Lecture 12 - Use of Force

Question 1

The Prohibition on the Use of Force:

• Like all other legal systems, International Law seeks to prevents it subjects from using _____ to settle their differences. One of the most troublesome areas as while all States agree in principle on the general impermissibility of the use of force, they differ as to the circumstances in which it can be used.
• Many States are unwilling to relinquish their ability to impose a settlement forcefully in favour of a system where disputes are settled on the basis of legal principle.
• Many view the prohibition on the use of force as misplaced idealism in the absence of an adequate, effective and compulsory mechanism for settling disputes or punishing those who endanger international ___ and _____.

Answer 1

The Prohibition on the Use of Force:

• Like all other legal systems, International Law seeks to prevents it subjects from using violence to settle their differences. One of the most troublesome areas as while all States agree in principle on the general impermissibility of the use of force, they differ as to the circumstances in which it can be used.
• Many States are unwilling to relinquish their ability to impose a settlement forcefully in favour of a system where disputes are settled on the basis of legal principle.
• Many view the prohibition on the use of force as misplaced idealism in the absence of an adequate, effective and compulsory mechanism for settling disputes or punishing those who endanger international peace and security.

Question 2

The Law Before 1945:

The prohibition on the use of force is not necessarily a creation of the UN Charter.
In the early days of international law (16th-17th Century), the use of force by states was governed by the Just War doctrine (see St. Augustine and Grotius) which held that war was illegal unless untaken for a “just cause”.
What was a “just cause”?
A ____ received; or
A right illegally ____.

In the 17th Century, the rise of the nation state leads to the refinement of the Just War theory. The test becomes a subjective one based on the belief of the State resorting to war rather than an objective test.
By the 18th century, this diminished Just War theory is replaced by the notion that it was within every sovereign’s right to resort to war for any reason. The purpose of international law was to regulate the actual conduct of war rather than to interfere with the State’s right to pursue it.

This can be described as an approach which shifted from one of legal positivism to one of state practice.
No strict prohibition on the use of force under this model. Therefore, no need for a right to _______.

Attempts at prohibiting war before 1945:

Covenant of the League of Nation: war was only lawful if certain procedural safeguards were followed. Did not regulate force which fell short of actual war i.e. where self-defence, rescue of ______ abroad, or reprisals were concerned. Important as it laid the seeds for the right to self-defence as a legal exception.

General Treaty for the Renunciation of War (Pact of Paris) Kellogg-Briand Pact, 1928 (which is still in force today): represents the first attempt to totally outlaw war and shows that it was both legally and politically possible. Did not extend to other uses of force. Did not expressly provide for a right to self-defence but the draft material indicates this was because it was already accepted as custom.

Answer 2

The Law Before 1945:

The prohibition on the use of force is not necessarily a creation of the UN Charter.
In the early days of international law (16th-17th Century), the use of force by states was governed by the Just War doctrine (see St. Augustine and Grotius) which held that war was illegal unless untaken for a “just cause”.
What was a “just cause”?
A wrong received; or
A right illegally denied.

In the 17th Century, the rise of the nation state leads to the refinement of the Just War theory. The test becomes a subjective one based on the belief of the State resorting to war rather than an objective test.
By the 18th century, this diminished Just War theory is replaced by the notion that it was within every sovereign’s right to resort to war for any reason. The purpose of international law was to regulate the actual conduct of war rather than to interfere with the State’s right to pursue it.

This can be described as an approach which shifted from one of legal positivism to one of state practice.
No strict prohibition on the use of force under this model. Therefore, no need for a right to self-defence.

Attempts at prohibiting war before 1945:

Covenant of the League of Nation: war was only lawful if certain procedural safeguards were followed. Did not regulate force which fell short of actual war i.e. where self-defence, rescue of nationals abroad, or reprisals were concerned. Important as it laid the seeds for the right to self-defence as a legal exception.

General Treaty for the Renunciation of War (Pact of Paris) Kellogg-Briand Pact, 1928 (which is still in force today): represents the first attempt to totally outlaw war and shows that it was both legally and politically possible. Did not extend to other uses of force. Did not expressly provide for a right to self-defence but the draft material indicates this was because it was already accepted as custom.

Question 3

Article 2(4) of the UN Charter:
‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations’ 

A general prohibition, subject only to the exceptions stated in the Charter:

• self-defence
• action by the_______ Council (Chapter VII)

Answer 3

Article 2(4) of the UN Charter:
‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations’ 

A general prohibition, subject only to the exceptions stated in the Charter:

• self-defence
• action by theSecurity Council (Chapter VII)

Question 4

Two views on interpretation Article 2(4):
The permissive view (only the US and Israel use this)
According to this view, Article 2 does not lay down a total ban on the use of force and States are permitted to use force in certain situations:
1. Pre-emptive self-defence
2. Force to rescue nationals abroad
3. ___________ intervention
4. Regime change (intervention for ________)

The restrictive view:
According to this view, the article lays down a total ban on the use of force save only where explicit exceptions are made
1. Self-Defence (Article 51)
2. Enforcement action (Chapter VII)

Answer 4

Two views on interpretation Article 2(4):
The permissive view (only the US and Israel use this)
According to this view, Article 2 does not lay down a total ban on the use of force and States are permitted to use force in certain situations:
1. Pre-emptive self-defence
2. Force to rescue nationals abroad
3. Humanitarian intervention
4. Regime change (intervention for democracy)

The restrictive view:
According to this view, the article lays down a total ban on the use of force save only where explicit exceptions are made
1. Self-Defence (Article 51)
2. Enforcement action (Chapter VII)

Question 5

Basic Rule: Threat or Use of Force is Prohibited.

Meaning of Force: Force means ‘armed force’, not economic or political pressure
Nicaragua Case – Indirect use of force also prohibited (i.e. funding the Contra rebels)
Threat of Force: Threat of force also prohibited. ‘Threat of force’ means an ultimatum announcing recourse to military measures if certain ______ are not accepted.

Answer 5

Basic Rule: Threat or Use of Force is Prohibited.

Meaning of Force: Force means ‘armed force’, not economic or political pressure
Nicaragua Case – Indirect use of force also prohibited (i.e. funding the Contra rebels)
Threat of Force: Threat of force also prohibited. ‘Threat of force’ means an ultimatum announcing recourse to military measures if certain demands are not accepted.

Question 6

The Nicaragua case:

If you only read one case this year, let it be this one. It has the most bang for your buck given the range of issues discussed.
The case concerned a claim by Nicaragua that the US had violated international law through its support for the paramilitary activities of the ______ rebels within its territory.

It was also alleged that the US had, through the CIA, ________ three Nicaraguan harbors. Nicaragua argued inter alia that the US had violated its sovereignty in breach of the principle of non-intervention and was also in breach of its obligations to not use force against another State.

The claims were grounded in both international conventions (the UN Charter and OAS (Organisation of American States) Charter) and custom.

The first legal question that arose was whether the Court had jurisdiction to hear the case at all in circumstances where the US argued that they had entered a reservation to the jurisdiction of the ICJ in respect of multilateral treaties (including the UN Charter).

The ICJ ultimately held that it did not have power to hear the claims insofar as they were based on multilateral treaty obligations, including the Article 2(4) prohibition on the use of force.

However, it concluded that the rules of customary international law contained similar principles which were not superseded by the UN Charter or any other treaty and could decide the case on that basis.

The Court found that the prohibition on the use of force against other States as expressed in Article 2(4) was representative of customary international law. The US had breached this prohibition through its funding of the Contra rebels and the laying of mines in Nicaraguan habours.

It found that state practice need not be universal or uniform in its application.
However, “[i]f a State acts in a way prima facie incompatible with a recognised rule, but defends its conduct by appeal to exceptions or justifications incompatible within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule”.

The US claimed it had been engaged in an act of collective self-defence on behalf of El Salvador.
The Court found there had been no request for such assistance. Went on the hold that there was no general right of ________ in support of an opposition within another State.

Answer 6

The Nicaragua case:

If you only read one case this year, let it be this one. It has the most bang for your buck given the range of issues discussed.
The case concerned a claim by Nicaragua that the US had violated international law through its support for the paramilitary activities of the Contra rebels within its territory.

It was also alleged that the US had, through the CIA, mined three Nicaraguan harbors. Nicaragua argued inter alia that the US had violated its sovereignty in breach of the principle of non-intervention and was also in breach of its obligations to not use force against another State.

The claims were grounded in both international conventions (the UN Charter and OAS Charter) and custom.

The first legal question that arose was whether the Court had jurisdiction to hear the case at all in circumstances where the US argued that they had entered a reservation to the jurisdiction of the ICJ in respect of multilateral treaties (including the UN Charter).

The ICJ ultimately held that it did not have power to hear the claims insofar as they were based on multilateral treaty obligations, including the Article 2(4) prohibition on the use of force.

However, it concluded that the rules of customary international law contained similar principles which were not superseded by the UN Charter or any other treaty and could decide the case on that basis.

The Court found that the prohibition on the use of force against other States as expressed in Article 2(4) was representative of customary international law. The US had breached this prohibition through its funding of the Contra rebels and the laying of mines in Nicaraguan habours.

It found that state practice need not be universal or uniform in its application.
However, “[i]f a State acts in a way prima facie incompatible with a recognised rule, but defends its conduct by appeal to exceptions or justifications incompatible within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule”.

The US claimed it had been engaged in an act of collective self-defence on behalf of El Salvador.
The Court found there had been no request for such assistance. Went on the hold that there was no general right of intervention in support of an opposition within another State.

Question 7

The Legalist Paradigm (Walzer)

There exists an international society of independent states.
This international society has a law that establishes the rights of its members – above all the rights of territorial integrity and political sovereignty.
Any use of force or imminent threat of force by one state against the political sovereignty or territorial integrity of another constitutes aggression and is a criminal act.
Aggression justifies two kinds of violent response: a war of self-defence by the victim or a war of law enforcement by the victim and any other member of international society.
Nothing but _______ can justify war.
Once the aggressor state has been militarily repulsed, it can also be punished.

Answer 7

The Legalist Paradigm (Walzer)

There exists an international society of independent states.
This international society has a law that establishes the rights of its members – above all the rights of territorial integrity and political sovereignty.
Any use of force or imminent threat of force by one state against the political sovereignty or territorial integrity of another constitutes aggression and is a criminal act.
Aggression justifies two kinds of violent response: a war of self-defence by the victim or a war of law enforcement by the victim and any other member of international society.
Nothing but aggression can justify war.
Once the aggressor state has been militarily repulsed, it can also be punished.

Question 8

The UN definition of Just Cause:

• A war is unjust if and only if it is not just.
• A war is just if it is a war of self-defence (against _______)

Answer 8

The UN definition of Just Cause:

• A war is unjust if and only if it is not just.
• A war is just if it is a war of self-defence (against aggression)

Question 9

The Duty of Non-Intervention:

A sovereign state has a claim against other states against intervention, thus by implication, there is a duty of non-intervention.

”When state A recognizes state B’s sovereingty, it accepts a duty of non-intervention into B’s internal affairs” (Luban p.165)

Any breach of the duty of non-intervention constitutes an act of aggression and is ______.

Answer 9

The Duty of Non-Intervention.

A sovereign state has a claim against other states against intervention, thus by implication, there is a duty of non-intervention.

”When state A recognizes state B’s sovereingty, it accepts a duty of non-intervention into B’s internal affairs” (Luban p.165)

Any breach of the duty of non-intervention constitutes an act of aggression and is illegal.

Question 10

”Aggression is the use of armed force by a State against the sovereignty, territorial integrity and political independence of another State, or in any other manner inconsistent with the ______ of the United Nations.”

• (UN definition of aggression 1974)

Answer 10

”Aggression is the use of armed force by a State against the sovereignty, territorial integrity and political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.”

• (UN definition of aggression 1974)

Question 11

3 Exceptions to the Ban on Aggression:

1. Massacre and enslavement (Acts that ”shock the moral conscience of mankind”), e.g. Genocide, crimes against humanity or atrocities. The commission of such international crime justifies humanitarian intervention.
2. _______: two or more political communities contending within the same territory (i.e, two-nation states)
3. If another foreign country has already intervened

Answer 11

3 Exceptions to the Ban on Aggression:

1. Massacre and enslavement (Acts that ”shock the moral conscience of mankind”), e.g. Genocide, crimes against humanity or atrocities. The commission of such international crime justifies humanitarian intervention.
2. Secession: two or more political communities contending within the same territory (i.e, two-nation states)
3. If another foreign country has already intervened

Question 12

Walzer/ Mill on Self-Determination:

• States should be treated as self-determining political communities.
• The members of a political community must seek their own freedom (just as the individual must shape his own virtue).
• Self-determination is the right of a people to become ”free by its own efforts”, and the principle non-________ shall guarantee that their success is not impeded or their failure not prevented by foreign intrusion.

Answer 12

Walzer/ Mill on Self-Determination:

• States should be treated as self-determining political communities.
• The members of a political community must seek their own freedom (just as the individual must shape his own virtue).
• Self-determination is the right of a people to become ”free by its own efforts”, and the principle non-intervention shall guarantee that their success is not impeded or their failure not prevented by foreign intrusion.

Question 13

Luban on the Modern Moral Reality of War:

The identification of states with nations only works in the historical context of the nation-state.
When nations and states do not (necessarily) coincide, a theory of jus ad bellum which defines aggression in terms of sovereignty of states, removes itself from the moral reality of war.
Most wars today are wars of liberation, revolution, and civil wars.
The UN definiton of just cause is ______.

Answer 13

Luban on the Modern Moral Reality of War:

The identification of states with nations only works in the historical context of the nation-state.
When nations and states do not (necessarily) coincide, a theory of jus ad bellum which defines aggression in terms of sovereignty of states, removes itself from the moral reality of war.
Most wars today are wars of liberation, revolution, and civil wars.
The UN definiton of just cause is outdated.

Question 14

The Responsibility to Protect:

A. State sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the state itself.

B. Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to ______.

Answer 14

The Responsibility to Protect:

A. State sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the state itself.

B. Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect.

The responsibility to protect embraces three specific responsibilities:
1. The responsibility to prevent: to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk.

2. The responsibility to react: to respond to situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention.
3. The responsibility to rebuild: to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert.

Priorities:

A. Prevention is the single most important dimension of the responsibility to protect: prevention options should always be exhausted before intervention is contemplated, and more commitment and resources must be devoted to it.

B. The exercise of the responsibility to both prevent and react should always involve less intrusive and coercive measures being considered before more coercive and intrusive ones are applied.

Question 15

The responsibility to protect embraces three specific responsibilities:
1. The responsibility to prevent: to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk.

2. The responsibility to react: to respond to situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention.
3. The responsibility to rebuild: to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert.

Priorities:

A. _________ is the single most important dimension of the responsibility to protect: prevention options should always be exhausted before intervention is contemplated, and more commitment and resources must be devoted to it.

B. The exercise of the responsibility to both _____ and ______ should always involve less intrusive and coercive measures being considered before more coercive and intrusive ones are applied.

Answer 15

The responsibility to protect embraces three specific responsibilities:
1. The responsibility to prevent: to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk.

2. The responsibility to react: to respond to situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention.
3. The responsibility to rebuild: to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert.

Priorities:

A. Prevention is the single most important dimension of the responsibility to protect: prevention options should always be exhausted before intervention is contemplated, and more commitment and resources must be devoted to it.

B. The exercise of the responsibility to both prevent and react should always involve less intrusive and coercive measures being considered before more coercive and intrusive ones are applied.

Question 16

Principles for Military Intervention:

(1) The ____ Cause Threshold.
(2) The ______ Principles.
(3) Right _____.

Answer 16

Principles for Military Intervention:

(1) The Just Cause Threshold.

Military intervention for human protection purposes is an exceptional and extraordinary measure. To be warranted, there must be serious and irreparable harm occurring to human beings, or imminently likely to occur, of the following kind:

A. large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation; or

B. large scale ‘ethnic cleansing’, actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape.

(2) The Precautionary Principles.

A. Right intention: The primary purpose of the intervention, whatever other motives intervening states may have, must be to halt or avert human suffering. Right intention is better assured with multilateral operations, clearly supported by regional opinion and the victims concerned.

B. Last resort: Military intervention can only be justified when every non-military option for the prevention or peaceful resolution of the crisis has been explored, with reasonable grounds for believing lesser measures would not have succeeded.

C. Proportional means: The scale, duration and intensity of the planned military intervention should be the minimum necessary to secure the defined human protection objective.

D. Reasonable prospects: There must be a reasonable chance of success in halting or averting the suffering which has justified the intervention, with the consequences of action not likely to be worse than the consequences of inaction.

(3) Right Authority.

There is no better or more appropriate body than the United Nations Security Council to authorize military intervention for human protection purposes. The task is not to find alternatives to the Security Council as a source of authority, but to make the Security Council work better than it has.

The Security Council should deal promptly with any request for authority to intervene where there are allegations of large scale loss of human life or ethnic cleansing. It should in this context seek adequate verification of facts or conditions on the ground that might support a military intervention.

Question 17

Self-Defence and Pre-emptive Self-Defence:

Classic view from the Caroline incident: The threat must be “instant, overwhelming, and leaving no choice of means, and no moment for ________”

Answer 17

Self-Defence and Pre-emptive Self-Defence:

Classic view from the Caroline incident: The threat must be “instant, overwhelming, and leaving no choice of means, and no moment for deliberation”

Question 18

Paragraphs 42 and 51 of the UN Charter outline the conditions for when use of military force may be legal.

§ 42 states that: Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or ______ international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

§ 51 states that: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately _______ to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Answer 18

Paragraphs 42 and 51 of the UN Charter outline the conditions for when use of military force may be legal.

§ 42 states that: Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

§ 51 states that: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Question 19

In order to be able to resort to force in self-defence, a state has to be able to demonstrate that it has been the victim of an armed attack and it bears the burden of proof. - The Oil Platform Case, (Iran v. US)

Further, it is also necessary to show that the state seeking to resort to force in self-defence has itself been ________ attacked.

The actions taken by the State claiming self-defence must be necessary and proportional to the armed attacked made on it.

Said actions must be aimed at a legitimate military ____.

Answer 19

In order to be able to resort to force in self-defence, a state has to be able to demonstrate that it has been the victim of an armed attack and it bears the burden of proof. - The Oil Platform Case, (Iran v. US)

Further, it is also necessary to show that the state seeking to resort to force in self-defence has itself been intentionally attacked.

The actions taken by the State claiming self-defence must be necessary and proportional to the armed attacked made on it.

Said actions must be aimed at a legitimate military target.

Question 20

Response to Armed Attack:

Article 51 prescribes that “nothing in the present Charter shall impair the inherent right of individual and collective self-defence if an armed attack occurs …”

The meaning is clear and unambiguous. The right of self-defence is restricted to a case where there is an ____ armed attack against the State..

But here again there are two differing views: permissive and restrictive.

Answer 20

Response to Armed Attack:

Article 51 prescribes that “nothing in the present Charter shall impair the inherent right of individual and collective self-defence if an armed attack occurs …”

The meaning is clear and unambiguous. The right of self-defence is restricted to a case where there is an actual armed attack against the State..

But here again there are two differing views: permissive and restrictive.

Question 21

The Permissive School of thought on Responding to an Armed Attack:

‘The ‘permissive school’ maintains that Article 51 does not restrict the right of self-defence to cases of armed attack only and that States have wider rights of self-defence permitted by customary international law.
Bowett, for example, argues that:
“The travaux pr`eparatoires suggests that the Article should safeguard the right of self- defence, not _____ it. …The right implicitly excepted was not confined to reaction to ‘armed ‘armed attack’ but permitted of certain substantive rights.”

Answer 21

The Permissive School of thought on Responding to an Armed Attack:

‘The ‘permissive school’ maintains that Article 51 does not restrict the right of self-defence to cases of armed attack only and that States have wider rights of self-defence permitted by customary international law.
Bowett, for example, argues that:
“The travaux pr`eparatoires suggests that the Article should safeguard the right of self- defence, not restrict it. …The right implicitly excepted was not confined to reaction to ‘armed ‘armed attack’ but permitted of certain substantive rights.”

Question 22

The Restrictive School of thought on Responding to an Armed Attack:

‘The ‘restrictive school’ maintains that Article 51 restricts the right of self-defence to cases of armed attack only
Philip C. Jessup writes: “Article 51 of the Charter suggests a further limitation on the right of self-defence: it may be exercised only ‘if an armed attack occurs’ . This restriction in Article 51 very definitely narrows the freedom of action which States had under traditional international law.”

Restrictive view is the established law. It is also accepted by the overwhelming majority of jurists and supported by state practice: “instant, overwhelming, and leaving no choice of means, and no moment for deliberation”

In Nicaragua, the ICJ ruled:
“In the case of individual self-defence, the exercise of this right is subject to the State concerned having been the victim of an armed attack. Reliance on collective ___________ does not remove the need of this.”

Answer 22

The Restrictive School of thought on Responding to an Armed Attack:

‘The ‘restrictive school’ maintains that Article 51 restricts the right of self-defence to cases of armed attack only
Philip C. Jessup writes: “Article 51 of the Charter suggests a further limitation on the right of self-defence: it may be exercised only ‘if an armed attack occurs’ . This restriction in Article 51 very definitely narrows the freedom of action which States had under traditional international law.”

Restrictive view is the established law. It is also accepted by the overwhelming majority of jurists and supported by state practice: “instant, overwhelming, and leaving no choice of means, and no moment for deliberation”

In Nicaragua, the ICJ ruled:
“In the case of individual self-defence, the exercise of this right is subject to the State concerned having been the victim of an armed attack. Reliance on collective self-defence does not remove the need of this.”

Question 23

Armed Attack:

“An armed attack must be understood as including not merely action by regular armed forces across an international border, but also, ‘‘the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed forces against another State of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces, or its substantial involvement therein…the Court does not believe that the concept of armed attack includes not only acts by armed bands where such acts occur on a significant scale but also assistance to rebels in the form of provisions of _____ or logistical or other support. Such assistance may be regarded as a threat or use of force, or amount to intervention in the internal or external affairs of other States.”

Answer 23

Armed Attack:

“An armed attack must be understood as including not merely action by regular armed forces across an international border, but also, ‘‘the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed forces against another State of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces, or its substantial involvement therein…the Court does not believe that the concept of armed attack includes not only acts by armed bands where such acts occur on a significant scale but also assistance to rebels in the form of provisions of weapons or logistical or other support. Such assistance may be regarded as a threat or use of force, or amount to intervention in the internal or external affairs of other States.”

Question 24

Limits to the Right to Self-Defence:

The right of self-defence is not an open-ended right.
To be a valid act under international customary law, as set down by the classic formulation by the United States in the 1837 Caroline incident, it is generally required to conform with three elements:
(1) Was the response ________?
(2) Was the response _________?
(3) Was the response _________?
The Court in the Nicaragua case stated that there was a ‘specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law’

Answer 24

Limits to the Right to Self-Defence:

The right of self-defence is not an open-ended right.
To be a valid act under international customary law, as set down by the classic formulation by the United States in the 1837 Caroline incident, it is generally required to conform with three elements:
(1) Was the response necessary?
(2) Was the response proportionate?
(3) Was the response immediate?
The Court in the Nicaragua case stated that there was a ‘specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law’

Question 25

Art 51 outlines the role of the Security Council in respect of the exercise of self-defence:

• Measures in respect of self-defence shall be ______ immediately to the Security Council (Reporting Duty), and
• The right of self-defence can be exercised until the ______ Council has taken measures necessary to maintain international peace and security (only a temporary measure).

Answer 25

Art 51 outlines the role of the Security Council in respect of the exercise of self-defence:

• Measures in respect of self-defence shall be reported immediately to the Security Council (Reporting Duty), and
• The right of self-defence can be exercised until the Security Council has taken measures necessary to maintain international peace and security (only a temporary measure).

Question 26

The Security Council.

Article 39 – “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with articles 41 and 42 to maintain or restore international peace and security.”

Article 41 – “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.”

Article 42 – “Should the Security Council consider that measures provided for in article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”

Therefore, pre-emptive or preventative action ought only be authorised by the _______Council: Report of the High Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility (2004)

Answer 26

The Security Council.

Article 39 – “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with articles 41 and 42 to maintain or restore international peace and security.”

Article 41 – “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.”

Article 42 – “Should the Security Council consider that measures provided for in article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”

Therefore, pre-emptive or preventative action ought only be authorised by the Security Council: Report of the High Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility (2004)

Question 27

Pre-emptive Self-Defence:

1. McDougal argues that States faced with a perceived danger of immediate attack cannot be expected to await the attack ‘expected to await the attack ‘like sitting duck’.
2. There are two major arguments held by them:
   A) Anticipatory self-defence is allowed by ________international law;
   B) Nuclear weapons and modern sophisticated devices makes it inadvisable to ____for attack.

Answer 27

Pre-emptive Self-Defence:

1. McDougal argues that States faced with a perceived danger of immediate attack cannot be expected to await the attack ‘expected to await the attack ‘like sitting duck’.
2. There are two major arguments held by them:
   A) Anticipatory self-defence is allowed by customary international law;
   B) Nuclear weapons and modern sophisticated devices makes it inadvisable to wait for attack.

Question 28

Pre-emptive Self-Defence as a justification for targeted killings.

1. The US argues that this forms part of the inherent right to self-defence in its use of drones strikes.
2. The factors to be considered include:
   (i) ______ of the threat;
   (ii) _______ of the States involved; and
   (iii) Willingness and ability of those States to suppress the threat the target poses.

Answer 28

Pre-emptive Self-Defence as a justification for targeted killings.

1. The US argues that this forms part of the inherent right to self-defence in its use of drones strikes.
2. The factors to be considered include:
   (i) Imminence of the threat;
   (ii) Sovereignty of the States involved; and
   (iii) Willingness and ability of those States to suppress the threat the target poses.

Question 29

Self-Defence: Necessity.

1. A State can use force in self-defence ‘only if an armed attack occurs’ against that State. Therefore, the requirement of ‘necessity’ appears to be mainly the requirement for ascertaining whether there is an _____ armed attack against a State.
2. The State attacked must not have had any means of halting the attack other than recourse to armed force.. (No other ____)
3. If it had been able to achieve the same result by measures not involving the use of armed force, it would have no justification for using armed force in self-defence.

Answer 29

Self-Defence: Necessity.

1. A State can use force in self-defence ‘only if an armed attack occurs’ against that State. Therefore, the requirement of ‘necessity’ appears to be mainly the requirement for ascertaining whether there is an actual armed attack against a State.
2. The State attacked must not have had any means of halting the attack other than recourse to armed force.. (No other choice)
3. If it had been able to achieve the same result by measures not involving the use of armed force, it would have no justification for using armed force in self-defence.

Question 30

Self-Defence: Proportionality.

1. It is the general principle of law that the defensive action must be commensurate with and in proportion to the armed attack which gave rise to the exercise of the right of self-defence.
2. Regarding the principle of proportionality, the ICJ in the _________ case stated that “the Court cannot regard the US activities … those relating to the mining of the Nicaraguan ports and the attacks on ports, oil installations, etc. as satisfying that criterion.
3. What is the virtue of a proportional response?

Answer 30

Self-Defence: Proportionality.

1. It is the general principle of law that the defensive action must be commensurate with and in proportion to the armed attack which gave rise to the exercise of the right of self-defence.
2. Regarding the principle of proportionality, the ICJ in the Nicaragua case stated that “the Court cannot regard the US activities … those relating to the mining of the Nicaraguan ports and the attacks on ports, oil installations, etc. as satisfying that criterion.
3. What is the virtue of a proportional response?