Use of Force

Use of force that is being controlled by the international law at this present time is out of date and changes need to be carried out. Force in international community has been featured as decentralized. Force was used in different ways and purposes in order to achieve desired aims. Violence was accepted and used to resolve disputes between states, as states could wage war without any other states’ consent although it could cause many tragic consequences.

Nonetheless, ‘just and unjust war’ came forth where in the ancient Rome and Fetials, fetial law ( ius fetiale ), also known as the religious law were carried out by a group of priest who were responsible for maintaining peace. This group of priest has authority over the process of creation, application and interpretation of treaties and regulations on declaration of war.[1] Since then, the concept of ‘unjust war’ changed and was further influences by ST. Augustine and St.Thomas Aquinas and there were three conditions under which a war could be ‘just’ were stated in Summa Theologica:[2] 1.

It should be waged by a proper authority, prohibits waging a private war. 2. It should be waged for a just and good purpose, as to restore a good or punish wrong-doing. 3. It should be waged with the right intention for instance, the ultimate restoration of peace. This doctrine began to evolve together with the rise of independent states in Europe. As the numbers of sovereign states grow, wars are no longer define as the matter of subjective moral judgement but defined as the state of legal affairs. Ever since then, states were not in the position to judge any other states if they were resorting force justly or unjustly. This system was being supported by the positivism and the Peace of Westphalia 1648 and it survived in Europe until the beginning of twentieth century. The aftermath of such belief had led to the outbreak of First World War.[3]

Aftermath of the First World War, international relations were rebuilt between states through the establishment of the League of Notions (LON). LON was created in 1919 and were playing a role in ensuring that acts of aggression would never occur again in the future. Under article 12 stated that members of league were not allowed to go to war until three months after the award judgement and had to resort prior to judicial settlement, arbitration or involvement of the League Council.

However, aggressive states would felt that these obligations were too onerous and could just withdraw from the league and not wait until three months after the award judgement. This would be unfair to the victimised state. By the end of the decade, in 1928, France and United State spurred the treaty Kellogg- Briand pact. This pact has aspired to a total ban of war and rapidly became popular also attracting many instruments ratifications, eventually it could not prevent wars at that time but still it provided one of the legal bases for hoilding high-ranking Nazis responsible for crimes against peace in Nuremberg proceedings after the Second World War claimed peace.[4] During Second World War, governments felt that the use of force should be outlawed as UK Prime Minister Winston Churchill and US President Franklin Roosevelt had pointed out that states should abandon the use of force.

According to the United Nations website: Coming from the two great democratic leaders of the day and implying the full moral support of the United States, the Atlantic Charter created a profound impression on the embattled Allies. It came as a message of hope to the occupied countries, and it held out the promise of a world organization based on the enduring verities of international morality. That it had little legal validity did not detract from its value. If, in the ultimate analysis, the value of any treaty is the sincerity of its spirit, no affirmation of common faith between peace-loving nations could be other than important. This document was not a treaty between the two powers. Nor was it a final and formal expression of peace aims. It was only an affirmation, as the document declared, “of certain common principles in the national policies of their respective countries on which they based their hopes for a better future for the world.”[5]

The tragic event of Second World War once again marked the end of the peaceful international relations and led to the adoption of the United Nations (UN Charter) in 1945. Surely, the world has changed greatly ever since 1945 UN Charter being created. It did not eliminate what has been ruled but in fact it merely changed it.[6] There are a few cases that reveals the inadequacy of international law in controlling the use of force. For instance, confusions on the American law professors and others on the occasions of the dispatch of America troops to Grenada[7] and the events in the case of Nicaragua v United States of America, had also created similar confusions.[8]