Reconceptualizing the meaning of indirect force and the scope of its regulation under international law

Abstract

The preponderance and transformation of state use of indirect force continues to raise conceptual questions about defining which indirect acts of a state will fall within the scope of Article 2(4) of the United Nations Charter. The above problem of clarity is tied to the nature of indirect force itself, which is often predominantly carried out in secrecy. As such, it is often difficult to identify the aiding state or trace the chain of causation directly to that state. The ICJ’s traditional (narrow) conception of indirect force has not helped in clarifying this grey area of international law. This article argues that this traditional framing of the meaning of indirect force under international law is problematic in that it fails to show why assistance to groups or to state(s), if involving arming and training against a target state, should be conceptually different from other forms of assistance involving logistical or financial support if both scenarios involved the aiding state(s) positively assisting the attacker. By viewing this practice through both doctrinal and critical theoretical lenses, particularly in the context of Critical Legal Studies, incorporating Indeterminacy theory and Third World Approach to International Law, this article seeks to demonstrate that the inadequate scrutiny of the state use of indirect force can be attributed to the inherent weakness of positivist legal frameworks in accommodating the tensions between state sovereignty and state power. This article proposes a broader (yet balanced) approach that incorporates a constructive knowledge parameter to account for positive indirect acts of offending states that are excluded under the current traditional framework.

Introduction

While direct forcible engagement amongst states has relatively declined following the adoption of the UN Charter,¹ which formally prohibited the use of force in international relations,² the recourse to the use of indirect force continues to be (and increasingly is) the most attractive form of international engagement by states.³ This form of indirect engagement amongst states is not necessarily new, as was exemplified by the Cold War era,⁴ and much more so in the 21st century, a practice that some have termed the ‘second cold war’.⁵ To name a few, the use of indirect force is observable in the recent cases of Côte d’Ivoire,⁶ Libya,⁷ Ethiopia,⁸ the so-called ongoing Iran–Saudi proxy wars in, Syria,⁹ Yemen¹⁰ and Iraq¹¹ (with the various levels of participation by their respective allies from both within and without the region), and more recently, the resurgence of the US–Russia proxy war in Ukraine¹² and the Iran–Saudi Proxy war in Israel.¹³

What is significant from the above ‘cold war’ cases is the absence of any clear legal justifications for the use of indirect force by the states providing the support. This trend understandably resurfaces the critical question as to the relevance of the UN Charter today.¹⁴ Although the International Court of Justice (ICJ) has tried to define indirect force, the traditional legal understanding of what constitutes indirect force is fraught with conceptual difficulties since it fails to critically engage with the realities of modern and asymmetric warfare, as well as the development of sophisticated modes of warfare through advanced technologies and non-conventional means today.

This rise in the use of indirect force in international relations is highly problematic for current international law, not only because of the issue of deniability (in terms of the problem of establishing causality and then apportioning state responsibility) but also in terms of its long-lasting effect on populations within the target state who become victims of the use of indirect force by the assisting state. Particularly, many studies have shown that the use of indirect force reproduces multiple armed groups on the scene, thereby prolonging civil wars and transnational conflicts,¹⁵ thus rendering any international effort to maintain international peace and security counterproductive. Also, the metamorphosis of previously state-aided armed groups into radical groups continues to present a huge challenge for the populations within the target state and the neighbouring states, as well as for the international community. An example of these regional and global problems is the rise of Al-Qaeda and the later emergence of the Islamic State of Iraq and the Levant (ISIL).¹⁶ Also, with the development of sophisticated means of warfare through advanced technologies, the need to re-examine what constitutes indirect force becomes paramount.

While a plethora of literature exists on the topic of the law governing the direct use of force, the use of indirect force remains an area of state practice that lacks clarity in legal scholarship. Although Article 2(4) of the UN Charter prohibits the use of force, there is nothing in the Charter that mentions ‘indirect’ force. Furthermore, although the subsequent practice of the UN General Assembly¹⁷ may arguably be considered as providing a broader meaning of Article 2(4) to cover indirect force,¹⁸ the ICJ, in its reasoning in the Nicaragua case,¹⁹ provided a narrow meaning of indirect force, a decision that has marked the current traditional understanding of indirect force in legal scholarship.²⁰ In that case, the Court stated thus,

While … arming and training … can certainly be said to involve the threat or use of force …, this is not necessarily so in respect of all the assistance given… … the Court considers that the mere supply of funds …, while undoubtedly an act of intervention … does not in itself amount to a use of force.²¹

The consequence of this ICJ jurisprudence can be observed in the recent or ongoing Syrian civil war where some states (mostly Western states and their allies), when confronted about their indirect actions against the Syrian government, justified these on the basis that they only provided ‘logistical’ or ‘non-lethal’ and financial support but not arms to the armed groups.²² This sort of justification arguably mirrors the traditional understanding of indirect force produced by the ICJ’s jurisprudence.

However, this traditional framing of the ICJ is problematic in that it fails to show why assistance to groups or to state(s), if involving arming and training against a target state, should be conceptually different from other forms of assistance involving logistical or financial support, if both scenarios involved the aiding state positively assisting²³ the attacker. This article argues that this traditional framing of the meaning of indirect force under international law is problematic on two counts. First, it perpetuates the structural bias of the international legal institution,²⁴ as well as (consciously or unconsciously) reinforcing the position of powerful states within the international polity.²⁵ In particular, wealthy and powerful states can easily justify recourse to those forms of assistance excluded from the legal meaning of indirect force by arguing that such assistance has not been prohibited under Article 2(4) of the Charter. Secondly, it marginalizes the position of those states, especially developing states, who become victims of those forms of assistance excluded from the meaning of indirect force.²⁶

In light of these two problems, this article proposes a broader conception of indirect force, but within certain parameters, that reflects the spirit of Article 2(4) and the relevant UNGA resolutions adopted concerning Article 2(4). Therefore, considering the importance of this topic, it is crucial to first lay the theoretical framework of this article, which draws upon CLS and TWAIL, before then going into an analysis of the concept of indirect force and a proposal for its reconceptualization.

Theoretical framework

Based on the above introduction, it becomes clear that what is in issue is essentially a question of what constitutes indirect force, whether a state can be constrained, and to what extent, under international law, from using such force against another state. This question brings the themes of state power and state sovereignty to the fore. The main argument of this article is that the current traditional mode of interpretation of the meaning of indirect force under international law fails to account for the problem of state power and the tension that exists between state power and state sovereignty. Thus, while it is necessary to acknowledge the importance of a doctrinal or legal positivist framework—since it allows us to identify the applicable rules and sources on this topic²⁷; nonetheless, how it is being used and applied in legal scholarship is inadequate to capture the realities of state power. It is on this basis that a CLS and TWAIL framework is useful to account for state power and the weakness of the existing international legal institution, particularly the ICJ, to capture these realities, which is missing if solely following a doctrinal framework.

State power and state sovereignty

A state could be defined as ‘an organisational actor embedded in an institutional-legal order that constitutes it with sovereignty and a monopoly on the legitimate use of organised violence over a society in a territory.’²⁸ In terms of defining power, social, political, and international relations theorists have all grappled with producing a definition of power, but there is no comprehensive definition that can be given, due to the problem of measuring it.²⁹ There are also different understandings of the purpose and nature of a state, but the most popular one in IR theory is the realist conception. The realist scenario best portrays the dynamics of state power. According to Hans Morgenthau, states are egoistic and expansionist.³⁰ For this article, a working definition of state power is the capacity (including physical and normative influence)³¹ of a state to exert over another state to achieve its objective. The embedding of the theme of state power is premised on the notion that, due to the disparity in power balance on the international scene, powerful states will circumvent the rule prohibiting the use of force under the UN Charter.³²

State sovereignty (or sovereign equality of states) lays the legal premise upon which the UN Charter is founded, which seeks to constrain states from exercising ‘state power’ over other states. While there are differing theories on the principle of sovereign equality of states, the key element of the Westphalian order³³ is the principle of non-intervention,³⁴ which requires the exclusion of third states or external actors from the domestic authority structures of a state. By the above, states are deemed independent and share equal standing as sovereigns on the international plane, with the right of protection against intervention and/or use of any force by other states.³⁵ In any case, despite the differing theories on the scope of state sovereignty—whether absolute or limited³⁶ or from a TWAIL perspective³⁷—it is clear that some form of constraint is expected on states against intervening in the internal affairs of another state.

CLS and TWAIL

The CLS framework is based on two major premises. The first is the notion that ‘law is politics’, and the second is the indeterminacy thesis. TWAIL premises are similar but not necessarily identical to CLS concerns. TWAIL is particularly focused on challenging the existing international and legal institutions and how they perpetuate the continued marginalization of the interests of ‘third world’ or developing states.³⁸ In the context of this article, the term ‘third world’ is loosely used to refer to developing countries or states largely in the global south. It should be stated from the onset that while TWAIL and CLS ideas are used, this article does not seek to automatically assign ‘third world’ or developing states as ‘victim states’ and Western states as ‘oppressor states’. After all, to make such assumptions will be to ignore the fact that any state, regardless of its appellation as either ‘third state’ or ‘western’, can use indirect force against another state.

In any case, CLS, as well as TWAIL, posits that our claims of what law is are neither objective nor neutral because it is constructed within particular political, social, economic or moral contexts to reflect the interests of particular political groupings.³⁹ As such, rather than seeing politics as an external element that taints the law, it is seen as part and parcel, internal to, and the ‘very structure of law’.⁴⁰ Thus, ‘law is politics’ is meant to express a fundamental criticism of the alleged objectivity and neutrality of the law’,⁴¹ but not meant to suggest that legally valid decisions cannot be arrived at. In other words, legal outcomes or decisions made between two competing legal arguments (eg, over the meaning and scope of a legal rule on indirect force) are a product of a political choice that is based on the wider structural bias of the institutions it emanates from.

Accordingly, Robert Keohane and Joseph Nye have argued that international regimes or institutions function as intervening factors that shape the economic and social realities of states.⁴² Also, since these institutions are a product of the creation of the will of states, different studies have emerged regarding the independence of these institutions from their creators. In particular, there is the issue of whether such institutions are being controlled by the most powerful states to attend to their interests.⁴³ While some IR scholars have argued that these institutions have a significant life of their own and can indeed take decision-making away from states,⁴⁴ others have shown how these legal institutions have not been effective in controlling or constraining state power.⁴⁵ For this article, the main institution of concern will be the ICJ, which interprets the law on the meaning of indirect force and the scope of the rights of states to use such force.

The second aspect of the CLS is the indeterminacy thesis. There are different aspects to this theory,⁴⁶ but as it relates to international law, Duncan Kennedy posited that there is a ‘fundamental contradiction’ within every normative structure, principle or value, pushed in opposite directions that renders it useless as a guide to action or judgment.⁴⁷ Marti Koskenniemi applied this approach to analyse the politics of international law, recounting his experience while practising international law for the Finnish Foreign Ministry, of how lawyers often ‘could draw different, even opposite, conclusions from the same norms, or interpret a legal text or an act of state practice using contradictory norms’.⁴⁸ These contradictions are tied to the inherent nature and structure of legal texts, legal language and legal arguments.

In terms of the nature of legal texts, like all literary texts, legal texts rely on their own ‘symbols’⁴⁹ or ‘linguistic signs’⁵⁰ (that is, words, concepts, language, etc) within which they are coded. For instance, within the text of the UN Charter, its peculiar symbols will include phrases such as: ‘use of force’, ‘armed force’, ‘intervention’, ‘aggression’, ‘armed attack’, ‘authorisation’, and the like. But, like all literary texts, legal texts are plagued by the limitations of the internal structure of the language within which it is coded or written.⁵¹ As a result, legal texts are considered to have two main limitations. The first is their use of general language or undefined expressions.⁵² For instance, expressions such as ‘armed force’, ‘aggression’, and ‘armed attack’ are used in the Charter without clear definitions in the text of the Charter. The consequence is that words in a legal text are subject to more than one meaning. The second challenge with the nature of legal texts is their comprehensiveness in terms of embodying competing values.⁵³ For instance, while the Charter arguably retains the principle of sovereign equality of states,⁵⁴ it also upholds competing values, such as humanitarian and human rights principles and self-determination of peoples.⁵⁵ This is not necessarily a bad thing. Still, it renders itself vulnerable to contradictions when one of those values (eg, self-determination) is sought to be enforced by outside states (which contradicts the non-intervention principle and sovereign equality of states).

The nature of the relationship between a legal text and the argument made from it lies in the indeterminate ‘structural property of … legal language itself…’.⁵⁶ This means that the strength of any argumentation depends on how the vocabulary and structure of language are used and arranged. Therefore, since the success of any legal argumentation depends on applying the appropriate legal language or vocabulary to justify any actions of states, there can be no real closure in any legal argument because every argument or theory someone presents in a legal claim can be offset by an opposing (but equally valid) argument or theory.⁵⁷ Consequently, at the international level, lawyers are simultaneously engaged in the task of seeking to show how the law is based on ‘objective’ principles that are distanced from the state’s behaviour, will or interests (a tendency towards normativity that could lead to accusations of utopia), as well as seeking to show how the law is closely a reflection of general state practice or behaviour, will and interest, as opposed to natural morality (a tendency towards ‘concreteness’ or ‘a mere sociological description’ leading to accusations of apology to power).⁵⁸

Drawing from this indeterminacy problem, it can be argued that ICJ’s interpretation, which is a narrow view of the relevant UNGA resolutions, is as valid as a broader interpretation of the same UNGA resolution. Equally, the arguments of Nicaragua and the US, respectively, could be deemed valid arguments, which leaves the ICJ with the only option of choosing between two valid claims. This article argues that a broader approach, while subject to the same criticisms levied against a narrow approach, is a better reflection of the spirit of Article 2(4) of the UN Charter, especially for developing countries.

The scope of this article

Considering the above TWAIL and CLS concerns⁵⁹ and that the current traditional meaning and framing of indirect force is arguably at best reflective of ICJ’s view and the majority of ‘western’ states, but not necessarily sufficient to constitute a customary international law⁶⁰ understanding of indirect force, it becomes paramount in the context of TWAIL to include the concerns of developing states in this conversation.⁶¹

However, the main challenge is that there is no sufficient state practice (not that there are no examples of states engaging in the use of indirect force) to draw a meaningful conclusion as to what the law is on this topic. It is important to distinguish between a preponderance of examples of these sorts of state behaviour (which has already been highlighted⁶²) and what is understood as ‘state practice’ under international law. Equally, while it is very useful to show that a particular principle of law is evidenced not only by opinio juris but also by settled state practice confirming that belief, it is not always straightforward or mathematical. For example, concerning identifying a practice that is accepted as law, the point of contention, which remains unresolved in legal scholarship,⁶³ is how many states need to affirm such practice or rule for it to be deemed a customary international law. For instance, should it require an affirmation of a majority (in terms of their number) regardless of whether the number is composed mainly from one region of the globe, or should it be based on a representation of states from all regions of the globe?⁶⁴

In addition, it is not always the case that sufficiently widespread state practice may be available. Equally, to consider an opinio juris as not sufficient to ascertain the existence of a customary rule, simply based on a lack of actual practice (actions) backing it up,⁶⁵ will mean that only states who have the capacity and means to ‘test the waters’ (in the sense of taking actions to confirm their belief) are taken seriously. But, as is the case, not all states have the resources and capacity to confirm their statement through actual acts.⁶⁶ As such, a strict adherence to the doctrinal approach, requiring the two principal elements of custom,⁶⁷ can disproportionately marginalize states (especially developing states) if their own ‘declarations’ in forums, such as at the UNGA (which is where states arguably air both their political and legal opinions), are taken as only reflecting their political views but not as reflecting their opinio juris.⁶⁸

Thus, as it relates to establishing state practices from most of these examples,⁶⁹ states have been predominantly mute, perhaps deliberately, on engaging their perspectives on the legal nature of indirect force. This means that although there is a preponderance of examples of states engaging in the use of indirect force, states have rarely provided a clear legal understanding and/or justification for the use of indirect force.⁷⁰ The two core examples in the 1980s and early 2000s, where the legal aspects of this matter were brought before and analysed by the ICJ, relate to the legal arguments of the USA and Nicaragua in the Nicaragua case,⁷¹ and that of DRC and Uganda in the Armed Activities case,⁷² respectively. Aside from state deliberations on the concept, scope and legality of this practice in specific UNGA resolutions, the other time or more recently where states have, perhaps, been vocal and engaged in the legal aspect of this matter concerns Libya, Côte d’ Ivoire, and Syria, where certain states sought to provide legal justifications for their support of the rebel groups against the target state.

While some analysis will be provided on the legal justifications of states for the use of indirect force in the recent Syrian civil war,⁷³ the cases of Libya and Côte d’ Ivoire⁷⁴ fall outside the scope of this article because, whilst they do engage questions on the scope of the prohibition of the use of indirect force, they specifically relate to the legality of their use under a Security Council authorization.⁷⁵ There are also more recent examples, such as in the ongoing Russia–Ukraine war (as it relates to the legality of the provision of support in the context of a state providing its territory to an ‘aggressor’ state⁷⁶), as well as the ongoing Israel–Gaza conflict, specifically the accusation levelled against Iran for providing support to an NSA (Hamas) against Israel.⁷⁷ These later examples are briefly explored, but in a limited way so as not to detract from the main arguments of this article.

Considering the above paucity or lack of sufficient state practice, only these specific cases and examples where legal justifications have been provided and/or debated, such as the Nicaragua case and the recent Syrian civil war,⁷⁸ will be examined. Importantly, this article draws upon relevant UNGA resolutions, especially UNGA Res 2625 and 3314, which provide further ‘practice’ on Article 2(4) of the UN Charter and are in line with rules relating to treaty interpretations.⁷⁹ Equally, even if one were to argue that these specific UNGA resolutions are archaic in that they were passed in the Cold War era, they remain relevant and core to this discourse for two reasons. Firstly, these UNGA resolutions have, so far, arguably provided a clearer (or at least a broader) expression of states’ responses drawn from the voices of both Western and non-Western states on this issue. Thus, any analysis of recent examples, such as Syria⁸⁰ or the Russia–Ukraine war, ultimately requires a recourse to and a re-visit of these well-established resolutions on the meaning of indirect force. Secondly, revisiting these resolutions remains crucial today because they form the foundations upon which ICJ provided its narrow interpretation on this topic, which some (mainly Western) states have continued to adopt, such as in the recent Syrian civil war case.⁸¹ Therefore, in the absence of sufficient state practice, the alternative will simply be adopting and re-enforcing the orthodoxy of the ICJ on this topic, which defeats the purpose of this article.

Concerning the working definition proposed in this article,⁸² it should be made clear that although the author applies a knowledge criterion (as opposed to an intention criterion) as part of its working definition, the context in which knowledge criteria are used here is distinct from their use in other disciplines, such as the law on state responsibility and in criminal law.⁸³ Equally, to avoid over-inclusivity in the author’s proposed working definition,⁸⁴ the article only focuses on the ‘positive’ assistance that a state provides and does not address ‘passive’ behaviours of states. These passive behaviours generally tend to be considered under the ‘unwilling and unable’ doctrines, complicity, and doctrines of attribution (such as the ‘effective’ and ‘overall’ control standards).⁸⁵

Although these passive behaviours of a state could trigger international obligations potentially owed to a target state, they do not fall within the scope of this article and arguably should not be included within the meaning of indirect force.⁸⁶ Otherwise, it renders the concept of indirect force too broad, if not meaningless. Nonetheless, it is accepted that there are specific behaviours of a state(s), such as ‘allowing its territory to be used’ against a target state, that could arguably be deemed positive assistance and thus fall within the meaning of indirect force. However, on this point, there are still some conceptual difficulties that such an inclusion raises, which are addressed later.⁸⁷

In addition, certain aspects of ‘economic coercions’, such as economic sanctions and embargoes, are not included within the proposed definition in this article. This is because economic coercions involving the use of sanctions and embargoes against a target state are arguably distinguishable from economic coercions in the form of the provision of financial support to a state(s) and/or non-state actor(s) against a target state. While both forms of state behaviours can disrupt a state’s ability to function or defend itself (especially in the case of sanctions/embargoes), nevertheless, economic coercions in the form of provision of financial support against a target state are closely linked to the use (or enable the use) of physical force by the recipient of such support.

Finally, it should be pointed out that the principles being deduced and proposed in this article apply to both situations of state-to-state indirect engagements: (i) that is, the provision of positive assistance by a state(s) to another state (s) against a target state(s); and state-to-NSA indirect engagements: (ii) that is, the provision of positive assistance by a state(s) to a non-state actor(s) against a target state(s). In any case, it should also be noted that while the actions of a non-state actor who is a recipient of state support are relevant (at least from a factual perspective), what this article focuses on is the actions of the providing state and to what extent their support (indirect actions) amounts to forcible measures against another state within the meaning of Article 2(4) of the UN Charter.

Therefore, to address all the above issues, the article is broken up into three main parts. Section 3 evaluates the doctrinal distinction between intervention and force to deduce what constitutes force within the meaning of Article 2(4). Sections 4 and 5 identify and critique the challenges with the doctrinal positions on the meaning of indirect force concerning TWAIL and CLS concerns, as well as engaging (in Section 5 of this article) the specific (conceptual and structural) problems with ICJ’s orthodoxy on this topic, as reflected in the response of mainly western states in the recent Syria case. Section 6 of this article explores a reconceptualization of the meaning of indirect force by proposing a working definition that could tackle the concerns with the traditional jurisprudence on the meaning of indirect force.

‘Intervention’ vs ‘force’

The ICJ distinguishes between acts that fall within the meaning of ‘intervention’ and those that fall within the meaning of ‘force’.⁸⁸ To deduce the traditional meaning of indirect force, one needs to first explore the distinctions that the ICJ’s jurisprudence makes between the prohibition of intervention and the prohibition of the use of force under international law.

According to the ICJ, the principle of non-intervention ‘involves the right of every sovereign state to conduct its affairs without outside interference’.⁸⁹ Some scholars have sought to distinguish between the term ‘interference’⁹⁰ and ‘intervention’, with the latter involving some element of coercion against a state. Accordingly, a violation of the principle of non-intervention is triggered, not at the point of ‘interference’, but ‘only once a particular act of interference amounts to “coercion”’.⁹¹

On the meaning of force, it should be noted that Article 2(4) does not define force nor specify the type of prohibited force, whether direct or indirect. If following the VCLT rules, the ‘ordinary meaning’⁹² of force can be understood as kinetic energy, which, when applied or directed by the user to its target, can change the direction or properties of an object.⁹³ This ordinary meaning will place ‘force’ essentially within the realm of physical coercion and, perhaps, differentiates force from other kinds of non-physical coercion, such as economic or political coercion,⁹⁴ since these latter kinds do not necessarily possess such kinetic properties.⁹⁵

From the above distinctions between force and intervention, it could be inferred that while not all acts of intervention necessarily amount to the use of force, all acts of force will constitute an act of intervention. Nonetheless, the problem lies in how to decipher what kind of physical coercion will qualify as force within the meaning of Article 2(4), as opposed to simply an act of intervention, especially as it relates to defining indirect force. For instance, should the focus be on the means (the instrument used) or the effect (outcome) caused by using physical coercion? This lack of clarity on what indirect acts fall within the realm of ‘physical coercion’ is the bone of contention as it relates to where to place acts of ‘funding’ and ‘logistical supports’.

From a traditionalist perspective, physical coercion that fits within the meaning of force in Article 2(4) is considered an armed force.⁹⁶ Some of the rationale for this interpretation includes a deduction from the preambles and other parts of the text of the Charter, which refers to armed force.⁹⁷ Also, considering that the Charter was drafted at a time immediately following the end of the world wars where military-like force was predominantly used, some scholars infer that the focus of the drafters was on the prohibition of the use of armed or military force.⁹⁸ A further support for the contextual interpretation of force (as armed force) is arguably deduced from the subsequent practice⁹⁹ of the UN, particularly the relevant UNGA declarations.¹⁰⁰ For instance, the 1970 UN Declaration on Friendly Relations distinguishes acts that are in the form of ‘economic’ and ‘political’ measures—which is categorized under the heading of non-intervention¹⁰¹—from other acts that are deemed armed coercion, which are then categorized under the heading of non-use of force.¹⁰²

Despite the above, it should be acknowledged that the purpose of these distinctions between economic, political, and physical (armed) coercion are not made so clear. For example, while the 1987 UN Declaration on the Non-Use of Force separates the concepts of ‘armed intervention’ from ‘economic, political or any type of measures’,¹⁰³ neither of the terms are expressly referred to as a use of force, thus leaving the issue not completely resolved.¹⁰⁴ Christine Gray has noted that the apparent ambiguity in these declarations was the price for reaching a consensus.¹⁰⁵ Furthermore, it is worth noting that from the early onset of the formalization of the UN Charter, there were many disagreements between developed and developing countries as to whether the ‘use of force’ included economic coercion.¹⁰⁶

So, on the one hand, the above discussions before the adoption of the Charter could be interpreted to mean that the drafters understood the term ‘force’ as being sufficient to encompass all conceivable types of force.¹⁰⁷ On the other hand, others believe that the discussions much more reflected the intentions of Western states to exclude not only ‘economic measures’ from the scope of Article 2(4) but also, by extension, diplomatic and political coercion.¹⁰⁸ However, considering that the Brazilian proposition was ultimately vetoed mainly by Western states, this still raises a question on the universal reflectiveness of this narrow meaning of force, especially about developing states.¹⁰⁹

In any case, for this article, the issue is not that ‘force’ is interpreted as armed force,¹¹⁰ which represents the traditional view by the ICJ¹¹¹ and the majority of positivist scholars¹¹²; the crucial issue is how should the term ‘armed’ be interpreted and applied when it comes to defining indirect force? In essence, what constitutes ‘armed’ force remains undefined, and the current traditional perspective is not necessarily reflective nor widely representative of state acceptance. Therefore, considering the significance of the prohibition of force under international law and the nature of state engagement in proxy wars, it becomes paramount to re-evaluate the traditional (or ICJ’s) meaning of ‘armed’ force, and particularly, indirect force.

Indirect intervention vs indirect force

The ICJ narrowly defines indirect force by distinguishing between indirect acts that only constitute interventions from those it considers falling within the meaning of Article 2(4) of the UN Charter.¹¹³ Accordingly, in the Nicaragua case, the Court partly disagreed with Nicaragua’s argument that the US support for the Contras through various direct and indirect means, including ‘recruiting, training, arming, equipping, financing, supplying …’ amounted to unlawful use of force and intervention in violation of the contemporary prohibition of the use of force.¹¹⁴ In response, the court stated thus,

While the arming and training of the contras can certainly be said to involve the threat or use of force against Nicaragua, this is not necessarily so in respect of all the assistance given by the United States Government. In particular, the Court considers that the mere supply of funds to the contras, while undoubtedly an act of intervention in the internal affairs of Nicaragua … does not in itself amount to a use of force.¹¹⁵

From the above ICJ’s statements, there are some preliminary deductions to be drawn. First, the ICJ acknowledges that ‘intervention’ and ‘force’ can take place indirectly. Indeed, the UN alludes to the concept of indirect intervention in its 1949 Essentials of Peace Resolution, which called upon nations to ‘refrain from any threats or acts, direct or indirect, aimed at impairing the freedom, independence or integrity of any state, or at fomenting civil strife and subverting the will of the people in any State.’¹¹⁶ Concerning indirect force, the Court likewise observed that while the use of force may be ‘in the direct form of military action’, such as by a state using its forces or any other forces under its effective control,¹¹⁷  armed force may also be ‘in the indirect form of support for subversive or terrorist armed activities within another State’.¹¹⁸ Equally, drawing upon the 1970 and 1974 Declarations of the UNGA,¹¹⁹ the ICJ noted that the use of force need not be direct for it to fall within the scope of the prohibition of force under Article 2(4).¹²⁰

Secondly, the ICJ sought to show the relationship and demarcation between intervention and force, with the distinct element being a question of whether an ‘intervention’ involves the use of force. In essence, an indirect intervention that involves the use of armed force is what amounts to indirect force. Accordingly, the ICJ reasoned that ‘acts constituting a breach of the customary principle of non-intervention will also, if they directly or indirectly involve the use of force, constitute a breach of the principle of non-use of force in international relations’.¹²¹ In a nutshell, the ICJ argued that assistance such as ‘arming’ and ‘training’ meets the criteria of both an act of intervention and force, but not other assistance, such as funding and logistical support, which the court considers to only constitute an act of intervention.

However, the ICJ did not provide reasons¹²² to justify the categorization and demarcation of indirect acts or the removal of acts of funding and logistics from its definition of indirect force, especially considering that all of the above-mentioned indirect acts could equally involve the support of the use of force against a target state.

Conceptual problems with ICJ’s definition of indirect force

There are inherent problems with the ICJ’s conception of indirect force. The first is the incoherence of categorizing the kind of assistance provided by a state against another state. Particularly, the Court failed to show why assistance involving arming and training should be conceptually different from other assistance, such as logistical or financial support if either scenario involves a state positively¹²³ assisting an attacker that is using armed force against a target state. It is worth noting that the wording of the UNGA 1970 Declaration—which the ICJ depended upon in its analysis—does not appear to categorize the kind of ‘…assisting or participating …’, as long as they are positively given ‘towards the commission of …’¹²⁴ or to facilitate the commission of acts that ‘involve a threat or use of force’.¹²⁵ In other words, if ‘arming’ and ‘training’ employed against a target state ordinarily constitutes an indirect use of force, then other positive assistance given in the form of funding and logistical support is not any different, as long as the assisting state took ‘practical steps in facilitating the physical coercion (armed force) that occurs’¹²⁶ against the target state. Thus, it arguably follows that the provision of funds and logistics to an attacker is as much a positive and ‘practical step’ as the provision of arms and training to the attacker.

Secondly, it will appear that the UNGA Declarations of 1970 and 1974 provide a rather broader understanding of positive acts, beyond just arming and training, that could potentially fall within the meaning of indirect force. For instance, concerning the principle of non-use of force, the 1970 Declaration elaborates that ‘every State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands including mercenaries, for incursion into the territory of another State’¹²⁷ and that ‘every State has a duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force’.¹²⁸

While it remains debatable as to what ‘assisting’ and other similar phrases in the above resolution entail, what is clear is that there is no discernible distinction or emphasis made in the resolution on the specific kind of assistance that will involve a threat or use of force. In essence, ‘assisting’ under the Declaration ordinarily means any assistance, so long as such assistance involves the facilitation of a threat or use of force against another state. An act of indirect force can thus be deduced ‘when the acts referred to…involve a threat or use of force’.¹²⁹ Accordingly, the 1970 Declaration states that ‘every State has a duty to refrain from… assisting or participating … towards the commission of such acts …’.¹³⁰ It may well then be envisaged that for any such assistance to fall within the concept of indirect armed force, it should at least be an actual assistance in the sense of positively providing support to the user of armed force as opposed to just mere verbal encouragement to a user of armed force. In essence, the assisting state would need to have taken ‘practical steps in facilitating the physical coercion that occurs’.¹³¹ Therefore, it is logically consistent to infer that such practical steps can also manifest in the form of funding and providing logistical support against a target state.

Equally, the 1974 Definition of Aggression provides other kinds of indirect acts of a state that may be considered an indirect force, albeit falling within a higher gravity threshold of force.¹³² The first of such categories of indirect force is ‘the action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State’.¹³³ The second of such categories is ‘the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State …’.¹³⁴ It thus follows that any of these kinds of indirect acts of a state against another state will by implication constitute the use of armed force prohibited under Article 2(4) of the UN Charter.

From the above analysis, it becomes clear that indirect force arguably contemplates a broader understanding within the UNGA resolution, with the focus not necessarily placed on the form of assistance—whether arming, training, funding, logistical support, and the like—used in facilitating the use of armed force against a target state.

Nonetheless, some scholars could question this broad approach analogy by stating that the UN Declarations are often mere political aspirations of states rather than reflecting their opinio juris.¹³⁵ But, this counterargument can equally be turned on its head. Firstly, this will mean that the ICJ’s dependence on the said UN Declarations (deemed ‘political aspirations’) in deducing a narrow meaning of indirect force is equally subjected to the same positivist critique. Secondly, if the above relevant UN Declarations are mere aspirations of states, as opposed to their opinio juris, it then means that there is no legal basis for accepting that indirect force, including ‘arming’ and ‘training’, constitutes a violation of Article 2(4), since the term is not specifically mentioned in the Charter. In addition, to accept such a narrow view would be highly problematic and catastrophic, especially for weaker states. This is because states with the means and resources could easily assert a ‘legal’ right to use indirect force for any reason on the basis that the statements within the UN 1970 Declaration are mere political aspirations (as opposed to legal opinion) of states, and that such acts are not specifically mentioned under Article 2(4).

On the other hand, it could be argued, from an indeterminacy point of view, that the phrases contained within the 1970 Declaration are so indeterminate and therefore subject to multiple interpretations. For example, the Declaration, under its principle of non-use of force, uses ambiguous phrases, such as ‘encouraging’, ‘instigating’ and acquiescing’,¹³⁶ which can also lead to a too-broad interpretation¹³⁷ of indirect force. In essence, it could be argued that a broad interpretation is as problematic as a narrow interpretation on the basis that the Declaration itself—from which these opposing interpretations are derived—is fraught with indeterminate phrases. Nonetheless, acknowledging the inherent ambiguities of the noted phrases (of the Declaration) does not necessarily lead one to conclude that any logical interpretation deduced therein is incoherent. Instead, what appears incoherent is the ICJ’s categorization of the kind of assistance that will amount to the use of armed force.

Structural bias problem with ICJ’s conception of indirect force

Apart from the above problem of incoherence, there is also the unaddressed politics—the privileging of its interpretation—and the resulting imbalance in power relations embedded in how ICJ’s narrow framing is construed.¹³⁸ From a TWAIL¹³⁹ and CLS perspective, it could be argued that there is a structural bias in the interpretations and decisions of the ICJ, which is tilted towards Western¹⁴⁰ concerns, often to the exclusion of other concerns, especially of developing states.¹⁴¹ This structural bias is not only exemplified in the interpretations of legal issues¹⁴² but also in the representation of mainly ‘Western’ worldview in the conceptualization, articulation, and/or interpretation of international law.¹⁴³

One of the TWAIL concerns is the structural bias of international institutions.¹⁴⁴ While it is accepted that the composition of the ICJ, especially currently, includes more Judges from non-western states,¹⁴⁵ the main issue relates to a question of how widely representative, if any, is the ICJ’s worldview on the legal issues before it.¹⁴⁶ On this particular issue, TWAIL scholars claim that the concerns of developing states are not properly reflected in ICJ decisions.¹⁴⁷ The point being made here is that this structural bias relates to the orthodoxy of the ICJ, as seen in its articulations, interpretations and reproduction of legal doctrines that have a predominantly ‘Western’ orientation.¹⁴⁸

However, it is important to emphasize that this TWAIL claim of structural bias is not about imputing ulterior motives or bad intentions to the ICJ. The TWAIL claim is used in the context of noting that there is a ‘bias’ in terms of the interpretative habit (orthodoxy) of the ICJ, and complicated by its Western orientation, can create blind spots. In the context of Nicaragua, this blind spot is exemplified in its failure to adequately incorporate the concerns of developing countries in their interpretations of this specific topic. In essence, the claim here is not that the ICJ is necessarily set up with some premeditated objective to marginalize the concerns of developing states. Rather, the argument is that the outcomes of its interpretation, such as on this topic, have the unintended effect of marginalizing the concerns, especially of developing states, who are often routinely the target of such sorts of indirect engagements.¹⁴⁹

As it relates to this topic, what seemed to be missing in the ICJ’s interpretation of indirect force is the developing states’ concerns about the impact that indirect interventions have on them. There are clear instances of developing states specifically raising these concerns by referring to certain acts of states that should ordinarily fall within the scope of Article 2(4) of the UN Charter. For instance, prior to the adoption of the Charter, some developing countries, such as Brazil, raised the need to include economic coercion and/or ‘aggression’¹⁵⁰—which arguably includes ‘funding’—within the scope of Article 2(4).¹⁵¹ During the deliberation on the scope of Article 2(4), the Brazilian delegate also argued that Article 2(4) prohibits any interference directly or indirectly that threatens the national security and territorial integrity of another member or involves any ‘excessively foreign influence on its destinies’.¹⁵² It was also noted that the phrase ‘or in any other manner’ in the Charter was designed to ensure that there should be no loopholes.¹⁵³ In any case, Brazil’s suggestion was rejected by mainly Western states.¹⁵⁴

Aside from the instances of developing states echoing these concerns during the drafting of the Charter, there was equally a later debate by states in the 1970s on the scope of the right of self-defence, albeit in the context of ‘indirect’ aggression.¹⁵⁵ The debates over the concept of ‘indirect aggression’ initially proposed in the Soviet draft were in response to the increasing use of various means of covert and subversive acts, such as the support and use of irregulars by states against target state(s).¹⁵⁶ However, there was a strong split amongst Member States.¹⁵⁷ Eventually, the Six Power Drafts from Western states (which supported a broader right of self-defence against such indirect acts and exclusion of economic aggression) prevailed over the Thirteen Power Drafts from developing states (which opposed a broader right of self-defence and supported the inclusion of economic aggression within the definition).¹⁵⁸ This outcome led to a very narrow conception of ‘indirect aggression’—that excluded economic aggression¹⁵⁹—proposed by a majority of Western states. Some of the developing countries that expressed disappointment with the exclusion of economic aggression within the meaning of armed force included Peru, Kenya, Congo, Bolivia, India, Rwanda, Zambia, Libya, Cuba, and Madagascar.¹⁶⁰

While it is accepted that the idea of including economic coercion—a very broad term—within Article 2(4) is problematic, as previously discussed, some aspects of ‘economic coercion’, such as ‘funding’, are arguably not distinct from ‘arming’.¹⁶¹ Furthermore, although the deliberations of states related to ‘aggression’ and ‘self-defence’, the conception of indirect aggression by these developing states does shed some light on how they generally viewed covert and subversive acts. So, while some may argue that aggression and force have different meanings,¹⁶² the comments of these developing states remain relevant and provide some insight into how indirect force may have been broadened to incorporate some aspects of these non-western concerns.

In the context of Nicaragua, it should be noted that in the discussion¹⁶³ leading up to the adoption of the UNGA resolution 38/10 (1983),¹⁶⁴ 13 states (made up of the Soviet Union, some allied states and developing states within the non-aligned movement)¹⁶⁵ out of the 55 participating states in the debate explicitly considered US action against Nicaragua to be illegal and an act of aggression.¹⁶⁶ Moreover, it is worth noting that the USA and Nicaragua accepted this broader meaning of force by implication,¹⁶⁷ or at least, the USA justified its ‘defensive’ actions based on the prior use of indirect force,¹⁶⁸ which both parties considered to include logistical and economic support.¹⁶⁹ Similar broad understandings of indirect force were presented in the arguments of DRC¹⁷⁰ and Uganda¹⁷¹ in the Armed Activities case. Therefore, the ICJ’s failure to adequately consider the geopolitical and historical context of these cases,¹⁷² a problem well-noted in the dissenting opinions of Judge Schwebel¹⁷³ and Denning,¹⁷⁴ reflects the problem of orthodoxy and bias on these issues.

Although the above concerns of developing states have not received mainstream attention in legal scholarship, they are relevant, at least from a TWAIL perspective, to warrant some reflection, especially if considering that developing states are more routinely the target of these forms of indirect engagements. A recent example of the effect of ICJ’s narrow framing of indirect force can be seen in how some powerful states, such as the UK, have consistently argued that they have only provided ‘non-lethal’ support (ie, provision of funding and logistics), but not arms to the opposition groups in Syria and Iraq.¹⁷⁵ Similarly, other powerful states, such as the USA, France, and their allies in the Middle East, have followed the same line of arguments when confronted for their overt support of the rebel groups fighting the Syrian government.¹⁷⁶

A possible counterargument to the above structural bias claims could be that the ICJ took on a policy approach to avoid the potential abuse that could emanate from a too-broad interpretation. While this argument appears reasonable, it is appealing only where the assumption is that this narrow conception had the effect of deterring or reducing abuse by powerful states with the means and resources. However, this has never been the case, as seen in the examples of the Cold War and the so-called Second Cold War era.¹⁷⁷

In sum, the ICJ’s narrow framing inadvertently marginalizes the position of states, especially developing states, who become victims to those forms of forcible assistance excluded from the ICJ’s conception of indirect force.

Evaluating the plausible reasons for ICJ’s narrow conception and problems

Considering the ICJ’s lack of clarity and reasons for its categorization and demarcation of assistance amounting to ‘indirect force’ in the Nicaragua case, some scholars have applied some approaches to rationalize a narrow conception of indirect force. The first rationale applies an effect and means approach to deduce a narrow meaning of indirect armed force. The second rationale applies an intention approach.

Effect and means

Under this approach, what constitutes an armed force can be deduced by focusing on state practice regarding the use of weapons or the use of armed forces of a state or irregular group assisted and/or sent by a state against another state. Since the acts of arming and training are ordinarily by their design intended to facilitate or support armed or combative activities, it is deducible that the act of providing arms and training to armed groups engaged in armed activities is directly or closely causal to the use of armed force by the recipients of such support. Equally, considering the earlier discussion on the varied meaning of armed force, it is understandable why the provision of arms and training to another state or non-state actor (NSA) against a target state could be considered an indirect use of armed force. Furthermore, some recent state practices, such as in the Syria case, show an implicit and explicit acceptance by states that ‘arming’ falls within the meaning of indirect force, which feeds into this effect and means approach.

Concerning deducing state practice on what acts constitute indirect force, it is worth noting that in the recent Syria scenario, the USA and France did not provide any clear legal basis for aiding the Syrian rebels, and in some cases, even claimed it only provided ‘non-lethal’ support.¹⁷⁸ The UK believed that the supply of arms to the Syrian rebels would be illegal and argued that it only provided ‘non-lethal’ materials.¹⁷⁹ The Netherlands, while accepting that ‘lethal’ assistance (ie, the provision of arms and training) would be unlawful, argued that in exceptional circumstances and under certain conditions of proportionality, such support should be allowed based on the loss of legitimacy of Assad’s government and the ‘wide acceptance’ and recognition of the Syrian Opposition Coalition as the legitimate representative of the People. Nonetheless, the Netherlands noted that it intends not to supply weapons to Syria since it saw little merit in bringing more weapons to the region.¹⁸⁰ However, the Netherlands did not substantiate its argument to show that the conditions of self-defence have been altered by subsequent practice to accommodate such an exception.¹⁸¹

Egypt, Kuwait, Oman, Qatar, Bahrain, and Lebanon all ‘pledged to provide military support …and to halt the flow of funds and foreign fighters to IS’¹⁸² but did so covertly—which arguably showed a lack of belief that their actions were legal. This lack of legal conviction can also be inferred from Qatar, Saudi Arabia, and Turkey’s outright denial of aiding the Syrian rebels. ¹⁸³ Other states, such as Austria and Russia, have been more explicit in stating that arming the Syrian rebels would violate international law.¹⁸⁴ So, based on the above responses and reactions of states to the support of the Syrian rebels, it can at least be inferred that states generally considered that providing ‘lethal’ assistance to NSAs is unlawful under international law.

As it relates to the meaning of indirect force, the question then is whether the above effect and means approach and examples of state behaviour are sufficient to show an accepted practice amongst the majority of states. Arguably, this is not the case. On the contrary, it will appear that states have expressed a broader understanding of indirect force. Firstly, as was noted earlier,¹⁸⁵ the 1970 UNGA Declaration does not appear to differentiate between the forms of assistance as long as they are provided to facilitate the use of armed force against another state.¹⁸⁶ In other words, the provision of arms, training, logistical and financial support all fall within the same continuum of practical steps taken against a target state if they are provided either to the armed forces of a state or to irregular groups who are engaged in armed activities against the target state.

Furthermore, the nature of logistical and financial support generally forms part and parcel of any direct or indirect military engagement.¹⁸⁷ Thus, it appears counterintuitive and detrimental to the interest of affected victim states to hold that the provision of funds—that arguably help with the purchase of arms, training, and remuneration for mercenaries—and such other logistics¹⁸⁸ are to be excluded from the same range of armed activities engaged against the victim state. Additionally, even if one could debate that ‘funds’ do not fit within the meaning of ‘weapons’ on the basis that they are not objects that can be weaponized during warfare, this claim cannot be validly made concerning ‘non-lethal’ materials (meaning assistance that does not include arming and training)¹⁸⁹ since the latter can arguably be ‘weaponised’ on the spot by the recipients both as a defensive and combative shield against the target state.¹⁹⁰ For example, a ‘non-lethal’ material, such as vehicles, can serve as a shield but at the same time can be employed to carry weapons and explosives to attack the target state. Equally, funds provided can be used to purchase weapons and pay for mercenaries, etc.

A possible counter¹⁹¹ to the above interpretation could be the argument that there is equally no sufficient or widespread state practice to support such a claim or to show that the majority of states accept such a broad interpretation of the meaning of indirect force. Whilst this counterargument is valid, it goes to the root of the inherent problem with deducing a customary rule¹⁹² and the question of how many and which states’ views need to be considered as state practice.¹⁹³ In deducing state practice and customary law, there should, at the very least, be some level of wide representation. Otherwise, the challenge is: why should the views and protestation of non-western states on the meaning of indirect force not be taken as seriously?

In essence, if the views of the above western states and their allies are to be taken seriously in mainstream scholarship for deducing state practice, equally, the views of non-western states deserve the same level of serious consideration. For example, in the recent Cote d’Ivoire,¹⁹⁴ Libya¹⁹⁵ and Syria¹⁹⁶ scenario, it was mainly the Western states and their allies that sought to justify the provision of ‘non-lethal’ support to the opposition groups in those countries. In any case, the assisting states in these cases have not explicitly claimed that non-lethal support cannot constitute a use of force nor rejected such a notion.

In light of the above-identified problems and ICJ’s orthodoxy on the meaning of indirect force, some states are now bringing their claims before the ICJ using the language of ‘financial terrorism’¹⁹⁷ in response to the provision of funds against them.¹⁹⁸ For example, in several recent cases, while not necessarily adopting the direct language of Article 2(4), aggrieved states have challenged the offending states’ provision of logistics and funding to NSAs, considering them to be acts of ‘terrorist financing’ or ‘aiding terrorist activities’ against the aggrieved state.¹⁹⁹ While this remains a grey area, the above language employed by those aggrieved states arguably reflects the meaning of indirect force enunciated in the 1970 UNGA Declaration, which considers armed force to include ‘assisting … in acts of civil strife or terrorist acts’ that ‘involve a threat or use of force’ against the target state.²⁰⁰

Based on the above analysis, one could conclude that the means and effect approach ordinarily provides support for the inclusion rather than the exclusion of logistical and financial assistance from the meaning of indirect force. In essence, logistical and financial support to an attacker can equally form part of the other means through which a state can exercise indirect armed force against a target state.

Intention

The intention criterion is another approach that has been adopted by some scholars²⁰¹ in deducing a possible rationale for the ICJ’s demarcation between assistance involving arms and training and other forms of assistance, such as the provision of logistical and financial support. For instance, Christian Henderson argued that:

[T]here is an implicit forcible intention to use force if a state is supplying weapons, or the necessary training to use the weapons, to non-state actors, while this intention is missing with the supply of funds, which could be used for purposes other than those of a forcible nature.²⁰²

The above argument is also tied to the notion that the causal link between the assisting state and the actual use of armed force, which may be more obvious in the case of arming and training, is more remote in the case of other assistance. There are some inherent problems with the above argument, but before addressing them, there is a need to briefly examine the notion of intention under the jus ad bellum.

Some scholars have argued that intention constitutes ‘an essential characteristic of the use of force’ that is prohibited under Article 2(4). This is based on the logic that all uses of force ordinarily require an animus belligerandi or hostile intention to carry it out. In other words, regardless of how the intention is defined, use of force, whether direct or indirect, should imply ‘… a first observation that is indisputable: one State’s use of force against another…’^,203 or that a state ‘intends to defy another’ state’,²⁰⁴ ‘forcing the will of another State’,²⁰⁵ or ‘… to do something or to refrain from doing something’²⁰⁶ through the use of force. This hostile intention, or intention to use force, is what is seen as distinguishable from the motives of a state, which can be humanitarian, economic, and/or strategic. It is based on the above intention criteria that some scholars have proposed the de minimis threshold theory,²⁰⁷ which argues that not all uses of armed force will breach Article 2(4). The second logic in support of the requirement of intention is that such criteria are implicit in the ICJ’s jurisprudence.

Indeed, any use of force ordinarily elicits hostile intention, except, of course, in the situation of a clear mistake or where the context shows otherwise.²⁰⁸ Indeed, it will be a misnomer for a state to argue that its forcible action against another state was ‘unintentional’ since the element of hostility is embedded in the very notion of coercion. In any case, the main contention is whether there is a legal requirement under the jus ad bellum for the aggrieved state to show that there was a hostile intention accompanying the use of force against it, especially in the case of an actual use of force projected on a state’s territory.²⁰⁹ In short, proving hostile intention can be an almost impossible task, especially in the context of indirect force, since such a requirement can be easily exploited by powerful states who could claim that that the intention behind their assistance was not directed against the territorial integrity or political independence of the target state.

So, recalling Henderson’s earlier quoted statement on the possible rationale guiding ICJ’s categorization of assistance, the implied argument is that there is a similar de minimis threshold in the case of indirect force that allows one to demarcate assistance that constitutes indirect force from that that does not. The first problem with this argument is what criteria should be used to demarcate such assistance. If the answer to this first problem is to apply a hostile intention criterion, the second problem is how to clearly and objectively demarcate assistance involving arming and training from other forms of assistance solely based on a subjective criterion (of intention). In this regard, such a demarcation, even by the intention criterion, is hardly discernible.

To put it differently, why should the hostile intention against a state only be implied in arming and training but not implied in logistical and financial support if both forms of assistance facilitate the use of armed force by the recipients against the target? In such circumstances, the hostile intention remains the same even if the means of doing so is different. In addition, even if one is to argue that the provision of logistical and financial assistance ‘could be used for purposes other than those of a forcible nature’, nothing stops the assisting state from applying the same logic in claiming that its provision of arms and training to the recipient was equally given for other purposes. For instance, the assisting state could, by this logic, argue that the assistance was given to protect the recipients but not intended for using them in illegal armed activities against the target state. Hence, applying the intention approach in either ‘lethal’ or ‘non-lethal’ assistance cases becomes redundant.

Towards a balanced conceptualization of indirect force

Having argued for a broader conception of indirect force, it is important to explore this idea further, especially considering there are also inherent problems with a broad conception, at least from a TWAIL and CLS angle.²¹⁰

The first issue is that a broader approach is not spared from the criticisms levelled against the ICJ’s narrow approach. In essence, nothing stops a powerful state(s) from taking advantage of the logic offered for either a narrow or broad approach to justify its actions. The consequence of this indeterminacy problem is seen in how arguments are marshalled out. So, in the case of narrow framing, states that provide funds and logistics to groups or states can argue they have not violated Article 2(4) on the premise that funding or logistical support are not considered to fall within ICJ’s definition of indirect force. Conversely, a broader framing can open other doors of justification for powerful states. For instance, a powerful state can justify its use of direct or indirect force simply on the basis that another state was only providing funds and logistics.

A further issue, which should also be acknowledged, is that both parties (Nicaragua and the US) were engaged in some form of indirect or covert operations.²¹¹ As such, it could be argued that the ICJ had to choose (albeit a political choice) between the competing and perhaps equally valid arguments or legal dilemmas before it. This problem of choosing between valid claims reflects the indeterminacy problem that is embedded in legal arguments.²¹² In essence, a narrow or broad approach does not necessarily fix the underlying problem of state power and interests, which the ICJ was called upon to address in those cases.

While acknowledging that a broader approach is not spared from this indeterminacy problem, the central argument of this article is that the narrow framing allows states to justify the use of funding and logistics against other states. First, under the narrow framing, states with the means and resources are inadvertently given leeway to justify certain aspects of their actions as not constituting a violation of Article 2(4).²¹³ Secondly, the narrow framing reduces the legal weight that is attached to the provision of assistance excluded by ICJ, such as funding and logistics, even if they are still considered unlawful interventions. Consequently, states can label their provision of funding and logistics as ‘non-lethal’ to reduce the legal weight attached to their actions. For instance, this was the line of argument towed by the UK when it claimed it had only provided ‘non-lethal’ aid to the Syrian armed groups.²¹⁴

However, under a broader framing, the above leeway is removed since it takes away the legal loopholes for states to argue that their ‘non-lethal’ assistance does not amount to a violation of Article 2(4). While a broader approach may not necessarily fix the problem of state power, this article argues that such a framing, if coupled with some guiding parameters, serves a better purpose for the prohibition of force under the Charter system. Accordingly, while acknowledging the problems with a too-broad approach, this article proposes some clear parameters that should be applied in broadly defining indirect force.

A working definition

In light of the noted problems with either a too-narrow or too-broad conception of indirect force, it is suggested that a balanced approach be applied when determining acts that should fall within the meaning of indirect force. Accordingly, a working definition of indirect force should be:

Any positive assistance, regardless of their forms, provided to a state and/or non-state actor(s) against a target state in violation of Article 2(4) of the UN Charter and/or where the assisting state knows or ought to know that such assistance facilitates the use of armed force against the target state.

The above definition satisfies the ‘action’ (means and effect) element, which is the most important aspect, and the knowledge parameter, which replaces the need for intention criteria. Also, the knowledge criterion caters for genuine mistakes or claims of ignorance since the burden of proof then lies with the ‘offending’ state(s). This definition also emphasizes positive assistance provided against a target state(s), which is not limited to arming and training but also to the provision of funding and logistics. However, this definition needs to be unpacked sequentially.

The important aspect of this definition is the emphasis on positive assistance. The purpose of ‘positive’ assistance is to maintain consistency with the physical coercive element used in defining armed force.²¹⁵ Firstly, the implication is that only acts taken by a state, as opposed to accusations of a state’s passivity or refraining from acting, are included within the conception of indirect force. Thus, unlike in the case of passivity, ‘positive assistance’ involves a state(s) taking actual steps to assist the state(s) or NSA(s) who are using armed force against the target state. Secondly, the focus on positive assistance takes away the need to overly fixate on highly problematic and subjective vocabularies, such as ‘unwilling’, ‘unable’, ‘abetting’, ‘complicit’, and the like, that often leads to abuse by powerful states.²¹⁶ It is the case that these latter vocabularies, which often deal with the presumed passivity of a state, are highly subjective and often difficult, if not impossible, to prove.²¹⁷ Thus, it is argued that since passive behaviours, or, simply put, inaction of a state, do not fall within the ordinary meaning of physical coercion used in defining force,²¹⁸ they should logically not be considered nor placed within the conception of indirect force.²¹⁹

However, it is accepted that there are specific circumstances where an act of a state may be deemed ‘passive’ but still considered an act of aggression. One well-known scenario under UNGA resolution 3314 is where a state allows its territory to be used as a base by another state(s) or NSA(s) to carry out armed activities against the target state(s). If ‘allowing’ is used within the sense of a state providing or making its territory available to a state(s) or NSA(s) to be used against a target state, then it is not a passive behaviour per se. In such a sense, there is no inconsistency with the proposed working definition since the offending state has provided, permitted or taken positive steps to make its territory available to be used against a target state.

The challenge is where the inability of a state to prevent its territory from being used is equated as that state ‘allowing’ its territory to be used within the context of UNGA resolution 3314. Obviously, ‘allowing’ in this second sense opens the door for abuse since the failing state will always be accused of either ‘harbouring’, being unwilling and/or unable, or other similar adjectives, even though the accused state may not have permitted its territory to be used. Thus, while the first sense of the term does meet the understanding of positive assistance as per the working definition, it is the view of the author that this second sense of the term should not be applied when defining indirect force.

So, the first part of the proposed working definition removes the need to demarcate or categorize the kind of assistance a state(s) provides to another state(s) or NSA(s) against a target state.²²⁰ In essence, what is important is the connection of the assistance, regardless of their forms, to the facilitation of the use of armed force against a target state. Moving on to the latter part of the working definition, it states that assistance should amount to indirect force ‘…where the assisting state knows or ought to know that such assistance facilitates the use of armed force against the target state…’.²²¹ In this regard, the only requirement is that the offending state providing such support knows or ought to know that its assistance facilitates the use of armed force against the target state.²²² The inclusion of the knowledge criteria in this definition serves as an all-encompassing phrase to cater for scenarios where a state is claiming that it did not know the assisted state(s) or NSA(s) would use such assistance to carry out unlawful use of force against a target state, or where a state is claiming that it only provided such assistance for ‘humanitarian’ purposes. In such a scenario, it is proposed that the knowledge criterion would become relevant. However, it is also important to distinguish knowledge from complicity.

Knowledge vs complicity

The knowledge criterion should only become relevant in circumstances where a state is claiming ignorance or stating that the assistance given was for humanitarian purposes. This requires asking whether the assisting state knows or ought to know that the recipient, at the time of such assistance, is or was engaged in unlawful armed activities against the target state.

The parameter of knowledge is a well-established principle in international law. For instance, the knowledge standard is applied in the Arms Trade Treaty (ATT) concerning the transfer of arms.²²³ The knowledge principle is also found in the Draft Articles on State Responsibility (DASR) as it relates to determining state responsibility. In particular, the DASR alludes to the constructive knowledge principle.²²⁴ The knowledge test is also applicable in IHL. For instance, Marco Sassoli applied this constructive knowledge test in cases of violation of IHL, arguing that ongoing assistance to a State that is known to violate IHL should be seen as ‘necessarily given to facilitate further violations’.²²⁵ Thus, in the context of jus ad bellum, it follows that a reasonable person’s test and the factual circumstances of each case can be used to show knowledge. The reference to this concept of (constructive) knowledge is also reflected in the passing statement of the ICJ in the recent Ukraine v Russia case,²²⁶ where the court alluded to the ICSFT,²²⁷ which provides the condition for state responsibility as tied to the fact that the aiding party intended or had knowledge, that such assistance would be used to commit acts of terrorism.²²⁸

Drawing an analogy from the knowledge criteria used in the above legal regimes, the main point is that knowledge can relate to either actual or constructive knowledge. Actual knowledge deals with questions of fact. For instance, this relates to the question of whether the offender knows that its assistance is facilitating the use of unlawful force against a state. Constructive knowledge deals with the imputation of knowledge on the offender based on common or easily available facts. For instance, it considers not the actual knowledge of the offender but available facts, which the offender ought to know. For example, constructive knowledge will consider common knowledge of unlawful force being used against a target state or that the offender provided or was providing assistance to the user of unlawful use of force against a target state. Therefore, applying constructive knowledge becomes relevant in scenarios where a state is claiming that it only provided such assistance for ‘humanitarian’ purposes (as argued by states in the recent Syria case²²⁹) or was unaware that the recipient was engaged in unlawful use of armed force against the target state(s).

Having noted the need for knowledge criterion in the above specific circumstances, a further issue is how to ensure that the omissions and/or passivity of a state are not included within the meaning of indirect force. The challenge is that the accusation of state ‘complicity’ has oftentimes been employed in a way that seeks to incorporate omissions and/or passivity of a state, which can lead to a too broad definition of indirect force. Accordingly, notwithstanding the issues noted concerning the Definition of Aggression,²³⁰ it is the view of this author that the omissions and passivity of a state should not be incorporated within the meaning of indirect force, considering that the ordinary meaning of force requires some element of positive action taken.²³¹

Furthermore, although ‘complicity’ can be used to describe positive actions, such as aiding or providing one’s territory to be used to launch attacks, powerful states can use the term in a negative sense to justify interventions against a target state under the guise that a state was complicit either by being ‘willing and unable’ or ‘harbouring’ an attacker.²³² Thus, the inclusion of ‘complicity’ in the context of omissions and passivity of states can undermine the meaning of what force entails.²³³ Equally, to include ‘complicity’ within the meaning of force takes away any clear demarcation between action (used in defining force²³⁴) and inaction of a state. Finally, there is already a legal regime that caters to omissions and obligations of states under state responsibility and the Arms Trade Treaty.²³⁵

So, the proposed working definition first places focus on the assistance or practical steps taken by a state in facilitating the unlawful use of armed force²³⁶ rather than on the intention (good or bad) for such assistance. Secondly, it applies knowledge criteria to demarcate the perceived passivity and omissions of a state from actual steps taken against a target state.²³⁷ This means that, in determining what constitutes the use of indirect force, a state's assumed complicity—particularly about omissions and passivity—should not be considered relevant.²³⁸ However, this is not to infer that a state may not be held accountable for violating its positive obligations under relevant international laws. The point being made is that including a state’s failure to fulfil its positive obligations under international law—such as omissions or passivity—within the definition of indirect force is highly problematic.²³⁹

To re-state the central argument made so far, which is that to define indirect force, there is no discernible legal distinction or demarcation to be made between arming and training on one hand and funding and logistics on the other hand.²⁴⁰ Instead, the focus should be on whether positive steps are taken by a state or positive assistance is provided by a state against the target state. However, this central argument does not contradict the legal distinctions that exist between intervention and force.²⁴¹ While interventions, which are broader, can involve both physical actions (such as the use of armed force and/or providing assistance against a target state) and non-physical actions (such as economic sanctions, political statements of certain state officials), the use of force only involves physical actions of a state (notwithstanding the already addressed issues as it relates to sections 3f and 3g of UNGA 3314).²⁴² In that context, there is no discernible distinction to be made when defining the forms of assistance taken, say between the provision of arms and training on the one hand and provision of funding and logistics on the other, if either form indeed constitutes positive assistance, which arguably falls within the concept of indirect force enunciated in the UNGA Resolution 2625.²⁴³

Knowledge vs intention

The application of knowledge criterion removes the need to prove intention or satisfy the attribution (the various control) standards used in ascertaining state responsibility since they are often too impractical to apply under the jus ad bellum to determine a breach of Article 2(4) of the UN Charter. It should be noted here that the knowledge parameter is not necessarily a subjective criterion, as it is based on factual knowledge.

So, concerning the ‘know’ element of the proposed working definition, the fact of the actual assistance is what is needed to show knowledge. For example, in the ongoing conflict between Israel and Hamas, it is difficult for any state assisting Hamas to reasonably claim ignorance that Hamas is currently engaged in armed attack—and it is now arguably accepted that NSAs can equally engage in armed attack²⁴⁴—against a state (in this case, Israel). Thus, the factual knowledge of such armed activities of the assisted state(s) or NSA(s) is sufficient to satisfy this working definition, and not the intention (whether good or bad) for the assistance provided by a state to the assisted state(s) or NSA(s). In any case, the focus here is not so much on the actions of the assisted NSA(s) or state(s) but on the legality of the actions of the state(s) taking positive steps to assist the user of armed force against a target state.

Concerning the ‘ought to know’ element of this working definition, constructive (or imputed) knowledge becomes relevant where the offending state is not denying the positive assistance but asserting unawareness that such support was being used by the recipient to violate Article 2(4). As pointed out earlier, this hinges on whether such knowledge can be imputed on the ‘offending’ state based on the nature of the activities of the recipients of the assistance and/or circumstances of each case. For example, constructive knowledge should be imputed if, hypothetically speaking, a state, following the aftermath of the armed attack against Israel by Hamas,²⁴⁵ decides to then assist Hamas. In essence, the state providing such assistance, based on this working definition, is deemed to know (or imputed with knowledge) that the recipient will likely and unlawfully use it against the target state.

Furthermore, the causality chain between assistance and the consequent use of armed force by a recipient may be drawn by applying a knowledge criterion to ascertain whether the recipient is or was engaged in armed activities against a target state. For instance, the proximity in the causality chain between the assistance and the armed activities can be deduced where the recipient is majorly dependent on the provision of resources from the assisting state or where the armed activities of the recipients have increased following such assistance. In this regard, the knowledge criterion can be applied to show the causal link between the assistance and the successful use of armed force by the recipients. For example, it was well noted in the Nicaragua case that the size of the Contras increased dramatically following the financial assistance provided by the USA, from an initial 500 men in December 1981 to 12,000 in November 1983.²⁴⁶ In the same vein, Judge Stephen Schwebel observed that the ‘support by the Nicaraguan government of the insurgency in El Salvador has been a major, perhaps the critical, factor in the transformation of what, before 1979, were largely sporadic … into an organised and effective army of guerrillas…’.²⁴⁷

However, a distinction needs to be made between assistance that is purely humanitarian and assistance that is labelled ‘humanitarian’ or ‘non-lethal’ (such as funding and logistics). Based on the practices of the Red Cross, humanitarian assistance is often understood to be provided to ‘prevent and alleviate human suffering’ and ‘to protect life and health and to ensure respect for the human being’.²⁴⁸ Accordingly, it is acceptable that purely humanitarian assistance, such as food, water, medicine, and shelter, are excluded from the meaning of indirect force because, by their nature, they are ordinarily intended to be indiscriminately distributed to whole communities.²⁴⁹ On the other hand, the provision of funds, logistics and other ‘non-lethal’ assistance to armed opposition groups is not purely humanitarian assistance per se (even if labelled as such by the assisting state²⁵⁰), especially where the assisting state knows or ought to know that the recipient is engaged in armed activities against the host state.

Finally, the knowledge criterion, unlike the intention criterion,²⁵¹ provides useful indices for distinguishing between assistance that is purely humanitarian and assistance that is labelled as such. For example, in the Nicaragua case, the knowledge that the recipients of the US support were engaged in armed activities against the Nicaraguan government is deducible from the wording of the U.S. Amended Defence Appropriations Act.²⁵² The Act authorized financial support to the Contras if it was aimed at ‘…reducing Nicaragua’s expanded military/security apparatus; severing Nicaragua’s military and security ties to the Soviet Bloc and Cuba…’.²⁵³ Thus, applying the knowledge criterion removes the need to prove the intention of the assisting state, as well as addresses the argument²⁵⁴ that it may be unclear whether the recipients will use those provided funding and logistics for armed activities.²⁵⁵

State-to-state assistance vs state-to-NSA assistance

It is accepted that states who engage in state-to-state assistance have tended not to categorically consider their actions (assistance of a state) as a use of force, nor as actions taken in collective self-defence of the assisted state.²⁵⁶ When states who engage in this sort of behaviour (state-to-state assistance) are confronted, they tend to either deny assisting or seek to justify their assistance as given in support of the individual self-defence of the aided state(s)²⁵⁷ or claim that they were providing such assistance following an invitation from the assisted state.²⁵⁸ There are many instances of these sorts of justifications for state-to-state assistance throughout the 20th century.²⁵⁹ Equally, 21st-century conflicts, such as the Syria civil war (where many states had assisted those states participating in the use of force in and against Syria),²⁶⁰ or the more recent Russia–Ukraine war (where Belarus has been accused of providing assistance to Russia),²⁶¹ are not unique in terms of states engaging in these sorts of behaviour. Nonetheless, it should be noted that other than lawful self-defence, and notwithstanding other international obligations²⁶² behoved on a state invoking a right of self-defence, there is no legal justification for the provision of assistance against a target state.

Although these practices of state-to-state assistance are so rampant, the central argument being canvassed here is that the meaning of indirect force under international law should not be so narrowly defined to exclude certain assistance provided against a target state, such as funding and logistics, as long as such assistance (regardless of its form) involves actual steps or positive actions taken by a state(s) against the target state. If this logic and proposed definition²⁶³ are followed, then there seems to be no need to provide any legal demarcation between state-to-state assistance and state-to-NSA assistance.

Conclusion

This article has highlighted the challenges of proxy warfare and the need to reconceptualize the meaning of indirect force to tackle these challenges. The main argument presented in this article is that the narrow framing of the meaning of indirect force by the ICJ, which demarcates between certain forms of assistance, produces conceptual problems. First, it was argued that the narrow framing of indirect force does not necessarily reflect the UNGA interpretation of Article 2(4) nor the concerns of developing states. It was also noted that the Nicaragua decision and its adoption in subsequent cases reflect the orthodoxy and structural bias (or blind spot) of the ICJ on this topic, as well as inadvertently reinforcing the position of powerful states within the international polity. In particular, it was noted that this narrow framing opens up legal loopholes for states to justify the use of those forms of assistance excluded from the definition of indirect force. Secondly, it was argued that this narrow framing of indirect force marginalizes the position of some states, especially developing states, which are often victims of those forms of assistance excluded from the meaning of indirect force. Nonetheless, it was emphasized that this blind spot does not necessarily lead to the conclusion that the ICJ has been set up with the premeditated purpose of marginalizing developing states. These issues are highlighted to underscore the limitations of a positivist interpretation of the law on this topic.

However, it was also acknowledged that a broader approach is not spared from the same problem of state power and indeterminacy to which a narrow approach has been critiqued in this article. In particular, it was noted that powerful states could equally use a broader framing to their advantage, such as by justifying the use of indirect force as a way of preventing their use against themselves and/or to prevent their use against others. Despite the underlying problems of the institutional positivist framework, it was argued that the consequences of a broader framing of the meaning of indirect force are less disastrous in comparison to the traditional approach. To mitigate against this problem of a too-broad approach, the article proposed a knowledge criterion. By applying a knowledge criterion, this gap is covered since the focus is no longer placed on the intention of the assisting state (such as humanitarian) or the categories of assistance, whether lethal or non-lethal, but rather on the actual positive act, that is, the positive assistance. The knowledge criterion then asks whether the assisting state knows or ought to know that it was providing positive assistance to a recipient engaged in the unlawful use of force against the target state. While this proposal does not claim to fix the problem of power, it at least allows one to reflect the spirit of Article 2(4) of the UN Charter, that is, if we are to take the prohibition of force seriously.

Footnotes

Author notes