Lesson 4 Flashcards
Bethlehem and the UK’s perspective of UNC art. 51
UK sees art 51 as an allowance to use force is there is an imminent threat. They argue there is evidence since 1945 where there are records of the UN charter was drawn up.
Bethlehem and terror as an armed attack
Security Council in the wake of 11 September 2001 recognised both that large-scale terrorist action could constitute an armed attack.
Bethlehem and the use of force
Military action should be used only as a last resort.
The force used must be proportionate.
Art. 51 requires measures used in self-defence to be reported to the SC.
Bethlehem and principle 12
Bethlehem outlines 16 principles concerning the right to self defence.
Principle 12 is: a state may use force against non-state actors in another state’s territory without consent is highly debated.
Tladi’s response to Bethlehems principle 12
ICJ has consistently ruled that if a non-state actor (such as a terrorist group) carries out an attack, but there is no evidence linking that attack to a state, then another country cannot justify using military force against the territory of that state in response.
The argument that customary international law permits the use of force against non-state actors on the territory of one state by another, without the former’s consent, is debated6. The Caroline incident of 1837 is often cited as a justification, but its relevance is questioned because international law at that time did not prohibit the use of force
UN Security Council Resolutions: UN Security Council resolutions 1368 and 1373 do not explicitly support the proposition that a state may use force in self-defense against non-state actors on the territory of an otherwise blameless state without that state’s consent.
Foundational Principles: Interpreting the right to self-defense to allow force on the territory of an innocent state undermines territorial integrity and sovereign equality, and reduces the scope of the prohibition on the use of force.
Conclusion on Bethlehem’s Principle: Bethlehem’s twelfth principle persists in legal literature despite the ICJ’s contrary reasoning. It is based on an erroneous assessment of customary international law and state practice, as well as an acontextual interpretation of Article 51
Henderson and the legal justification of UK and US invation of Iraq and Syria
Consent & Sovereignty: Intervention in Iraq was legal due to Iraqi government consent.
Collective Self-Defense: U.S. acted in Syria to protect Iraq from ISIS at Iraq’s request.
Perceived Illegitimacy: Assad’s contested legitimacy used to justify lack of Syrian consent.
“Unable or Unwilling” Doctrine: Allows intervention if host state can’t stop threats; controversial when the state (e.g., Syria) is willing to cooperate.
Pre-emptive Self-Defense: Strikes (e.g., on Khorasan Group) justified by imminent threats to U.S./Western interests.
Humanitarian Intervention: Not cited as a basis for Syria intervention.
Haque and states differ on the legality of using force against non-state actors in another state’s territory
No Consensus: States are split on legality without consent or UN approval.
Restrictive View: (e.g., Brazil, China) Self-defense only applies against states under UN Charter.
Expansive View: (e.g., U.S., U.K.) Article 51 allows self-defense vs. non-state actors based on state practice.
Conditions for Self-Defense:
Restrictive: Actual/imminent attack required (e.g., U.K., Turkey).
Expansive: Ongoing hostilities suffice (e.g., U.S.).
Intermediate Positions:
Austria: Action allowed if host state supports/harbors attackers.
Others (e.g., Russia, France, India): Positions vary or shift.
Unresolved in Law: UNSC resolutions & customary law do not provide clear consensus.
Future Evolution: Law may adapt to grave threats, but treaty interpretation needs more than state practice.
Milancovic and Israel’s Right to Self-Defense & Use of Force in Gaza
If Palestine is not a state: UN Charter’s force prohibition may not apply → Israel not bound by jus ad bellum, but can still use force.
If Palestine is a state or prohibition applies otherwise:
Hamas’ Oct 7 attack must qualify as an armed attack (Article 51, UN Charter).
Hamas’ actions must be attributable to Palestine (legally difficult).
No Right to Self-Defense: If Hamas’ attack is not attributable & no armed attack under Article 51 → military action by Israel in Gaza may be legally barred.
If Self-Defense Applies:
Must meet necessity and proportionality principles.
Proportionality is contentious; Israel may argue its actions are proportionate despite civilian harm.
Tsagourias on Self-Defense & Sovereignty Violations
Self-defense is a standalone principle in international law—not dependent on Article 2(4) of the UN Charter.
A state (State A) can act in self-defense against a non-state actor in another state (State B), even if B isn’t involved.
Conditions:
Attack must qualify as an armed attack (serious, large-scale).
Response must meet necessity and proportionality.
Sovereignty violation of State B is legally excused under the law of state responsibility if self-defense conditions are met.
Adil Ahmad Haque’s view on proportionality in the Israel-Hamas conflict
Under International Humanitarian Law (IHL), proportionality limits civilian harm—military actions must not cause excessive civilian damage relative to expected military advantage.
Haque argues this principle is often overlooked in practice.
The UN General Assembly is divided:
Some states support Israel’s right to self-defense.
Others argue Israel’s attacks are not proportional under IHL.
Charles Kels critique Adil Haque’s interpretation of proportionality in armed conflict
Three Distinct Legal Contexts of Proportionality:
Human Rights Law: Limits force by individuals/law enforcement to immediate threats.
IHL (Armed Conflict): Seeks to avoid excessive civilian harm in attacks.
Jus ad Bellum: Governs the overall necessity & proportionality of a state’s use of force.
Critique of Haque:
Kels argues Haque conflates IHL and jus ad bellum proportionality.
Emphasizes that jus ad bellum proportionality concerns the scale and scope of response, not just civilian casualties.
Civilian harm is central in IHL, but jus ad bellum weighs broader strategic factors.
Marko Svicevic and UNSC Resolution 2722 (2024) and the use of force against the Houthis
No Force Authorization: Resolution 2722 (2024) does not authorize military force—lacks Chapter VII language or terms like “all necessary measures.”
Limited Reference to Self-Defense: Mentions protection of vessels but doesn’t explicitly invoke Article 51 of the UN Charter.
Divergent Member Views:
U.S.: Sees resolution as affirming self-defense.
Russia: Opposed even referencing self-defense.
Switzerland: Differentiates vessel protection from broader self-defense.
Slovenia: Supports lawful self-defense within legal bounds.
Conclusion: Resolution does not restrict the inherent right to self-defense—states retain that right regardless of the resolution.
State Responses & Legal Justifications for Action Against ISIL in Syria
UNSC Resolution 2249 (2015): Called on states to take all necessary measures (within international law) to combat ISIL/Da’esh and ANF in Iraq & Syria.
U.S. Letter (2014): Cited collective self-defense of Iraq under Article 51; also targeted Khorasan Group due to imminent threats to the U.S. and allies.
Germany (2015): Framed action as collective self-defense, targeting ISIL—not the Syrian government.
Syria (2015): Rejected foreign military actions without its consent as a misuse of Article 51 and a violation of international law.
Denmark (2016): Acted against ISIL in Syria based on UNSC 2249 and Iraq’s request, invoking Article 51 self-defense.
