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Use of Force, Use of Force and Law of Self-Defence, international law is a…

- - - - Severance of diplomatic relations - The Hickenlooper Amendments to the American Foreign Assistance Act:
        
        Often quoted as an instance of retorsion since they required the US President to suspend foreign aid to any country nationalising American Property without proper compensation
    - - Naulilaa Case [1928]:
        
        Facts: Dispute betwen Portugal and Germany in 928. Concerned a German military raid on the colony of Angola, which are destroyed property, in retaliation for the mistaken killing of 3 Germans lawfully int he Portuguese territory
        
        Held: The Tribunal in discussing the Portuguese claim for compensation, emphasised that before reprisals could be undertaken, there must 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
        
        German claim that it had acted lawfully was rejected on all 3 grounds
        
        Those rules must be interpreted in light of the prohibition on the use of force by Art 2(4) of the UN Charter
- - - - In 1928 the Covenant of the League of Nations were supplemented by the General Treaty of the Renunciation of War (The Kellog-Briand Pact)
        
        Art 1 - the parties 'condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy in their relationship with one another'
        
        This doesn't 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
        
        Whether measures short of war is prohibited - subject to conflicting interpretations
- - - - What about:
        
        economic aggression? anticipation of an attack? response to attack against state interest?
        
        On the other hand, there's some who maintain that the opening phrase in Article 51 specifiying that 'nothing in the present Charter shall impair the inherent right of self-defence means that there does exist in CIL a right of self-defence over and above the specific provisions of Art 51 which refers only to the situation where an armed attack has occurred
      - Best approach: Interceptive self-defence
        
        Self-defence is legitimate both under customary law and under Art 51 where the armed attack is imminent
        
        Concept of 'necessity' and 'proportionality' important in self-defence law
        
        Necessity - burden of proof is on the state who wants to use force in self-defence
        
        Instancy/immediacy - once an armed attack is over, self-defence comes to an end
        
        Proportionality - defensive action must result from an armed attack
        
        Nicaragua Case [1986]:
        
        "Art 51 of the Charter is only meaningful on the basis that there is a 'natural' or 'inherent' right of self-defence and its hard to see how this can be other than of a customary nature, even if tis present content has been confirmed and influenced by the Charter... It cannot, therefore be held that Art 51 is a provision which 'subsumes and supervenes' CIL"
        
        The issue arises on whether a right to anticipatory or pre-emptive self-defence exists.
        
        The ICC in the Nicaragua Case expressed no view on the issue as on the facts of the case, the problem was not raised
      - Anticipatory self-defence:
        
        Most debatable and controversial attempt to widen the exceptional right of self-defence whenever the attack is expected
        
        Based on 'military necessity", "the best defence is to attack first and break up the enemy forces before they have the time to move"
        
        You need an armed attack first
        
        Arguments:
        
        Anticipatory self-defence is allowed by CIL
        
        Nuclear weapons and modern sophisticated devices make it inadvisable to wait for attack
        
        Reality:
        
        Anticipatory self-defence is not an established CIL and not part of the UN Charter
        
        Oil Platforms case [2003]:
        
        Facts: Naval escorts provided by the US for ships flying their flags during the Iran-Iraq War. A Kuwaiti tanker that had been re-flagged and a warship on escort duty were hit by a missile and damaged by a mine on 2 separate occasions respectively. Claiming self-defence the US attacked Iranian oil platforms.
        
        Held: The conditions for the exercise of the right of self-defence are well settled: as the Court observed in its Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, "The submission of the exercise of the right of self-defence to the conditions of necessity and proportionality is a rule of CIL". Court concluded that the actions of the US could not be justified
    - - Self-defence against terrorism - post 9/11:
        
        In response to Sept 11 attacks, USA began Operation Enduring Freedom to disrupt the use of Afghanistan as a terrorist base
        
        Operation received tremendous support despite doubts as to whether the right to self-defence could extend to past terrorist attacks
        
        Widens concept of armed attacks. Art 51 originally includes self-defence against an attack by a State and those invoking the right generally took care to attribute responsibility to a state.
        
        Now its accepted that a terrorist attack on a State's territory by a non-state actor is an armed attack which justifies a response against the State which harboured those responsible
        
        The right of self-defence claimed by US and UK is also pre-emptive. US said it was to reduce further attacks on the US and UK claimed it was to avert the continuing threat of attacks from the same source
        
        The right of self-defence against terrorism may exist only in cases where the right has been asserted by the Security Council
        
        The US stretched its right to self-defence and identified Iran, Iraq and North Korea as the 'Axis of Evil' and made it clear that it would be prepared to use force against them
      - Collective self-defence:
        
        Factually - its envisaged as the use of force in self-defence by 2 or more states
        
        Idea ambiguous - may be regarded merely as pooling of a number of individual rights of self-defence within the framework of a particular treaty or insitution
        
        May form basis of comprehensive regional security systems
        
        Organisations such as NATO and Warsaw Pact have been set up since WW2, specifically based upon the right of collective self-defence under Art 51
        
        By such agreements an attack on 1 party is treated as an attack upon all
        
        Nicaragua Case:
        
        The right to collective self-defence was established in CIL but added that the exercise of that right depended upon a prior declaration by the state concerned that it was the victim of an armed attack and a request by the victim state for assistance
        
        Judge Jennings dissenting opinion on Collective self-defence:
        
        '... the notion of collective self-defence is open to abuse and its necessary to ensure that its not employable as a mere cover for aggression disguised as protection, and the Court is therefore right to define it somewhat strictly"
        
        The court also stated that 'for one state to use force against another, on the ground that the state has committed a wrongful act of force against a 3rd state is regarded as lawful, by way of exception, only when the wrongful act provoking the responses was an armed attack
      - Hot pursuit:
        
        Can the police or military of a state cross the frontiers into another state without permission, to pursue persons who have committed offences in the former state?
        
        In terms of use of force, the alleged right of hot pursuit is used to justify armed incursions into the territory of neighbouring states for the purpose of destroying the military bases of guerrillas who have launched, or will launch, attacks against the state
        
        This action has been justified on the basis of expanded self-defence, its similar to reprisals
        
        Generally such actins is believed to be 'aggression' or contrary to Art 2(4)
- - - - Art 2(4):
        
        All 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 UN
  - - - Conditions (for defence to be lawful):
        
        Must have actual / imminent armed attack,
        
        Use of force must be necessary and proportionate to defend against armed attack, and
        
        State must report to SC (per Art 51) about measures taken in self-defence
- - - - Impact:
        
        This incident created legal and diplomatic debate over right of a state to use force in self-defence against imminent threat, necessity of action and proportionality of response
      - Judgement:
        
        Any force in self-defence must be necessary (no alternative means) and proportionate (limited to the extent necessary to counter threat)
- - - - (1) UN Charter - Art 2(4):
        
        Prohibition on Use of Force:
        
        Art 2(4) - prohibits the threat / use of force against the territorial integrity or political independence of any state
        
        Exceptions:
        
        The only expcetions for use of self-defence under Art 51 or actions authorised by UN SC per Chapter VII
      - (2) Right to Self-Defence - Art 51:
        
        Conditions - Self-defence is permissible under IL if an armed attack occurs against a state
        
        Imminence Requirement - The attack must be imminent or ongoing, and the response must be necessary and proportionate to the threat faced
        
        Anticipatory self-defence - There's a debate over whether a anticipatory self-defence under Art 51 in response to an imminent threat that has not yet materialised into an armed attack
        
        Iraq War (2003)
        
        US and its allies argued that the invasion of Iraq wsa justified as Anticipatory Self defence due to the perceived threat posed by Iraq's weapons of amss destruction
        
        This was highly controversial and debated internationally
        
        Israeli Strikes:
        
        Israel conducted preemptive strikes against perceived threats, like airstrikes on nuclear facilities in Iraq (1981) and Syria (2007)
        
        These actions were justified as preventing future attacks
        
        Legality of Anticipatory Self-Defence:
        
        The legality remains controversial and highly dependent on the specific circumstances of each case
        
        Whils states have inherent right to self-defence (including anticipatory self-defence under certain conditions, the strict requirements of necessity, proportionality and imminence must be carefully assessed to justify the actions
        
        Heavy assessment must be done to justify the actions within the framework of IL and norms aimed at maintaining global peace and security