Abstract
State violence is defined in this volume as “the illegitimate use of force by states against the rights of others.” This definition gives a first idea of what state violence is about, but it does not specify when the use of force by states becomes illegitimate or what the rights of others are, independently or in relation to states. When does the use of force by states turn into state violence? In this chapter, I address this question from the perspective of international law. The first part of the chapter discusses how different domains of international law regulate the use of armed force by states. What are the obligations of states, and what rights and responsibilities do individuals have under the law on the use of force, international humanitarian law, international human rights law and international criminal law? The second part examines how these rules are enforced by different international courts. Where can victims of state violence seek a form of reparation? Finally, the third part concludes by highlighting some of the main challenges for the international regulation of the use of armed force by states.
The author is grateful for the detailed comments of André de Hoogh, Bettina Koch and Andrej Zwitter on earlier drafts of this chapter.
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- 1.
On the different dimensions of the concept of legitimacy, see Thomas (2014).
- 2.
Note that it has been claimed that Article 2(4) also includes other forms of force such as political and especially economic coercion. The prevailing view is, however, that the prohibition of the use of force is limited to armed force (Randelzhofer and Dörr 2012, pp. 208–209).
- 3.
It remains contested whether and to what extent there exists a general right of self-defense under customary international law apart from Article 51 of the UN Charter (Randelzhofer and Nolte 2012, pp. 1403–1406).
- 4.
Note, however, that the extraterritorial application of international human rights law and its relation to IHL (in the context of an armed conflict) remain uncertain and relatively unexplored areas in international law.
- 5.
Note, however, that the Rome Statute of the International Criminal Court does not require the element of official responsibility. Torture as a crime against humanity or war crime can thus also be committed by non-state actors.
- 6.
Note that even if these crimes are not considered international crimes and as such do not form part of ICL, when state agents are involved in planning or committing any of these crimes, including terrorism, they do engage in criminal acts of state violence. While the responsible individuals may not be prosecuted before an international court, they may still be charged on the basis of the relevant treaties by a domestic court within or outside the respective states.
- 7.
In fact, the crime of aggression is specifically designed to punish the excessive use of armed force by states. As defined by Article 8bis of the Rome Statute—which still has to enter into force—the crime of aggression means “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations [italics added].” Based on this definition, individuals can be held responsible for manifest violations of the law of the use of force.
- 8.
The ICJ has also helped to clarify these rules through some its advisory opinions, such as on the legality of the use of nuclear weapons and on the interpretation of specific peace treaties.
- 9.
In addition, the Economic Community of West African States (ECOWAS) Court of Justice and the Caribbean Court of Justice can under certain circumstances rule on human rights violations. There is also a pending protocol that would extend human rights jurisdiction to the East African Court of Justice.
- 10.
Of the 35 member states of the Organization of American States, 25 have ratified the Convention, and 20 have accepted the compulsory jurisdiction of the Inter-American Court. The US, Canada and several of the English speaking Caribbean countries have not ratified the Convention.
- 11.
This means that only half of the 54 member states of the AU have ratified the African Charter. Note that since 2008 there is a pending protocol that would merge the ACHPR with the still non-existent African Court of Justice. The new court would be called the ‘African Court of Justice and Human Rights’, and would also have criminal jurisdiction.
- 12.
These states are Burkina Faso, Ghana, Malawi, Mali, Rwanda, Tanzania and Republic of Cote d’Ivoire.
- 13.
To be clear, this does not mean that there are no other important protection mechanisms in place. At the international level, the Human Rights Council, the Office of the High Commissioner for Human Rights and the UN treaty bodies play a crucial role in monitoring state compliance with international human rights law. They foresee in various procedures such as state reporting, inter-state complaint procedures and even optional individual complaint procedures. Still, it should be stressed that these other protections mechanisms do not function as a ‘world court of human rights’. Their mandate has to be distinguished from the enforcement role that the European, African and Inter-American human rights courts (can) fulfill.
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Knottnerus, A. (2016). International Law and the Use of Armed Force by States. In: Koch, B. (eds) State Terror, State Violence. Staat – Souveränität – Nation. Springer VS, Wiesbaden. https://doi.org/10.1007/978-3-658-11181-6_2
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