Exceptionally Permitted Resort to Force by States

14.4.1 Self-Defence

a) General

Art. 51: Resorting to self-defence is a legal enforcement, but limited to rejecting the armed attack.

ICJ, Nicaragua: self-defence only warrants ‘measures which are proportionate to the armed attack and necessary to respond to it.’

Conditions of Self-defence:

1. Victim of aggression must not occupy aggressor’s State territory, unless strictly required to stop aggressor

2. Self-defence must come to end as soon as SC steps in, takes over and takes effective action to stop aggression – until that point, legal right of self-defence may continue

3. Self-defence must cease as soon as its purpose (to repel armed attack) has been achieved

а prohibition of prolonged military occupation, annexation of territory, anything that over-steps mere rejection of aggression

Because SC never developed its own collective security system, states have resorted to self-defence, often for things not strictly seen as self-defence

e.g. US involvement in Vietnam, Israeli attack on Egypt, USSR intervention in Afghanistan, UK military action in Falklands

States, particularly Great Powers, have tended to abuse this right – for both punitive and deterrent purposes

Examples of punitive purpose justified under Art. 51

· US – Libya, Missile attacks on Baghdad, Afghanistan, Khartoum/Sudan

Logic of US argument on Self-Defence revealed

“The US acted in exercise of our inherent right of self-defence consistent with Article 51 of the UN Charter. These strikes were a necessary and proportionate response to the imminent threat of future terrorist attacks against US personnel and facilities. These strikes were intended to prevent and deter additional attacks by a clearly identified terrorist threat. The targets were selected because they served to facilitate directly the efforts of terrorists specifically identified with attacks on US personnel and facilities and posed a continuing threat to US lives.”

b) Question of ascertaining facts

How are facts established amounting to circumstances required for a state lawfully to resort to force in response to an armed attack?

Often States have tended to adjust the facts to what suits the justification they are trying to make. Factual circumstances may prove as complex and important as legal issues. Problem exacerbated by fact that at time of attack, States usually monopolize control over facts or possess a distinct advantage in establishing them. This makes it hard for international community to judge whether action really was taken in self-defence on proper legal grounds.

c) Is anticipatory self-defence admissible?

Does Art. 51 allow a pre-emptive strike on a State is certain, or believes, that another state is about to attack it military?

People who support anticipatory self-defence say that if you know a state is about to attack you (due to intelligence, it would be naпve and self-defeating to contend that a state should sit and wait before being legally allowed to defend itself. Making states act as sitting ducks makes a mockery of the Charter’s main purpose of minimizing unauthorized coercion and violence across State lines (Israel likes this argument).

Legal argument supports this by contending that UN Charter did not suppress or replace pre-existing rules of international law, which allowed anticipatory self-defence.

However, others say that

1) alleged customary rule of self-defence did not envisage a right of anticipatory self-defence, just one of self-defence/preservation &

2) Art. 51 wiped out all pre-existing laws on the subject.

BUT, re (2), Nicaragua ICJ decision suggested that customary international law continues to exist alongside treaty and Charter, meaning that whatever existed on self-defence prior to Art. 51 could be used. But court not specific about content of customary international law on self-defence, to see whether it is beyond what is allowed by Art. 51

Another scholar says there should be a distinction between anticipatory self-defence (where an armed attack is merely foreseeable) and interceptive self-defence (where you know armed attack is imminent and practically unavoidable), in which case resort to self-defence should be allowed. But this view has been criticized, because there is no basis in Art. 51, is not supported by State practice, and would be just as hard to categorize as current distinctions.

Some states have favoured a broad interpretation of self-defence:

· Israel, USA, Japan, Canada, Iraq

In interpreting and applying Art. 51, must resort to object and scope of Art. 51 and more generally Chapter VII of UN Charter.

· Purpose of Art. 51 and Chapter VII is to safeguard peace and to establish a collective and public mechanism designed to prevent or stop armed violence.

· The exception is the private right that states have to act in self-defence.

· Since peace is paramount, whatever jeopardizes peace should be banned, including pre-emptive strikes – particularly since this power can be so easily abused by states.

This may be unrealistic in practice – but states still have to stop and consider that they risk abusing Art. 51 before they act, and they may be enough in itself.

Anticipatory self-defence – best to think of it as legally prohibited, while acknowledging that there are cases where breaches of prohibition may be justified on moral and political grounds.

d) Self-defence against armed infiltration and indirect aggression

Art. 51 is built on out-dated understanding of military aggression. International practice shows that military aggression involves a gradual infiltration of armed forces / volunteers supported by a foreign government into the territory of another state.

Does international law extends self-defence to include reaction to invasion through infiltration of troops and to indirect armed aggression?

Infiltration of Troops:

· US argued it was defending itself against “infiltration of troops” from North Vietnamese and Vietcong in Vietnam war.

· States view (Resolution 3314-XXIX/1974, Definition of Aggression, UN General Assembly) and Legal view (ICJ in Nicaragua):

Ш Armed attacks that justify self-defence are those that are made by armed bands, groups, irregulars or mercenaries sent by or on behalf of another State, and of such gravity as to amount to an armed attack conducted by regular forces. Anything less does not warrant self-defense.

Indirect armed aggression:

· Various states have claimed that this justifies action in self-defence (US, Israel, South Africa)

· International community has never fully agreed with this view. Most states were opposed to this interpretation of Art. 51 and regarded the resort to force by these states, invoking this justification, as illegal.

· Same view was held in debates in UN Special Committee on Friendly Relations in 1966-1970 – Northern states wanted to expand possible justifications for acting in self-defence, many of Socialist/Third World countries argued for a stricter interpretation of existing Art. 51

· ICJ, Nicaragua: training or providing economic, military, logistical or other support to rebels fighting against central authorities in another country may be regarded as a threat, use of force, intervention in the affairs of another sates. BUT it does not amount to an armed attack, and thus does not entitle the target State to respond in self-defense.

Art. 51 thus does not appear to authorize self-defence against indirect armed aggression, and there is no general rule of state practice that allows this justification.

Entitlement to right of self-defense against a state supporting an insurgency depends on:

· Level of such support

· Evidence of that support

· Evaluation of that evidence by ICJ or another competent UN organ

· Proportionality of the response

· Legality of means used to respond

e) Collective self-defence

Art. 51 grants any member state of the UN the right to use force in support of another State which has suffered another attack.

Right has been interpreted to the effect that the intervening State must not be itself a victim of the armed attack by the aggressor (in which case it would be acting under individual self-defence).

But before a state can assist, there must either be a prior bond (like a treaty authorizing this type of assistance, e.g. NATO) or an express request by the victim of attack.

The victim of attack must ask for help and must be the one to determine whether it has been a victim of an armed attack а ICJ in Nicaragua.

‘Collective’ self-defence has been invoked in very few occasions:

· USA – Vietnam, in support of South Vietnam; Nicaragua

· Britain – attack on Yemen to assist Federation of Southern Arabia

· Iraq attack on Kuwait

States don’t tend to get involved in collective security directly, preferring to send arms and military equipment rather than soldiers.

14.4.2 Protection of citizens abroad

States have used force for the purpose of protecting their nationals whose lives were in danger in a foreign territory.

· Sometimes without the consent of the territorial state

e.g. Belgium in the Congo in 1960, USA in Dominican Republic, 1965; USA in Iran, 1980; USA bombings in Libya, 1986, Baghdad, 1993, Afghanistan & Sudan, 1999 in response to terrorist attacks on US nationals

Ш Difference: territorial state was not responsible for the threat to life of foreign nationals, because public order had collapsed vs. local government was answerable as it did not protect foreign nationals (or tolerated / abetted those who sought to harm them).

· Sometimes with the consent of the territorial state

e.g. USA sending troops to Lebanon, 1958, USA sending troops to Panama, 1989, Belgium sending troops to Congo

Ш All cases where some claim to threat to country’s nationals (no always substantiated) and invitation or permission granted by host state

Larnaca Incident, 1978 – strange case about Egyptian nationals held hostage by terrorists in Cyprus. Egypt got permission to send an aircraft to Cyprus, but once it landed Cypriots realized it held armed commandos, and Cypriots refused to grant permission to intervene. Egyptian commandos opened fire nonetheless, and then Cypriots opened fire. In the shoot-out, several were killed, but the terrorists were arrested. Big dispute afterward – Egypt said Cyprus had not authorized the use of force but claimed it had not violated Cypriot sovereignty and had acted to fight terrorism, Cyprus said its sovereignty had been violated.

· In most cases of use of force to protect nationals, the intervening State is a Western power intervening in territory of a developing country а lens on current world power order

· It’s mostly Western countries who argue that armed intervention for the protection of nationals is lawful, either because it’s under Art. 51 or under a customary rule unaffected by Charter

· Other countries have consistently opposed the legality of use of force to protect foreign nationals

But these smaller states’ objections have not obliterated the general rule that allows resort to force to protect nationals (possibly subsumed under Art. 51 under general notion of self-defence).

Strict conditions for use of armed force to protect nationals to be lawful:

· Threat or danger to life of nationals (due to terrorist attacks or collapse of public order) is serious

· No peaceful means of saving their lives are open, either because they have already been exhausted or because it would be totally unrealistic to resort to them

· Armed force is used for the exclusive purpose of saving or rescuing nationals

· The force employed is proportionate to the danger or threat.

· As soon as nationals have been saved, force is discontinued.

· The state which has used such armed force immediately reports to the Security council, explaining in detail the grounds for its attack.

Ш Based on these conditions, the US bombing of Libya, 1986, Baghdad, 1993, and Afghanistan & Sudan, 1998, were contrary to UN Charter

14.4.3 Armed intervention with the consent of the territorial state

Is the principle that an illegal act is no longer illegal if the party whose rights have been infringed previously consented to it (volenti no fit injuria) applicable at an international level?

Traditionally – each state was free to allow another to use force in any form on its own territory а state could sanction its own invasion, extinction, etc.

Does the UN Charter’s ban on use of force prevent consent to use of force on one’s own territory?

· Yes – by explicit consent a State may authorize the use of force on its territory whenever, being the object of an armed attack, it resorts to individual self-defence and in addition authorizes a third State to assist in ‘collective self-defence.’

But what about if the state is not being attacked from outside but by insurrection within territory?

· State practice makes extensive use of the ’consent exception’ even though this does not conform to int’l law.

· A number of States believe that consent legitimizes the use of force, because it precludes violation of Art. 2.4 of Charter (territorial integrity and political independence of state).

· States often claim that their military intervention into another state’s territory was valid because the other state consented.

e.g. Panama Canal – US government interpreted Panama Canal Treaty to allow US to unilaterally intervene if Panama Canal was closed or its operation was impeded. Panama signed treaty with that condition, then president said Panama would never accept US intervention unless explicitly authorized by Panamanian government, US ignored and said that they would follow what was in the treaty. US invasion and occupation of Panama in 1989 was not lawful, either on grounds of consent from Panama (they didn’t), to safeguard lives of US citizens, to help restore democracy, or to bring Noriega to justice.

Different scenarios:

· Consent to the use of force was given by a State on whose territory an organized movement was not fighting the government

а use of force is legitimate

· Substantial body of population supported the insurrection, and the insurgents have not been aided externally, then use of force by third states could be against principle of self-determination and non-interference

а use of force illegitimate

· If rebels receive military aid from third States, then use of force (by another third party) at request of state

а legitimate

State of the Law on Consent to Armed Intervention today

1. Consent must be freely given (not through duress, coercion, etc.)

2. Consent must be real, not just apparent

3. Consent must be given by the lawful government or its representative

4. Consent may not be given to a blanket authorization for the future, must be related to specific event

5. Consent may not legitimize the use of force against the territorial integrity or political independence of consenting state (would be contrary to UNCHTR art. 2.4)

i.e. you can’t consent to another state using force to establish control over a population within your territory or appropriating a part of your territory

6. Consent cannot run counter to other principles of jus cogens

i.e. if force were authorized in order to deny/limit right of peoples to self-determination or if force used atrocities to put down rebellion or prevent secession

14.4.4 Armed reprisals against unlawful small-scale use of force

Some states think that military action short of war in response to a single and small-scale armed action by another State are legally authorized, either by Art. 51 or a general rule.

Legality of general category of armed reprisals in modern international law?

e.g. 1968 Israeli ‘reprisals’ against Egyptian installations and a raid against Beirut

· No customary rule has evolved on the legality of armed reprisals

· They are also not authorized under Art. 51 and have been condemned by various SC resolutions.

Some have drawn a distinction between

· retaliatory armed force – a delayed response to the unlawful but small-scale use of force by another state а armed response not lawful

· immediate armed reaction to a minor use of force а armed response should be lawful, otherwise all states would be at mercy of aggressive states

e.g. border patrols, other side launches attack against border control guards, they should be allowed to fire back

Legal justification

· The unlawful action involving force, undertaken by the other state, is not an armed attack under art. 51 (Nicaragua – a border skirmish does not amount to an armed attack).

· There was no other means of avoiding an immediate peril to the life of persons belonging to the victim state

Conditions for lawful use of force against small-scale use of force:

· Necessity and proportionality

· Immediacy (on-the-spot-reaction to attack)

14.4.5 Is resort to force to stop atrocities legally admissible?

Charter does not authorize individual States to use force against other States with a view to stopping atrocities, because the Charter places utmost importance on peace and security, rather than protection of individual rights.

Such a resort to force is only possible in very exceptional circumstances and if actions are justified and authorized by the Security Council.

From state practice, backed up by decision of ICJ in Nicaragua, it is clear that an international customary rule has not crystallized that would entitle individual States to take forcible measures to induce a state engaging in gross and large-scale violations of human rights to stop such violations.

Ш Because usus is extremely limited and opinion necessitates, though widespread, does not fulfil conditions of generality and non-opposition.