Use of Force, Self Defense,

Humanitarian Intervention
et.al- Looking into other
aspects
The 1971 War with Pakistan
 Bangladesh formation

The victory of On 25/3/1971, West On 26/3/1971,

Awami Pakistan launched a East Pakistan
League in devastating military declared itself
East Pakistan crackdown independent

The Pakistan army

By then, India had India granted
in Bangladesh met
taken in her
territory about one
with guerilla recognition
warfare in the same day
million refugees
Nov.1971
The Basic Principles of International
Law
•Nothing contained in the present Charter shall
Art.2(7) of the authorize the United Nations to intervene in
UN Charter matters which are essentially within the
domestic jurisdiction of any state

• The call for separate nationhood was

Self demonstrated by a democratic will of
people.
Determination • ICCPR’s call for Self determination for
Non-Self Governing Territories
•Continued armed insurgency by Pakistan.
Principle of •Loss of lives, genocide
Non- •Heavy influx of refugees
•India sought help from the Security Council… it
Intervention did not respond
 The Other arguments

Genocide •The systematic decimation of

(Hindu) people in Bangladesh.
besides •It was reported as the holocaust of
aggression the East

Casus •Bangladesh’s genocide became

Belli India’s casus belli.
 On behalf of India, it has also been
stated….
• “There have been interventions on humanitarian
grounds at the cost of international peace, in
exceptional cases where crimes and atrocities
against humanity have outweighed considerations
of sanctity of state independence.”
A small discussion on Rebel Groups

Rebels Insurgents Belligerents

Formal status
Intermediate
involving
Criminals status granted
rights and
by the state
duties
Home state may Where a state needs Control over
determine their to protect nationals substantial
or property in an area
status and under the de facto portion of the
control them control of the rebels territory
Oil Platforms Case (Merits)
Iran v. United States
 The Brief Facts
Merchant This caused US
ships were & others to
During the
attacked on provide naval
Iran-Iraq War escorts to ships
the Persian
Gulf flying their flags

While claiming self In April 1988, In Oct.1987, a

defense, some 3 or 4 another ship was Kuwaiti tanker
days later, the US damaged by a mine was hit by a
attacked Iranian Oil in international missile while re-
Platforms waters flagged to the US
 The Main Dispute

Iran’s claim U.S.’s claim

Attacks on its platforms The attacks are justified

were in breach of the u/Art.20(1)(d) of the
Treaty, which permitted
US-Iran Treaty of
measures by a party
Amity, Economic “necessary to protect its
Relations & Consular essential national
Rights, 1955 interests”
 The Main Issues
1.) Has the U.S. been able to discharge the burden of
proof of the existence of an armed attack by Iran
on the United States?

2.) When can right of self defense be invoked?

3.) Has the requirements of “necessity” and

“proportionality” been met with in the present
case?
 The Chain of Arguments
Burden of Proof
The attack was the last of “series of…attacks” against the U.S. flag.

Can these attacks be called “armed attacks” on the US justifying

self defense
The attack was on sea from more than 100 kms away could not
have been aimed at the specific vessel.

Was U.S attacking oil platforms necessary?

The U.S claimed that it considered in good faith that the attacks on the
platforms were necessary to protect its essential interests, hence a measure of
discretion is required.
 The Court
‘no significant No armed Hence, US
attack could be
military attributed to actions not
presence’ Iran justified

Does not It rests on

imminent danger
Self-defense permit and in response
discretion to such danger

The operation of
the US was huge, Hence, it has
Proportionality expansive and not acted in
highly
disproportionate self defense
Few of the other specific findings of
the Court
•The attack on the platforms was done as a “target of
opportunity”, not one previously identified as an
1.) appropriate military target.

• The attacks on 18th April 1988 were not in response to the

armed attack committed by Iran, they were in fact, executed as
part of a more extensive operation entitled “Operation Praying
2.) Mantis”.

•On the scale of the operation as well, US flouted

the requirement of proportionality factor in self
3.) defense.
 THE RIGHT OF
ANTICIPAORY SELF
DEFENSE, OR PRE-
EMPTIVE STRIKE
 THE JOURNEY, JUNCTIONS
AND JURISPRUDENCE
The Caroline
Case
UN Charter
•A state may attack 1945 • Narrow definition
in anticipation of of “armed attack”
further attack. • Art.51 “…..where
armed attack • Seen in terms of
•Where there is “scale and effects”
imminent threat occurs”

Pre-charter Nicaragua
era case
How do we
place the word
“inherent”
Use of Force and Self Defense
in the era of Terrorism post
9/11 Attacks
US in Collective Self Defense
post 9/11
 Security Council Resolutions in the
immediate aftermath of 9/11
• Resolution 1368, (2001) on 12th September, 2001
• Resolution 1397, (2001), 28th September, 2001
• The Security Council recognized the right to use
force in self defense against terrorist action.
• Express recognition to right to self defense.
The Major Steps taken by the U.S in
the wake of 9/11 Attacks
Operation •Launched on 7th Oct. 2001 with the
Enduring aim of disrupting the use of
Afghanistan as a terrorist base.
Freedom

Claim of the • That the U.S is acting in self defense

US before the • The U.K. also joined in the first day
Security of missile attack invoked “Collective
Self Defense”
Council
Massive Support towards Operation
Enduring Freedom
Criticism Support
of this the
Operation Operation
 Created an instant Customary
International Law
Widens the
concept of
armed attack
Art.51 vis-à-vis
Terrorism

Art.5 NATO attack USA & UK

on one member claimed response to
state is an attack on terrorist attacks can
all be pre-emptive
 Pre-emptive Self Defense
Pre-emptive The position
Reasons
character of of the two
advanced
self defense countries
The aim is to
deter further
attacks on the
USA USA
Initial attack had
ended & it would
For terrorist be impossible to
activities invoke Art.51
To avert the
continuing threats of
U.K. attack from the same
source
 One more interpretation came out
Such right exist only in response to terrorist
activity.

The right exist only in cases where the rights

has been asserted by the Security Council as
in Resolutions 1368 and 1373
The problematic aspects of Operation Enduring
Freedom in Public International Law

Questions of •The attacks continued for several

Necessity & months. The requirements of
Proportionality imminence was clearly excluded.

Stretching of •The US policy aimed to bring within its ambit

other countries to root out terrorism like
Pre-emptive Sudan, Yemen etc. which were not directly
Strike involved in the 9/11 attacks

The Law on • Traditionally, it is the only exception to

the principle of non-intervention. Now the
Humanitarian theoretical limits have been challenged
Intervention over the years.