Use of force

 All encompassing Q
 Use of drones-terrorism
 Nicaragua v USA
 Responsibility to protect – Libya and Syria
 Self defence – attack by nukes. Attack by drones.
Problems in defining force ad its use, and for creating rules for many different sorts of
situations where use of force requires consideration – constraints on use of force : firstly need
to identify the category to which force is related.

Use of Force:
In default of resolution of disputes by peaceful means, states may resort to use of force.
International law has a lack of monopoly over the legitimate use of force, and no military
strength to check any illegitimate use of such; thus requires consent and cooperation of states
in its attempt to curb and constrain violence with an international dimension. Regulation of use
of force requires two separate matters for consideration: (i) jus ad bellum (the justification for
going to war and (ii) jus n bello (the law of war – including rules of IHL waging war/treating
victims).
Examples of use of force include: (i) NATO intervention in Kosovo in 1999 for ‘humanitarian
reasons’, the legality of the operation however, remained debatable. (ii) particularly
controversial are: actions of the US and UK in creating no fly ones via UNSC Resolution
688/1991, and in carrying out air strikes against Iraq in 1998 & 2001. (iii) more controversial:
invasion and occupation of Afghanistan, and then Iraq by US & allies, (iv) bombing and ‘regime
change’ in Libya (v) current intervention of Syria and Iraq by Russia, Turkey, USA & allies.
History:
The book Might v Right (US Council on Forgein Relations) points out mans attempt to place
rational bounds on use of force emerge from his revulsion against the scourge of war. Since
history, right to wage war has been unconstrained until after WWI. Treaty of Westphalia, didn’t
do much to imply such constraint on use of force and the inconsistency at the heart of the
Westphalian system is: how are states sovereign equals if stronger ones can wage war on
weaker ones. Endemic European wars were a feature of the 17-19th century, and conquest was
the means by which territories (including colonies) were won. The advent of weapons of mass
destruction greatly proliferated the ability to kill civilians and enemies alike. Oppenheim
observes however that in the 20th century there was a growing awareness that private subjects
of belligerent states, i.e. civilians not involved in fighting, could expect reasonable protection.
Attempts to control warfare before WWI:
The response of international law was states developing rules of customary international law
concerning how and against whom war might be waged: (i) 1856 Paris Declaration on Maritime
War (ii) 1864 Geneva Convention on Wounded and Sick, (iii) St. Petersburg Declaration on
Projectiles, (iv) Declaration Concerning the Laws and Customs of War adopted at the instigation
of Russia, precursor to (v) Hague ‘First International Peace Conference’ 1899 and Second in
1907: which mainly codified existing customary international law on warfare and so was
binding on all states, with particular emphasis given to the Martens Clause, which asserted that
even while parties wished to remain outside certain declarations and regulations, civilians and
populations generally remained under the protection and authority of international law derived
from custom, principles of humanity and dictates of public conscience’. This clause was later
added to the Geneva Conventions.
After WWI: efforts of the League of Nations:

 creation of the League of Nations. Didn’t purport to abolish war but placed limitation
upon the use of force – allowed time for reflection by: no resort to war until three
months after recourse to the League of Nations Council for peaceful settlement of
disputes. States also agreed to ‘respect and preserve as against external aggression,
territorial integrity and political independence of all members of the league.
 Article 16 of the Covenant of the League of Nations: a state waging war was deemed to
have waged war against all members of the League. Provided for sanctions if not
complied: but members of the League proved unwilling to sanction states acting in
defiance of the Covenant. When even economic sanctions irregularly, applied, such
economic sanctions were made optional rather than compulsory.
 General Treaty for the Renunciation of War (1928) i.e. the Kellogg-Briand Pact: sought to
reject recourse to war as an instrument of national policy (Article 1) t not limit it, and
that solution to disputes should be by pacific means (Article 2). Inspired by a liberal
internationalist view that war could be prevented and abolished with diplomacy and
collective solidarity. its effectiveness can be seen by the fact that what stared out as a
bilateral treaty between France and USA soon became a multilateral treaty with 16
parties by the start of WWII including Germany, Italy and Japan. Though it must be
admitted that USA had some qualifications to it that neither affected its right to self
defence nor committed it to enforce the Treaty.
- Two significant reasons for its importance, (even though it failed in its effect due to
lack of enforcement mechanisms): (i) first treaty to suggest that recourse to war could
be breach of international law (ii) was used as an imp.
- Legal base for prosecution in Nuremberg trials, the judgment stated: legal affect of this
pact.. after signing the pact any nation resorting to war as an instrument of national
policy is breaking this pact. Renunciation of war as an instrument of national policy
necessarily involves the position that such a war is illegal in international law. Those
 who plan and wage such a war are committing a crime.
- Mr. Henry L Stimson – Sec of State US 1932 – about the Pact: “(war) .. has become
throughout the world.. an illegal thing. When engaged in armed conflict those nations
are violators of general treaty law.. we must denounce them as law breakers.”
UN CHARTER: framework for the elimination of use of force

 After WWII: renewed determination to use international law to prevent war

 Preamble to UN Charter: save succeeding generations from scourge of war”
 Art 1(1): prupose: to maintain international peace and security…. Suppression of acts of
aggression or breaches of international law.
 Article 2(4): refrain in their international relations from threat or use of force against the
‘territorotial integrity or political independence of any state or any manner inconsistent
with UN.
 Its proscription of force in intl relations follows up on the League of nations emphasis
upon pacific settlement of disputes and more directly from the Kellog-Briand Pact 1928
which renounced war as an instrument of forgien policy. The charter may be viewed as a
radical departure from earlier law however, in e.g. proscribing reprisals and in limiting
the right to self defence.
 Nicaragua v USA: customary international law – prohibition on use of force. Prohibited
as until laid out by Charter: (drafters realized that situations would arise where force
would need to be use; and necessary to provide for lawful and legitimate respoonses
where breaches did occour). Charter does reflect the determination in avoiding a third
world war.
 Excecptions to the use of force: Self defence (art 51)
collective self defence (art 51)
measures by UNSC under Ch. VII of UN Charter
 Interpretation of art. 2(4):
 UNGA Res 2625 (1970): (resolution even though not binding, is a declaration of the
consensus of the international community). It identifies:
(i) war of aggression = crime against peace, for which there is responsibility
(ii) every state to refrain from threat or use of force to violate international lines of
demarcation, and boundaries of another state
(iii) every state to refrain from any forcible action which deprives peoples of their right
to self determination and freedom of independence.
 Force: undefined in article 2(4). Wade Mansell suggests: clearly both political and
economic force could be interpreted between both. Res 2625: (in its interp. Of article
2(7) however) proscribe ‘economic, political or any other type of measures to coerce
another State’.
Generally held view however: art. 2(4) doesn’t encompass situations beyond armed
force
 Nicaragua v USA: economic santions by USA against Nicaragua did not constitute a
breach of the cust. Intl law principle of non-intervention.
 UNGA Res 3314 (1974) (on the Definition of Aggression).
(i) Defines aggression as ‘use of armed force by a state against the sovereignty,
territorial integrity or political independence of another state’.
(ii) first use of armed force aginst art. 2(4) is deemed to be prima facie evidence of an
act of aggression
(iii) acts of aggression include: invasion or armed attack, annexation of territory,
bombardment by the armed forces of a state against the territory of another state,
attack by armed forces of the state on the land, sea, or air force, marine and air fleets of
another state.
(iv) significantly, it notes that no consideration of whatever nature, whether political,
economic, military or otherwise may serve as a justification for aggression.
 Art 2(4) as interpreted by UNGA resolutions means that there can be no justification for
going to war.
 Task of determining aggression: with UNSC under art. 39 of Ch. VII of UN Charter.

CHAPTER VII UN CHARTER:

Intended to allocate power and responsibility to the SC both to determine the existence of any
threat to the peace and to decide what forcible or other measures should be taken to resolve
the situation. Results less successful because: There were during the cold war, deep divisions
amongst the veto states of the UNSC, and lack of military capacity of UN itself. It remains
arguable however that any use of force, except for reasons of self - defence, remains unlawful
unless sanctioned by the Security Council.

 Prohibition on use of force (2(4)) and principle of non-intervention with domestic

jurisdictions (2(7)) intended to ensure international peace and security. Drafters
recognized however that these provisions alone would be insufficient, and thus placed
responsibility too make these provisions effective on the UNSC.
 UN Charter statute book, art. 24, 25, 27(3).
 Chapter VII: power to determine threats to the peace, breaches of the peace, and acts
of aggression. (statute book)
 Under 39: UNSC may determine what constitutes such aggression, has an unfettered
power to do so and no review by a higher body can take place. Some writer are critical
and say that UNSCs power should be constrained to allow objective evidene for
determination.
 Measures available include: economic sanctions to military force. (range)
 Because of the veto power, during the cold war this authoroziation of the use of force
was scarecely used beforer 1990. Used only on 2 occasions, both of which are
 exceptional.
(i) conflict b/w North and South Korea. SC ‘recommended’ that UN member states give
such assistance to South Korea as may be necessary ‘to repel armed attack and to
restore int’l peace and security in the area’. This recommendation rather than an
authorization was passed during the absence of P5 member Soviet Union, who would
have exercised a veto. Absentation of a permanent member is not to be equated with a
veto.
(ii) government of Rhodesia’s claim of independence constituted a threat to the peace.
Called upon the UK to prevent the use of force if necessary, the Council imposed
mandatory economic sanctions as the situation was an ‘usurpation of power by a racist
settler minority’.
 End of cold war: SC might atlast perform its function. Intended under art. 43 that all
members would undertake to make available to the UNSC armed forces, assistance and
facilities. This has never been fulfilled, even when action authorized, it has been entirely
under the control of participating states
 Ch VII used more widely since the cold war.
(i) 1990 ‘all necessary means’ to restore international peace and security in Gulf by
forcing Iraq to withdraw from Kuwait, resulting in return of sovereignty to the occupied
state.
 Other resolutions have also authorized particular states or organizations (such as OAS)
Enforcement decisions under art. 41 and 42.

 Article 41:
 Against Rhodesia 1965: affect was limited by the refusal of Portugal who was a
colonial power over Mozambique and Angola.
 South Africa 1977, resolution 418 called for arms embargo, but little enthisuam
under powerful states for monitoring to ensure completion
 Wider sanctions = controversial. States unwilling to give up trade, as such sanctions
in belligerent states most directly affect the poorest citizens.
 Sanctions against Iraq after its expulsion from Kuwait – strengthened the arguments
of those who are opposed to sanctions in principle.
 By jan 1990 and jan 2006 – 16 sanctions imposed
 Article 42:
 Authorizing use of force. Stricto senso, this provision has never been applied. The
resolution against Korea in 1950 was a recommendation.
 Authorization of use of force in Iraq didn’t explicitly mention article 42 (some cynics
= article fourty one and a half). The reason for this is because articles 43-7 of the
Charter forcing the SC to authorize a state, group of states or regional organization
to use armed force to restore international peace and order, has the affect of
 passing the control of such use of force away from the UN to other states or bodies.
This authority is implicit within Ch VII.
 Chilcot inquiry: Iraq inquiry, ordered by PM Gordon Brown, to consider UK
involvement in Iraq War. Reporting in 2016. UK argued that although no
authorization, the one of 1990 remained in force.
 Terrorist attack in Paris 2015 attributed to Da’esh/ISIS. UNSC passed resolution
2249. Paragraph 5 is of particular importance, which doesn’t provide authorization
of use of force, but arguable proscribes it by insisting that the ‘necessary measures’
to ‘prevent and suppress’ Daesh attacks must be consistent with international law
(in absence of art. 42 means that force is unlawful).

SELF-DEFENCE
Self defence under article 51

 Exception to art. 2(4) use of force

 Caroline case: first acknowledged and identified the rights and limitations of self defence. US
boat to aid rebels against the British in upper Canada was sent on fire by Britain, who claimed it
was ‘necessary self defence’ 182 Daniel Webster – US Secretary of State, gave definition which
have come to be accepted as the appropriate criteria to which judge the lawfulness of a claimed
act of self defence: were necessity of self defence is instant, overwhelming, leaving no choice of
means. i.e. necessity and proportionality.
 Art. 51, the intention of which is essentially to acquire a monopoly over the use of force in
international relations.
 While the right is inherent, it is only thought to exist until such a time that the SC is itself able to
take measures necessary to maintain international peace and order.
 Art. 51 fails to define armed attack or to specify whether the attack must be upon the territory
of the state under attack.
illustrated by Armed attack and the Entebbe Airport: e.g. when nationals of a state are being
attacked beyond its borders.

Interpretation of art. 2(4)

PRINCIPLES OF INTERNATIONAL LAW ON SELF-DEFENCE

The Charter of the United Nations prohibits the use of force against another state except
where the Security Council has authorised the use of force to maintain or restore
international peace and security; and where a state is exercising its inherent right of
individual or collective self-defence recognised by Article 51 of the Charter1.

The principles set out below are intended to provide a clear statement of international law
regarding the inherent right of self-defence.

All the principles need to be read together.

Even in a case where a state is legally entitled to use force, there may be reasons of
prudence and principle not to exercise that right.

1. The law on self-defence encompasses more than the right to use force in response to
an ongoing attack.

Article 51 preserves the right to use force in self-defence “if an armed attack occurs”, until the
Council has taken the necessary measures. On one view, the right is confined to circumstances
in which an actual armed attack has commenced.2 But the view that states have a right to act in
self-defence in order to avert the threat of an imminent attack - often referred to as ‘anticipatory
self-defence’3 - is widely, though not universally, accepted.4 It is unrealistic in practice to suppose
that self-defence must in all cases await an actual attack.

The difference between these two schools of thought should not be overstated: many of those in
the first school take the view that an attack has commenced when there are active preparations
at an advanced stage, if there is the requisite intent and capability; and many of those in the other
school require not dissimilar conditions before force in self-defence may lawfully be used in
respect of an imminent attack. Further, those who deny the right of anticipatory self-defence may

1
The question whether there is also a right to take action in exceptional circumstances of humanitarian
emergency, or to protect fundamental rights, is not dealt with here; nothing in this paper can be regarded
as prejudicing the question one way or the other. Although Article 51 mentions the right of collective self-
defence, this study deals only with individual self-defence.
2 The International Court of Justice (ICJ) expressly left open the issue of the lawfulness of a response to

the threat of an imminent armed attack in the Case concerning Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v USA) (Merits, 1986 ICJ Rep. 14, at para. 194). When the question of the
existence of an armed attack featured in the Court’s overall reasoning on the law of self-defence, it
appeared before the treatment of the principles of necessity and proportionality. The same framework
was followed by the Court some 17 years later in the Oil Platforms Case (Case Concerning Oil Platforms
(Islamic Republic of Iran v. United States of America, 2003 ICJ Rep.) where it first investigated the
existence of an armed attack (paras. 61 to 64 and 72) before it turned to the application of the principles
of necessity and proportionality (paras. 73 and 74).
3 For the purposes of this document the term ‘anticipatory ‘ self-defence is preferred over ‘pre-emptive’

self-defence, although the latter is also in current use, for example in the report of the United Nations
Secretary-General’s High-level Panel on Threats, Challenges and Change: ‘A More Secure World:Our
Shared Responsibility’ para.189.
4 The United Nations Secretary-General’s response “In Larger Freedom” to the high-level panel report

mentioned above states: “Imminent threats are fully covered by Article 51, which safeguards the inherent
right of sovereign states to defend themselves against armed attack. Lawyers have long recognised that
this covers an imminent attack as well as one that has already happened” (at para. 124). In the resolution
adopting the World Summit Outcome the UN General Assembly reaffirmed that “the relevant provisions of
the Charter are sufficient to address the full range of threats to international peace and security” and
reaffirmed “the authority of the Security Council to mandate coercive action to maintain and restore
internaitonal peace and security” but did not comment on the meaning of Article 51.
accept that a completed attack is sufficient to trigger a right to respond in anticipation of another
attack5.

The requirements set out in the Caroline case6 must be met in relation to a threatened attack. A
threatened attack must be ‘imminent’ and this requirement rules out any claim to use force to
prevent a threat emerging7. Force may be used in self-defence only when it is necessary to do
so, and the force used must be proportionate.

2. Force may be used in self-defence only in relation to an ‘armed attack’ whether

imminent or ongoing.

 The ‘armed attack’ may include not only an attack against a state’s territory, but also
against emanations of the state such as embassies and armed forces.
 Force in self-defence may be used only when: the attack consists of the threat or use
of force (not mere economic coercion, for example); when the attacker has the
intention and the capability to attack; and the attack is directed from outside territory
controlled by the state.
 In the case of a threatened attack, there must be an actual threat of an attack against
the defending state itself.

The inherent right of self-defence recognised in Article 51 of the Charter of the United Nations “if
an armed attack occurs” forms an exception to the general prohibition against the use of force
under Article 2(4).

For the purpose of Article 51, an armed attack includes not only an attack against the territory of
the State, including its airspace and territorial sea, but also attacks directed against emanations
of the State, such as its armed forces or embassies abroad. An armed attack may also include,
in certain circumstances, attacks against private citizens abroad or civil ships and airliners.8 An
‘armed attack’ therefore is an intentional intervention in or against another state without that
state’s consent or subsequent acquiescence, which is not legally justified.

An armed attack involves the use of armed force and not mere economic damage. Economic
damage, for example, by way of trade suspension, or by use of a computer virus designed to
paralyse the financial operations of a state’s stock exchange or to disable the technology used to
control water resources, may have a devastating impact on the victim state but the principles
governing the right to use force in self-defence are confined to a military attack. A purely
‘economic’ attack might however give rise to the right of self-defence if it were the precursor to an
imminent armed attack.

5
As in the Caroline incident, and in the case of the intervention in Afganistan in 2001, which was
categorised by the US and the UK as the exercise of the right of anticipatory self-defence (see UN Doc.
S/2001/946 and UN Doc. S/2001/947).
6 The exchange between the US and the UK agreed that there be “a necessity of self-defence, instant,

overwhelming, leaving no choice of means and no moment for deliberation” and the use of force, “justified
by the necessity of self-defence, must be limited by that necessity, and kept clearly within it”.
7 See commentary for section 4, below.
8 This study does not, however, deal with the rescue of citizens abroad, which raises different issues.
An armed attack means any use of armed force, and does not need to cross some threshold of
intensity.9 Any requirement that a use of force must attain a certain gravity and that frontier
incidents, for example, are excluded is relevant only in so far as the minor nature of an attack is
prima facie evidence of absence of intention to attack or honest mistake. It may also be relevant
to the issues of necessity and proportionality. In the case of attacks by non-State actors,
however, different considerations may come into play (see section 6 below).

The term ‘armed attack’ requires the attacker to have the intention to attack. In the Oil Platforms
Case the ICJ made reference to this requirement when it inquired into the question whether the
US was able to prove that certain of Iran’s actions were “specifically aimed” at the US or that Iran
had “the specific intention” of harming US vessels10. But to the extent that this may be read as
suggesting that military attacks on a state or its vessels do not trigger a right of self-defence as
long as the attacks are not aimed specifically at the particular state or its vessels but rather are
carried out indiscriminately, this part of the ICJ’s ruling in Oil Platforms has been criticised as not
supported by international law.

An armed attack is an attack directed from outside territory controlled by the State. In its Advisory
Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory11 the ICJ’s observations may be read as reflecting the obvious point that unless an
attack is directed from outside territory under the control of the defending state the question of
self-defence in the sense of Article 51 does not normally arise.
In the case of a threatened attack, there must be an actual threat of an attack against the
defending state itself, whether directed against that state or by an indiscriminate attack.This is an
aspect of the criterion of necessity. It addresses the question whether it is necessary for the target
state to take action.

3. Force may be used in self-defence only when this is necessary to bring an attack to an
end, or to avert an imminent attack. There must be no practical alternative to the
proposed use of force that is likely to be effective in ending or averting the attack.

The criterion of necessity is fundamental to the law of self-defence12. Force in self-defence may
be used only when it is necessary to end or avert an attack. Thus, all peaceful means of ending

9
There are statements by the International Court of Justice which suggest that there may be instances of
the use of force which are not of sufficient gravity as to scale and effect to constitute an armed attack for
the purpose of self-defence. (Nicaragua case, note 2, at paras.191 and 195 and Oil Platforms Case,supra
note 2, at paras. 51, 63-64 and 72.
But these statements are not generally accepted.
10 Note 2 above, at para. 64.
11 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory, ICJ, 9 July 2004, at para. 139.

12 The criterion of ‘necessity’ if force is legally to be used in self-defence can be traced back to the

language of the Caroline formula:

“[i]t will be for … [Her Majesty’s] Government to show a necessity of self-defence, instant, overwhelming,
leaving no choice of means, and no moment of deliberation” and the action must not be “unreasonable or
excessive, since the act, justified by the necessity of self-defense, must be limited by that necessity, and
kept clearly within it.”
or averting the attack must have been exhausted or be unavailable. As such there should be no
practical non-military alternative to the proposed course of action that would be likely to be
effective in averting the threat or bringing an end to an attack. Necessity is a 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.

Necessity is also a limit to the use of force in self-defence in that it restricts the response to the
elimination of the attack and is thus linked to the criterion of proportionality. The defensive
measure must be limited to what is necessary to avert the on-going attack or bring it to an end.

In applying the test of necessity, reference may be made to the means available to the state under
attack; the kinds of forces and the level of armament to hand13 will be relevant to the nature and
intensity of response that it would be reasonable to expect, as well as the realistic possibilities of
resorting to non-military means in the circumstances.14

4. A state may use force in self-defence against a threatened attack only if that attack is
‘imminent’.

There is a risk of abuse of the doctrine of anticipatory self-defence, and it needs to be

applied in good faith and on the basis of sound evidence. But the criterion of
imminence must be interpreted so as to take into account current kinds of threat and
it must be applied having regard to the particular circumstances of each case. The
criterion of imminence is closely related to the requirement of necessity.
 Force may be used only when any further delay would result in an inability by the
threatened state effectively to defend against or avert the attack against it.
 In assessing the imminence of the attack, reference may be made to the gravity of the
attack, the capability of the attacker, and the nature of the threat, for example if the
attack is likely to come without warning.
 Force may be used only on a proper factual basis and after a good faith assessment
of the facts.

The concept of ‘imminence’ reflects the Caroline formulation of ‘instant, overwhelming, leaving no
choice of means, and no moment for deliberation’. In the context of contemporary threats

The ICJ held in the Nicaragua case (above note 2) that “the specific rule whereby self-defence would
warrant only measures which are proportional to the armed attack and necessary to respond to it” was “a
rule well established under customary international law”, and re-affirmed this in its Advisory Opinion on
the Legality of the Threat or Use of Nuclear Weapons (1996 ICJ Rep. 226)
13 This formulation leaves open the question whether greater mechanised force can be justified by the

reduction in risk to the lives of the defending State’s forces, a question which is more normally dealt with
by the rules of international humanitarian law.
14 In its decision in the Oil Platforms case (above note 2), the ICJ elaborated on the ”necessity”criterion.

It held that “the requirement of international law that measures taken avowedly in self-defence must have
been necessary for that purpose is strict and objective, leaving no room for any ‘measure of discretion’ ”
(para.73). In practice of course the assessment of the necessity of a particular action is far from
straightforward, and can be undertaken only on the basis of the facts available at the time, but with a
good faith assessment of those facts.
imminence cannot be construed by reference to a temporal criterion only, but must reflect the
wider circumstances of the threat.

There must exist a circumstance of irreversible emergency. Whether the attack is ‘imminent’
depends upon the nature of the threat and the possibility of dealing effectively with it at any given
stage. Factors that may be taken into account include: the gravity of the threatened attack –
whether what is threatened is a catastrophic use of WMD; capability - for example, whether the
relevant state or terrorist organisation is in possession of WMD, or merely of material or
component parts to be used in its manufacture; and the nature of the attack – including the
possible risks of making a wrong assessment of the danger. Other factors may also be relevant,
such as the geographical situation of the victim state, and the past record of attacks by the state
concerned.

The criterion of imminence requires that it is believed that any further delay in countering the
intended attack will result in the inability of the defending state effectively to defend itself against
the attack. In this sense, necessity will determine imminence: it must be necessary to act before
it is too late. There is a question as to whether ‘imminence’ is a separate criterion in its own right,
or simply part of the criterion of ‘necessity’ properly understood. As an additional criterion however
it serves to place added emphasis on the fact that a forcible response in these circumstances lies
at the limits of an already exceptional legal category, and therefore requires a correspondingly
high level of justification.

To the extent that a doctrine of ‘pre-emption’ encompasses a right to respond to threats which
have not yet crystallized but which might materialise at some time in the future, such a doctrine
(sometimes called ‘preventive defence’) has no basis in international law. A fatal flaw in the so-
called doctrine of prevention is that it excludes by definition any possibility of an ex post facto
judgment of lawfulness by the very fact that it aims to deal in advance with threats that have not
yet materialised.

Each case will necessarily turn on its own facts. A forceful action to disrupt a terrorist act being
prepared in another state might, depending upon the circumstances, be legitimate; force to attack
a person who may in the future contemplate such activity is not. While the possession of WMD
without a hostile intent to launch an attack does not in itself give rise to a right of self-defence, the
difficulty of determining intent and the catastrophic consequences of making an error will be
relevant factors in any determination of ‘imminence’ made by another state.

The determination of ‘imminence’ is in the first place for the relevant state to make, but it must be
made in good faith and on grounds which are capable of objective assessment. Insofar as this
can reasonably be achieved, the evidence should be publicly demonstrable. Some kinds of
evidence cannot be reasonably produced, whether because of the nature or source, or because
it is the product of interpretation of many small pieces of information. But evidence is fundamental
to accountability, and accountability to the rule of law. The more far-reaching, and the more
irreversible its external actions, the more a state should accept (internally as well as externally)
the burden of showing that its actions were justifiable on the facts. And there should be proper
internal procedures for the assessment of intelligence and appropriate procedural safeguards.

5. The exercise of the right of self-defence must comply with the criterion of
‘proportionality’.
 The force used, taken as a whole, must not be excessive in relation to the need to avert
or bring the attack to an end.
 The physical and economic consequences of the force used must not be excessive in
relation to the harm expected from the attack.

In the Caroline formulation, the principle of proportionality was stated to require “nothing
unreasonable or excessive, since the act, justified by the necessity of self-defence, must be
limited by that necessity, and kept clearly within it.”

The ICJ has confirmed that it is a well-established rule of customary international law that a use
of force in self-defence must be “proportional to the armed attack and necessary to respond to it.”
15

This requires that the level of force used is not greater than that necessary to end the attack or
remove the threat. As such it is another way of looking at the requirement of necessity.

The proportionality requirement has been said to mean in addition that the physical and economic
consequences of the force used must not be excessive in relation to the harm expected from the
attack16. But because the right of self-defence does not allow the use of force to ‘punish’ an
aggressor, proportionality should not be thought to refer to parity between a response and the
harm already suffered from an attack, as this could either turn the concept of self-defence into a
justification for retributive force, or limit the use of force to less than what is necessary to repel
the attack.

The force used must take into account the self-defence operation “as a whole”. It does not relate
to specific incidents of targeting (which is a matter for international humanitarian law). Thus, in
the Oil Platforms Case, the ICJ stated that in assessing proportionality, it “could not close its eyes
to the scale of the whole operation”17.

15Nicaragua case ( note 2 above), para.176; see also, para.41 of the Advisory Opinion on the
Legality of the Threat or Use of Nuclear Weapons (above note 12).
16 For example, the Attorney General stated in the House of Lords on 21 April 2004: “the force used must
be proportionate to the threat faced and must be limited to what is necessary to deal with the threat.”
(Lords, Hansard, col. 371).
17
Note 2 above, at para. 77.
6. Article 51 is not confined to self-defence in response to attacks by states. The right of
self-defence applies also to attacks by non-state actors.
 In such a case the attack must be large scale.
 If the right of self-defence in such a case is to be exercised in the territory of another
state, it must be evident that that state is unable or unwilling to deal with the non-state
actors itself, 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 obtained18.
 Force in self-defence directed against the government of the state in which the attacker
is found may be justified only in so far as it is necessary to avert or end the attack, but
not otherwise.

There is no reason to limit a state’s right to protect itself to an attack by another state. The right
of self-defence is a right to use force to avert an attack. The source of the attack, whether a state
or a non-state actor, is irrelevant to the existence of the right. The ICJ Wall Advisory Opinion
should not be read as suggesting that the use of force in self-defence is not permissible unless
the armed attack is by a state.19 There is nothing in the text of Article 51 to demand, or even to
suggest, such a limitation.20

This conclusion is supported by reference to the Caroline case; the criteria in Caroline were
enunciated in the context of a marauding armed band, not orthodox state-to-state conflict.

State practice in this field, including the recent practice of the Security Council, gives no support
to the restriction of self-defence to action against armed attacks imputable to a state; indeed there
is state practice the other way. The action against Al Qaeda in Afghanistan in October 2001
(which was widely supported by states) was action in self-defence of anticipated imminent terrorist
attacks from Al Qaeda, not from the Taliban. It was necessary to attack certain elements of the
Taliban, in order to pre-empt attacks from Al Qaeda. Security Council resolutions 1368(2001)
and 1373(2001) support the view that self-defence is available to avert large-scale terrorist attacks

18
See note 22.
19
Note 11 above, at para. 139: “Article 51 of the Charter thus recognizes the existence of an inherent
right of self-defence in the case of armed attack by one State against another State.” But the European
Union statement made upon the adoption of General Assembly resolution ES-10/18 (concerning the Wall
Advisory Opinion) suggests that EU member states and the other states associated with the statement
would not accept the possible implication of the Opinion that self-defence is not available unless the
armed attack is by a state. “The European Union will not conceal the fact that reservations exist on certain paragraphs of the Court’s advisory
opinion .We recognise Israel’s security concerns and its right to act in self-defence.” The matter came up

again in a recent case in the ICJ; the Court stated that in the absence of attribution of the armed force to
a State there is no right of self-defence against that State. (Case concerning Armed Activities on the
territory of the Congo (Democratic Republic of the Congo v. Uganda)(Merits, 2005 ICJ Rep., at paras.
146,147)). In line with the Wall Advisory Opinion this should not be read as prohibiting action in self-
defence against non-state actors as such.
20 While certain writers have argued that Article 51 concerns only responses to aggression against

another state, their argument based on the French text is not persuasive. True, the French text of Article
51 uses the term aggression armée, and aggression is also the term used in Article 39, but the French
Government accepted during the debates on the definition of aggression that aggression in Article 39 was
not the same concept as aggression armée in Article 51; further, the English, Chinese and Spanish texts
of the Charter use different terms for Articles 39 and 51.
such as those on New York and Washington on 11 September 2001.21 So too do the invocations
by NATO and the OAS of their respective mutual defence obligations

The right of states to defend themselves against ongoing attacks, even by private groups of non-
state actors, is not generally questioned. What is questioned is the right to take action against the
state that is the presumed source of such attacks, since it must be conceded that an attack against
a non-state actor within a state will inevitably constitute the use of force on the territorial state. It
may be that the state is not responsible for the acts of the terrorists, but it is responsible for any
failure to take reasonable steps to prevent the use of its territory as a base for attacks on other
states. Its inability to discharge the duty does not relieve it of the duty. But the right to use force
in self-defence is an inherent right and is not dependent upon any prior breach of international
law by the state in the territory of which defensive force is used.

Thus, where a state is unable or unwilling to assert control over a terrorist organisation located in
its territory, the state which is a victim of the terrorist attacks would, as a last resort, be permitted
to act in self-defence against the terrorist organisation in the state in which it is located22.

The same criteria for the use of force in self-defence against attacks by states are to be used in
the case of attacks by non-state actors, but particular considerations are relevant.

The attack or imminent attack by non-state actors must be large-scale.23

21It should however be noted that Security Council resolution 1368(2001) does not settle the matter
entirely, as in that case there was already significant evidence of a degree of responsibility of a state
(Afghanistan) for the continuing ability of the terrorists to carry out attacks.

22
The ICJ Judgement in the Case concerning Armed Activities on the territory of the Congo
note 19 above, at paras. 146 and 147) implies that unwillingness or inability of a State to deal
with irregular forces on its territory is insufficient to create a right in self-defence against the
State. However, the Court does not answer the question as to the action a victim State may take
in the case of an armed attack by irregular forces, where no involvement of the State can be
proved. According to Judges Kooijmans and Simma the occurrence of an armed attack is
sufficient to create a right of action in self-defence, whether or not the actions are attributable to
a State (Separate Opinions of Judge Kooijmans, paras. 26-30 and of Judge Simma, paras.7-
.12).

23 It is in this context (rather than that of an attack by a state itself) that it is relevant to consider the ICJ’s
remarks in the Nicaragua judgment (supra note 2). At para. 195 the Court stated that: “… it may be
considered to be agreed that an armed attack must be understood as including not merely action by
regular armed forces across an international border, but also “the sending by or on behalf of a State of
armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another
State of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces, “or
its substantial involvement therein. ” … The Court sees no reason to deny that, in customary law, the
prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of
another State, if such an operation, because of its scale and effects, would have been classified as an
For action in self-defence to be ‘necessary’, it must first be clear that measures of law-
enforcement would not be sufficient. To show the necessity of action against the territory of
another state not directly responsible for the acts of the non-state group requires, inter alia, the
demonstration that there is no other means of meeting the attack and that this way will do so.
Terrorist organisations are not easily rooted out by foreign armed forces.
Where, therefore, the attack is not ongoing but imminent, the territorial state is entitled to proceed
in its own way against the group on its territory. In this context, the requirement of ‘imminence’
means that action in self-defence by another state may not be taken save for the most compelling
emergency.
7. The principles regarding the right of self-defence form only a part of the international
regulation of the use of force.
 Measures taken in the exercise of the right of self-defence must be reported
immediately to the Security Council. The Council retains the right and
responsibility to authorise collective military action to deal with actual or latent
threats.
 Any military action must conform with the rules of international humanitarian law
governing the conduct of hostilities.

The general framework provided by the UN for the elimination of the use of force can be seen
in art. 2(4) of the UN Charter. Article 2(4) reaffirmed by UNGA resolutions, and interpreted as
well. Resolution 2625 states that ‘every state has the duty to refrain from the threat or use of
force’, and in addition interprets it as every state having the duty to refrain from ‘forcible
action’ that would infringe peoples right to self determination
(Paper paragraph)
If force is to be regulated at all, there must be some objective criteria for it and a self-serving
narrow interpretation shouldn’t be allowed. Brownlie and Kelsen both proponents of the
restrictive view in the interpretation of 2(4) state that the affect of art. 2(4) is to prohibit toally
a states right to use of force, unless some specific esception is made in the charter itself (i.e.
art. 51 and art. 207 which is no longer relevant). Furthermore, Dixon points out that only Israel
in the Entebbe incident has relied on the permissive interpretation of 2(4). In most other cases,

armed attack rather than as a mere frontier incident had it been carried out by regular armed forces.”
(italics added)
the states resorting to the use of force have relied on alleged exceptions to the general
principle on prohibition rather than a narrow interpretation of prohibition. Such cases include:
US invasions of Dominican Republic (1965), Grenada (1983), bombing of Iraqi nuclear reactor
(1981), invasions of Iraq and Afghanistan, indian invasion of East Pakistan 1971, NATO action
against Serbia 1998, Ugandan operations and destruction of oil platforms in Congo.
Disputed words in 2(4):

Developing countries and the former socialist countries especially have tried to extend
the notion of force even to political and economical coercion, arguing that its effects
may be equal to military force. Although the wording of Article 2(4) of the U.N. Charter
is open to such an interpretation, it must clearly be rejected. In other provisions the
Charter uses the word “force” only in connection with military force. Moreover, at the
San Francisco Conference in 1945 a proposal of Brazil to extend the scope of the prohibition to
economic coercion was explicitly rejected. In accordance with this
opinion, while interpreting the fundamental Charter principles the Friendly Relations
Declaration deals solely with military force in respect to Article 2(4) while submitting
political and economic coercion to the principle of non-intervention irregular forces or
armed bands, encouraging their organization,
instigating, assisting, or participating in acts of civil strife or terrorist acts or acquiescing
in such organized activities. In the Nicaragua judgment, the ICJ stated that not every act
of assistance might qualify for an indirect use of force, holding the arming and training
of “contras” by the United States to be a violation of the prohibition but rejecting the
mere supply of funds to them.

It is uncontested that the wording of Article 2(4) comprises the indirect use of force
Art 2(4) refers to war as the threat or use of force, but it doesn’t define what force is. According
to Wade Mansell, clearly both political and economic force can come within 2(4): in the
interpretation of art 2(7) UNGA res. 2625 proscribes ‘economic, political or any other type of
measures to coerce another state’. However, in the Nicaragua case, it was held that economic
sanctions didn’t breach the customary rule of non-intervention in the prohibition on use of
force. Thus, the generally held view = art. 2(4) doesn’t encompass situations beyond armed
force. Of particular importance in the interpreting ‘force’ is Res. 3314 of 1974, which defines
aggression as the most serious and dangerous form of the illegal use of force. Aggression is the
use of armed force (integrity, independence, inconsistent with UN). The first use of armed force
against art. 2(4) is thus a prima facie act of aggression, and there is no justification for it
whatsoever. Such an act of aggression would include: invasion, armed attack, territorial
annexation, attack on land or sea forces etc. of another state.
Dixon suggests that ‘national integrity’ and ‘political independence’ comprise all that a state is,
and do not afford loopholes for action against the state. Similarly, use of force against the UN
purposes doesn’t imply that force may be used to achieve those purposes, but are a safety net
to ensure that force can never be used against non-state entities. This clearly poses a problem
in contemporary international relations where non-state actors are a key feature of the
international legal system, especially given the onset of terrorism. states have increasingly been
subjected to attacks by non-state entities. This raises questions about the adequacy of the traditional
legal framework on the use of force in modern armed conflicts. Travaux preparatoires of the San
Francisco Conference = disputed phrases in art. 2(4) are there to strengthen the obligation to
not use force rather than weaken it.
Exceptions:
It is interesting to note that although there have been many instances of use of force in
international law, the ICJ has found a violation of such only in two cases: Nicaragua v US and
and Armed activities on Congo case. It is important therefore to consider each of the exceptions
in turn:
Self-defence:
In order to lawfully exercise the right to self-defence, a state must be able to demonstrate that it has
been a victim of an armed attack. The burden of proof in such a case lies with the state seeking to justify
the use of force in self-defence. Nevertheless, not all attacks will constitute an armed attack for the
purposes of Article 51: only the most grave forms of attack will qualify (Nicaragua Case). the principle of
proportionality and the principle of necessity (Nicaragua case)

Article 51 of the UN Charter provides that states may legitimately use the right to self defence.
However, the precise ambit of the charter is heavily open to debate:
The classic definition in customary international law was founded by the US Secretary of State
in the Caroline Case: whose statement defines the use of force in self defence as: response to
an immediate and pressing threat, which cant be avoided by alternative means, and which was
proportionate. Thus, e.g. an attack on a naval vessel can’t be used as an excuse for occupation
of the territory of the offending state. The Advisory Opinion on legality of threat or use of
nuclear weapons left the proposition as to when nuclear weapons could be used proportionally
unanswered. However, customary right to self defence is less restrictive than its parallel treaty
provision, as it allows for an armed response in a variety of situations, as long as there is an
element of ‘defence’ and a ‘state’. Dixon gives examples. E.g. Kuwait’s response to an ongoing
attack by Iraq against it, anticipation of an armed attack and threat to security lead Israel to
strike first, to neutralize a potential threat to it is security i.e. Iraqi nuclear reactors, or in
response to attack on state interests (nationals, territory etc.) as done by USA over Afghanistan
and Iraq.
Dixon points out that reading 2(4) with 51 means that the only exception allowed to the
prohibition of force is now under article 51 one, and this, even though old customary int’l law
went beyond art. 51, it is superseded. The practical result of this is, a state may resort to self
defence only if ‘an armed attack occurs’. This, then would seem to preclude the possibility of
threat or use of force in mere anticipation of an attack. Indeed, the Palestinian Wall Advisory
Opinion put forward a state to state only view with regards to article 51, as opposed to force
used by non-state insurgents not under the control of the host state. However, it is not entirely
clear this narrow interpretation is justified given the very potent threat that terrorism is
towards state entities. There is then, some doubt as to the extent of self-defense as an
exception to the general prohibition on international law than that under art. 51. These
questions attracted great international attention in the aftermath of the terrorist attacks on the World
Trade Centre on 11 September 2001 (the ‘9/11’ attacks) carried out by members of the al-Qaeda
network. Soon after the 9/11 attacks, the UN Security Council issued Resolution 1373 of 28 September
2001. The language of this resolution may suggest an almost unlimited mandate to use force against
terrorist groups. Acting under Chapter VII of the Charter of the United Nations, [...]

2. Decides also that all states shall:

(b) Take the necessary steps to prevent the commission of terrorist acts

A wide variety of arguments have been propounded. Firstly, argument, since art. 2(4) doesn’t
put an absolute prohibition, customary international law hasn’t been superseded by it.
Secondly, the travaux preperatories of the San Francisco Conference points out that art 51
wasn’t inserted to be a definitive statement of the right to self defence, but rather to clarify the
relationship of regional organizations to the security council. Thirdly, it as argued that when art.
51 refers to the ‘inherent’ right of self defence, it actually preserves customary international
law. Finally, it should be pointed out that art. 51 itself doesn’t prescribe validity only when
there is an ‘armed attack’. These powerful arguments show that perhaps the right to self
defence under art. 51 isn’t required such a narrow scope.
On the other hand, there is evidence that states themselves interpret this right in a strict
manner. For example in Afghanistan or Iraq wars, when USA relied on the argument of self
defence, this was hotly contested by the majority of states. Furthermore, as Brownlie suggests,
there is evidence to suggest that customary law on the matter before the charter wasn’t as
wide as is now proclaimed by the state using force. It should be pointed out here that as said in
Nicaragua, treaty law and customary law exist in tandem, so this could mean that customary
international law has now the same narrow interpretation that art. 51 has. Judge Jennings
stated significantly that state practice can not have the effect of redefining the customary right
because such practice is referable to the charter.
There are key points of contention in art. 51, apart from its wider (customary) or narrower
(Charter) scope. The meaning of ‘armed attack’ causes significant controversy in international law. In
the Nicaragua Case and in Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory Advisory Opinion ICJ Rep 2004, the ICJ rejected the idea that an armed attack may include ‘not
only acts by armed bands where such acts occur on a significant scale but also assistance to rebels in the
form of the provision of weapons or logistical or other support’. it is necessary to show that an armed
attack is attributable to a state. In the Nicaragua Case, Judge Higgins strongly opposed this view and
argued that the act involving the use of force from actors other than a state, such as groups of
insurgents or terrorist groups, may give rise to the exercise of the right of self-defence by the attacked
state. This statement highlights a very contentious issue in modern international relations, namely the
use of force in self-defence against non-state actors.

Firstly, definition of an armed attack. Eriteria Ethiopia Claims Tribunal and Armed activities on
the territory of Congo case = court made the point that localized border encounters between
small infantry units, even those involving loss of life, do not constitute an armed attack under
charter. So at some point use of force will be unlawful but not enough to constitute an armed
attack to justify self defence. It is not entirely realistic that a state will have to take counter
measures falling short of use of force. Secondly, since the ICJ in the Oil Platforms case refused
to decide on whether a pattern of small scale attacks (isolated) and over a period of time could
amount to an ‘armed attack’ against which self defence was necessary. Since it avoided
declining such a proposition however, it could be tacit support of the US view.
Nicaragua v USA ICJ didn’t present a convincing answer when it held that providing armed
forces, equipment or encouragement to rebels was indeed an unlawful use of force. This
however, is an extremely wide interpretation of unlawful use of force; however, it didn’t
amount for an ‘armed attack’ to trigger self defence under art. 51. Similarly, in the Palestenian
Wall Advisory Opinion, the court stated that an armed attack was only in event of a STATEs
armed attack on another. Dixon points out that art 51 itself doesn’t say that an armed attack
must be made by another state before the right to self defence can arise. With regards to
preemptive self defence, in Nicaragua v USA, Jugde Jennins and Schwebel taking the minority
view felt that the Charter had not removed the customary right to self defence. Most states
assert that an attack on a state interest (such as economic assets or nationals abroad) can
sometimes be as destructive as sending troops across the border and thus warrants the
justification of self defence under an ‘armed attack’, though there has been no judicial
pronouncement on the point. Further, with regards to individual self defence against terrorist
groups which aren’t from a specific enemy state but from group that span countries and
sometimes borders.
Proportionality: Caroline case/Armed activities in the territory on Congo (about UN
Charter) = self defence must be proportionate so that such use of force isn’t unlawful.
proportionality means that the response to an armed attack must be reflective of the scope, nature and
gravity of the attack itself. This obligation however is subjective and depends on the facts of each
case, but the general tendency of the state is to use such force that removes the threat and any
future prospects thereof. However, in the Oil of Platforms case and the Congo case the ICJ
indicated that the responses would have been disproportionate (if right to self defence was
available)
II. COLLECTIVE SELF DEFENCE (UNDER ART. 51 UN CHARTER)