of force rather then mere “criminal” actions by individuals.8 The same wide standard should be used when defining forcible intervention in internal armed conflict.
Of course, the 21st century brings about a plethora of questions regarding what constitutes an "incursion" and what means are "forceful." For instance, one especially perplexing question is the distinction of acts of information warfare (“cyber attacks;”) and, in our case, whether such acts – carried independently from other forceful acts – can constitute forcible interventions. The resolve of this complex question is beyond this work; however, to the extent that acts of information warfare would be considered uses of force, our conclusions will naturally apply to them also.9
Moreover, actual hostilities between the intervener and parties within the conflicting state do not have to occur: for instance, the U.S. Marines encountered no resistance during their landing in Beirut beach in 1958.10 This mere fact does not negate the forcible nature of the American intervention. In the same vein, unilateral imposition of “humanitarian corridors” by external states within the territory of a conflict-ridden state – such as those considered by some states during the 2011–2012 crisis in Syria –11 are also forcible acts even if not actively resisted by the territorial state.
7
S.C. Res. 1368, U.N. Doc. S/RES/1368 (Sep. 12, 2001); S.C. Res. 1373, U.N. Doc. D/Res/1373 (Sept. 28, 2001); Carsten Stahn, Terrorist Acts as “Armed Attack”: The Right to Self-Defense, Article 51(1/2) of the UN Charter, and International Terrorism, 27 FLETCHER F.WORLD AFF.35,37–38 (2003). 8
See id. at 41–46.
9 The question of cyber warfare and the use of force will hopefully be clarified in the forthcoming Manual on International Law Applicable to Cyber Warfare (The Tallinn Manual). See
http://www.ccdcoe.org/249.html; on the question in general see MICHAEL N.SCHMITT &BRIAN T. O’DONNELL,COMPUTER NETWORK ATTACK AND INTERNATIONAL LAW (2002).
10
See Malcolm Kerr, The Lebanese Civil War, in INTERNATIONAL REGULATION OF CIVIL WARS 65, 81–83(Evan Luard ed., 1972).
11
See Turkey Urges ‘Immediate’ Opening of Syria Aid Corridor After Bombing of Refugee Bridge, AL- ARABIYA NEWS,Mar. 6, 2012, available at