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.