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e US’ point of view is based upon their interpretation of “material breach” and “serious consequences”. He states that lifting a cease-fire via “legal loopholes” is not compatible with the whole system of prohibition on the use of force and it would even nullify Article 2(4) of the UN Charter. [21]

Now we shall analyse the pre-emptive self-defence argument. Only the US relied upon this defence, the UK and Australia did not. Iwanek takes a rather strict approach and holds that only a “narrowly understood right to anticipatory self-defence is accepted” and that preventive self-defence is in breach of international owing to the presence of UN system. [22] He justifies this by stating that what the US was in fact relying upon was preventive self-defence and in process it stretched pre-emptive self-defence “beyond recognition”. Christian Henderson puts forward a similar point of view when he states that the concept of “imminence” (taken from Webster based doctrine of pre-emptive self-defence) has been stretched to a breaking point. [23] Secondly, as there was no evidence of presence of stockpiles of weapons of mass destruction before invasion (Mr Hans Blix and Mr El Baradei’s statements to Security Council) and post-invasion, the legitimacy of the invasion is further weakened. This shows the apparent weaknesses within the system as states can use stretched legal basis to resort to use of force. Even though the legal basis used by US and its allies have not become part of jus ad bellum, the fact that invasion did take place shows that the law shows commendable degree of adaptation to changing situations and but an exceedingly inept enforcement mechanism.

Inciting rebellion

The General Assembly Resolution 2625 (XXV) 1970 Declaration on Principles of International Law while elaborating upon Article 2(4) of the UN Charter prohibited the state from 'organising, instigating, assisting or participating' in acts of civil strife or terrorist acts in other states as well as refraining from forming armed bands for incursion in another state's territory. The ICJ went further in Nicaragua case and held that acts which breach principles of non-intervention will also breach principles of use of force if they 'directly or indirectly' involve use of force. [24] As the General Assembly's interpretation of Article 2(4) explains, use of force also includes inciting rebellion or instigating acts which result in civil strife.

State practice is at times different and presents an unclear picture. A major exception from the position of law was expounded in the case of Soviet invasion of Afghanistan when the US (covertly), Pakistan and a number of Middle Eastern states aided the rebels in their fight against the Soviet forces. It was held that where a prior illegal act from a state has occurred (invasion) then aid to rebels is acceptable. [25] The legal base used here can be classified inherently as an exception from the general prohibition of interference. But this leaves some questions unanswered because the scope of this type of state practice remains unclear. Can the same principle be applied to justify the Indian interference and aid of Mukti Bahini rebels in former East Pakistan? This brings us to the question of humanitarian intervention which we shall address now.

Humanitarian intervention

While actions arising out of UN Security Council authorisation or in self-defence