#3544 - Use Of Force - Public International Law

Unilateral Use of Force

Post-UN Charter

• Art 1(1) – suppression of acts of aggression & other breaches of peace is one of primary UN Charter purposes

• Art 2(4) – all Members shall refrain from threat/use of force in IR against territorial integrity/political independence of any state, or in any other manner inconsistent w/UN purposes reaffirmed in UN GA Res. Decl. of Principles of IL,(definition of Aggression etc.)+ a rule of customary IL (Nicaragua v USA)

• Consensus b/w states that IL raises a presumption that force is unlawful BUT no agreement over precise scope of the ban + right to self defence in Art 51 2 schools of thought

1. Permissiveref can be made to pre-1945 rules to determine the ambit of the ban in Art 2(4) & right to self defence

• Rationale – total ban of use of force would equate to total emasculation of state’s ability to protect itself foolish in int. soc. w/no police force or reliable machinery for vindicating illegally denied rights (e.g. impotence of UN during Kosovo crisis in 1999)

Acc. to this, Art 2(4) prohibits use of force only on its terms – if it doesn’t result in any, it’s not unlawful

• Critique: bases distinction b/w lawful & unlawful force on state’s subjective intent, when it should be regulated objectively

2. RestrictiveArt 2(4) lays down a total & uniform ban on unilateral use of force – right to such action is only by way of self-defence in Art 51

• Rationale: primary aim of IL is to maintain peace etc., so that use of force is only permitted in most exceptional circs. Harm caused to int. soc. by violence outweighs evil whichit’s intended to counter. Permissive rules favour powerful states, encouraging abuse which can’t be checked in decentralised IL system.

Acc. to this, Art 2(4) completely prohibits unilateral use of force, except as specifically allowed by Charter. Customary rules providing wider freedom of action aren’t relevant. Art 51 is the only exception to the ban.

• Confirmed by analysis of travauxpreparatoires (Dixon)

• Exceptions

1. Unilateral Self Defence

• Art 51 - inherent right to individual/ collective self-defence if armed attack occurs against UN Member, until SC has taken measures necessary to maintain int. peace and security. Measures taken by Members shall be immediately reported to SC and shall not in any way affect its authority and responsibility under Charter to take action it deems necessary to maintain or restore int. peace and security.

• Customary IL self-defence:

1. can only be invoked in response to immediate pressing threat which can’t be avoided by alternative means (necessity-instant, overwhelming, leaving no choice of means & no moment for deliberation)

2. must be proportionate to danger posed (nothing unreasonable or excessive, act justified by necessity must be ltd & kept clearly within it)

• The Caroline Case – Canadian rebellion w/support of US nationals established itself w/force on island in Canadian waters from which it attacked Brit ships, the force being supplied by US ship Caroline; Brit military seized it & sent to Niagara Falls, killing 2 US nationals; UK (Ashburton) sought release of one of individuals involved arguing self-defence but US Sec of State (Webster) indicated in diplomatic correspondence above requirements for lawfulness.

• Customary IL may go beyond Charter depends on interpretation

1. Restrictive approach– state can’t use unilateral force other than in response to armed attack; i.e.

1. pre-emptively

2. in response to non violent threat

3. to protect anything other than state territory

4. + can only be used on state to state basis

• Supported by many states (but doesn’t really accord with pre-1945 law)

• Dixon: taking Palestinian Wall Adv Op at face value, use of force in self defence is available only where attack emanates from another state as opposed to group of insurgents not operating under its control

• But the view of ‘state to state’ was put forward w/out much reasoning – not explicitly required in Art 51

2. Permissive approach – right to self defence extends beyond Art 51 into customary IL as shown by ref to ‘inherent’ right Art 51 doesn’t say it’s available only if armed attack occurs & doesn’t indicate it must be by a state.

• Oil Platform (Merits) Case – during Iran/Iraq war vessels were being hit in Persian gulf; US sent escorts for own ships; 1 attacked by missile & another damaged by a mine; US attacked Iran’s oil platforms claiming self defence; Iran argued it breached 1955 Treaty b/w them; ICJ: for self defence, US had to show that:

1. it was a victim of armed attack attacks not sufficient for cumulative effect so no armed attack

2. its actions were necessary & proportional not satisfied

3. oil platforms were a legitimate military target

• Armed Activities Case – Congolese govt. overthrown by rebels, Uganda’s presence requested to prevent cross border raids but, when relationship deteriorated, ICJ asked it to leave but it advanced further into DRC arguing self-defence, b/c concerned about cross border raids & Sudan’s assistance. Held: Uganda violated the principle of non use of force + pr. of non intervention by engaging in military activities, continued occupation, support of rebels + b/c didn’t report to SC, actions not done in self-defence.

• Partial Award: Ethiopia Claims – Eritrian/Ethiopian War; border dispute; Eritrea claimed it’s recourse to force would’ve been lawful b/c it had a valid claim to the territory; ICJ: self defence can’t be invoked to settle territorial disputes + didn’t report to SC, so not self defence anyway.

• Definition of ‘armed attack’

1. Cross border use of force w/sufficient scale & effects; excludes provision of weapons, finance, training to rebels (Nicaragua v USA)

2. Must be done by another state + restrictions of proportionate measures apply (Palestinian Wall Adv. Op)

3. Localised border encounters b/w small infantry units, even w/loss of life, not sufficient (Partial Award: Ethiopia Claims)

2. Collective Self Defence

• Lawful under Art 51in response to armed attack; or, if customary IL survives, in wider situations

• Conditions (Nicaragua (Merits)) – state must

1. declare itself a victim of armed attack

2. request assistanceunrealistic procedural req. – not provided for by Art 51 (Dixon)

• Who must be attacked – 2 interpretations:

1. Individual attacks on all states exercising self defence – need some ‘real’ involvement, since collective defence is merely a joint exercise of individual rights (Jennings)

2. State requesting assistance only

• Supported by NATO’s action re Iraqi invasion of Kuwait – unless threat to oil supplies could be interpreted as armed attack, the rush to defend Kuwait supports this view

3. Anticipatory Self Defence

• Existed in pre-1945 customary IL questionable if fits within Art 51

• US Air Raid on Libya – US military aircraft bombed military targets in Libya in response to alleged terrorist attacks against US citizens, incl. bombing of Berlin club, where 2 US soldiers killed. Pres. Reagan claimed anticipatory self-defence to be consistent w/Art 51, used to diminish Qaddafi’s capacity to export terror + incentivise him to change crim. behaviour.

• US attack on Iraqi intelligence headquarters(1993)–in response to discovering a plan to kill Bush in Kuwait: UK, USSR = proper/proportionate; France = understanding; China etc = concerned.

4. Pre-emptive Self Defence

• Argued by US as further extension of anticipatory self defence

• Condoleezza Rice (2003) – don’t need to wait for nuclear weapons possessed by Iraq to appear in a mushroom shaped cloud

• Operation Enduring Freedom post 9/11 – UN invoked Art 5 Washington Treaty for the 1^st (and only) time. Wide state support but not a part of customary IL

• The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and agree that, if it occurs, each of them, in exercise of the right of individual or collective self-defence in Article 51 of UN Charter, will assist the Party attacked by taking forthwith, individually & in concert w/ other Parties, such action as it deems necessary, incl. use of armed force, to restore & maintain the security of North Atlantic area. Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.

• US Nat. Sec. Strategy 2003- claimed existence of pre-emptive right to self defence + proposed adaptation to modern circumstances by removing ‘imminence’

• even UK rejected it, arguing there was already scope for taking into nature, seriousness, imminence – no need for consensus on precise circumstances.

5. Protection of Nationals at Home or Abroad

• Identified under self-defence, equates nationals to the ‘state’ for purpose of actual/threatened armed attack US & UK agree but existence questionable – only valid if Art 51 is read widely to include customary IL.

• Examples:

• Entebbe Incident – Air France airline hijacked leaving Athens by 2 Germans & 2 Arabs; diverted to Entebbe airport in Uganda where only Israeli hostages kept; demanded release of Palestinian terrorists worldwide; Israel sent soldiers who rescued hostages by force killing hijackers + some Uganda forces; some evidence Uganda involved/didn’t object; SC Debate no Res adopted. Uganda condemned it as barbaric but Israel argued right of state to take military action to protect nationals from mortal danger abroad as recognised...