20
International law and the use of force by states
The rules governing resort to force form a central element within in ternational law, and together with other principles such as territorial sovereignty and the independence and equality of states provide the framework for international order.1 While domestic systems have, on the whole, managed to prescribe a virtual monopoly on the use offeree for the governmental institutions, reinforcing the hierarchical structure of authority and control, international law is in a different situation. It must seek to minimise and regulate the resort to force by states, without itself being able to enforce its will. Reliance has to be placed on consent, consensus, reciprocity and good faith. The role and manifestation of force in the world community is, of course, dependent upon political and other non-legal factors as well as upon the current state of the law, but the law must seek to provide mechanisms to restrain and punish the resort to violence.
See e.g. Y. Dinstein, War, Aggression and Self-Defence, 4th edn, Cambridge, 2005; C. Gray, International Law and the Use of Force, 2nd edn, Oxford, 2004; S. Neff, War and the Law of Nations: A General History, Cambridge, 2005; O. Corten, Le Droit Contre La Guern, Paris, 2008; M. Byers, War Law, London, 2005; D. Kennedy, Of Law and War, Princeton, 2006; T. M. Franck, Recourse to Force, Cambridge, 2002; D. W. Bowett, Self-Defence a International Law, Manchester, 1958; I. Brownlie, International Law and the Use ofForceby States, Oxford, 1963; I. Stone, Aggression and World Order, Berkeley, 1958; J. Stone, legal Controls of International Conflict, 2nd edn, Berkeley, 1959, and Stone, Conflict Through Consensus, Berkeley, 1977; M. S. McDougal and F. Feliciano, Law and Minimum World Public Order, New Haven, 1961, and McDougal and Feliciano, The International Law of War, New Haven, 1994; H. Waldock, 'The Regulation of the Use of Force by Individual States in International Law', 81 HR, 1982, p. 415; J. Murphy, The United Nations and the Control of International Violence, Totowa, 1982; R. A. Falk, Legal Order in a Violent World, Princeton, 1968; A. Casscse, Violence and Law in the Modern Age, Cambridge, 1988; Law and Force in the New International Order (eds. L. Damrosch and D. J. Scheffer), Boulder, 1991, and Nguyen Quoc Dinh, P. Daillier and A. Pellet, Droit International Public, 7th edn, Paris, 2002, p. 933.
THE USE OF FORCE BY STATES
Law and force from the 'just war' to the United Nations2
1119
he doctrine of the just war arose as a consequence of the Christianisa-tion of the Roman Empire and the ensuing abandonment by Christians 0f pacificism. Force could be used provided it complied with the divine •]] The concept of the just war embodied elements of Greek and Roman hilosopby and was employed as the ultimate sanction for the maintenance of an ordered society. St Augustine (354-430)3 defined the just war jn terms of avenging of injuries suffered where the guilty party has refused H make amends. War was to be embarked upon to punish wrongs and Kstore the peaceful status quo but no further. Aggression was unjust and the recourse io violence had to be strictly controlled. St Thomas Aquinas4 in the thirteenth century took the definition of the just war a stage further by declaring that it was the subjective guilt of the wrongdoer that had Mpbe punished rather than the objectively wrong activity. He wrote that Bar could be justified provided it was waged by the sovereign authority, it was accompanied by a just cause (i.e. the punishment of wrongdoers) and it was supported by the right intentions on the part of the belligerents.
I With the rise of the European nation-states, the doctrine began to change." It became linked with the sovereignty of states and faced the paradox of wars between Christian states, each side being convinced of the justice of its cause. This situation tended to modify the approach to the just war. The requirement that serious attempts at a peaceful resolution of the dispute were necessary before turning to force began to appear. This reflected the new state of international affairs, since there now existed a series of independent states, uneasily co-existing in Europe in a primitive balance of power system. The use of force against other states, far from
P See e.g. L. C. Green, The Contemporary Law of Armed Conflict, 2nd edn, Manchester, 2000;
HG.Best, War and Law Since 1945, Oxford, 1994; S. Bailey, Prohibitions and Restraints in War,
■Word, 1972; M. Walzer, Just and Unjust Wars, 2nd edn, New York, 1977, and T. M. Franck, Fairness in International Law and Institutions, Oxford, 1995, chapter 8. See also Brownlie,
■Jko/Force, pp. 5 ff.; Dinstein, War, chapter 3, and C. Greenwood, 'The Concept of War in Modern International Law', 36 ICLQ, 1987, p. 283.
P See J. Eppstein, The Catholic Tradition of the Law of Nations, 1935, pp. 65 ff.; Bailey, Prohibitions, pp. 6-9, and Brownlie, Use of Force, p. 5.
Summa Theologica, II, ii, 40. See Bailey, Prohibitions, p. 9. See also Von Elbe, 'The Evolution of the Concept of the Just War in International Law', 33 AJIL, 1939, p. 669, and C. Parry, The Function of Law in the International Community' in Manual of Public International Law (ed. M. Sorensen), London, 1968, pp. 1, 27. Brownlie, Use of Force, pp. 7 ff.
in8
INTERNATIONAL LAW
strengthening the order, posed serious challenges to it and threatened!
undermine it. Thus the emphasis in legal doctrine moved from the appij cation of force to suppress wrongdoers to a concern (if hardly apparem "
times) to maintain the order by peaceful means. The great Spanish
Writer
of the sixteenth century, Vitoria,6 emphasised that 'not every kind and de gree of wrong can suffice for commencing war', while Suarcz7 noted that states were obliged to call the attention of the opposing side to the exis tence of a just cause and request reparation before action was taken. The just war was also implied in immunity of innocent persons from direct attack and the proportionate use of force to overcome the opposition.'
Gradually it began to be accepted that a certain degree of right might exist on both sides, although the situation was confused by references to subjective and objective justice. Ultimately, the legality of the recourse to war was seen to depend upon the formal processes of law. This approach presaged the rise of positivism with its concentration upon the sovereign state, which could only be bound by what it had consented to. Grotius,' in his systematising fashion, tried to exclude ideological considerations as the basis of a just war, in the light of the destructive seventeenth-century religious conflicts, and attempted to redefine the just war in terms of self-defence, the protection of property and the punishment for wrongs suffered by the citizens of the particular state.
But with positivism and the definitive establishment of the European balance of power system after the Peace of Westphalia, 1648, the concept of the just war disappeared from international law as such.'" States were sovereign and equal, and therefore no one state could presume to judge whether another's cause was just or not. States were bound to honour agreements and respect the independence and integrity of other countries, and had to try and resolve differences by peaceful methods.
But where war did occur, it entailed a series of legal consequences. The laws of neutrality and war began to operate as between the parties and third states and a variety of legal situations at once arose. The fact that the war may have been regarded as unjust by any ethical standards
6 De lndis et de lure Belli Relectiones, ss. 14, 20-3, 29 and 60, cited in Bailey, Prohibitions, p. 11.
7 See ibid., pp. 11-12. Suarez felt that the only just cause was a grave injustice that could not be avenged or repaired in any other way, ibid.
8 Ibid., pp. 12-15.
9 Ibid., chapter 2, and Brownlie, Use of Force, p. 13. See De Jure Belli ac Pads, 1625.
10 See e.g. Brownlie, Use of Force, pp. 14 ff. See also L. Gross, 'The Peace of Westphalia, 1648-1948', 42 AJIL, 1948, p. 20.
THE USE OF FORCE BY STATES
did
not in any way affect the legality of force as an instrument of the
vereign state nor alter in any way the various rules of war and neutrality that sprang into operation once the war commenced. Whether the cause WL3i just or not became irrelevant in any legal way to the international Kjnjnunity (though, of course, important in political terms) and the basic issue revolved around whether in fact a state of war existed.11 The doctrine of the just war arose with the increasing power of Christianity and declined with the outbreak of the inter-Christian religious wars and the establishment of an order of secular sovereign states. Although war became a legal state of affairs which permitted force to be used and in which a series of regulatory conditions were recognised, there existed various other methods of employing force that fell short of war with all the legal consequences as regards neutrals and conduct that that entailed. Reprisals and pacific blockades12 were examples of the use of force as 'hostile measures short of war'.
I These activities were undertaken in order to assert or enforce rights or to punish wrongdoers. There were many instances in the nineteenth century in particular of force being used in this manner against the weaker
Bites of Latin America and Asia.13 There did exist limitations under international law of the right to resort to such measures but they are probably best understood in the context of the balance of power mechanism of international relations that to a large extent did help minimise the resort
I to force in the nineteenth century, or at least restrict its application.
I. The First World War marked the end of the balance of power system and raised anew the question of unjust war. It also resulted in efforts to rebuild international affairs upon the basis of a general international institution which would oversee the conduct of the world community to ensure that aggression could not happen again. The creation of the League of Nations reflected a completely different attitude to the problems of force in the international order.14
The Covenant of the League declared that members should submit disputes likely to lead to a rupture to arbitration or judicial settlement or inquiry by the Council of the League. In no circumstances were members to resort to war until three months after the arbitral award or judicial decision or report by the Council. This was intended to provide a
] Brownlie, Use of Force, pp. 26-8.      12 Ibid.      13 Ibid., pp. 28 ff. Ibid., chapter 3. But note Hague Convention II of 1907, which provided that the parties would not have recourse to armed forces for the recovery of contract debts claimed from the government of one country by the government of another as being due to its nationals.
1122 INTERNATIONAL LAW
cooling-off period for passions to subside and reflected the view that such a delay might well have broken the seemingly irreversible chain of traeedd that linked the assassination of the Austrian Archduke in Sarajevo wftj the outbreak of general war in Europe. League members agreed not to to war with members complying with such an arbitral award or judicial decision or unanimous report by the Council.'^
The League system did not, it should be noted, prohibit war or the use ' of force, but it did set up a procedure designed to restrict it to tolerable levels. It was a constant challenge of the inter-war years to close the gaps in the Covenant in an effort to achieve the total prohibition of war in international law and this resulted ultimately in the signing in 1928 of the General Treaty for the Renunciation of War (the Kellogg-Briand Pact).16 The parties to this treaty condemned recourse to war and agreed to renounce it as an instrument of national policy in their relations with one another.17
In view of the fact that this treaty has never been terminated and in the light of its widespread acceptance," it is clear that prohibition of the resort to war is now a valid principle of international law. It is no longer possible to set up the legal relationship of war in international society. Thus, for example, it is unnecessary to declare war in order to engage legitimately in armed conflict."
However, the prohibition on the resort to war does not mean that the use of force in all circumstances is illegal. Reservations to the treaty by some states made it apparent that the right to resort to force in self-defence was still a recognised principle in international law.20 Whether in fact measures short of war such as reprisals were also prohibited or were left untouched by the treaty's ban on war was unclear and subject to conflicting interpretations.21
Is Brownlie, Use of Force, chapter 4. See especially articles 10-16 of the Covenant.
16 See e.g. Dinstein, War, chapter 4; A. K. Skuhiszewski, 'The Use of Force by States' in Sorensen, Manual of Public International Law, pp. 739, 742-4, and Brownlie, Use of Fora, pp. 74-92.
17 Article I.
18 It came into force on 24 July 1929 and is still in effect. Many inter-war treaties reaffirmed the obligations imposed by the Pact: see e.g. Brownlie, Use of Force, pp. 75-6.
19 See e.g. Yossi Beilin v. The Prime Minister of Israel HCl 6204/06, 2006. See also C. Greenwood, 'Scope of Application of Humanitarian Law' in Handbook of Humanitarian Lawm Armed Conflicts (ed. D. Fleck), Oxford, 1999, p. 43, and I. Detter, The Law of War, 2nd edn, Cambridge, 2004, pp. 9 ff.
20 See e.g. Cmd3153, p. 10.
21 See Brownlie, Use of Force, p. 87. Cf. Bowett, Self-Defence, p. 136.
THE USE OF FORCE BY STATES
The UN Charter22
1123
tide 2(4) of the Charter declares that:
1 members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.
This provision is regarded now as a principle of customary international law and as such is binding upon all states in the world community.23 The reference to 'force' rather than war is beneficial and thus covers sit-[ nations in which violence is employed which fall short of the technical I requirements of the state of war.
Article 2(4) was elaborated as a principle of international law in the | 1970 Declaration on Principles of International Law and analysed systematically. First, wars of aggression constitute a crime against peace for which I there is responsibility under international law. Secondly, states must not threaten or use force to violate existing international frontiers (including demarcation or armistice lines) or to solve international disputes. Thirdly, states are under a duty to refrain from acts of reprisal involving the use of force. Fourthly, states must not use force to deprive peoples of their right to self-determination and independence. And fifthly, states must refrain from organising, instigating, assisting or participating in acts of civil strife or terrorist acts in another state and must not encourage the formation of armed bands for incursion into another state's territory. Many of these items are crucial, but ambiguous. Although the Declaration is not of itself a binding legal document, it is important as an interpretation of the relevant Charter provisions.2-1 Important exceptions to article 2(-!) exist in relation to collective measures taken by the United
■ See J. P. Cot, A. Pelle[ and M. Forteau, La Charte des Nations Unies: Commentaire Article Upar Article, 3rd edn, Paris, 2005, and The Charter of the United Nations (ed. B. Simma),
2nd edn, Oxford, 2002.
See e.g. Skuhiszewski, 'Use of Force', p. 745, and L. Henkin, R. C. Pugh, O. Schachter and
■ H. Smit, International Law: Cases and Materials, 3rd edn, St Paul, 1993, p. 893. See also ■the Third US Restatement of Foreign Relations Law, St Paul, 1987, p. 27; Cot et ai, Charte, I p. 437 (N. Schrijver), and Simma, Charter, p. 112.
■See e.g. G. Arangio-Ruiz, The UN Declaration on Friendly Relations and the System of Sources of International Law, Alphen aan den Rijn, 1979, and R. Rosenstock, 'The Declaration on
■ Principles of International Law Concerning Friendly Relations', 65 AJIL, 1971, p. 713. See also General Assembly resolution 42/22, the Declaration on the Enhancement of the
■ Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations, 1987.
112.-1
INTERNATIONAL LAW
Nations  and with regard to the right of self-defence.26 Whether su of some controversy.27 SUDject
exception exists with regard to humanitarian intervention is thp 3
an
Article 2(6) of the Charter provides that the UN 'shall ensure that J
which are not members of the United Nations act in accordance with th'"
Principles so far as may be necessary for the maintenance of internati **
peace and security'. In fact, many of the resolutions adopted by the^JM
are addressed simply to 'all states'. In particular, for example, Secu '
Council resolution 757 (1992) adopted under Chapter VII of the Charts
and therefore binding upon all member states, imposed comprehensive
sanctions upon the Federal Republic of Yugoslavia (Serbia and Montene
gro). However, the invocation in that decision was to 'all states' anH „ . c      i ai'u not
to member states.
'Force'
One point that was considered in the past28 and is now being reconsidered is whether the term 'force' in article 2(4) includes not only armed force2' but, for example, economic force.30 Does the imposition of boycotts or embargoes against particular states or groups of states come within article 2(4), so rendering them illegal?31 Although that provision is not modified in any way, the preamble to the Charter does refer to the need to ensure that 'armed force' should not be used except in the common interest, while article 51, dealing with the right to self-defence, specifically refers to armed force, although that is not of itself conclusive as to the permissibility of other forms of coercion.
The 1970 Declaration on Principles of International Law recalled the 'duty of states to refrain... from military, political, economic or any other form of coercion aimed against the political independence or territorial integrity of any state' and the International Covenants on Human Rights
25 See below, chapter 22, p. 1235.      26 See below, p. 1131.      27 See below, p. 1155.
28 An attempt by Brazil to prohibit 'economic measures' in article 2(4) itself was rejected, 6 UNCIO, Documents, p. 335. See also L. M. Goodrich, E. Hambro and A. P. Simons, Charter of the United Nations, 3rd edn, New York, 1969, p. 49.
29 See e.g. the mining of Nicaraguan harbours by the US, the Nicaragua case, ICJ Reports, 1986, pp. 14, 128; 76 ILR, p. 349.
30 SeeSimma, Charter, p. 118.
31 See e.g. Economic Coercion and the New International Economic Order (cd. R. B. lillich), Charlottesville, 1976, and The Arab Oil Weapon (eds. J. Paust and A. Blaustein), Dobbs Ferry, 1977.
THE USE OF FORCE BY STATES
1125
I j0pted in 1966 emphasised the right of all peoples freely to pursue their 3 nomic, social and cultural development. This approach was underlined in tne Charter of Economic Rights and Duties of States, approved the General Assembly in 1974, which particularly specified that 'no tate may use or encourage the use of economic, political or any other e 0f measures to coerce another state in order to obtain from it the ubordinarion of the exercise of its sovereign rights'. The question of the legality of the open use of economic pressures to induce a change of pol-. by states was examined with renewed interest in the light of the Arab 0i) weapon used in 1973-4 against states deemed favourable to Israel.32 ]t does seem that there is at least a case to be made out in support of the view that such actions are contrary to the United Nations Charter, as interpreted in numerous resolutions and declarations. But whether such action constitutes a violation of article 2(4) is dubious.33
It is to be noted that article 2(4) covers threats offeree as well as use of force.34 This issue was addressed by the International Court in its Advisory Opinion to the General Assembly on the Legality of the Threat or Use of nuclear Weapons. The Court stated that a 'signalled intention to use force if certain events occur' could constitute a threat under article 2(4) where the envisaged use of force would itself be unlawful. Examples given included threats to secure territory from another state or causing it to 'follow or not follow certain political or economic paths'.35 The Court appeared to accept that the mere possession of nuclear weapons did not of itself constitute a threat. However, noting that the policy of nuclear deterrence functioned on the basis of the credibility of the possibility of resorting to those weapons in certain circumstances, it was stated that whether this amounted to a threat would depend upon whether the particular use of force envisaged would be directed against the territorial integrity or political independence of a state or against the purposes of the UN. If
32 Paust and Blaustein, Arab Oil Weapon.     33 See e.g. Dinstein, War, p. 86.
" Brownlie, Use of Force, p. 364, notes that a threat offeree consists 'in an express or implied I promise by a government of a resort to force conditional on non-acceptance of certain demands ofthat government'. See also N.Stürchler, TheThreat ofForce in International Law, Cambridge, 2007; M. Roscini, 'Threats of Armed Force and Contemporary International Law', 54 Mil R, 2007, p. 229; R. Sadurska, "Threats of Force', 82 AJIL, 1988, p. 239, and N. White and R. Cryer, 'Unilateral Enforcement of Resolution 687: A Threat Too Far?', 29 California Western International Law journal, 1999, p. 243.
5 This was cited with approval by the arbitral tribunal in Guyana v. Suriname, award of 17 September 2007, paras. 439 and 445, where an order by Surinamese naval vessels to an oil rig to leave the area within twelve hours or face the consequences was deemed to constitute such a threat.
1126
INTERNATIONAL LAW
THE USE OF PORCE BY STATES
112;
the projected use of the weapons was intended as a means of defe
there would be a consequential and necessary breach of the mi    C? ^
necessity and proportionality, this would suggest that a threat °^
to article 2(4) existed.3'' One key point here would be the rlpfi °?trary
proportionality, in particular would it relate to the damage that
be caused or rather to the scope of the threat to which the respond'
self-defence is proposed? If the latter is the case, and logic sucopt l"1 iii i • &&ests this
then the threat to use nuclear weapons in response to the
Prior use of
nuclear or possibly chemical or bacteriological weapons becomes fej problematic.5'
The provisions governing the resort to force internationally do affect the right of a state to take measures to maintain order within it jurisdiction. Accordingly, such a state may forcibly quell riots, suppress insurrections and punish rebels without contravening article 2(4) in (he event of injury to alien persons or property, the state may be required to make reparation to the state of the alien concerned,58 but apart from this the prohibition on force in international law is not in general applicable within domestic jurisdictions.59 Accordingly, international law posits a general prohibition on the use of force. In order for force to be legitimate it must fall within one of the accepted exceptions. These are essentially the right to self-defence" and enforcement action mandated by the United Nations Security Council.41 Whether force may also be used in cases of extreme humanitarian need is discussed below.42
'Against the territorial integrity or political independence of any state'
Article 2 (4) of the Charter prohibits the use of force 'against the territorial integrity or political independence of any state, or in any other manner
36 ICJ Reports, 1996, pp. 226, 246-7; 110 ILR, p. 163.
37 Note that article 2(b) of the Draft Articles on the Effects of Armed Conflicts on Treaties defines 'armed conflict' as 'a state of war or a conflict which involves armed operations which by their nature or extent are likely to affect the operation of treaties between States parties to the armed conflict or between State parties to the armed conflict and third States, regardless of a formal declaration of war or other declaration by any or all of the parties to the armed conflict': see I. Brownlie's Third Report on the Effects of Armed Conflicts on Treaties, A/CN.4/578, 2007, p. 5.
38 See above, chapter 14, p. 823.
39 But see below, p. 1148, regarding self-determination, and p. 1148, regarding civil wars, and see with regard to non-international armed conflicts, below, chapter 21, p. 1194. j
40 See below, p. 1131.      41 See below, chapter 22, p. 1251.     42 Below, p. 1155.
,  nsistent with the purposes of the United Nations'
whether these words should be interpreted restrictively,
There is a debate so as to
it force that would not contravene the clause, or as reinforcing the ary prohibition,45 but the weight of opinion probably suggests the lat-position- The 1965 Declaration on the Inadmissibility of Intervention 'the Domestic Affairs of States46 emphasised that:
[n]o state has the right to intervene, directly or indirectly, for any reason whatsoever, in the internal or external affairs of any other state. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the state or against its political, economic and cultural elements, are condemned.
This was reaffirmed in the 1970 Declaration on Principles in Inter-,ational Law,'17 with the proviso that not only were such manifestations ondemned, but they were held to be in violation of international law. he International Court of Justice in the Corfu Channel case48 declared pecifically, in response to a British claim to be acting in accordance with a right of intervention in minesweeping the channel to secure evidence for judicial proceedings, that:
the alleged right of intervention [was] the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot... find a place in international law.
The Court noted that to allow such a right in the present case as a derogation from Albania's territorial sovereignty would be even less admissible:
for, from the nature of things it would be reserved for the most powerful states, and might easily lead to perverting the administration of international justice itself.
3 The International Court has described the prohibition against the use of force as a cornerstone of the United Nations Charter', Democratic Republic of the Congo v. Uganda, ICJ Reports, 2005, pp. 168, 223. F See e.g. Bowett, Self-Defence, p. 152. 45 See Brownlie, Use of Force, p. 268. See also Skubiszewski, 'Use of Force', pp. 745-6. ,6 General Assembly resolution 2131 (XX).     47 General Assembly resolution 2625 (XXV). (• ICJ Reports, 1949, pp. 4,35; 16 AD, pp. 155,167. See also Brownlie, Use of Force, pp. 283-I   9, and H. Lauterpacht, The Development of International Law by the International Court, London, 1958, p. 90.
1128
INTERNATIONAL LAW
THE USE OF FORCE BY STATES
1129
e Posi-even where
The essence of international relations, concluded the Court la
respect by independent states of each other's territorial soverei
In addition, the Eritrea-Ethiopia Claims Commission took th^'
tion that recourse to force would violate international law
some of the territory concerned was territory to which the
resorting to force had a valid claim. It noted that 'borrW a- St3,e r ■ "u'uer dispute,
between states are so frequent that any exception to the threat or il
of force for territory that is allegedly occupied unlawfully would
ate a large and dangerous hole in a fundamental rule of internát'
law'.50
Categories of force
Various measures of self-help ranging from economic retaliation to the use of violence pursuant to the right of self-defence have historically been used. Since the establishment of the Charter regime there are basically three categories of compulsion open to states under international law
These are retorsion, reprisal and self-defence.31
Retorsion*
Retorsion is the adoption by one state of an unfriendly and harmful act, which is nevertheless lawful, as a method of retaliation against the injurious legal activities of another state. Examples include the severance of diplomatic relations and the expulsion or restrictive control of aliens, as well as various economic and travel restrictions. Retorsion is a legitimate method of showing displeasure in a way that hurts the other state while remaining within the bounds of legality. The Hickenloopcr Amendments to the American Foreign Assistance Act are often quoted as an instance of
49 See the Nicaragua case, IC) Reports, 1986, pp. 14, 109-10; 76 I LR, pp. 349, 443-4, and see
further below, p. 1131.
50 Partial Award, Jus Ad Bellum, Ethiopia's Claims 1-8, 2005, para. 10: see 45 ILM, 2006, pp. 430, 433. This statement was cited by the arbitral tribunal in Guyana v. Suriname, award of 17 September 2007, para. 423. See also C. Gray, 'The Eritrea/Ethiopia Claims Commission Oversteps Its Boundaries: A Partial Award?', 17 EJIL, 2006, p. 699.
51 As to the use of force by the UN, see below, chapter 22, p. 1251.
52 See e.g. Nguyen Quoc Dinh et at. Droit International Public, p. 957; Skubiszewski, 'Use of Force', p. 753, and G. von Glahn, Law Among Nations, 7th edn, Boston, 1996, pp. 533 ff. 3
since they required the United States President to suspend n aid to any country nationalising American property without Zr compensation. This procedure was applied only once, as against r 'Ion (now Sri Lanka) in 1963, and has now been effectively repealed h the American Foreign Assistance Act of 1973.53 Retorsion would also ' ear to cover the instance of a lawful act committed in retaliation to a pjtor unlawful activity.54
Reprisals*5
Reprisals arc acts which are in themselves illegal and have been adopted by one state in retaliation for the commission of an earlier illegal act hy another state. They are thus distinguishable from acts of retorsion, which are in themselves lawful acts. The classic case dealing with the law of reprisals is the Naulilaa dispute56 between Portugal and Germany in 1928. This concerned a German military raid on the colony of Angola, which destroyed property, in retaliation for the mistaken killing of three Germans lawfully in the Portuguese territory.
I The tribunal, in discussing the Portuguese claim for compensation, emphasised that before reprisals could be undertaken, there had to be sufficient justification in the form of a previous act contrary to international law. If that was established, reprisals had to be preceded by an unsatisfied demand for reparation and accompanied by a sense of proportion between the offence and the reprisal. In fact, the German claim that it had acted lawfully was rejected on all three grounds. Those general rules are still applicable but have now to be interpreted in the light of the prohibition on the use of force posited by article 2(4) of the United Nations Charter. Thus, reprisals short of force (now usually termed countermea-sures)57 may still be undertaken legitimately, while reprisals involving armed force may be lawful where resorted to in conformity with the right
0 See e.g. R. B. Lillich, 'Requiem for Hickenlooper', 69 AJIL, 1975, p. 97, and C. F. Ameras-I  inghe, 'The Ceylon Oil Expropriations', 58 AJIL, 1964, p. 445.
H See also, with regard to countermeasures, above, chapter 14, p. 794. See e.g. Skubiszewski, 'Use of Force', pp. 753-5; Brownlie, Use of Force, pp. 219-23 and 281-2; D. W. Bowett, 'Reprisals Including Recourse to Armed Force', 66 AJIL, 1972, p. 1, and R. W. Tucker, 'Reprisals and Self-Defence: The Customary Lav/, 66 AJIL, 1972, p. 581.
M 2 RIAA, p. 1011 (1928); 4 AD, p. 526. See also G. Hackworth, Digest of International Law, Washington, 1943, vol. VI, p. 154.
7 See above, chapter 14, p. 794.
1130
INTERNATIONAL LAW
of self-defence.58 Reprisals as such undertaken during peacetime unlawful, unless they fall within the framework of the principle*1* defence.5' Sometimes regarded as an aspect of reprisal is the in t" * of pacific blockade.60 This developed during the nineteenth cent '0n was extensively used as a forceful application of pressure against \ states. In the absence of war or armed hostilities, the vessels of third were probably exempt from such blockade, although this was disputed b* some writers.
Pacific blockades may be instituted by the United Nations Secu ' Council,61 but cannot now be resorted to by states since the coming into force of the Charter of the United Nations. The legality of the so-called 'quarantine' imposed by the United States upon Cuba in October 1952 to prevent certain weapons reaching the island appears questionable and should not be relied upon as an extension of the doctrine of pacific blockades.62
58 See Dinstein, War, p. 222. But see Bowett, 'Reprisals'. Sec also SCOR, 19th Year, tilth meeting, 8 April 1964, in which the Security Council condemned reprisals as contrary to the UN Charter and deplored the UK bombing of fort Harib, and R. B. I.illich, 'Forcible Self-Help under International Law', 62 US Naval War College International Law Studies. 1980, p. 129. Note that the US State Department has declared that, 'it is clear that the United States has taken the categorical position that reprisals involving the use of force are illegal under international law' 'Memorandum on US Practice with Respect to Reprisals', 73 AJIL, 1979, p. 489. As for episodes that appear to be on the borderline between self-defence and reprisals, see e.g. R. A. talk, 'The Beirut Raid and the International Law of Retaliation', 63 AJIL, 1969, p. 415, and Y. Blum, 'The Beirut Raid and the International Double Standard', 64 AJIL, 1970, p. 73.
59 The International Court declared in the Legality of the Threat or Use of Nuelear Weapons that, 'armed reprisals in time of peace... are considered to be unlawful... any right to [belligerent] reprisals would, like self-defence, be governed inter alia by the principle of proportionality', 1CJ Reports, 1996, pp. 226, 246; 110ILR, p. 163. Note that reprisals taking place within an armed conflict (belligerent reprisals) are permitted in response to prior violation of the laws of armed conflict by the opposing side: see Y. Dinstein, The Conduct of Hostilities under the Law of Lnternational Armed Conflict, Cambridge, 2004, pp. 220 ff.p and C. Greenwood, 'The twilight of the Law of Belligerent Reprisals', 20 Netherlands YIL, 1989, pp. 35, 38.
60 See e.g. Skubiszcwski, 'Use of Force', pp. 755-7, and Brownlie, Use of Force, pp. 223-4. ■
61 See below, chapter 22, p. 1241.
": Sec e.g. Q. Wright, 'The Cuban Quarantine; 57 AJIL, 1963, p. 546, and M. S. McDofl
gal, 'The Soviet-Cuban Quarantine and Self-Defence', ibid., p. 597. See also A. Chayes, 1 The Cuban Missile Crisis, Oxford, 1974. But note the rather different declaration by ] the UK of a Total Exclusion Zone during the Falklands conflict, above, chapter 11,1
p. 584, note 139.
THE USE OF FORCE BY STATES
The right of self-defence''
1131
I traditional definition of the right of self-defence in customary inter me trau _ ________
The
mal law
arose out of the Caroline case." This dispute revolved around
lincid
W^'jdent in 1837 in which British subjects seized and destroyed a vessel
I' American Port This had taken place because tne Caroline had been f12 j ing groups of American nationals, who had been conducting raids I-   Canadian territory. In the correspondence with the British authori
lies *
which followed the incident, the US Secretary of State laid down the sentials of self-defence. There had to exist 'a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation'. Not only were such conditions necessary before self-defence became legitimate, but the action taken in pursuance of it must not be unreasonable or excessive, 'since the act, justified by the necessity of self-efence, must be limited by that necessity, and kept clearly within it'. These inciples were accepted by the British government at that time and are accepted as part of customary international law.'" Article 51 of the Charter provides that:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by members in the exercise of this right of self-defence shall be immediately reported
63 See Bowel!, Self Defence, and Brownlie, Use of Force, chapter 13. See also I. Brownlie, 'The I Use of Force in Self-Defence', 37 BYIL, 1961, p. 183; Dinstein, War, chapters 7 and 8; Gray, I Use of Force, chapter 4; Franck, Recourse, chapters 3-7; S. Alexandrov, Self-defence against mthe Use of Force in International Law, The Hague, 1996; J. Delivanis, La Legitime Defense
■ en Droit International, Paris, 1971; Byers, War Law, Part Two; S. Schwcbel, 'Aggression, I Intervention and Self-Defence in Modern International Law', 136 HR, 1972, p. 411; O. B Schachter, 'The Right of States to Use Armed Force', 82 Michigan Law Review, 1984, p.
■ 1620, Schachter, 'Self-Defence and the Rule of law', S3 AJIL, 1989, p. 259, and Schachter, I International Law in Theory and Practice, Dordrecht, 1991, chapter 8; N. Ochoa-Ruiz and I E. Salamanca-Aguado, 'Exploring the Limits of International Law relating to the Use of I Force in Self-defence', 16 EJIL, 2005, p. 499; Cot etat., Charte, p. 506 (A. Cassese); Nguyen
Quoc Dinh etal., Droit Lnternational Public p. 941, and Simma, Charter, p. 788. u 29 BFSP, p. 1137 and 30 BFSP, p. 195. See also R. Y. Jennings, 'The Caroline and McLeod I Cases', 32 AJIL, 1938, p. 82.
See e.g. the Legal Adviser to the US Department of State, who noted that 'the exercise of I the inherent right of self-defence depends upon a prior delict, an illegal act that presents
an immediate, overwhelming danger to an actual and essential right of the state. When
these conditions are present, the means used must then be proportionate to the gravity of
the threat or danger', DUSPIL, 1975, p. 17.
1132
INTERNATIONAL LAW
to the Security Council and shall not in any way affect the authors responsibility of the Security Council under the present Charter to't^ any time such action as it deems necessary in order to maintain or    ^ * international peace and security.
THE USE OF FORCE BY STATES
1133
There has been extensive controversy as to the precise extent of right of self-defence66 in the light of article 51, with some writers a ° ^ that article 51 in conjunction with article 2(4) was exhaustive"7 arid ^k°' maintaining that the opening phrase in article 51 specifying that 'norh in the present Charter shall impair the inherent right of... self-uefeiji meant that there existed in customary international law a right of self defence over and above the specific provisions of article 51, which referred only to the situation where an armed attack had occurred.68
The International Court of Justice in the Nicaragua case," however clearly established that the right of self-defence existed as an inherent right under customary international law as well as under the UN Charter It was stressed that:
Article 51 of the Charter is only meaningful on the basis that there is a 1 'natural' or 'inherent' right of self-defence and it is hard to see how this can 1 be other than of a customary nature, even if its present content has been confirmed and influenced by the Charter... It cannot, therefore, be held that article 51 is a provision which 'subsumes and supervenes' customary international law.
Accordingly, customary law continued to exist alongside treaty law (i.e. the UN Charter) in this field. There was not an exact overlap and the rules did not have the same content. The Court also discussed the notion of an 'armed attack' and noted that this included not only action by regular
' Note that article 21 of the International Law Commission's Articles on State Responsibility, 2001, provides that, 'The wrongfulness of an act of a State is precluded if the act consiitutesa lawful measure of self-defence taken in conformity with the Charter of the United Nations.' See e.g. Brownlie, Use of Force, pp. 112-13 and 264 ff., and E. Jimenez de Arechaga, 'International Law in the Past Third of the Century', 159 HR, 1978, pp. 1, 87-98. See also Skubiszcwski, 'Use of Force', pp. 765-8, and H. Kelsen, The Law of the United Nations, London, 1950, p. 914.
See e.g. Bowett, Self Defence, pp. 185-6; Stone, Aggression and World Order, pp. 43, 95-Sj See also H. Waldock, 'General Course on Public International Law', 166 HR, 1980, pp.6, 231-7; Simma, Charter, pp. 790 ff.; Gray, Use of Force, pp. 98 ff.; J. lirierly, The LawcA Nations, 6th edn, Oxford, 1963, pp. 417-18, and D. P. O'Conncll, International Law, 2lM edn, London, 1970, vol. I, p. 317. See also e.g. 6 UNCIO, Documents, where it is noted] that 'the use of arms in legitimate self-defence remains admitted and unimpaired. ICJ Reports, 1986, pp. 14, 94; 76 ILR, pp. 349, 428.
I eCj forces across an international border, but additionally the sending 'or on behalf °f a state °f arrned bands or groups which carry out E of armed force of such gravity as to amount to an actual armed E,cjc conducted by regular armed forces or its substantial involvement 70 In this situation, the focus would then shift to a consideration If the involvement of the state in question so as to render it liable and to Intimate a lion in self-defence against it.71
■ jn order to be able to resort to force in self-defence, a stale has to be H{e to demonstrate that it has been the victim of an armed attack and it
bears the burden of proof.72 The Court has noted that it is possible that the mini'1? of a single military vessel might suffice,73 but an attack on a Ejn owned, but not flagged, by a slate will not be equated with an attack on that state."' However, it is necessary to show that the state seeking to nsort to force in self-defence has itself been intentionally attacked. In a [eries of incidents discussed by the Court in the Oil Platforms case, it was noted that none of them appeared to have been aimed specifically and deliberately at the US.'5 In seeking to determine how serious an attack Hpst be in order to validate a self-defence response, the Court in the Nicaragua case'6 distinguished 'the most grave forms of the use offeree (those constituting an armed attack) from other less grave forms' and this was reaffirmed in the Oil Platforms case.77 It is, nevertheless, extremely difficult to define this more closely.
I In many cases, however, it might be difficult to determine the incipient when an armed attack had commenced in order to comply with the requirements of article 51 and the resort to force in self-defence. For example, it has been argued that with regard to actions against aircraft,
' 70 The Court noted that this provision, contained in article 3(g) of the Definition of Aggres-I sion annexed to General Assembly resolution 3314 (XXIX) of 1974, reflected customary
■ international law, ICJ Reports, 1986, p. 103; 76 ILR, p. 437. B See e.g. Gray, Use of Force, pp. 108 ff.
72 The Oil Platforms (Iran v. US) case, ICJ Reports, 2003, pp. 161, 189 and 190; 130 ILR, I pp. 323, 348-50. " Ibid.,p. 195 .      74 Ibid., p. 191. Ibid. The incidents included missile attack from a distance that meant it could not have I   been aimed at a particular vessel (the US Sea Isle City) as distinct from 'some target in Kuwaiti waters'; an attack on a non-US flagged vessel; the alleged firing on US helicopters I  from Iranian gunboats that the Court found unproven; and mine-laying that could not be shown to have been aimed at the US, ibid., pp. 191-2. However, this requirement for a deliberate and intentional attack on the target state, rather than merely an indiscriminate attack, is controversial and open to question. 71 ICJ Reports, 1986, pp. 14, 101. I " ICJ Reports, 2003, pp. 161, 187; 130 ILR, pp. 323, 346.
1134
INTERNATIONAL LAW
THE USE OF FORCE BY STATES
U35
an armed attack begins at the moment that the radar guiding th aircraft missile has'locked on'. 8 Further, one argument that hick antl~ with regard to Israel's first strike in June 1967 is that the circurnst were such that an armed attack could be deemed to have ™m ances against it." «™menced
Another aspect of the problem as to what constitutes an armed attack' the difficulty of categorising particular uses of force for these purposes p example, would an attack upon an embassy or diplomats abroad constitu ' an armed attack legitimating action in self-defence? On 7 August 1995' the US embassies in Kenya and Tanzania were bombed, causing the In ' of over 250 lives and appreciable damage to property. On 20 August the US launched a series of cruise missile attacks upon installations i' Afghanistan and Sudan associated with the organisation of Bin Laden deemed responsible for the attacks. In so doing, the US declared itself to be acting in accordance with article 51 of the Charter and in exercise of its right of self-defence.8"
While it is clear that the right of self-defence applies to armed attacks by other states, the question has been raised whether the right of self-defence applies in response to attacks by non-state entities.81 Where it is the state itself which has dispatched armed bands to carry out acts of armed force of such gravity as to amount to an actual armed attack conducted by regular armed forces, then force in self-defence can legitimately be used. The difficulties arise in more ambiguous circumstances. In the Nicaragua case, the Court did not accept that the right of self-defence extended to situations where a third state had provided assistance to rebels in the form of the provision of weapons or logistical or other support, although this form of assistance could constitute a threat or use of force, or amount to intervention in the internal or external affairs of the state.82 This lays open the problem that in certain circumstances a state under attack from groups supported by another state may not be able under this definition to respond militarily if the support given by that other state does not reach the threshold laid down. Judge Jennings referred to this issue in his Dissenting Opinion, noting that, 'it seems dangerous to define unnecessarily strictly the conditions for lawful self-defence, so as to leave a large area where
: See Gray, Use of Force, p. 108, footnote 48 .      79 See below, p. 1138. See 'Contemporary Practice of the United States', 93 AJIL, 1999, p. 161. The US stated that the missile strikes 'were a necessary and proportionate response to the imminent threat of further terrorist attacks against US personnel and facilities', ibid., p. 162 and S/199S7780. See e.g. Dinstein, War, pp. 204 ff.     82 TCJ Reports, 1986, pp. 103-4; 76ILR, pp. 437-81
—a a forcible response to force is forbidden, and yet the United Nations I    loynient of force, which was intended to fill that gap, is absent'.83
"feline between assistance from a third state to groups (whether char-Iterised as terrorists or rebels or freedom fighters) which would give 'jse to the legitimate use of force in self-defence against such state and istance which fell below this is difficult to specify in practice. The Internationa! Court in its advisory opinion in the Construction of a Wall Kse84 appeared to adopt what at first sight is a very restrictive approach by noting that article 51 recognised 'the existence of an inherent right of self-defencc in ihe case of armed attack by one state against another state' and declaring that the provision did not apply with regard to Israel's actions since these were taken with regard to threats originating from within the occupied territories and not imputable to another state. However, this cannot be read to mean that self-defence does not exist with regard to an attack by a non-state entity emanating from a territory outside of the Entrol of the target state. Further, the legal source of Israeli actions in the occupied territories, whether or not they legitimated the construction of the wall or security barrier in whole or in part, would appear to lie rather in the laws of armed conflict (international humanitarian law) and the competence of an occupying state to take action to maintain public order and protect its own forces.85
I The Court failed to take the opportunity to revisit the ambiguities of the Nicaragua decision in Democratic Republic of the Congo v. Uganda."6 In this case, the Court found that there was no satisfactory proof of involvement in attacks, direct or indirect, on Uganda by the Congo government and that such attacks did not emanate from armed bands or irregulars sent by
Iron behalf of the Congo. Such attacks were non-attributable, therefore, on the evidence to the Congo. Since the Court concluded that the legal and factual circumstances for the exercise of a right of self-defence by Uganda against the Congo were not present, 'accordingly' there was no need to address the issue as to whether and under which conditions contemporary international law provides for a right of self-defence against large-scale
M ICJ Reports, 1986, pp. 543-4; 76 ILR, p. 877. Franck suggests that Security Council practice following the 11 September 2001 attack on the World Trade Center has followed Judge Jennings' approach: see Recourse, p. 63, and below, p. 1159.
M IC) Reports, 2004, pp. 136, 194. Cf. the Separate Opinions of Judge Higgins, ibid., p. 215 and Judge Kooijmans, ibid., p. 230.
!s See article 43 of the Hague Regulations 1907. See further below, chapter 21, p. 1181. I* ICJ Reports, 2005, p. 168.
1136
INTERNATIONAL LAW
THE USE OF FORCE BY STATES
1137
attacks by irregular forces.87 Since the Court addressed itself onl that Uganda might or might not take against the Congo as surK 3
action.
o> as such it Hi j
deal with the increasingly important question as to whether , 1 - - - - ,CI action 1
'not
be taken in self-defence against an armed attack by a non-state m'^'lt distinct from another state.88
This is perhaps surprising in view of evolving state practice with In international terrorism and, in particular, whether terrorist acts c constitute an 'armed attack' within the meaning of the Charter or indeed customary law.8' The day after the 11 September 2001 attacks upon the World Trade Center in New York, the Security Council adopted resolution 1368 in which it specifically referred to 'the inherent right of individual or collective self-defence in accordance with the Charier'. Resolution 1373 (2001) reaffirmed this and, acting under Chapter VII, adopted a series of binding decisions, including a provision that all states shall 'take the necessary steps to prevent the commission of terrorist acts'. Such binding Security Council resolutions declaring international terrorism to be a threat to international peace and security with regard to which the right of self-defence is operative as such lead to the conclusion thai large-scale attacks by non-state entities might amount to 'armed attacks' within the meaning of article 51 without the necessity to altribute them to another state and thus justify the use of force in self-defence by those states so attacked.90
Further recognition that particular hostile actions by non-state entities could amount to 'attacks' may be found in Security Council resolution 1701 (2006), in which both the 'attacks' by Hizbollah, an armed militia controlling parts of Lebanon, upon Israel (which precipitated the summer 2006 armed conflict) and Israeli 'offensive military operations' were condemned.
On 7 October 2001, the US notified the Security Council that it was exercising its right of self-defence in taking action in Afghanistan against the Al-Qaeda organisation deemed responsible for the 11 September attacks
Ibid., pp. 222-3.
See the Separate Opinions of Judge Kooijmans, ibid., p. 314 and Judge Simma, ibid.,
pp. 336 ff.
See e.g. Dinstein, War, pp. 201 ff; Franck, Recourse, chapter 4, and Gray, Use of Force, pp. 165 ff. See also M. Byers, 'Terrorism, the Use of Force and International Law after 11 September', 51 ICLQ, 2002, p. 401, and L. Condorelli, 'Les Attentats du 11 Septembre et Leur Suite', 105 RGDIP, 2001, p. 829. As to terrorism, see further below, p. 1159. See the Separate Opinions of Judge Kooijmans and Judge Simma in Democratic Republic of the Congo v. Uganda, 1CJ Reports, 2005, pp. 168, 314 and 337 respectively.
L he Taliban regime in that country which was accused of providing for the organisation.91 The members of the NATO alliance invoked
ifle5of the NATO Treaty'2 and the parties to the lnler-Ameri can Treaty R°n rinrocal Assistance, 1947 invoked a comparable provision." Both
• ^     „i ... <_____1 _ti„„l,>--A t„ nrt\Ac SI r.i
eCions refer specifically both to an 'armed attack' and to article 51 of iT Charter. Accordingly, the members of both these alliances accepted
P
Cnanci. iww.—xOV,-------------------
Jat^hat had happened on 11 September constituted an armed attack ithin the meaning of article 51 of the Charter. In fact, neither treaty Wfi$ activated as the US acted on its own initiative with specific allies Kotably the UK), relying on the right of self-defence with the support or ■acquiescence of the international community.94
A further issue is whether a right to anticipatory or pre-emptive self-defence exists. This would appear unlikely if one adopted the notion that self-defence is restricted to responses to actual armed attacks. The concept
■ See S/2001/946. See also 'Contemporary Practice of the United States', 96 AJIL, 2002, I p. 237.
92 5eeW-ww.n,tto.inl/tcrrorisni/factsheet.htm. Article 5 provides that: 'The Parties agree that H an armed attack against one or more of them in Europe or North America shall be con-
■ sidered an attack against them all and consequently they agree that, if such an armed
■ attack occurs, each of them, in exercise of the right of individual or collective self-defence I recognised by article 51 of the Charter of the United Nations, will assist the Party or Parties
so attacked by taking forthwith, individually and in concert with the other Parties, such I action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.' 9J Article 3(1) provides that, 'The High Contracting Parties agree that an armed attack by any I  State against an American State shall be considered as an attack against all the American I States and, consequently, each one of the said Contracting Parties undertakes to assist in I  meeting the attack in the exercise of the inherent right of individual or collective self-defense recognized by Article 51 of the Charter of the United Nations.' 94 See e.g. livers, 'Terrorism' pp. 409-10; E. Cannizzaro, 'Entites Non-etatique et Regime I   Internationale de l'Emploi de la Force - une 6tude sur le Cas de la Reaction Israelienne I  au Liban', 111 Revue Generale de Droit International Public, 2007, p. 333, and K. N. Trapp, 'Back to Basics: Necessity, Proportionality, and the Right of Self-Defence against Non-l   State Terrorist Actors', 56 ICLQ, 2007, p. 141. The resolution of the Institut de Droit Internalional adopted on 27 October 2007 states in para. 10 that, 'In the event of an I   armed attack against a state by non-state actors, article 51 of the Charter as supplemented by customary international law applies as a matter of principle." Note that the Chatham House Principles on International Law on the Use of Force in Self-Defence, 55 ICLQ, 2006, pp. 963,969, provide that the right to self-defence may apply to attacks by non-state actors I    where the attack is large-scale; if the right to self-defence is exercised in the territory of I   another state, then that state is unable or unwilling to deal itself with the non-state actors I   and that it is necessary to use force from outside to deal with the threat in circumstances where the consent of the territorial state cannot be obtained; and the force used in self-defence may only be directed against the government of the state where the attacker is found in so far as is necessary to avert or end the attack.
1138
INTERNATIONAL LAW
THE USE OF FORCE BY STATES
1139
of anticipatory self-defence is of particular relevance in the light of m0(j ' weaponry that can launch an attack with tremendous speed, which allow the target state little time to react to the armed assault before^ successful conclusion, particularly if that state is geographically srna«» States have employed pre-emptive strikes in self-defence. Israel, |n launched a strike upon its Arab neighbours, following the blocking 0f its southern port of Eilat and the conclusion of a military pact between Jordan and Egypt. This completed a chain of events precipitated by the mobilisation of Egyptian forces on Israel's border and the eviction of the United Nations peacekeeping forces from the area by the Egyptjan President.*6 It could, of course, also be argued that the Egyptian blockade itself constituted the use of force, thus legitimising Israeli actions without the need for 'anticipatory' conceptions of self-defence, especially when taken together with the other events.97 It is noteworthy that the United Nations in its debates in the summer of 1967 apportioned no blame for the outbreak of fighting and did not condemn the exercise of self-defence by Israel.
The International Court in the Nicaragua casey* expressed no view on the issue of the lawfulness of a response to an imminent threat of an armed attack since, on the facts of the case, that problem was not raised. The trouble, of course, with the concept of anticipatory self-defence is that it involves fine calculations of the various moves by the other party. A preemptive strike embarked upon too early might constitute an aggression. There is a difficult line to be drawn. The problem is that the nature of the international system is such as to leave such determinations to be made by the states themselves, and in the absence of an acceptable, institutional
Contrast Bowett, UseofForce,pp. 118-92, who emphasises that'no state can beexpectcdto await an initial attack which, in the present state of armaments, may well destroy the state's capacity for further resistance and so jeopardise its very existence', and Franck, Fairness, p. 267, who notes that in such circumstances 'the notion of anticipatory self-defence is both rational and attractive', with Brownlie, Use of Force, p. 275, and L. Hcnkin, How Nations Behave, 2nd edn, New York, 1979, pp. 141-5. See also R. Higgins, The Development of International Law Through the Political Organs of the United Nations, Oxford, 1963, pp. 216-21; Franck, Recourse, chapter 7, and I. Brownlie, Principles of Public International Law, 6th edn, Oxford, 2003, pp. 701 ff.
See generally, The Arab-Israeli Conflict (ed. J. N. Moore), Princeton, 3 vols., 1974. Note that Gray writes that Israel did nol argue that it acted in anticipatory self-defence but rather in self-defence following the start of the conflict. Use of Force, pp. 130-1. See also Dinstein, War, p. 192.
1CJ Reports, 1986, pp. 14, 103; 76 ILR, p. 437. See also Democratic Republic of the CongorS
Uganda, ICJ Reports, 2005, pp. 168, 222.
ernative, it is difficult to foresee a modification of this. States generally > not at ease with the concept of anticipatory self-defence, however," I one possibility would be to concentrate upon the notion of 'armed Itack's0 tnat tn's may ^e interpreted in a relatively flexible manner.100 Kne suggestion has been to distinguish anticipatory self-defence, where In armed attack is foreseeable, from interceptive self-defence, where an In-ned attack is imminent and unavoidable so that the evidential problems [j temptations of the former concept are avoided without dooming threatened states to making the choice between violating international Lvand suffering the actual assault."" According to this approach, self-defence is legitimate both under customary law and under article 51 of the tharter where an armed attack is imminent. It would then be a question Lf evidence as to whether that were an accurate assessment of the situation L the light of the information available at the relevant time. This would be rather easier to demonstrate than the looser concept of anticipatory [elf-defence and it has the merit of being consistent with the view that the right to sell-defence in customary law exists as expounded in the Caroline Re.102 In any event, much will depend upon the characterisation of the threat and ihe nature of the response, for this has to be proportionate.'03
■ See e.g. the Security Council debate on, and condemnation of, Israel's bombing of the I Iraqi nuclear reactor in 1981 on the basis of anticipatory self-defence, 20 ILM, 1981,
■ pp. 965-7. See also A. Casscse, International Law in a Divided World, Oxford, 1986, pp. 230 I ff., who concludes that a consensus is growing to the effect that anticipatory self-defence I is allowed but under strict conditions relating to proof of the imminence of an armed I attack that would jeopardise the life of the target state and the absence of peaceful means
■ to prevent the attack, ibid., p. 233. However, in International Law, 2nd edn, Oxford, 2005, I p. 362, Cassese states that, 'it is more judicious to consider such action [anticipatory self-Bdefence] as legally prohibited, while admittedly knowing that there may be cases where
■ breaches of the prohibition may be justified on moral and political grounds and the K community will eventually condone them or mete out lenient condemnation' (emphasis I   in original).
V See e.g. the Dissenting Opinion of Judge Schwebel, Nicaragua case, ICJ Reports, 1986, I pp. 14, 347-8; 76 ILR, pp. 349, 681. But see Dinstein, War, pp. 187 ff. Note also the I suggestion that attacks on computer networks may also fall within the definition of I armed attack if fatalities are caused, e.g. where the computer-controlled systems regulating I waterworks and dams are disabled: see Y. Dinstein, 'Computer Network Attacks and Self-I Defence', 76 International Law Studies, US Naval War College, 2001, p. 99. I See Dinstein, War, pp. 191-2.      102 See above, p. 1131.
W However, note that the Report of the UN High Level Panel on Threats, Challenges and I Change, A/59/565, 2004, at para. 188, declared that 'a threatened state, according to long
■ established international law, can take military action as long as the threatened attack is 1 imminent, no other means would deflect it and the action is proportionate' (emphasis ^■Boriginal). The response of the UN Secretary-General, In Larger Freedom, \/59/2005, | para. 124, also stated that imminent threats were covered by the right to self-defence. The
1140
INTERNATIONAL LAW
THE USE OF FORCE BY STATES
1141
Nevertheless, it is safe to conclude that the concept of self-defence to a response to an attack that is reasonably and evidentially per " be imminent, however that is semantically achieved. The Carol ' remain critical.104
There have, however, been suggestions that the notion of ant' 1 J self-defence, controversial though that is, could be expanded to a 'pre-emptive self-defence' (sometimes termed 'preventive self-de/' J that goes beyond the Caroline limits enabling the use offeree in^** to defend against, or prevent, possible attacks. The US note to the on 7 October 2001, concerning action in Afghanistan, included the ' tence that, "We may find that our self-defence requires further a with respect to other organisations and other states.""5 This approach ^ formally laid down in the 2002 National Security Strategy of the US'* and reaffirmed in the 2006 National Security Strategy, which emphasised the role of pre-emption in national security strategy.107 In so far as it goes beyond the Caroline criteria, this doctrine of pre-emption must he seen as going beyond what is currently acceptable in international law.108 J
The concepts of necessity and proportionality are at the heart of self-defence in international law.109 The Court in the Nicaragua case stated that there was a 'specific rule whereby self-defence would warrant only
resolution adopted by the Institut de Droit International on 27 October 2007, para. 3 notes that the right to self-defence arises in the case of an actual or manifestly imminent armed attack' and that it may be exercised 'only when there is no lawful alternative in
practice in order to forestall, stop or repel the armed attack'.
104 See also the Chatham House Principles on International Law on the Use of Force in
Self-Defence, 55 ICLQ, 2006, pp. 963, 964-5.
105 S/2001/946. See also Byers, 'Terrorism', p. 411.
106 41 ILM, 2002, p. 1478. See also M. E. O'Connell, 'The Myth of Preemptive Self-DefeJ ASIL, Task Force on Terrorism, 2002, www.asiI.org/taskforce/oconnell.pdf; M. Bothe, 'Terrorism and the Legality of Pre-emptive Force', 14 EJIL, 2003, p. 227, and W. M. Reisman and A. Armstrong, 'Past and Future of the Claim of Preemptive Self-Defense', 100 AJIL, 2006, p. 525.
107 See C. Gray, 'The Bush Doctrine Revisited: The 2006 National Security Strategy of the USA, 5 Chinese Journal of International Law, 2006, p. 555.
108 See e.g. the Report of the UN High Level Panel on Threats, Challenges and Change, A/59/565,2004, at paras. 189 ff. and theUN Secretary-General's Report, In Larger Freedom, A/59/2005, para. 125, both essentially saying that where a threat is less than imminent, resort should be had to the Security Council. The resolution adopted by the Institut de Droit International on 27 October 2007 notes in para. 6 that, 'There is no basis in international law for the doctrine of "preventive" self-defence in the absence of an actual or manifestly imminent armed attack.' See also the Chatham House Principles on International Law on the Use of Force in Self-Defence, 55 ICLQ, 2006, pp. 963, 968.
109 See e.g. Brownlie, Use of Force, p. 279, footnote 2; J. Graham, Necessity, Proportionality and the Use of Force by States, Cambridge, 2004; Gray, Use of Force, pp. 120 ff., and Dinstein, War, pp. 237 ff.
I    es which are proportional to the armed attack and necessary to nd to it, a rule well established in customary international law',110
id in
[d jn the Advisory Opinion it gave to the General Assembly on the l   lity of the Threat or Use of Nuclear Weapons it was emphasised that
I**       i ___^r-^r,     t\,a ovpT-r-lep r\f tVip ridlit r\f cplf-Hpfpnrp tn trip mncW-
es
ubmission of the exercise of the right of self-defence to the condi-0f necessity and proportionality is a rule of customary international - ">''1 Quite what will be necessary"2 and proportionate113 will depend on t'circumsiances of the case. |! The necessity criterion raises important yidential as well as substantive issues. It is essential to demonstrate that, { reasonable conclusion on the basis of facts reasonably known at the (j,j,e the armed attack that has occurred or is reasonably believed to be imminent requires the response that is proposed. In the Oil Platforms ase,1" the Court held that it was not satisfied that the US attacks on the oil platforms in question were necessary in order to respond to the attack on the Sea Isle City and the mining of the USS Samuel B Roberts, noting in particular that there was no evidence that the US had complained to Iran of the military activities of the platforms (contrary to its conduct with regard to other events such as minelaying and attacks on neutral shipping), further, the US had admitted that one attack on an oil platform had been a 'target of opportunity'. It has been argued that, 'Necessity la threshold, and the criterion of imminence can be seen to be an aspect of it, inasmuch as it requires that there be no time to pursue non-forcible measures with a reasonable chance of averting or stopping the attack."1"
I* ICJ Reports, 1986, pp. 14, 94 and 103; 76 ILR, pp. 349, 428 and 437.
111 ICJ Reports, 1996, pp. 226, 245; 110 ILR, p. 163. The Court affirmed that this 'dual
condition' also applied to article 51, whatever the means of force used, ibid. f See Judge Ago's Eighth Report on State Responsibility to the International Law Commis-I sion, where it was noted that the concept of necessity centred upon the availability of I other means to halt the attack so that 'the state attacked... must not, in the particular ■ circumstances, have had any means of halting the attack other than recourse to armed I force', Yearbook of the ILC, 1980, vol. II, part 1, p. 69.
113 ludge Ago noted that the correct relationship for proportionality was not between the I conduct constituting the armed attack and the opposing conduct, but rather between the [  action taken in self-defence and the purpose of halting and repelling the armed attack,
so that '[t]he action needed to halt and repulse the attack may well have to assume dimensions disproportionate to those of the attack suffered', ibid., p. 69. See also J. G. Gardam, 'Proportionality and Force in International Law', 87 A)IL, 1993, p. 391.
114 Note that the UK declared that Turkish operations in northern Iraq in 1998 'must be proportionate to the threat', UKMIL, 69 BYIL, 1998, p. 586.
115 ICJ Reports, 2003, pp. 161, 198.
The Chatham House Principles on International Law on the Use of Force in Self-Defence, 55 ICLQ, 2006, pp. 963, 967.
1142
INTERNATIONAL LAW
Quite what response would be regarded as proportionate is s J difficult to quantify. It raises the issue as to what exactly is the r • ^ be proportionate to. Is it the actual attack or the tin eat or likelihood "f* *° ther attacks? And what if the attack in question is but part 0f a CQ  . r~ series of such attacks to which response has thus far been muted or existent? In the Oil Platforms case, the Court felt it necessary to c "vT" the scale of the whole operation that constituted the US response I included inter alia the destruction of two Iranian frigates and a numh other naval vessels and aircraft, to the mining by an unidentified ae of a single warship without loss ol life." In Democratic Republic of fh Congo v. Uganda,"" the Court, while finding that the preconditions for the exercise of self-defence did not exist in the circumstances, stated that 'the taking of airports and towns | by Ugandan forces] many hundred of kilometers from Uganda's border would not seem proportionate to the series of transborder attacks it claimed had given rise to the right of self-defence, nor to be necessary to that end'.
Proportionality as a criterion of self-defence may also require consideration of the type of weaponry to be used, an investigation that necessitates an analysis of the principles of international humanitarian law. The International Court in the Legality of the Threat or Use of Nuclear Weapons case took the view that the proportionality principle may 'not in itself exclude the use of nuclear weapons in self-defence in all circumstances', but that 'a use of force that is proportionate under the law of self-defence, must, in order to be lawful, also meet the requirements of the law applicable in armed conflict'. In particular, the nature of such weapons and the profound risks associated with them would be a relevant consideration for states 'believing they can exercise a nuclear response in self-defence in accordance with the requirements of proportionality'."9 One especial difficulty relates to whether in formulating the level of response a series of activities may be taken into account, rather than just the attack immediately preceding the act of self-defence. The more likely answer is that where such activities clearly form part of a sequence or chain of events, then the test of proportionality will be so interpreted as to incorporate this. It also appears inevitable that it will be the state contemplating such action that will first have to make that determination,120 although
117 ICJ Reports, 2003, pp. 161, 198; 130 ILR, pp. 323, 357-8.
118 ICJ Reports, 2005, pp. 168, 223.
115 ICJ Reports, 1996, pp. 226, 245; 110 ILR, p. 163. See further below, p. 1187. 120 See e.g. H. Lautcrpacht, The Function of Law in the International Community, London, 1933, p. 179.
THE USE OF FORCE BY STATES
1143
LjU be subject to consideration by the international community as a Kgle and more specifically by the Security Council tinder the terms of
■ It is also important to emphasise that article 51 requires that states Hgft 'immediately' to the Security Council on measures taken in the Brcise of their right to self-defence and that action so taken may continue Untiltne -l'ccur'ty Council has taken the measures necessary to maintain Kernational peace and security'.122
The protection of nationals abroad12"' ■m the nineteenth century, it was clearly regarded as lawful to use force Kprotect nationals and property situated abroad and many incidents Bjxurred to demonstrate the accepla nee of this position. J Since the adop-■on of the UN Charter, however, it has become rather more controversial ■jnce of necessity the 'territorial integrity and political independence' of the target slate is infringed,125 while one interpretation of article 51 would deny that 'an armed attack' could occur against individuals abroad within
B See e.g. D. Grieg, 'Self-Defence and the Security Council: What Does Article 51 Require?', ■ 40ICLQ, 1991, p. 366.
122 Note that the Court pointed out in Democratic Republic of the Congo v. Uganda, ICJ I Reports, 2005, pp. 168, 222, that Uganda did not report to the Security Council events I that it had regarded as requiring it to act in self-defence. See Dinstein, War, p. 218, who I argues that failure to report measures taken in the exercise of the right of self-defence I 'should not be fatal, provided that the substantive conditions for the exercise of this right I  are meť.
123 See e.g. M. B. Akehurst, 'The Use of Force to Protect Nationals Abroad', 5 International Relations, 1977, p. 3, and Akehurst, 'Humanitarian Intervention' in Intervention in World Politics (ed. H. Bull), Oxford, 1984, p. 95; Dinstein, War, pp. 231 ff.; Gray, Use of Force,
I pp. 126 ff.; Franck, Recourse, chapter 6; Waldock, 'General Course', p. 467; L. C. Green, 'Rescue at Entebbe - Legal Aspects', 6 Israel Yearbook on Human Rights, 1976, p. 312, and M. N. Shaw, 'Some Legal Aspects of the Entebbe Incident', 1 Jewish Law Annual, 1978, p. 232. See also T. Schweisfurth, 'Operations to Rescue Nationals in Third States Involving the Use of Force in Relation to the Protection of Human Rights', German Y1L, 1980, p. 159; J. R. d'Angelo, 'Resort to Force to Protect Nationals', 21 Va. JIL, 1981, p. 485; J. Paust, 'The Seizure and Recovery of the Mayaguez', 85 Yale Law Journal, 1976, p. 774; D. W. Bowett, 'The Use of Force for the Protection of Nationals Abroad' in The Current Legal Regulation of the Use of Force (ed. A. Cassesc), Oxford, 1986, p. 39, and N. Ronzitti, Rescuing Nationals Abroad Through Military Coercion and Intervention on Grounds of Humanity, Oxford, 1985. I See e.g. Brownlie, Use of Force, pp. 289 ff.
125 There is, of course, a different situation where the state concerned has consented to the action or where nationals are evacuated from a state where law and order has broken down: sec Gray, Use of Force, p. 129.
1144
INTERNATIONAL LAW
THE USE OF FORCE BY STATES
u45
the meaning of that provision since it is the state ilself that must be iJ attack, not specific persons outside the jurisdiction.'26
The issue has been raised in recent years in several cases In \q Bel gium and the United States sent forces to the Congo to rescue h (including nationals of the states in question) from the hands of reb^ with the permission of the Congolese government,127 while in 1975 h US used force to rescue an American cargo boat and its crew captured K* Cambodia.128 The most famous incident, however, was the rescue by Israel of hostages held by Palestinian and other terrorists at Entebbe, follow' the hijack of an Air France airliner.129 The Security Council debate that case was inconclusive. Some states supported Israel's view that it was acting lawfully in protecting its nationals abroad, where the local state concerned was aiding the hijackers,"0 others adopted the approach that Israel had committed aggression against Uganda or used excessive force 1,1
The United States has in recent years justified armed action in other states on the grounds partly of the protection of American citizens abroad It was one of the three grounds announced for the invasion of Grenada in 1984"2 and one of the four grounds put forward for the intervention in Panama in December 1989.133 However, in both cases the level of threat against the US citizens was such as to raise serious questions concerning the satisfaction of the requirement of proportionality" The US conducted a bombing raid on Libya on 15 April 1986 as a consequence of alleged Libyan involvement in an attack on US servicemen in West Berlin.
126 See e.g. Brownlie, Use of Force, pp. 289 ff.
127 See M. Whiteman, Digest of International Law, Washington, 1968, vol. V, p. 475. See also R. B. Lillich, 'Forcible Self-Help to Protect Human Rights', 53 Iowa Law Review, 1967,
p. 325.
128 Paust, 'Seizure and Recovery'. See also DUSPIL, 1975, pp. 777-83.
129 See e.g. Akehurst, 'Use of Force'; Green, 'Rescue at Entebbe', and Shaw, 'Legal Aspects', n 1M See e.g. S/PV.1939, pp. 51-5; S/PV.1940, p. 48 and S/PV.1941, p. 31.
131 See e.g. S/PV.1943, pp. 47-50 and S/PV.1941, pp. 4-10, 57 61 and 67-72. Note that Egypt attempted without success a similar operation in Cyprus in 1978: see Keesing's Contemporary Archives, p. 29305. In 1980, the US attempted to rescue its nationals held hostage in Iran but failed: see S/13908 and the Iranian Hostages case, 1CJ Reports, 1980, pp. 3, 43; 61 ILR, pp. 530, 569.
132 See the statement of Deputy Secretary of State Dam, 78 AJIL, 1984, p. 200. See also W. Gilmorc, The Grenada Intervention, London, 1984, and below, p. 1151.
133 See the statements by the US President and the Department of Slate, 84 A|IL, 1990, p. 545.
134 In the case of Grenada, it was alleged that some American students were under threat: see Gilmore, Grenada, pp. 55-64. In the Panama episode one American had been killed and several harassed: see V. Nanda, 'The Validity of United States Intervention in Panama Under International Law', 84 AJIL, 1990, pp. 494, 497.
launched missiles at the headquarters of the Iraqi military intelli-
gence m
Baghdad as a consequence of an alleged Iraqi plot to assassinate
.r rrs President Bush in Kuwait. It was argued that the resort to force
BOtH1
ijewas justified by the US as an act of self-defence.135 On 26 June 1993,
P",,c ■ •'   L    J------>-----ftu»T---:
|the US jce
■me. -
■pj justified as a means of protecting US nationals in the future.136 It is (difficult to extract from the contradictory views expressed in these incidents the apposite legal principles. While some states affirm the existence Bjrule permitting the use of force in self-defence to protect nationals abroad, others deny that such a principle operates in international law. Hiere are states whose views are not full) formed or coherent on this Jsue. The UK Foreign Minister concluded on 28 June 1993 that:137
Force may be used in self-defence against threats to one's nationals if: (a) there is good evidence that the target attacked would otherwise continue I to be used by the other state in support of terrorist attacks against one's nationals; (b) there is, effectively, no other way to forestall imminent further attacks on one's nationals; (c) the force employed is proportionate to the threat.
On balance, and considering the opposing principles of saving the threatened lives of nationals and the preservation of the territorial integrity of states, it would seem preferable to accept the validity of the rule in carefully restricted situations consistent with the conditions laid down in the Caroline case.1,8 Whether force maybe used to protect property abroad is less controversial. It is universally accepted today that it is not lawful to have resort to force merely to save material possessions abroad.
Conclusions
Despite controversy and disagreement over the scope of the right of self-defence, there is an indisputable core and that is the competence of states
135 See President Reagan's statement, The Times, 16 April 1986, p. 6. The UK government supported this: see The Times, 17 April 1986, p. 4. However, there are problems with I regard to proportionality in view of the injuries and damage apparently caused in the I air raid. One US serviceman was killed in the West Berlin action. The role of the UK in I consenting to the use of British bases for the purposes of the raid is also raised. See also I UICMIL, 57 BYIL, 1986, pp. 639-42 and 80 AJIL, 1986, pp. 632-6, and C. J. Greenwood, I 'International Law and the United States' Air Operation Against Libya', 89 VVesf Virginia I   Law Review, 1987, p. 933.
" See Security Council Debates S/PV. 3245, 1993, and UKMIL, 64 BYIL, 1993, pp. 731 ff. See also D. Kritsiotis, 'The Legality of the 1993 US Missile Strike on Iraq and the Right of Self-Defence in International Law', 45 ICLQ, 1996, p. 162. f" 227 HC Deb., col. 658; 64 BYIL, 1993, p. 732.       138 See above, p. 1131.
1146
INTERNATIONAL LAW
to resort to force in order to repel an attack. A clear example of provided in the Falklands conflict. Whatever doubts may be e 'S-Was about the precise roots of British title to the islands, it is very cle after the Argentinian invasion of the territory, the UK possessed*' ^ the right to act to restore the status quo ante and remove the 4°'3W tinian troops.135 Security Council resolution 502 (1982), in call' an immediate withdrawal of Argentinian forces and determining"^ ^* breach of the peace existed, reinforced this. It should also be noted h ' it is accepted that a state is entitled to rely upon the right of self-defen even while its possession of the territory in question is the subie r
140 -    1 Ol
controversy.
Collective self-defence"1 Historically the right of states to take up arms to defend themselves from external force is well established as a rule of customary international law. Article 51, however, also refers to 'the inherent right of... collective self-defence' and the question therefore arises as to how far one state may resort to force in the defence of another. The idea of collective self-defence however, is rather ambiguous. It may be regarded merely as a pooling of a number of individual rights of self-defence within the framework of a particular treaty or institution, as some writers have suggested,"' or it may form the basis of comprehensive regional security systems. If the former were the case, it might lead to legal difficulties should Iceland resort to force in defence of Turkish interests, since actions against Turkey would in no way justify an armed reaction by Iceland pursuant to its individual right of self-defence.
In fact, state practice has adopted the second approach. Organisations such as NATO and the Warsaw Pact were established after the Second World War, specifically based upon the right of collective self-defence under article 51. By such agreements, an attack upon one party is treated as an attack upon all,143 thus necessitating the conclusion that collective
139 See above, chapter 10, p. 532.
'™ Seee.g.Brownlie, UseofForce, pp. 382-3. See also above, p. 1128 See e.g. Dmstem, War, chapter 9, and Gray, Use of Force, chapter 5 See e.g. Bowett, Self-Defence, p. 245, cf. Goodrich, Hambro and Simons, Charter, p. 348.
M I
See also Brownlie, Use of Force, pp. 328-9. See e.g. article 5 of the NATO Treaty, 1949.
THE USE OF FORCE BY STATES "47
of individual rights of
I defence is something more than a collection [defence, but another creature altogether.'44
hkapproachfindssupportintheMcflrflg«acase.»5TheCourtstressed IK: rfaht to collective self-defence was established in customary law I" ^ed that the exercise of that right depended upon both a prior "* ^tion by the state concerned that it was the victim of an armed k and a request by the victim state for assistance. In addition, the
force asainst another, on the
■ bv
•da req^esTby the"victim state for assistance. In addition, the emphasised that 'for one state to use force against i
r.     ...... u-----mitted a wrongful act of force against a third
■id that that state has comrun f I u regarded as lawful, by way of exception, only when the wrongful provoking the response was an armed attack'146
act p
2 August 1990 raised the issue of col-
ipiu.------o
I The invasion of Kuwait by Iraq on 2
■tive self-defence in the context of the response of the states allied in the coalition to end that conquest and occupation. The Kuwaiti government in exile appealed for assistance from other states.147 Although the armed action from 16 January 1991 was taken pursuant to UN Security Council resolutions,48 it is indeed arguable that the right to collective self-defence
I js also relevant in this context.149
Intervention150
The principle of non-intervention is part of customary international law and founded upon the concept of respect for the territorial sovereignty
I m Note article 52 of the UN Charter, which recognises the existence of regional arrangements and agencies, dealing with such matters relating to international peace and security as [   are appropriate for regional action, provided they are consistent with the purposes and principles of the UN: see further below, chapter 22, p. 1273. ' ICJ Reports, 1986, pp. 14, 103-5; 76 1LR, pp. 349, 437.
~~).444 and 461. This was reaffirmed . 161,186; 130 LLR, pp. 323,
„„-5; 76 1LR, pp. 349, 437. I    ICJ Reports, 1986, p. 110. See also ibid., p. 127; 76ILR, pp. in the Oil Platforms (Iran v. USA) case, ICJ Reports, 2003, pp. 346.
I"7 See Keesing's Record of World Events, pp. 37631 ff. (1990). See below, chapter 22, p. 1253. 149 Note that Security Council resolution 661 (1990) specifically referred in its preamble to 'the inherent right of individual or collective self-defence, in response to the armed attack by Iraq against Kuwait1. See also the Barcelona Traction case, ICJ Reports, 1970, pp. 3, 32; 46 II.R, pp. 178, 206.
' See e.g. Gray, Use of Force, chapter 3; Nguyen Q__
p. 947; T. Koniarknicki, '^Intervention en Droit International Moderne', 62 RGDIP, 1956, p. 521; T. Farer, 'The Regulation of Foreign Armed Intervention in Civil Armed Conflict', 142 HR, 1974 II, p. 291, and J. E. S. Fawcett, 'Intervention in International Law', 103 HR, 1961 II, p. 347.
a Quoc Dinh et a!., Droit International Public, . .        ..    _iw^j----' ttDr.nlP 1956.
1148
INTERNATIONAL LAW
THE USE OF FORCE BY STATES
1149
of states.151 Intervention is prohibited where it bears u which each state is permitted to decide freely by virtue of "l matters in of state sovereignty. This includes, as the International Co!/6 Pr'nciP|e noted in the Nicaragua case,152 the choice of political' ccono' °f'Ustice and cultural systems and the formulation of foreign policy 'hT'0' S°cial becomes wrongful when it uses methods of coercion i" me,rvemion
choices, which must be free ones.153 There was 'no general'r^* vention in support of an opposition within another state'" '
1 "ght of
law. In addition, acts constituting a breach of the customary^r™*1 1 non-intervention will also, if they directly or indirectly involve the'Pl' force, constitute a breach of the principle of the non-use offeree ' national relations.154 The principle of respect for the soverei
use of inter-
was another principle closely allied to the principles of the prohi^it^"
the use of force and of non-intervention.155
Civil wars156
International law treats civil wars as purely internal matters, with the possible exception of self-determination conflicts.1'7 Article 2(4) of the UN
151 See the Corfu Channel case, ICJ Reports, 1949, pp. 4, 35; 16 AD, pp. 155, 167 and the Nicaragua case, ICJ Reports, 1986,pp. 14,106;76ILR,pp.349,4-10.Seealsothc Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States, 1965 and the Declaration on the Principles of International Law, 1970, above, p. 1127.
152 ICJ Reports, 1986, pp. 14, 108; 76 ILR, p. 442. See also S. McCaffrey, 'The Forty-First Session of the International Law Commission', 83 AIIL, 1989, p. 937.
153 ICJ Reports, 1986, p. 108.      154 ICJ Reports, 1986, pp. 109-10; 76 ILR, p. 443. 155 ICJ Reports, 1986, p. Ill; 76 ILR, p. 445.
lj6 See e.g. Gray, Use of Force, pp. 60 ff.; Law and Civil War in the Modern World (ed. J. N. Moore), Princeton, 1974; The International Regulation of Civil Wars (ed. E. Luard), Oxford, 1972; The International Law of Civil Wars (ed. R. A. Falk), Princeton, 1971; T. Eraser, 'The Regulation of Foreign Intervention in Civil Armed Conflict', 142 HR, 1974, p. 291, and W. Friedmann, 'Intervention, Civil War and the Rule of International Law', PAS1L, 1965, p. 67. See also R. Higgins, 'Intervention and International Law' in Bull, Intervention in World Politics, p. 29; C. C. Joyner and B. Grimaldi, 'The United States and Nicaragua: Reflections on the Lawfulness of Contemporary Intervention', 25 Va. JIL, 1985, p. 621, and Schachter, International Law, pp. 158 ff.
157 Note that the Declaration on Principles of International Law concerning Friendly Relations, 1970 emphasised that all states were under a duty to refrain from any forcible action which deprives people of their right to self-determination and that 'in their actions against, and resistance to, such forcible action' such peoples could receive support in accordance with the purpose and principles of the UN Charter. Article 7 of the Consensus Definition of Aggression in 1974 referred ambiguously to the right of peoples entitled to but forcibly deprived of the right to self-determination, 'to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity' with the 1970
ter prohibits the threat or use of force in international relations, not . jnestic situations. There is no rule against rebellion in international It is within the domestic jurisdiction of states and is left to be dealt JJjjby internal law. Should the rebellion succeed, the resulting situation i   jj be dealt with primarily in the context of recognition. As far as C-d parties are concerned, traditional international law developed the I Jjgories of rebellion, insurgency and belligerency. 1 Once a state has defined its attitude and characterised the situation, dif-B^Dt international legal provisions would apply. Ifthe rebels arc regarded Kjfiminals, the matter is purely within the hands of the authorities of the Kuntry concerned and no other state may legitimately interfere. If the Kels are treated as insurgents, then other states may or may not agree Kgrant them certain rights. It is at the discretion of the other states con-fcned, since an intermediate status is involved. The rebels arc not mere Bjnrinals, but they are not recognised belligerents. Accordingly, the other Btes are at liberty to define their legal relationship with them. Insurgency ■apurely provisional classification and would arise, for example, where a ■ate needed to protect nationals or property in an area under the de facto Bntrol of the rebels.158 On the other hand, belligerency is a formal status involving rights and duties. In the eyes of classical international law, other Bates may accord recognition of belligerency to rebels when certain conditions have been fulfilled. These were defined as the existence of an armed conflict of a general nature within a state, the occupation by the rebels of asubstantial portion of the national territory, the conduct of hostilities in accordance with the rules of war and by organised groups operating under a responsible authority and the existence of circumstances rendering it necessary for the states contemplating recognition to define their attitude
I   Declaration. Article 1 (4) of Additional Protocol 1 to the Geneva 'Red Cross' Conventions I   of 1949, adopted in 1977, provided that international armed conflict situations 'include I   armed conflicts in which peoples are fighting against colonial domination and alien oc-I   cupation and against racist regimes in the exercise of their right to self-determination' as enshrined in the Charter of the UN and the 1970 Declaration. Whether this means that articles 2(4) and 51 of the Charter now apply to self-determination conflicts so that I   the peoples in question have a valid right to use force in self-defence is controversial and difficult to maintain. However, the use of force to suppress self-determination is now clearly unacceptable, as is help by third parties given to that end, but the provision of armed assistance to peoples seeking self-determination would appear to remain unlawful: see Gray, Use of Force, pp. 52 ff.; A. Cassese, Self-Determination of Peoples, Cambridge, 1995, p. 193; and H. Wilson, International Law and the Use of Force by National Liberation Movements, Oxford, 1988. See as to the principle of self-determination, above, chapter 5, p. 251.
See e.g. H. Lautcrpacht, Recognition in International Law, Cambridge, 1947, pp. 275 ff.
1150
INTERNATIONAL LAW
I
to the situation.159 This would arise, for example, where th the conflict are exercising belligerent rights on the high seas r/i!"1^ to itime countries would feel compelled to decide upon the respe mar" of the warring sides, since the recognition of belligerency em -J^ Status i.i--ti„..ii—1........... ^----,.     ,  , ,      .' ltailscertain
accePtedby
international legal consequences. Once the rebels have been other states as belligerents they become subjects of international
in
Partic-reat deal
responsible in international law for all their acts. In addition the 1 governing the conduct of hostilities become applicable to both sides " that, for example, the recognising states must then adopt a position neutrality.
However, these concepts of insurgency and belligerency are lackin clarity and are extremely subjective. The absence of clear criteria, ularly with regard to the concept of insurgency, has led to a of confusion. The issue is of importance since the majority of conflicts in the years since the conclusion of the Second World War have been in essence civil wars. The reasons for this are many and complex and ideological rivalry and decolonisation within colonially imposed boundaries are amongst them.160 Intervention may be justified on a number of grounds, including response to earlier involvement by a third party. For instance the USSR and Cuba justified their activities in the Angolan civil war of 1975-6 by reference to the prior South African intervention,161 while the United States argued that its aid to South Vietnam grew in proportion to the involvement of North Vietnamese forces in the conflict.162
The international law rules dealing with civil wars depend upon the categorisation by third states of the relative status of the two sides to the conflict. In traditional terms, an insurgency means that the recognising state may, if it wishes, create legal rights and duties as between itself and the insurgents, while recognition of belligerency involves an acceptance of a position of neutrality (although there are some exceptions to this rule) by the recognising states. But in practice, states very rarely make an express acknowledgement as to the status of the parties to the conflict, precisely in order to retain as wide a room for manoeuvre as possible. This means that the relevant legal rules cannot really operate as intended
See e.g. N. Mugerwa, 'Subjects of International Law' in Sarensen, Manual of Public International Law, pp. 247, 286-8. See also R. Higgins, 'International Law and Civil Conflict' in Luard, International Regulation of Civil Wars, pp. 169, 170-1. See e.g. M. N. Shaw, Title to Territory in Africa: International Legal Issues, Oxford, 1986. See e.g. C. Legum and T. Hodges, After Angola, London, 1976.
See e.g. Law and the Indo-China War (ed. J. N. Moore), Charlottesville, 1972. See also The Vietnam War and International Law (ed. R. A. Falk), Princeton, 4 vols., 1968-76.
THE USE OF FORCE BY STATES
1151
Jassical law and that it becomes extremely difficult to decide whether -ticular intervention is justified or not.163
Aid to the authorities of a state164 uld appear that in general outside aid to the government authori-. to repress a revolt16' is perfectly legitimate,166 provided, of course, it *Lc requested by the government. The problem of defining the governmental authority entitled to request assistance was raised in the Grenada feisode. In that situation, the appeal for the US intervention was allegedly fcade by the Governor-General of the island,167 but controversy exists as In whether this in fact did take place prior to the invasion and whether the [governor-General was the requisite authority to issue such an appeal.168 [he issue resurfaced in a rather different form regarding the Panama in-Lasion of December 1989. One of the legal principles identified by the US [Department of State as the basis for the US action was that of assistance Jo the 'lawful and democratically elected government in Panama'.169 The problem with this was that this particular government had been prevented fey General Noriega from actually taking office and the issue raised was therefore whether an elected head of state who is prevented from ever Lcting as such may be regarded as a governmental authority capable of requesting assistance including armed force from another state. This in fact [runs counter to the test of acceptance in international law of governmental authority, which is firmly based upon effective control rather than upon the nature of the regime, whether democratic, socialist or otherwise.1'0
1 But see below, chapter 22, p. 1257, with regard to the increasing involvement of the UN in internal conflicts and the increasing tendency to classify such conflicts as possessing an international dimension.
1 See e.g. L. Doswald-Beck, 'The Legal Validity of Military Intervention by Invitation of the Government', 56 BYIL, 1985, p. 189, and Gray, Use of Force, pp. 68 ff.
' SeeNicaraguav. USA, ICJ Reports, 1986, pp. 14,126, where the Court noted that intervention is 'already allowable at the request of the government of a state'; however, apparently not where the recipient state is forcibly suppressing the right to self-determination of a people entitled to such rights: see above, p. 1148, note 157.
' Until a recognition of belligerency, of course, although this has been unknown in modern times: see e.g. Lauterpacht, Recognition, pp. 230-3.
' See the statement by Deputy Secretary of State Dam, 78 AJIL, 1984, p. 200.
1 See e.g. J. N. Moore, Law and the Grenada Mission, Charlottesville, 1984, and Gilmore, Grenada. See also Higgins, Development of International Law, pp. 162-4 regarding the Congo crisis of 1960, where that state's President and Prime Minister sought to dismiss each other.
' 84 AJIL, 1990, p. 547.      170 See above, chapter 9, p. 454.
1152
INTERNATIONAL LAW
The general proposition, however, that aid to recognised govern^ authorities is legitimate,1'1 would be further rein forced where it Co shown that other states were encouraging or directing the subversive ations of the rebels. In such cases, it appears thai the doctrine of coll • self-defence would allow other states to intervene openly and lawful] the side of the government authorities.1'2 Some writers have suggeste^11 the traditional rule of permitting third-party assistance to governmen would not extend to aid where the outcome of the struggle has becom uncertain or where the rebellion has become widespread and serioi aimed at overthrowing the government.173 While this may be politic desirable for the third state, it may put at serious risk entirely desi
serioUsiy ally erv-
ing governments.174 Practice, however, does suggest that many forms ol aid, such as economic, technical and arms provision arrangements to existing governments faced with civil strife, are acceptable.1'5 There is an argument, on the other hand, for suggesting that substantial assistance to a government clearly in the throes of collapse might be questionable as intervention in a domestic situation that is on the point of resolution, but there are considerable definitional problems here.
Aid to rebels176
The reverse side of the proposition is that aid to rebels is contrary to international law. The 1970 Declaration on Principles of International
Law emphasised that:
171 Note that article 20 of the International Law Commission's Articles on State Responsibility, 2001, provides that 'Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.'
172 But in the light of the principles propounded in the Nicaragua case, ICJ Reports, 1986, pp. 104,120-3; 76ILR, pp. 349, 438,454-7.
173 See e.g. Q. Wright, 'US Intervention in the Lebanon', 53 AJIL, 1959, pp. 112, 122. See also R. A. Falk, Legal Order in a Violent World, Princeton, 1968, pp. 227-8 and 273, anil Doswald-Beck, 'Legal Validity5, p. 251.
174 However, where consent to the presence of foreign troops has been withdrawn by the government of the state concerned, the continuing presence of those troops may constitute (in the absence of any legitimate exercise of the right of self-defence) an unlawful use of force: see e.g. Democratic Republic of the Congo v. Uganda, ICJ Reports, 2005, pp. 168,213 and 224. See also article 3(e) of the Consensus Definition of Aggression, 1974.
175 See, with regard to the UK continuance of arms sales to Nigeria during its civil war, H.ggins, 'International Law and Civil Conflict', p. 173. Note also the US policy of distinguishing between traditional suppliers of arms and non-traditional suppliers of arms in such circumstances. It would support aid provided by the former (as the UK in Nigeria), but not the latter: sec DUSPIL, 1976, p. 7.
176 See e.g. Gray, Use of Force, pp. 87 ff.
THE USE OF FORCE BY STATES
ii S3
tolerate subversive,
armed activities directed towards the violent overthrow of the
[n]o state shall organise, assist, foment, finance, incite or
state, or interfere in civil strife in another state.
I  terrorist or I regime of another
Tl ■ Declaration also provided that:
I [ejvery state shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other state or country.
I rn the Nicaragua case,178 the Court declared that the principle of nonintervention prohibits a state 'to intervene, directly or indirectly, with or withou i armed force, in support of an internal opposition in another state' and went on to say that acts which breach the principle of nonintervention 'will also, if they directly or indirectly involve the use of force, constitute a breach of the principle of the non-use of force in international relations', further, the Court emphasised in Democratic Republic of the Congo v. Uganda1'9 that where such an unlawful military intervention reaches a certain magnitude and duration, it would amount to 'a grave violation of the prohibition on the use of force expressed in article 2, paragraph 4, of the Charter'.
Bin reality, state practice is far from clear.180 Where a prior, illegal intervention on the government side has occurred, it may be argued that aid to the rebels is acceptable. This was argued by a number of states with regard to the Afghanistan situation, where it was argued that the Soviet intervention in that state amounted to an invasion.181
177 See also in similar terms the Declaration on the Inadmissibility of Intervention in the I Domestic Affairs of States, 1965, above, p. 1126. Article 3(g) of the General Assembly's Consensus Definition of Aggression, 1974, characterises as an act of aggression 'the sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which I carry out acts of armed force against another state'. See also, with regard to US aid to the I  Nicaraguan 'Contras', Chayes, Cuban Missile Crisis, and the Nicaragua case, ICJ Reports,
1986, p. 14; 76 ILR, p. 349. ™ ICJ Reports, 1986, pp. 14, 108 and 109-10. These propositions were reaffirmed by the I   Court in Democratic Republic of the Congo v. Uganda, ICJ Reports, 2005, pp. 168, 227. ,7' ICJ Reports, 2005, p. 168.
"° See e.g. Syrian intervention in the Jordanian civil war of 1970 and in the Lebanon in 1976 and see Gray, Use of Force, pp. 85 ff.
See e.g. Keesing's Contemporary Archives, pp. 30339, 30364 and 30385. See also General Assembly resolutions ES-62; 35/37; 36/34; 37/37 and 38/29 condemning the USSR for its armed intervention in Afghanistan. See also Doswald-Beck, 'Legal Validity', pp. 230 ff.
"54
INTERNATIONAL LAW
The situation in the Democratic Republic of the Cone
The situation in the Democratic Republic of the Congo
!"19>daf.
Con
'go
states
ter, with intervention against the government by Uganda and Rw (seeking initially to act against rebel movements operating agaiilst f from Congolese territory and then assisting rebels against the i ' government) and on behalf of the government by a number of including Zimbabwe, Angola and Namibia, is instructive/"2 In res ■ 1234 (1999), the Security Council recalled the inherent right of individual and collective self-defence in accordance with article 51 and reaffirmed the need for all states to refrain from interfering in the internal affairs of other states. It called upon states to bring to an end the presence of un invited forces of foreign states.183 The Council in resolution 1291 (1995) called for the orderly withdrawal of all foreign forces from the Congo in accordance with the Lusaka Ceasefire Agreement.181 Security Council resolution 1304 (2000) went further and, acting under Chapter VII, de-manded that 'Uganda and Rwanda, which have violated the sovereignty and territorial integrity of the Democratic Republic of the Congo, withdraw all their forces from the territory of the Democratic Republic of the Congo without delay'. An end to all other foreign military presence and activity was also called for in conformity with the provisions of the Lusaka Agreement.185 The UN also established a mission in the Congo (MONUC) in 1999, whose mandate was subsequently extended.18" The situation demonstrates the UN approach, reflecting international law, to the effect that while aid by foreign states to the government was acceptable,187 aid to rebels by foreign states was not. Side by side with this, the UN did recognise the problem posed by foreign militias based in the eastern region of the Democratic Republic of the Congo (particularly the Rwanda
182 See Gray, Use of Force, pp. 60-4, 70-1, 247-50 and 258-9. See also V. N. Okowa, 'Congo's War: The Legal Dimension of a Protracted Conflict', 77 BYIL, 2006, p. 203.
183 Gray, Use of Force, pp. 61-2, noting that the Security Council took a clear position that aid to the government was permissible, while intervention or force to overthrow the government was not. The Democratic Republic of the Congo had written to the Security Council accusing Rwanda and Uganda of aggression and justifying its invitation to Angola, Namibia and Zimbabwe as a response to foreign intervention: see UN Yearbook, 1998, pp. 82-8 and S/1998/827.
184 SeeS/1999/815.
185 See also Security Council resolutions 1341 (2001) and 1355 (2001). Security Council resolution 1376 (2001) welcomed the withdrawal of some forces, including the full Namibian contingent, from the Congo. See also resolutions 1417 (2002), 1457 (2003) and 146« (2003). Essentially condemnation was reserved by name for Rwanda and Uganda.
186 See further below, chapter 22, p. 1264.      187 See Okowa, 'Congo', p. 224.
LorcVs Resistance Army) and called for them to be disarmed.
THE USE OP FORCE BY STATES 1155
who had been involved in the 1994 genocide and the Ugan-
da"
Humanitarian intervention"
Shis section concerns the question as to whether there can be said to
wL a right of humanitarian intervention by individual states. The issue of intervention by the UN in situations of humanitarian need and as a
I consequence °f Security Council action is covered in the next chapter.
■ It has sometimes been argued that intervention in order to protect the lives of persons situated within a particular state and not necessarily nationals of the intervening state is permissible in strictly defined situations. This has some support in pre-Charter law and it may very well have been the case that in the nineteenth century such intervention was accepted under international law."0 However, it is difficult to reconcile today with article 2(4) of the Charter1" unless one either adopts a rather artificial
' See e.g. Security Council resolutions 1756 (2007) and 1794 (2007).
9 See e.g. Gray, Use of Force, pp. 31 ff.; Dinstein, War, pp. 70 ff.; Franck, Recourse, chapter 9; Byers, War Law, Part Three; N. ). Wheeler, Saving Strangers: Humanitarian Intervention in International Society, Oxford, 2002; R. Goodman, 'Humanitarian Intervention and Pretexts for War', 100 AJ1L, 2006, p. 107; D. Kennedy, The Dark Sides of Virtue, Princeton, 2004; Humanitarian Intervention (eds. J. L. Holzgrefe and R. O. Keohane), Cambridge, 2003; S. Chesterman, Just War or Just Peace: Humanitarian Intervention and International Law, Oxford, 2001; Humanitarian Intervention and the United Nations (ed. R. B. Lillich), Charlottesville, 1973; R. B. Lillich, 'Forcible Self-Help by States to Protect Human Rights', 53 Iowa Law Review, 1967, p. 325, and Lillich, 'intervention to Protect Human Rights', 15 McGill Law Journal, 1969, p. 205, and Lillich, 'Humanitarian Intervention Through the United Nations: Towards the Development of Criteria', 53 ZaöRV, 1993, p. 557; T. M. Franck and N. S. Rodley, 'After Bangladesh: The Law of Humanitarian Intervention by Military Force', 67 AJIL, 1973, p. 275; J. P. Fonteyne, 'The Customary International Law Doctrine of Humanitarian Intervention', 4 California Western International Law Journal, 1974, p. 203; Chilstrom, 'Humanitarian Intervention under Contemporary International Law", 1 Yale Studies in World Public Order, 1974, p. 93; N. D. Arnison, 'The Law of Humanitarian Intervention' in Refugees in the 1990s: New Strategies for a Restless World (ed. H. Cleveland), 1993, p. 37; D. J. Scheffer, 'Towards a Modern Doctrine of Humanitarian Intervention', 23 University of Toledo Law Review, 1992, p. 253; D. Kritsiotis, 'Reappraising Policy Objections to Humanitarian Intervention', 19 Michigan Journal of International Law, 1998, p. 1005; N. Tsagourias, The Theory and Praxis of Humanitarian Intervention, Manchester, 1999, and F. Teson, Humanitarian Intervention: An Inquiry into Law and Morality, 2nd cdn, New York, 1997.
1 See e.g. H. Ganji, International Protection of Human Rights, New York, 1962, chapter 1 and references cited in previous footnote.
1 See, in particular, I. Brownlie, 'Humanitarian Intervention', in Moore, Law and Civil War, p. 217.
1156
INTERNATIONAL LAW
definition of the 'territorial integrity' criterion in order to permit tem J rary violations or posits the establishment of the right in customary! Practice has also been in general unfavourable to the concept, primarjL because it might be used to justify interventions by more forceful state into the territories of weaker states.1" Nevertheless, it is not inconccivajj, that in some situations the international community might refrain fro adopting a condemnatory stand where large numbers of lives have ben saved in circumstances of gross oppression by a state ol its citizens due to an outside intervention. In addition, it is possible that such a right might evolve in cases of extreme humanitarian need. One argument used to tify the use of Western troops to secure a safe haven in northern Iraq after the Gulf War was that it was taken in pursuance of the customary inter-national law principle of humanitarian intervention in an extreme situation. Security Council resolution 688 (1991) condemned the widespread repression by Iraq of its Kurd and Shia populations and, citing this, the US, UK and France proclaimed 'no-fly zones' in the north and south of the country."3 There was no express authorisation from the UN. It was argued by the UK that the no-fly zones were 'justified under international law in response to a situation of overwhelming humanitarian necessity'."1 The Kosovo crisis of 1999 raised squarely the issue of humanitarian intervention.195 The justification for the NATO bombing campaign, acting out of area and without UN authorisation, in support of the repressed ethnic Albanian population of that province of Yugoslavia, was that of humanitarian necessity. The UK Secretary of State for Defence stated that,
192 See e.g. M. B. Akehurst, 'Humanitarian Intervention' in Bull, Intervention in World Politics, p. 95.
193 See the views expressed by a Foreign Office legal advisor to the House of Commons Foreign Affairs Committee, UKMIL, 63 BYIL, 1992, pp. 827-8. This is to be compared with the views of the Foreign Office several years earlier where it was stated that the best case that could be made was that it was not 'unambiguously illegal': see UKMIL, 57 BYIL, 1986, p. 619. Sec also Gray, Use of Force, pp. 33 ff., and below, chapter 22, p. 1254.
194 UKMIL, 70 BYIL, 1999, p. 590. See also UKMIL, 75 BYIL, 2004, p. 857.
195 See e.g. Gray, Use of Force, pp. 37 ff; N. S. Rodley and B. Cali, 'Kosovo Revisited: Humanitarian Intervention on the Fault Lines of International Law', 7 Human Rights Law Review, 2007, p. 275; B. Simma, 'NATO, the UN and the Use of Force: Legal Aspects', 10 FJIL, 1999, p. 1; Kofi A. Annan, The Question of Intervention: Statements by the Secretary-General, New York, 1999; 'NATO's Kosovo Intervention', various writers, 93 AUL. i999, pp. 824-62; D. Kritsiotis, 'The Kosovo Crisis and NATO's Application of Armed Force Against the Federal Republic of Yugoslavia', 49 ICLQ, 2000, p. 330; P. Hilpod, 'Humanitarian Intervention: Is There a Need for a Legal Reappraisal?', 12 EJIL, 2001, p. 437, and 1 'Kosovo: House of Commons Foreign Affairs Committee 4th Report, June 2000', various memoranda, 49 ICLQ, 2000, pp. 876-943.
THE USE OF FORCE BY STATES
"57
J international law, in exceptional circumstances and to avoid a human-. ar;an catastrophe, military action can be taken and it is on that legal basis ^at rnihta i y action was taken."96 The Security Council by twelve votes to three rejected a resolution condemning NATO's use of force.197 After the conflicts and after an agreement had been reached between NATO and Yugoslavia,the Council adopted resolution 1244 (1999) which welcomed the withdrawal of Yugoslav forces from the territory and decided upon the deployment under UN auspices of international civil and military presences. Member states and international organisations were, in particular, authorised to establish the international security presence and the resolution laid down the main responsibilities of the civil presence. There was no formal endorsement of the NATO action, but no condemnation-" it can be concluded that the doctrine of humanitarian intervention in a crisis situation was invoked and not condemned by the UN, but jt received meagre support.200 It is not possible to characterise the legal situation as going beyond this.201
i* UKMIL, 70 BYIL, 1999, p. 586. A Foreign Office Minister wrote that, 'a limited use of force was justifiable in support of the purposes laid down by the Security Council but I without the Council's express authorisation when that was the only means to avert an I immediate and overwhelming humanitarian catastrophe', ibid., p. 587 and see also ibid., I p. 598. The UK Prime Minister wrote to Parliament in 2004 stating that force maybe used I by states 'In exceptional circumstances, when it is the only way to avert an overwhelming I humanitarian catastrophe, as in Kosovo in 1999', HC Deb., 22 March 2004, vol. 419, col. I   561W-562W, UKMIL, 75 BYIL, 2004, p. 853.
I SCOR, 3989th meeting, 26 March 1999. 198 See 38 ILM, 1999, p. 1217. 199 Note that Yugoslavia made an application in April 1999 to the International Court against ten of the nineteen NATO states, alleging that these states, by participating in the use of force, had violated international law. The Court rejected the application made for provisional measures in all ten cases: see e.g. Yugoslavia v. Belgium, ICJ Reports, 1999, I p. 124, and upheld preliminary objections as to jurisdiction and admissibility: see e.g. Serbia and Montenegro v. UK, ICJ Reports, 2004, p. 1307.
I 210 See also the Nicaragua case, ICJ Reports, 1986, pp. 14, 134-5; 76 ILR, p. 349, where the Court stated that the use of force could not be the appropriate method to monitor or ensure respect for human rights in Nicaragua. 201 Note that the UK produced a set of Policy Guidelines on Humanitarian Crises in 2001. This provided inter alia that the Security Council should authorise action to halt or avert massive violations of humanitarian law and that, in response to such crises, force may be used in the face of overwhelming and immediate humanitarian catastrophe when the government cannot or will not avert it, when all non-violent methods have been exhausted, the scale of real or potential suffering justifies the risks of military action, if there is a clear objective to avert or end the catastrophe, there is clear evidence that such action would be welcomed by the people at risk and that the consequences for suffering of non-action would be worse than those of intervention. Further, the use of force should be collective, limited in scope and proportionate to achieving the humanitarian objective and consistent with international humanitarian law, UKMIL, 72 BYIL, 2001, p. 696.
11-58
INTERNATIONAL LAW
One variant of the principle of humanitarian intervention ' intion that intervention in order to restore democracy is pe C°n" ich under international law.202 One of the grounds given for thT'c!^ M
vention in Panama in December 1989 was the restoration of H„„
but apart from the problems of defining democracy, such a propolis not acceptable in international law in view of the clear provisio ' the UN Charter. Nor is there anything to suggest that even if the prin ciple of self-determination could be interpreted as applying beyond the strict colonial context204 to cover 'democracy', it could constitute a norm superior to that of non-intervention.
More recently, there has been extensive consideration of the 'responsi bility to protect' as a composite concept comprising the responsibilities to prevent catastrophic situations, to react immediately when they do occur and to rebuild afterwards.20-' Such an approach may be seen as an effort to redefine the principle of humanitarian intervention in a way that seeks to minimise the motives of the intervening powers and there is no doubt that it reflects an important trend in international society and one that is influential, particularly in the context of UN action. Such responsibilities are deemed to fall both upon states and the international community and notably include the commitment to reconstruction after intervention or initial involvement. As they have been broadly and flexibily proposed, emphasising, for example, the obligation of states to protect human rights on their territory and the primary focus upon the UN with regard to any military action, the sharp edges of the humanitarian intervention doctrine have been blunted, but it remains to be seen how influential this approach may be.206
' See e.g. J. Crawford, 'Democracy and International Law',44BYIL, 1993, p. 113; B. R.Roth, Governmental Illegitimacy in International Law, Oxford, 1999; Franck, Fairness, chapter 4, and Franck, The Empowered Self, Oxford, 1999; Gray, Use of Force, pp. 49 ff., and 0. Schachter, 'The Legality of Pro-Democratic Invasion', 78 AJIL, 1984, p. 645.
1 See e.g. Keesing's Record of World Events, p. 37112 (1989). See also Nanda, 'Validity', p. 498.
1 See above, chapter 6, p. 289.
' See e.g. International Commission on Intervention and State Sovereignty, The Responsibility to Protect, Ottawa, 2001; Report of the UN High Level Panel on Threats, Challenges and Change, A/59/565, 2004, at paras. 201-3; UN Secretary-General, In Larger Freedom, A/59/2005, paras. 16-22; World Summit Outcome, General Assembly resolution 60/1, 2005, paras. 138-9, and C. Stahn, 'Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?', 101 AJIL, 2007, p. 99.
It should also be emphasised that the documents cited in the previous footnote are ambiguous as to the right of individual states to intervene by force in the territory of other states.
THE USE OF FORCE BY STATES
Terrorism and international law2
1159
Bje use of terror as a means to achieve political ends is not a new phe-■onienon, but it has recently acquired a new intensity. In many cases, terrorists deliberately choose targets in uninvolved third states as a means 0f pressurising the government of the state against which it is in conflict Kits real or potential or assumed allies.208 As far as international law is concerned, there are a number of problems that can be identified. The first major concern is that of definition.2W For example, how widely should the offence be defined, for instance should attacks against property as well js attacks upon persons be covered? And to what extent should one take into account the motives and intentions of the perpetrators? Secondly, the relationship between terrorism and the use of force by states in response is posed.2'1 Thirdly, the relationship between terrorism and human rights needs to be taken into account.
I Despite political difficulties, increasing progress at an international and regional level has been made to establish rules of international law with regard to terrorism. A twin-track approach has been adopted, dealing both with particular manifestations of terrorist activity and with a general condemnation of the phenomenon.2" In so far as the first is concerned, the UN has currently adopted thirteen international conventions concerning
' See e.g. Gray, Use of Force, pp. 135 ff.; T. Becker, Terrorism and the State, Oxford, 2006; Legal Aspects of International Terrorism (eds. A. E. Evans and J. Murphy), Lexington, 1978; R. Friedlander, Terrorism, Dobbs Ferry, 1979; R. B. Lillich and T. Paxman, 'State Responsibility for Injuries to Aliens Caused by Terrorist Activity1,26 American Law Review, 1977, p. 217; International Terrorism and Political Crimes (ed. M. C. Bassiouni), 1975; E. McWhinney, Aerial Piracy and International Terrorism, 2nd edn, Dordrecht, 1987; A. Cassesc, Terrorism, Politics and Law, Cambridge, 1989; V. Lowe, '"Clear and Present Danger": Responses to Terrorism', 54 ICLQ, 2005, p. 185; G. Guillaume, 'Terrorism and International Law', 53 ICLQ, 2004, p. 537; J. Pejic, 'Terrorist Acts and Groups: A Role for International Law', 75 BYIL, 2004, p. 71; J. Delbrück, 'The Fight Against Global Terrorism', German YIL, 2001, p. 9, and A. Cassese, 'Terrorism is Also Disrupting Some Crucial Legal Categories of International Law', 95 AJIL, 2001, p. 993. See also the UN website on terrorism, www.un.org/terrorism/.
8 The hijack of TWA Flight 847 on 14 June 1985 by Lebanese Shi'ites is one example of this phenomenon: see e.g. The Economist, 22 June 1985, p. 34.
9 See e.g. B. Saul, Defining Terrorism in International Law, Oxford, 2006 and articles on the Quest for a Legal Definition, 4 journal of International Criminal Justice, 2006, pp. 894 ff.
0 See above, p. 1134.
1 See, with regard to the failed attempt by the League of Nations in the 1937 Convention for the Prevention and Punishment of Terrorism to establish a comprehensive code, e.g. Murphy, United Nations, p. } 79. See also T. M. Franck and B. Lockwood, 'Preliminary Thoughts Towards an International Convention on Terrorism', 68 AJIL, 1974, p. 69.
ii6o
INTERNATIONAL LAW
THE USE OF FORCE BY STATES
ll6l
terrorism, dealing with issues such as hijacking, hostages and terr bombings.212 Many of these conventions operate on a common model establishing the basis of quasi-universal jurisdiction with an interlocki ' network of international obligations. The model comprises a definition the offence in question and the automatic incorporation of such offenc within all extradition agreements between states parties coupled with obligations on states parties to make this offence an offence in domestic law, to establish jurisdiction over this offence (usually where committed in the territory of the state or on board a ship or aircraft registered there, or by a national of that state or on a discretionary basis in some conventions where nationals of that state have been victims) and, where the alleged offender is present in the territory, either to prosecute or to extradite to another state that will.213
In addition, the UN has sought to tackle the question of terrorism in a comprehensive fashion. In December 1972, the General Assembly set up an ad hoc committee on terrorism214 and in 1994 a Declaration on Measures to Eliminate International Terrorism was adopted.215 This condemned 'all acts, methods and practices of terrorism, as criminal and unjustifiable, wherever and by whomever committed', noting that 'criminal acts intended or calculated to provoke a state of terror in the general public, a group or person or persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them'. States are also obliged to refrain from organising, instigating, facilitating, financing or tolerating terrorist activities and to take practical measures to ensure that their territories are not used for terrorist installations, training camps or for the
212 See the Conventions on Offences Committed on Board Aircraft, 1963; for the Suppression of Unlawful Seizure of Aircraft, 1970; for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1971; on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents, 1973; against the Taking of Hostages, 1979; on the Physical Protection of Nuclear Material, 1980; for the Suppression of Unlawful Acts of Violence at Airports, Protocol 1988; for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988; for the Suppression of Unlawful Acts against the Safety of Fixed Platforms on the Continental Shelf, Protocol 1988; on the Marking of Plastic Explosives for the Purpose of Identification, 1991; for the Suppression of Terrorist Bombing, 1997; for the Suppression of the Financing of Terrorism, 1999 and for the Suppression of Acts of Nuclear Terrorism, 2005.
213 See further above, chapter 12, p. 673.
214 See General Assembly resolution 3034 (XXVII). 2,5 General Assembly resolution 49/60.
naration of terrorist acts against other states. States are further obliged o apPrenenc'an<^ Prosecute or extradite perpetrators of terrorist acts and ■ co-operate with other states in exchanging information and combating terrorism.21" The Assembly has also adopted a number of resolutions calling f°r ratification of the various conventions and for improvement in , 0_0peration between states in this area.217 In September 2006, the General Assembly adopted 'The United Nations Global Counter-Terrorism Strat-H^218 comprising a Plan of Action, including condemnation of terrorism in all its forms and manifestations as it constitutes 'one of the most serious threats to international peace and security'; international co-operation; addressing the conditions conducive to the spread of terrorism; adoption 0f a variety of measures to prevent and combat terrorism; adoption of measures to build states' capacity to prevent and combat terrorism; and, finally, measures to ensure respect for human rights for all and the rule of law as the fundamental basis of the fight against terrorism.
An Ad Hoc Committee was established in 1996219 to elaborate international conventions on terrorism. The Conventions for the Suppression of Terrorist Bombing, 1997 and of the Financing of Terrorism, 1999 resulted, as did a Convention for the Suppression of Acts of Nuclear Terrorism, 2005. The Committee is currently working on drafting a comprehensive convention on international terrorism.220
The Security Council has also been active in dealing with the terrorism threat.221 In particular, it has characterised international terrorism as a
12,6 A supplementary declaration was adopted in 1996, which emphasised in addition that acts of terrorism and assisting them are contrary to the purposes and principles of the UN. The question of asylum-seekers who had committed terrorist acts was also addressed, General Assembly resolution 51/210. See also resolution 55/158, 2001 and the 2005 World Summit Outcome, resolution 60/1.
I217 See e.g. resolutions 34/145, 35/168 and 36/33.     2,8 Resolution 60/288.
219 General Assembly resolution 51/210.
220 See e.g. A/59/37, 2004; A/60/37, 2005; A/61/37, 2006; A/62/37, 2007, and A/63/37, 2008 and General Assembly resolutions 57/27, 2003 and 62/71, 2008. See also M. Hmoud, 'Negotiating the Draft Comprehensive Convention on International Terrorism', 4 Journal of International Criminal Justice, 2006, p. 1031. Major areas of contention have focused on the definition of terrorism, the scope of the proposed convention and the relationship between the proposed convention and the conventions dealing with specific terrorist crimes, ibid.
1 For example, in resolution 579 (1985), it condemned unequivocally all acts of hostage-taking and abduction, and see also the statement made by the President of the Security Council on behalf of members condemning the hijacking of the Achille Lauro and generally 'terrorism in all its forms, whenever and by whomever committed', 9 October 1985, S/17554, 24 ILM, 1985, p. 1656.
1 162
INTERNATIONAL LAW
threat to international peace and security. This approach has evolved resolution 731 (1992), the Security Council, in the context of criti ' ° of Libya for not complying with requests for the extradition of suspect d bombers of an airplane, referred to 'acts of international terrorism th t constitute threats to international peace and security', and in resolution 1070 (1996) adopted with regard to Sudan it reaffirmed that 'the suppres sion of acts of international terrorism, including those in which states are involved, is essential for the maintenance of international peace and security'.222
It was, however, the 11 September 2001 attack upon the World Trade Center that moved this process onto a higher level. In resolution 1368 (2001) adopted the following day, the Council, noting that it was 'Deter-mined to combat by all means threats to international peace and security caused by terrorist attack', unequivocally condemned the attack and declared that it regarded such attacks 'like any act of international terrorism, as a threat to international peace and security'.223 Resolution 1373 (2001) reaffirmed this proposition and the need to combat by all means in accordance with the Charter, threats to international peace and security caused by terrorist acts.224 Acting under Chapter VII, the Council made a series of binding decisions demanding inter alia the prevention and suppression of the financing of terrorist acts, the criminalisation of wilful provision or collection of funds for such purposes and the freezing of financial assets and economic resources of persons and entities involved in terrorism. Further, states were called upon to refrain from any support to those involved in terrorism and take action against such persons, and to co-operate with other states in preventing and suppressing terrorist acts and acting against the perpetrators. The Council also declared that acts, methods and practices of terrorism were contrary to the purposes and principles of the UN and that knowingly financing, planning and inciting terrorist acts were also contrary to the purposes and principles of the UN. Crucially, the Council established a Counter-Terrorism Committee
See also resolution 1189 (1998), concerning the bombings of the US Embassies in East Africa, and resolution 1269 (1999), which reaffirms many of the points made in the 1994 General Assembly Declaration.
See further above, p. 1134, with regard to recognition of the right to self-defence in this context.
Note also the condemnation of the terrorist bombing in Bali in October 2002: see resolution 1438 (2002); of the taking of hostages in Moscow in October 2002 referred to as a terrorist act: see resolution 1440 (2002); and of the terrorist attacks in Kenya in November 2002: see resolution 1450 (2002).
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I monitor implementation of the resolution. States were called upon '° report iH mc Committee on measures they had taken to implement t^e resolution. The Committee was also mandated to maintain a dialogue jth states on the implemention of resolution 1624 (2005) on prohibiting incitement to commit terrorist acts and promoting dialogue and under-I tanding among civilisations.
I In resolution 1377 (2001), the Council, in addition to reaffirming ear-I |jer propositions, declared that acts of international terrorism 'constitute one of the most serious threats to international peace and security in the twenty-nrst century' and requested the Counter-Terrorism Committee to assist in the promotion of best-practice in the areas covered by resolu-I tion 1373, including the preparation of model laws as appropriate, and to examine the availability of various technical, financial, legislative and other programmes to facilitate the implementation of resolution 1373.225 The Counter-Terrorism Committee was strengthened in 2004 by the establishment of the Executive Directorate, comprising a number of experts and administrative and support staff.226 A further committee was established by resolution 1540 (2004) to examine the implemention of the resolution, which requires all states to establish domestic controls to prevent access by non-state actors to nuclear, chemical and biological weapons, and their means of delivery, and to take effective measures to prevent proliferation of such items and establish appropriate controls over related materials.227
The Counter-Terrorism Committee has now received a large number of reports, and has reviewed and responded to many of them. The Committee has since 2005 been conducting visits to member states.228
225 See also resolution 1456 (2003), which inter alia called upon the Counter-Terrorism Committee to intensify its work through reviewing states' reports and facilitating international assistance and co-operation. Note the establishment of a Security Council committee (the 1267 committee) to oversee sanctions imposed upon Al-Qaida and the Taliban and associated individuals and entities, resolution 1267 (1999). In resolution 1566 (2004), the Security Council established a working group to recommend practical measures against individuals and groups engaged in terrorist activities not subject to the 1267 committee's review. See also resolution 1822 (2008).
See resolution 1535 (2004). The mandate of the Executive Directorate has been extended to the end of 2010: see resolution 1805 (2008). 227 See also resolutions 1673 (2006) and 1810 (2008), extending the mandate of the committee to April 2011.
8 See the website of the Committee, www.un.org/sc/ctc. Note also the case of Boudellaa et al. v. Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina, Judgment of 11 October 2002, Human Rights Chamber of Bosnia and Herzegovina, paras. 93-8. See further above, chapter 7, p. 379.
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In addition to UN activities, a number of regional instru demning terrorism have been adopted. These include the Euro S C°n" vention on the Suppression of Terrorism, 1977;"' the Council Tp C°n" Convention on the Prevention of Terrorism, 2005; the Fnmn Urope Framework Decision on Terrorism, 2002, the South Asian Assoc'
Regional Co-operation Regional Convention on Suppression ofTe'1''*
r
the Islamic Conference on Combating International Terrorism 1990.^
ism, 1987 and Additional Protocol of 2005; the Arab Convention for Suppression of Terrorism, 1998; the Convention of the Omar,;- J ' »U.t.1__-^—c___________,  .•    t .      .- 'gantsation
rror-the
Commonwealth of Independent States Treaty on Co-operation in Corn6 bating Terrorism, 1999; the African Union Convention on the Prevention and Combating of Terrorism, 1999 and Protocol of2005; the ASEAN Co vention on Counter Terrorism, 2007, and the Organisation of American States Inter-American Convention against Terrorism, 2002.m ln addition, the Organisation on Security and Co-operation in Europe adopted a Ministerial Declaration and Plan of Action on Combating Terrorism in 2001.™
Coupled with the increase in international action to suppress international terrorism has been a concern that this should be accomplished in conformity with the principles of international human rights law and international humanitarian law.232 This has been expressed by the UN Secretary-General233 and UN human rights organs.'34 In 2005, the UN
229 Note that a Protocol amending the Convention was adopted by the Committee of Mi nisters of the Council of Europe in February 2003. This incorporates new offences into the Convention, being those referred to in the international conventions adopted after 1977.
230 Note also the establishment of the Inter-American Committee Against Terrorism in 1999, AF/Res. 1650 (XXIX-0/99).
231 See www.osce.org/docs/english/1990-1999/mcs/9buch01e.htm.
232 See e.g. H. J. Steiner, P. Alston and R. Goodman, International Human Rights in Context, 3rd edn, Oxford, 2008, chapter 5, and D. Pokcmpner, Terrorism and Human Rights: The Legal Framework', in Terrorism and International Law (eds. M. Schmitt and G. L. Beruto), San Remo, 2003, p. 39.
233 See Report of the Secretary-General on the Work of the Organisation, A/57/1, 2002, p. 1, where the Secretary-General stated that, T firmly believe that the terrorist menace must be suppressed, but states must ensure that counter-terrorist measures do not violate human rights.'
234 See e.g. the statement of the Committee on the Elimination of Racial Discrimination of 8 March 2002, A/57/18, pp. 106-7, and the statement by the Committee against Torture of 22 November 2001, CAT/C/XXVII/Misc.7. Note also that on 27 March 2003, the legal expert of the Counter-Terrorism Committee briefed the UN Human Rights Committee: see UN Press Release of that date. See also the report on Terrorism and Human Rights by Special Rapporteur K. K. Koufa to the UN Sub-Commission on the Promotion and Protection of Human Rights, 2004, E/CN.4/Sub.2/2004/40. Note that the Security
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mjssion on Human Rights, for example, appointed a Special Rap-teur on the 'promotion and protection of human rights and funda-
Cfi
to-
ital freedoms while countering terrorism'.235 Particular concerns have ised on 'shoot to kill' policies in the context of combating suicide Lmbings reportedly adopted by some states236 and the practice of secret L tion ancj_ illegal transfer of detainees across international bound-Les ('extraordinary rendition').237 The situation of detainees in the US base in Guantanamo Bay, Cuba, has been a matter of particu-All of these issues have demonstrated the tension between
military C; concern.'
I Council's Counter-Terrorism Committee has emphasised that states in adopting measures I to counter terrorism must comply with all their international law obligations, including I those relating to human rights law, refugee law and humanitarian law, and issued policy I  guidance to the Executive Directorate noting that human rights should be incorporated
into its communications strategy: see S/AC.40/2006/PG.2. I* See resolution 2005/80. This mandate was assumed by the Human Rights Council: see I General Assembly resolution 60/251 and see Council resolution 6/28. See further on the I Human Rights Council, above, chapter 6, p. 306. The Special Rapporteur produced a I report on terrorist-profiling practices and human rights in 2007: sec A/HRC/4/26. 136 See e.g. A/1 IRC/4/26, pp. 21 ff. and the report of the Special Rapporteur on extrajudicial, I summary or arbitrary executions, A/CN.4/2006/53, paras. 44 ff. In particular, the need I for resort to force as a last resort and the requirement of proportionality were emphasised: I see also the Code of Conduct for Law Enforcement Officers, General Assembly resolution
L 34/169'
237 See e.g. L. N. Sadat, 'Ghost Prisoners and Black Sites: Extraordinary Rendition under In-
I   ternational Law', 37 Case Western Reserve Journal of International Law, 2005-6, p. 309, and
I J. T. Parry, 'The Shape of Modern Torture: Extraordinary Rendition and Ghost Detainees', 6 Melbourne Journal of International Law, 2005, p. 516.
■ See e.g. Lord Steyn, 'Guantanamo Bay: The Legal Black Hole', 53 ICLQ, 2004, p. 1; F. Johns, 'Guantanamo Bay and the Annihilation of the Exception', 16 EJIL, 2005, p. 613,
I and T. Gill and E. van Sliedregt, 'Guantanamo Bay: A Reflection on the Legal Status and Rights of "Unlawful Enemy Combatants'", 1 Utrecht Law Review, 2005, p. 28. Note in
I particular the joint report by the five UN Special Rapporteurs respectively on arbitrary detention, on the independence of judges and lawyers, on torture, on freedom of religion or belief and on the right of everyone to physical and mental health, 16 February 2006,
I and the reports by the Council of Europe's Committee on Legal Affairs and Human Rights on secret detentions and illegal transfer of detainees involving Council of Europe
I members of 22 January 2006, AS/Jur (2006) 03 rev. and of 7 June 2007, AS/Jur (2007) 36. The Inter-American Commission on Human Rights granted precautionary measures in favour of detainees in Guantanamo Bay requesting the US to take 'urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal': see Annual Report of the IACHR, 2002, chapter 111(C)(1), para. 80, first precautionary measures reiterated and amplified in 2003, 2004 and 2005: see B. D. Tittemore, 'Guantanamo Bay and the Precautionary Measures of the Inter-American Commission on Human Rights: A Case for International Oversight in the Struggle Against Terrorism', 6 Human Rights Law Review, 2006, p. 378. See also with regard to US courts and Guantanamo Bay, above, chapter 4, p. 164, note 178.
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combating international terrorism and respecting human rights and }J
need to accomplish the former without jettisoning the latter.
Regional organisations have also been concerned by this dilemma K Council of Europe adopted international guidelines on human rights anti-terrorism measures in July 2002,239 seeking to integrate condemn tion of terrorism and efficient combating of the phenomenon with th" need to respect human rights. In particular, guideline XVI provides that in the fight against terrorism, states may never act in breach of perem tory norms of international law (jus cogens) nor in breach of internatio 1 humanitarian law. The Inter-American Commission on Human Rights adopted a Report on Terrorism and Human Rights in October 2002 240
Suggestions for further reading
I. Brownlie, International Law and the Use of Force by States, Oxford, 1963 Y. Dinstein, War, Aggression and Self-Defence, 4th edn, Cambridge, 2005 T. M. Franck, Recourse to Force, Cambridge, 2002 C. Gray, International Law and the Use of Force, 2nd edn, Oxford, 2004
Supplemented in March 2005 by guidelines concerning the protection of victims of terrorist acts.
OEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr.