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UNILATERAL RESORT TO FORCE BY STATES The Rule: Art. 2.4 UNC bans the threat or use of force.

. States may not use force unless authorized or ordered to do so by the SC. The Exception: Art. 51 UNC States may resort to force in the exercise of individual or collective self-defense. Both the ban on the use of force and the self-defense exceptions have acquired the character of customary rules. I. Individual Self-Defense A. Definition Self-defense is the lawful response by a State to an armed attack. - An armed attack is a massive armed aggression against the territorial integrity and political independence of a State that imperils its life or government. - Less grave forms of use of force do not amount to an armed attack. See Nicaragua, ICJ 1986 - the assistance to rebels in the form of the provision of weapons or logistical or other support may be regarded as threat or use of force (in violation of the principle of non-intervention in the internal or external affairs of another state), but it does not amount to armed attack, so to allow the exercise of self-defense by the victim state. - the attack must be of such magnitude that it cannot be repelled otherwise - the attack may be coming from a State, a terrorist organization or from insurgents (if they carry that attack against the government on whose territory they operate) B. Elements of Self-Defense The State exercising self-defense 1) may not use more force than it is necessary to repel the attack, i.e. must be proportionate to the attack. In Oil Platforms, the ICJ found that the attack by the US against Iran were not a proportionate use of self-defense. 2) May only attack legitimate military targets, as required by the rules of humanitarian law; additionally, necessary measures must be taken to protect the lives of civilians 3) Must not occupy the territory of the aggressor state, unless that is required in order to contain that State and prevent the continuing of the aggression 4) Must terminate the use of force as soon as the SC takes effective action to put an end to the aggression (steps in and deals with the situation in a manner that renders the States response unnecessary) 5) In the absence of effective SC action, the victim State may continue the use of force until the armed attack is repelled. However, military action that goes beyond achieving the purpose of repelling the armed attack (e.g. occupation of the aggressor States territory) is prohibited. C. The Broadening of the Notion of Self-Defense

Because the UN collective security system has failed on many occasions, States have invoked self-defense to justify the use of force in situations that cannot legally be said to amount to self-defense. Self defense was invoked by States to warrant military attacks, that in fact, had a strong punitive and deterrent purpose and, as such, do not fit the definition of self-defense. 1) Examples where States have invoked self-defense: 1) 1986, La Belle disco incident US attack on Lybia after the bombing of the LaBelle disco in Germany, resulting in the killing of a US soldier and the injury of numerous US civil personnel 2) 1993 US attack on Baghdad as a response to a planned terrorist attack on Bush, which attack was deemed to have occurred 2 months prior, but was not carried out. 3) 1956 USSR intervention in Hungary 4) 1966 US intervention in Vietnam 5) 1967 Israeli attack on Egypt 6) 1979 USSR intervention in Afghanistan 7) 1998 US submarine missile attack against a military training camp in Afghanistan and a chemical plant in Sudan in response to terrorist attacks organized by bin Laden against US interests abroad, including the US embassies in Kenya and Tanzania. 2) Anticipatory Self-Defense Does Art. 51 allow anticipatory self-defense, i.e. a preemptive strike when a State believes that an armed attack is about to be carried out against it? The USA, Israel and South Africa are amongst the greatest proponents of anticipatory self-defense. Politically, they argue that in a world of missiles, nuclear, chemical and biological weapons, likely to cause mass destruction and irreparable harm, it would be nave and self-defeating to wait to be attacked before the right to self-defense is triggered. Legally, they advance the view that the right to self-defense is an inherent right (that is, a right deriving from natural law) of customary nature and existing alongside the regime of self-defense that is embodied in Art. 51 of the Charter. However, that the majority of States reject the existence of a right to anticipatory selfdefense. They argument is supported by the theory of notable jurists who have expressed the view that the natural right to self-defense is to be interpreted as self-defense proper, i.e. self preservation and that, Art 51 was meant to replace prior law on the matter. The reaction of the world community in cases of anticipatory self-defense has been varied. In 1981, the US argued in favor of a broad application of the right to self-defense. That view was later advanced by Japan in 1968 and 1975, by Iraq in 1980 and Israel in 1975 and 1981. In addition, the UN did not condemn the Israeli attacks on Egypt, nor the Iraqi attack on Iran in 1980 and it can be said that the SCs inaction was motivated by political considerations. However, nearly the entire international community condemned the Israeli attacks on Palestinian camps in Lebanon in 1975. Later, in 1981, the SC condemned Israels attack on an Iraqi nuclear reactor as being in clear violation of

international law. On that occasion, Mexico and Egypt expressly rejected the doctrine of self-defense, while the U.K. rejected the Israeli attack only because it lacked the required immediacy and necessity required for it to constitute self-defense. Arguably, if these were shown, the U.K. would have endorsed the attack. It can be said that the international community, for the most part, remains hostile to the doctrine of anticipatory self-defense and see no support for it in the UN Charter. Many States view expresses a fear of abuse if such right is to be legitimized and they make the slippery slope argument. Some publicists and jurists argue that if the Charters utter purpose is the preservation of peace, States should withhold resort to pre-emptive attacks given the likelihood for abuse and the great element of subjectivity involved in appraising a particular situation. If a State is faced with circumstances such that they truly require pre-emptive action, it is likely that its response would not be penalized later (e.g. on several occasions, the SC has not condemned such attacks, seems to have ignored them and thus implicitly approve of them: See cases of Goa, Tanzania and Uganda). 3) Self-Defense against Infiltration and Indirect Armed Aggression Infiltration - armed aggression usually happens through gradual infiltration of armed forces or recruits, supported by foreign governments into the territory of another state. Indirect Armed Aggression - Aggression may also result from providing assistance, financing and other support to terrorist groups and activities aimed at a foreign government (indirect armed aggression). The Issue: May a State lawfully use force to repel armed infiltration or indirect armed aggression? a) Invasion through infiltration of troops or volunteer The position of the ICJ in Nicaragua reflects customary law on the matter of armed infiltration. The court held that self-defense may be justified to repel those armed attacks made by armed bands, groups, irregulars, or mercenaries send by or on behalf of a State or a terrorist organization, and of such gravity as to amount to an armed attack conducted by the armed forces. If any of these elements are not satisfied, a case for self-defense will not be established. b) Indirect aggression Main proponents are the USA, Israel and South Africa. The argument does not have broad international support; therefore, it cannot be said that a customary rule has evolved to authorize the use of force in such circumstances. In Nicaragua, the court provided some guidance on the issue the training and providing of economic or military or logistical or other assistance to rebels fighting against the central authorities in another country may be regarded as threat or use of force or intervention in that countrys affairs, but it does not constitute armed attack, justifying the exercise by the victim state of self-defense. It cannot be said that a rule of customary law has evolved to authorize self defense in response to this specific category of aggression. The ability of a State to invoke such right against a State supporting insurgency or terrorism would depend on 1) the level of such support; 2) the evidence of such support; 3) the evaluation of the evidence by the ICJ or

another competent UN organ; 4) the proportionality of the response and the legality of the means used to respond. II. Collective Self-Defense Art. 51 provides for the right to use force in support of another state which has suffered an armed attack (collective self-defense). Conditions for the exercise of collective self-defense: 1) the intervening state must not itself be a victim of the attack (otherwise, its response will be justified on the grounds of individual self-defense) 2) the intervening State must not act unless it has been requested to do so by the victim state, or has previously obtained that states consent 3) it is for the victim state to establish that it has been militarily attacked. In other words, a third state (not party to the conflict) may not intervene based on its own assessment of the situation. Examples: US intervention in Vietnam III. Unilateral Resort to Force in Instances Other than Self-Defense The use of force is these cases lacks strong legal grounds, as it is not clear whether customary rules have evolved to allow it, so as to constitute an exception to the general ban laid down in Art.2.4 of the Charter and the corresponding customary rule. A. Forcible Protection of Nationals Abroad Western powers have argued that such intervention is lawful, while other countries, for the most part, have opposed it. States have resorted to the use of force to protect their nationals with the consent of the territorial state (e.g. US intervention in Lebanon in 1958 was based on the consent of Lebanon and on the grounds that the US action will afford protection of the many Americans who reside in that country), or, in some cases, without the consent of the territorial state (e.g. in 1960, Belgium intervened in Congo without Congos consent. Also, The USA bombed Libya, Baghdad and Afghanistan as a reaction to terrorist attacks on US nationals without prior consent by these countries). There seems to be a customary rule allowing for the resort to force for the protection of a States nationals abroad, but its applicability is subject to the following conditions: 1) the threat or danger to the life of nationals is serious (that threat or danger may be the result of the collapse of public order or be due to terrorist attacks, or the condoning by the territorial state of such terrorist attacks) 2) lack or impracticality of peaceful means of settlement or exhaustion of such means 3) armed force must be targeted and must be use for the exclusive purpose of saving or rescuing nationals 4) the force must be proportionate 5) force must be discontinued as soon a the threat of danger ceases 6) the state using force, must immediately report to the SC

B. Armed Intervention with the Consent of the Territorial State clearly allowed under traditional international law, as States had unfettered freedom and all rules could be derogated from clearly allowed by the Charter in situations of collective self-defense, but the resort to force in other cases lacks firm legal grounds. The current regulation on consent: If a state is to use consent as a justification for its use of force, it must show that 1) the consent was real and was given freely; 2) it was given by the lawful government, i.e. the authority that has legal capacity to give consent, according to its national constitution; 3) consent must be given ad hoc, i.e. relate to a specific situation and not be a blanket authorization for the future use of force; 4) it may not be used to legitimize the use of force against ht territorial integrity and political independence of the consenting state (cannot be used in order to establish control over the population of the consenting state); 5) consent is not valid if it violates jus cogens.

C. Armed Reprisals Against Unlawful Small Scale Use of Force The rule: Armed reprisals are prohibited in response to even serious violations of international law, short of violations of Art. 2.4 of the Charter. Only peaceful reprisals (countermeasures) are allowed in dealing with such breaches. Issue: Are military reprisals (short of war) authorized in response to small-scale armed action by another State? While there isnt legal support for retaliatory armed force as a delayed response to unlawful, but small scale use of force by another State, an argument can be made that such use of force is warranted when it is an immediate response to a minor use of force. See Corfu Channel case where the ICJ held that a warship passing through an international waterway was entitled to retaliate quickly if fired upon by the batteries of the coastal state. This is close to a situation presenting duress or necessity, which under general international law are circumstances precluding wrongfulness of otherwise illegal acts. In such situations, a State still needs to prove immediacy, necessity and proportionality. D. Use of Force to Stop Atrocities Abroad Respect for human rights is one of the main goals of the UN Charter, but the Charter does authorize a derogation to Art. 2.4 in view of stopping gross human rights violations or mass atrocities. Resort to force in such cases is warranted only upon SC authorization. Instances where States have justified the recourse to armed force on the basis, inter alia, that such use of force was necessary to stop a humanitarian catastrophe include: - Indias armed intervention in East Pakistan in 1971, which triggered a condemnation and strong disapproval by a number of countries - Tanzanias attack on Uganda that led to the toppling of the dictator Amin was, in parts, justified on the basis of severe humanitarian grounds, citing the atrocities committed by Amin - NATOs intervention in Kosovo

When such armed action was taken, it has resulted in broad criticism, so it is hard to contend that a customary rule has emerged so as to legitimize the use of force in such cases. E. Use of Force by Racial People when Self-Determination is Forcibly Denied Art. 2.4 addresses itself to States only. However, it appears that a customary rule has evolved providing for the right to resort to armed force by people subject to foreign domination or racial groups deprived of access to government, when they are forcibly denied of their right to self-determination.

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