Session 4 Flashcards
Q: How does Bethlehem expand the traditional understanding of self-defense under international law?
- argues that self-defense also applies to non-state actors, especially in the context of terrorism.
- shift is reinforced by state practice, particularly after 9/11.
Q: How does Bethlehem redefine the concept of “imminence” in self-defense?
Imminence =flexibly,
considering: nature of the threat, probability of attack, historical patterns of violence, and lack of alternative means to prevent it.
Q: What are the two key conditions for the lawful use of force in self-defense according to Bethlehem?
A: Necessity (force must be a last resort) and proportionality (the response must be limited to what is necessary to neutralize the threat).
Q: Under what conditions does Bethlehem argue that self-defense may be used in another state’s territory?
A: A state may use force without consent if the host state is unwilling or unable to prevent armed attacks from non-state actors operating within its borders.
Q: How does Bethlehem define an “armed attack” in the context of self-defense?
A: An armed attack includes both a single attack and a series of attacks that demonstrate a pattern of ongoing violence.
Q: Why does Bethlehem emphasize the gap between academic legal debates and operational realities?
legal discussions on self-defense = often do not reflect the real-world decision-making needs of states dealing with modern security threats like terrorism.
Q: Why was military intervention against IS in Iraq legally uncontroversial but in Syria legally questionable?
A: In Iraq, intervention was conducted with the consent of the Iraqi government. In Syria, there was no consent from Assad’s government and no UN Security Council authorization, making it a violation of state sovereignty under international law.
Q: What is the “unwilling or unable” doctrine, and why is it controversial?
A: The doctrine allows a state to use force in another state’s territory if that state is unwilling or unable to stop threats (e.g., IS attacks from Syria into Iraq). It is controversial because it lacks clear support in customary international law and is not universally accepted.
Q: How did the U.S. justify airstrikes in Syria under self-defense?
- Invoked collective self-defense under Article 51 of the UN Charter,
- claiming Iraq requested help against IS fighters operating from Syria.
- direct self-defense was harder to justify since IS had not directly attacked the U.S. or its allies.
Q: What is the difference between anticipatory and preemptive self-defense?
Anticipatory self-defense: Responding to an imminent attack (widely accepted).
Preemptive self-defense: Acting against a potential future attack (highly controversial).
Example preemptive: Israeli strikes six days war OR arguably US invasion of Iraq (more preventive)
Anticipatory: Israeli strikes on Syrian, Iraqi nuclear facilities.
Q: Why was humanitarian intervention not a valid legal basis for strikes in Syria?
humanitarian intervention = not a recognized legal justification without UN Security Council approval.
R2P applies only through the UN, making unilateral action legally problematic.
Q: What are the broader implications of the intervention against IS?
Airstrikes alone failed to stop IS, raising the question of boots on the ground.
The intervention deepened sectarian divisions, potentially fueling more radicalization.
Henderson warns that force alone cannot defeat extremism without political solutions to address grievances.
Q: What is the Tallinn Manual, and why is it important?
- NATO-sponsored legal study on how international law applies to cyber warfare.
- Not legally binding but aims to shape future international norms on cyber security and military responses to cyber threats.
Q: Can states use anticipatory self-defense against cyber attacks?
- The Tallinn Manual supports anticipatory self-defense if a cyber attack is imminent and the state has no other opportunity to stop it.
- Controversial because traditional self-defense under Article 51 of the UN Charter applies only after an armed attack occurs.
Q: What types of cyber attacks may count as “use of force” under international law?
- Death, injury, or physical destruction clearly qualify.
- The Manual suggests non-physical cyber attacks (e.g., paralyzing critical infrastructure) might be considered use of force, depending on their scale and effects.
Q: How does the Tallinn Manual determine if a cyber attack qualifies as use of force?
A: It uses eight factors:
Severity (damage level)
Immediacy (speed of effects)
Directness (causal link)
Invasiveness (intrusion level)
Measurability (impact assessment)
Military character (connection to conflict)
State involvement (official backing)
Presumptive legality (expected legal status)
Q: When can states use force against cyber attacks from another country?
A: The Tallinn Manual supports the “unwilling or unable” doctrine, meaning a state may respond if the host country fails to stop cyber threats from within its territory. This is controversial as it could violate state sovereignty.
Q: Why is the legal status of cyber warfare still unclear?
A: The Tallinn Manual is not a legally binding document, and no clear international consensus exists on anticipatory self-defense, cyber “use of force,” or responses to cyber attacks from non-state actors. These issues remain under debate in international law.
Q: Why does Boer argue that the Tallinn Manual fails to “restate the law”?
- Manual lacks clear support from state practice, opinio juris, or treaties.
- It introduces new interpretations that lack authoritative legal backing.
Q: What is the main issue with the Tallinn Manual’s criteria for defining “use of force” in cyberspace?
A: The eight factors proposed (e.g., severity, directness, military character) lack clear legal justification and do not establish a consistent standard for assessing cyber operations. This makes it uncertain how states should apply them in practice.
Q: How does the Tallinn Manual conflate law and politics, according to Boer?
- Manual implicitly includes political considerations, describing what states might consider rather than setting clear legal norms.
- This blurs the line between legal rules and policy decisions.
Q: Why does Tladi argue that Bethlehem’s principles contradict international law?
- Use of self-defense against NSAs violates state sovereignty, territorial integrity, and the prohibition on the use of force (Article 2(4) of the UN Charter).
Q: What do ICJ rulings say about self-defense against non-state actors?
A: The ICJ has ruled that self-defense only applies when an attack is attributable to a state (e.g., Nicaragua v. U.S. (1986), Wall Advisory Opinion (2004), Armed Activities in Congo (2005)). Tladi argues that Bethlehem ignores or misinterprets these rulings.
Q: What is the “unwilling or unable” doctrine, and why does Tladi reject it?
Tladi argues this doctrine lacks legal basis, undermines sovereignty, and allows powerful states to justify military actions in weaker states.
Q: Does state practice support Bethlehem’s claim that self-defense applies to non-state actors?
A: Tladi argues no, because:
The U.S. war in Afghanistan was against the Taliban, not just non-state actors.
UN Resolutions 1368 and 1373 reaffirm self-defense but do not authorize force in an innocent state.
Other cases (Turkey in Iraq, Israel in Lebanon) were criticized, meaning they do not represent customary law.
Q: Why does Tladi argue that self-defense must be interpreted restrictively?
A: Self-defense is an exception to the prohibition on force and must be strictly interpreted to prevent abuse. Bethlehem expands its scope, allowing more state discretion, which could justify unilateral military interventions.
Q: What is Tladi’s conclusion on Bethlehem’s self-defense framework?
A: Tladi asserts that Bethlehem’s principles weaken international law by allowing military intervention beyond legal limits. Instead, self-defense should only apply when attacks are attributable to a state, and force against non-state actors should require host state consent.
Q: What was the key finding of the 2021 UN Security Council Arria formula meeting on self-defense?
A: The meeting revealed no consensus on whether self-defense under Article 51 applies to non-state actors, with states deeply divided between restrictive and expansive interpretations.
Q: What is the restrictive view on self-defense against non-state actors?
A: States like Brazil, China, and Mexico argue that self-defense only applies to attacks by states, citing ICJ rulings that require state attribution. They reject the “unwilling or unable” doctrine, viewing it as a violation of sovereignty.
Q: What is the expansive view on self-defense against non-state actors?
A: States like the U.S., U.K., and Australia argue that self-defense applies against non-state actors, citing post-9/11 state practice and UN Security Council Resolutions 1368 and 1373. They support the “unwilling or unable” doctrine.
Q: What is happening to the middle ground in the self-defense debate?
A: Historically, some states allowed self-defense in extreme cases (e.g., against ISIS). However, in 2021, Belgium, France, and Norway shifted toward the expansive view, making compromise harder.
Q: Why is state silence on self-defense a problem?
A: Some states (Russia, India, Norway, Qatar) made ambiguous statements, while others (Finland, Kenya, Iran) remained silent. Haque argues that silence should not be misinterpreted as support for the expansive view.
Q: What is Haque’s conclusion about the future of international law on self-defense?
- No CIL exists on self-defense against non-state actors.
- The expansionist trend weakens legal clarity, allowing more unilateral military actions, and making future consensus unlikely.
Q: Why is the legal status of Israel’s self-defense claim in Gaza unclear?
A: The jus ad bellum framework is highly contested in this case. Unlike clear-cut cases of aggression (e.g., Russia-Ukraine), Israel’s actions in Gaza involve non-state actors and disputed territorial status, making the legal justification ambiguous.
Q: Why does Israel’s self-defense claim depend on whether Palestine is a state?
A: Under Article 51, self-defense applies only if the prohibition on force (Article 2(4)) is engaged.
If Palestine is a state, Israel’s force in Gaza must be legally justified under self-defense.
If Palestine is not a state, the prohibition on force may not apply, meaning Israel would not need to invoke self-defense at all.
Q: Can a state claim self-defense against non-state actors in occupied territory?
A: Some argue self-defense does not apply in occupied territories, as the occupying power (Israel) already exercises control.
If Hamas is resisting occupation, Israel’s self-defense claim may not hold.
Similar to how Russia cannot claim self-defense against Ukrainian resistance in occupied Ukraine.
Q: What is the argument against self-defense in the case of Israel v Hamas?
A: Some scholars claim that Israel cannot invoke self-defense if Hamas is acting in self-defense against occupation.
This challenges the idea that Israel’s military response is justified under necessity and proportionality.
Q: What are the three competing views on proportionality in self-defense?
A:
Tit-for-tat proportionality – Response must match scale and effects of attack.
Ends-means proportionality – Response must be no more than necessary to eliminate threat.
Humanitarian proportionality – Response must not inflict greater harm than the harm it prevents.
Q: What is Milanovic’s conclusion on the usefulness of international law in Israel vs Hamas?
A: The jus ad bellum framework does not provide a clear legal answer on Israel’s actions.
Moral arguments may be more useful than legal ones.
The burden is on Israel to prove that its actions are necessary and proportionate.
Q: Is self-defense under Article 51 an exception to Article 2(4) of the UN Charter?
A: No. The article argues that self-defense is a primary rule of international law, independent of Article 2(4). It is a lawful right per se, not just an exception to the prohibition on force.
Q: Can self-defense be exercised against non-state actors like Hamas?
A: Yes. The article argues that self-defense is not limited to attacks by states. Article 51 does not specify the attacker’s identity, meaning non-state actors like Hamas can trigger the right to self-defense.
Q: Does Israel need to consider Palestine’s statehood status to justify self-defense?
A: No. The article argues that Israel’s right to self-defense exists regardless of whether Palestine is a state. The October 7 attacks by Hamas constituted an armed attack, fulfilling the conditions for self-defense.
Q: How does Israel justify breaching Palestinian sovereignty in self-defense?
A: Under Article 21 of ARSIWA, if a state’s self-defense action incidentally violates another state’s sovereignty, it may be excused under international law. This means Israel’s actions in Gaza remain justified if they stay within self-defense limits.
Q: Does international law have a gap regarding self-defense against non-state actors?
A: No. The article rejects the idea that international law is inadequate to deal with non-state actors. Tying self-defense to Article 2(4) would create a dangerous loophole, allowing non-state actors and their sponsors to attack states with impunity.
Q: What is the article’s conclusion on Israel’s right to self-defense?
A: The article asserts that self-defense applies fully to non-state actor attacks. Israel’s military response to Hamas is legally justified, as long as it remains necessary and proportionate.
Q: How does proportionality differ in different areas of international law?
Human Rights Law (Law Enforcement) – Limits force to necessity and de-escalation.
International Humanitarian Law (Jus in Bello) – Balances military necessity with civilian harm.
Jus ad Bellum (Self-Defense Law) – Limits force to what is necessary to eliminate the threat, not just deter it.
Q: How does Haque misinterpret jus ad bellum proportionality?
A: Haque wrongly applies the civilian protection rules of IHL (jus in bello) to jus ad bellum. In self-defense law, proportionality does not focus solely on civilian casualties but on whether the response is necessary to eliminate the threat.
Q: What is the difference between lex lata (existing law) and lex ferenda (proposed law)?
A: The response argues that Haque confuses the two by treating his preferred legal standard (limiting force based on civilian casualties) as already established law, when in reality, there is no such legal requirement in customary international law.
Q: Does jus ad bellum proportionality require a ceasefire if civilian casualties are high?
A: No. There is no legal obligation to stop fighting based on civilian harm alone. As long as force is necessary and proportional to the threat, self-defense remains lawful.
Q: How does self-defense proportionality constrain states?
A: Jus ad bellum does not impose a strict civilian harm limit but does prevent open-ended wars by requiring military action to remain tied to the threat faced, ensuring self-defense is not used as a pretext for aggression.
Q: What does historical precedent (e.g., the U.S. response to 9/11) suggest about self-defense proportionality?
A: The U.S. launched a decades-long war on terror after 9/11, showing that states do not limit self-defense to minimal force. Haque’s position would create a new and unrealistic legal standard that no state under terrorist attack would accept.
Q: Does UN Security Council Resolution 2722 (2024) authorize the use of force against the Houthis?
A: No. The resolution does not invoke Chapter VII or include language like “all necessary measures.” It does not determine that Houthi attacks constitute a threat to international peace and security, which would be required for UNSC action.
Q: How does Resolution 2722 (2024) relate to self-defense?
A: The resolution’s third paragraph mentions defending vessels but does not explicitly reference self-defense under Article 51. This wording has led to conflicting interpretations among states.
Q: How do different states interpret Resolution 2722 (2024)?
U.S. & U.K. – View the resolution as implicitly supporting self-defense.
Russia & Switzerland – Argue it only permits protecting vessels, not broader strikes.
Slovenia – Takes a middle ground, recognizing a lawful response within international law.
Q: Does Resolution 2722 (2024) limit or suspend the right of self-defense?
A: No. Article 51 allows self-defense until the UNSC takes effective measures to maintain peace. Since no binding measures were adopted and Houthi attacks continue, the right to self-defense remains unaffected.
Q: What is the legal justification for U.S. and U.K. strikes against the Houthis?
A: The U.S. and U.K. rely on Article 51 self-defense, not Resolution 2722 (2024). Their military actions are justified by the inherent right of self-defense, as stated in their UN communiqués.
