Recent Developments and Legal Regulation of the Use of Force

The Use of Force in the Modern World: Recent Developments and Legal Regulation of the Use of Force

By René Värk*

he use of force is undoubtedly political and legal debates since those early person and property. The international among the most debated topics times. Both domestic societies and the legal system has attempted to move in the within international law as well as international community need to limit same direction since the end of the First international relations. Indeed, the rules and regulate the use of force in order to World War, but, due to its characteristic concerning the use of force form a central secure peaceful, harmonious and mutually features, the task has proved quite difficult. part of the international legal system, and, beneficial co-existence of individuals or This is so, because the international legal together with other fundamental states within the respective societies or the system lacks an effective enforcement principles, they have for a long time international community. The domestic mechanism, which can ensure the provided the framework for organised legal systems have generally managed to observance of international law if international intercourse and successful co- monopolise the use of force in favour of necessary. Unlike a domestic legal system, existence of states. The circumstances in the governmental institutions, which which can utilise different law which the use of force might be justified means that people have given up their enforcement authorities, the international concerned already the earliest legal writers, right to use force, save for self-defence, in legal system has to rely simply on such for example, Aristotle and Cicero, and the return of the guarantee that the mentioned means as consent, good faith and topic has remained at the centre of institutions will instead protect their reciprocity. Moreover, states do not only * René Värk is a Director for Academic Affairs and Lecturer in International Law, Institute of Law, University of Tartu.

27 follow international law when planning regulation of the use of force and then to which states that all Members [of the their conduct, but take into serious analyse the recent developments and their United Nations] shall refrain in their in- consideration also their political influence on the legality of the use of force ternational relations from the threat or preferences and vital interests. These by states. use of force against the territorial integ- considerations often tend to override the rity or political independence of any state, obligations under international law, and 1. Legal regulation under or in any other manner inconsistent with therefore the armed forces of states are the United Nations the Purposes of the United Nations. This sometimes engaged in real military Charter is accompanied by another underlying operations in addition to numerous principle, enshrined in Article 2, paramilitary training exercises. Consequently, The United Nations was created in a graph 3, which demands that all Mem- the use of force very often constitutes a mood of popular outrage after the hor- bers [of the United Nations] shall settle clear violation of international law because rors of the Second World War. The war their international disputes by peaceful the official justifications for such actions had caused more destruction than any means in such a manner that international are usually based on violent interpretations previous armed conflict and urged the peace and security, and justice, are not of the relevant law or simply on political leaders of states to take steps to secure and endangered.2 In order to overcome the propaganda. Although the law itself is maintain international peace and security deficiencies of the international legal sys- actually reasonably clear on the question in the future and to save succeeding gen- tem in enforcing international law, the of the legality of the use of force and erations from the scourge of war, which framers of the United Nations Charter prescribes a very limited number of twice in our lifetime has brought untold also devised a collective security system, exceptions to the general prohibition of sorrow to mankind.1 The creation of the controlled by the Security Council, to the use of force, states and legal authors United Nations resulted in the most im- ensure the compliance of the member of have for a long time advocated additional portant and certainly the most ambitious the United Nations with the mentioned exceptions in order to further their modification of international law in the rules. individual interests or to cope with new twentieth century, namely in outlawing This provision is the most important developments and problems at the the use of force in international relations. norm of contemporary international law, international level. The present article Such a rule is prescribed in Article 2, para- which encompasses the primary values of attempts first to describe the current legal graph 4 of the United Nations Charter, the inter-state system the defence of state

28 sovereignty and state autonomy and general international law having the same declares international peace and security character.5 Generally speaking, the body 1.1. Interpretation of Article 2, to be the supreme value of the interna- of ius cogens norms represents overriding paragraph 4 tional legal system. However, the general principles of international law which are prohibition of the use of force by states so fundamental that they must be followed Undoubtedly, the wording of Article for their selfish interests as well as for at any time and in any place, for example, 2, paragraph 4 is a considerable improve- benign purposes attempts to secure not the prohibition of aggression, slavery, ment compared to previous attempts to merely sovereignty and autonomy of a torture, racial discrimination, genocide outlaw the use of force, but at the same single state, but a fundamental order for and violation of the right of self-determi- time the text of this provision is still not all members of the international commu- nation.6 As ius cogens is essentially a form without ambiguities. Below we shall con- nity. The United Nations Charter declares of customary international law, this is le- sider the elements of Article 2, paragraph international peace and security to be more gally binding for all members of the inter- 4 as well as relevant international docu- compelling than inter-state justice, more national community, regardless of whether ments and state practice and try to deter- compelling even than human rights or they have expressed their approval or dis- mine the content and scope of the prohi- other human values.3 Although Article 2, approval of a particular norm, or not.7 bition of the use of force. paragraph 4 was originally intended to When taking into consideration the char- Article 2, paragraph 4 is well drafted be legally binding only for the members acteristics of ius cogens norms, the obliga- in so far as it talks about the threat or of the United Nations, the provision is tions deriving from them are not like usual use of force, not about war.9 The term no more considered just another contrac- contractual obligations, but are obligations war refers to a narrow and technical le- tual international legal norm, but what is towards the international community as a gal situation, which begins with a decla- known as a peremptory norm of interna- whole. This means that every state may feel ration of war and ends with a peace treaty. tional law or ius cogens norm.4 This is de- that its essential interests are breached due The war was generally prohibited before fined as a norm accepted and recognised to the violation of an ius cogens norm, and the Second World War, but states found by the international community of States therefore not only the directly injured state, a way to avoid such prohibition. For as a whole as a norm from which no dero- but also any other state is entitled to in- example, Japan refused to declare war on gation is permitted, and which can be voke the responsibility of the violating China and called its military operations modified only by a subsequent norm of state.8 in Manchuria (1932-1941) an incident in

29 order not to violate the prohibition of litical independence of any State, or in before an international court. The ICJ waging war. In the light of such experi- any other manner inconsistent with the regarded such an intervention as a mani- ences, the term use of force was pre- Purposes of the United Nations. Does festation of a policy of force, which has, ferred because it covers all forms of hos- this truly mean that the prohibition is in the past, given rise to most serious tilities, both technical wars and incidents conditional, and force can be used for a abuses and declared that it cannot find falling short of an official state of war, wide variety of purposes because it is a place in international law because the which ranges from minor border clashes not aimed against the territorial integ- respect for territorial sovereignty is an to extensive military operations. There- rity or political independence of any essential foundation of international re- fore the prohibition of the use of force State? This line of reasoning has been lations. Thus, an incursion into the ter- is not dependent on how the involved utilised to justify numerous humanitar- ritory of another state constitutes an in- states prefer to define their military con- ian and pro-democratic interventions as fringement of Article 2, paragraph 4, even flict. well as other altruistic uses of force. if the incursion is not intended to de- Now, Article 2, paragraph 4 has sev- However, these clauses were never in- prive that state of part or whole of its eral negative, or at least problematic, as- tended to restrict the scope of the pro- territory, and the word integrity has pects. First, the provision talks about hibition of the use of force, but, on the to be actually read as inviolability.13 force, not military force, and there- contrary, to give more specific guaran- However, the clauses the territorial in- fore there has always been a dispute over tees to small States and therefore they tegrity and political independence the exact scope of the term force. The cannot be interpreted to have a qualify- should not distract our attention from prevailing and undoubtedly correct view ing effect.11 The International Court of the phrase any other manner inconsis- is that in this context the scope of the Justice (ICJ) supported such interpreta- tent with the Purposes of the United term force is limited to military force tion in the Corfu Channel case,12 where Nations. The paramount and overrid- and does not include political or economic the United Kingdom argued that it had ing purpose of the United Nations is to coercion.10 a right to intervene and sweep the maintain international peace and secu- Second, the provision stipulates that minefield in the Albanian territorial sea, rity, and to that end to prevent and re- the members of the United Nations should which is a part of state territory, in or- move threats to peace and suppress acts refrain from the threat or use of force der to guarantee the right of innocent of aggression and other breaches of against the territorial integrity or po- passage, and to produce mines as evidence peace.14 Indeed, every single use of force

30 can potentially endanger that precious shall not be used, save in the common in- and often unstable international peace and terest. Unfortunately, state practice indi- 1.2.1. Individual and collective security. The Second World War saw un- cates that the true reasons for intervention self-defence precedented suffering, and thus the United are usually egoistic rather than altruistic Nations Charter represents the universal and aim to further the political or eco- Without a doubt, every state must have agreement that even justified grievances nomic interests of the intervening states. the right to defend itself when being at- and a sincere concern for national secu- In conclusion, the United Nations tacked. All instruments, which have re- rity or other vital interests would not Charter has established a general and un- stricted or prohibited the use of force, warrant any nations initiating war.15 conditional prohibition of the use of have explicitly or implicitly recognised Therefore, such concepts as humanitarian force in international relations. such a right. Similarly, Article 51 states intervention and pro-democratic interven- that nothing in the present Charter shall tion cannot be seen as legal, because by 1.2. Exceptions to Article 2, impair the inherent right of individual furthering the democratic human rights paragraph 4 or collective self-defence if an armed at- of the peoples of particular states or elimi- tack occurs against a Member of the nating despotic and undemocratic govern- As every rule, the prohibition of the United Nations. Although it may sound ments in other states, the intervening states use of force is not without exceptions. clear enough, there is a serious disagree- violate both the territorial integrity and Although certain states and legal authors ment about the circumstances in which political independence of the relevant have furthered several, and at least ques- the right of self-defence may be exercised. states as well as endanger international tionable, justifications for lawful use of We shall consider those problems in the peace and security (at least on a regional force, only two explicitly stated legal ex- next chapter and we shall do so in the level). Moreover, decisions to intervene ceptions to the general prohibition of the light of recent developments and cases. are based on the opinion and understand- use of force exist under the United Na- However, at this point we should pay ing of one or a few states only, and not tions Charter: attention to the fact that states have the on the general consensus of the interna- individual and collective self-defence right to use force for self-defence from tional community. The United Nations (Article 51); the beginning of an armed attack until Charter stresses that it is for the Security Council enforcement actions the Security Council has taken measures organisation to ensure that armed force (Chapter VII). necessary to maintain international peace

31 and security.16 In order to ensure that order to enforce international peace and cording to Article 39, the existence of any the Security Council can take the mea- security and punish the violators of the threat to or breach of the peace and act sures necessary, the members of the United prohibition of the use of force. The Se- of aggression, and shall make recommen- Nations should immediately inform the curity Council was conferred the primary dations or decide what measures shall be Security Council of the measures taken responsibility for the maintenance of in- taken to maintain or restore international in the exercise of the right of self-defence. ternational peace and security.18 The Se- peace and security. After determining any What if the Security Council fails to act curity Council consists of fifteen mem- of those situations, the Security Council or does not take the measures necessary bers of which five are permanent mem- may decide upon non-military action, for to maintain international peace and secu- bers (China, France, Russia, the United example, economic sanctions,20 or rity? The right to exercise self-defence does Kingdom and the United States) and ten authorise military action with air, sea, not disappear as soon as the Security are non-permanent members (elected for or land forces as may be necessary to Council has simply passed on the matter; two years by the General Assembly). Al- maintain or restore international peace it continues until the Security Council though the Security Council is undoubt- and security.21 Such collective has taken effective measures rendering the edly a political institution which does not authorisation to use force should ensure armed responses by the victim state un- necessarily adopt its decisions on the ba- that military intervention is not arbitrary, necessary and inappropriate.17 Otherwise, sis of legal arguments, but rather on po- but only what is necessary to further the the self-defensive military actions must litical arguments, its resolutions have a interest of the whole international com- stop when their purpose, repelling the legally binding effect on the members of munity. However, the Security Council armed attack, has been achieved. the United Nations, and they are obliged cannot compel any state to participate in to follow these resolutions.19 military operations; the authorisation is 1.2.2. Security Council When maintaining international peace more of a recommendation or justifica- enforcement actions and security, the Security Council acts tion to use force rather than a command, under Chapter VII, which has the prom- and therefore the Security Council has Taking into consideration the negative ising title of Action with Respect to to rely on the hope that there are states, experience with the League of Nations, Threats to the Peace, Breaches of the Peace, which, for one reason or another, wish states decided to establish a more advanced and Acts of Aggression. As a watch-dog, to engage themselves in such operations. and effective collective security system in the Security Council shall determine, ac- The authorisation also has another aspect,

32 namely that the target state is barred from ticipatory or even pre-emptive manner to determine the ordinary meaning of a legally invoking the right of self-defence and that this right does not require an word is to refer to dictionaries. In this and later claiming reparations for dam- actual armed attack. The proponents of case different English dictionaries suggest age caused by the military operations. this concept have so far been the minor- that an attack is an actual action, not ity, but the question of whether interna- merely a threat. Furthermore, we should 2. Problematic issues and tional law permits or should permit the take into consideration other parts of the recent developments use of force not merely in response to United Nations Charter, namely Article existing violence, but also to avert future 2, paragraph 4. This prohibits both the As mentioned above, any specific use attacks, has taken on added significance actual use of force as well as the threat of of force can be regarded lawful only if it in the aftermath of the 11 September 2001 force, and it is difficult to conceive that can be based on an exception to the gen- events. Below we shall consider certain the drafter of the United Nations Char- eral prohibition of the use of force, which aspects relating to the right of self-defence ter, due to an oversight, simply forgot to is valid as a matter of law. The Security and we shall do that in the light of the add the words or threatens to Article Council authorisation to use force is usu- events in New York, Afghanistan and Iraq. 51.24 Moreover, an interpretation of Ar- ally clear enough and rarely results in con- ticle 51, which excludes the threat of an troversial interpretations.22 But the right 2.1. Definition of armed attack armed attack, is more likely compatible of self-defence has proved problematic and with the main purpose of the United has been used, through strange and vio- To be precise, Article 51 refers to the Nations to restrain the unilateral use of lent interpretations, to justify a number right of self-defence if an armed attack force. So, according to an overwhelming of military operations directed against occurs. If this is indeed a prerequisite of majority within the legal doctrine, the another sovereign state. The majority of the right to exercise a lawful self-defence, definition of armed attack refers to an states and legal authors insists that the then we have to establish the scope of the actual armed attack which has occurred, right of self-defence must be interpreted term armed attack. First, according to not simply to threats.25 narrowly so that it corresponds to an ac- the rules of the law of treaties, the inter- After the events of 11 September 2001, tual armed attack. Another school prefers pretation of a treaty must start with the it is necessary to ask whether the concept a wider interpretation and argues that ordinary meaning to be given to the of armed attack is capable of including a states may exercise self-defence in an an- terms of the treaty.23 The usual method terrorist attack. Article 51 does not specify

33 that the armed attack has to originate from a situation can, in legal reasoning, be called situation the threat came from a non-state a state, but this condition may be taken a constructive armed attack or a situation group of the kind most would probably as implicit. Self-defence is an exception equivalent to an armed attack.29 call terrorist today. Nowhere in the cor- to the general prohibition of the use of Therefore, a non-state armed attack may respondence between the United King- force and Article 2, paragraph 4, which trigger the right of self-defence if such an dom and the United States or in the sub- contains that prohibition expressly con- attack is of sufficient gravity, and the in- sequent reliance on the Webster formula cerns states.26 However, if a state is actu- volvement of a state is of a sufficient de- on self-defence has it been hinted that the ally involved to a sufficient degree in a gree. The level of violence used in the ter- applicability of the Webster formula is non-state armed attack, it is acceptable that rorist attacks of 11 September 2001 un- dependent on the source of armed at- such an involvement is equivalent to an doubtedly reached the level of sufficient tack.31 Nevertheless, the international re- armed attack and may therefore entail the gravity, and if those attacks had been the action after the 11 September events con- same consequences as an armed attack by work of a state, they would have been clas- firms that the concept of armed attack is a state. The basis for such argument can sified as an armed attack for the purpose not indeed limited to state acts. The Secu- be found from the Definition of Aggres- of Article 51. So, it would indeed be rity Council expressly recognised the sion, adopted by the General Assembly, strange to regard the right of self-defence right of self-defence in two resolutions which defines as an act of aggression, inter to be dependent upon whether respective adopted in the immediate aftermath of alia, the sending by or on behalf of a violent attacks were carried out by a state the terrorist attacks.32 The resolutions do State of armed bands, groups, irregulars or non-state actor. The constructive armed not explicitly state that terrorist attacks or mercenaries, which carry out acts of attack is not completely alien to interna- equal to armed attacks, but the recogni- armed force against another State of such tional legal reasoning, but whether such tion of the right of self-defence had to gravity as to amount to an actual armed construction has actually become positive mean that the Security Council consid- attack conducted by regular forces or its international law is another question. It ered those terrorist attacks as armed at- substantial involvement therein.27 The is worth mentioning that the famous tacks for the purpose of Article 51. At ICJ has accepted this provision as being Caroline dispute,30 which has been cited that time, it was already known that those an expression of customary international to support the wider concept of self-de- attacks were most likely to be the work of law, although the General Assembly reso- fence, shows that an armed attack need a terrorist organisation rather than a state. lution itself is not legally binding.28 Such not emanate from a state. Indeed, in that The position of the Security Council was

34 widely accepted, and similar positions were it attacks first in order to protect its na- use of force and the threat of force. All adopted by other international institu- tionals and prevent possible damages. The this permits to conclude that neither the tions. For example, the North Atlantic pre-emptive military action describes mili- threat of force nor an imminent armed Council agreed that if it is determined tary action that is taken against a threat attack justifies the use of defensive force that this attack was directed from abroad which has not yet materialised and which under the United Nations Charter.34 This against the United States, it shall be re- is uncertain and remote in time. For ex- interpretation corresponds to the pre- garded as an action covered by Article 5 ample, if one state has learnt that another dominant state practice, since a general of the Washington Treaty, which states state has acquired weapons of mass destruc- right to anticipatory self-defence has never that an armed attack against one or more tion and fears that these weapons may be been invoked under the United Nations of the Allies in Europe or North America used against it in the future, then, instead Charter.35 The intent of the drafter and shall be considered an attack against them of waiting for the assault to become im- the purpose of the United Nations Char- all.33 minent, it attacks first the buildings where ter were to minimise the unilateral use of these weapons are kept and destroys the force in international relations, and to 2.2. Anticipatory or pre-emptive weapons in order to prevent the threat draw a line at the precise point of an armed or assault ever becoming even imminent. attack, an event the occurrence of which Although most authors and politicians Now we shall consider both of these con- could be objectively established, served the use the terms anticipatory and pre- cepts in relation to self-defence. purpose of eliminating uncertainties.36 emptive interchangeably, the distinction Indeed, the alleged imminence of an between these two terms offers a useful 2.2.1. Anticipatory self-defence armed attack usually cannot be assessed precision. The anticipatory military ac- by means of objective criteria, and there- tion refers to military action that is taken Article 51 explicitly requires an armed fore any decision for anticipatory action against an imminent attack. For example, attack as a pre-condition to the use of would necessarily have to be left to the if one state has learnt that another state defensive force; states have the right to discretion of the state concerned. Such has assembled its armed forces at its bor- exercise self-defence if an armed attack discretion involves a mentionable possi- der, and the beginning of a military as- occurs. Thus the terms of Article 51 con- bility of mistake, which may have devas- sault is just a matter of time, then, instead trast with the terms of Article 4, paragraph tating results, as well as a manifest risk of of waiting for the actual assault to begin, 2, because the latter prohibits both the abuse, which can seriously undermine the

35 prohibition of the use of force. More- in the United States. The steamship ment of the right of self-defence in inter- over, the argument that an armed attack Caroline was involved in the supply of both national law. Webster recognised that the begins with planning, organisation and men and materials to rebel-occupied Navy right of self-defence did not depend upon logistical preparation is not plausible, Island in the Cippewa Channel, which the United Kingdom having already been because then an armed attack would be- served as a base for the volunteers attacks the subject of an armed attack, but ac- gin with pencil and paper rather than with on the Canadian riverside and on Brit- cepted that there was a right of anticipa- bullets and bombs. Once again, there is ish vessels. The Government of the United tory self-defence in the face of a threat- no reason to suggest that the plain lan- States knew about these activities, but did ened armed attack, provided that there guage of Article 51 does not convey pre- little to prevent them. Therefore a Brit- was a necessity of self-defence, instant, over- cisely the meaning that was intended an ish force from the Canadian side crossed whelming, leaving no choice of means and actual armed attack.37 the border into the United States, seized no moment for deliberation.40 The Although the arguments that the the Caroline, set her on fire and cast the Webster formula has since then been used United Nations Charter permits antici- vessel adrift so that she fell to her destruc- frequently by states and judicial institutions; patory self-defence are unpersuasive, sev- tion over the Niagara Falls. Two citizens even the International Military Tribunals eral states and legal authors have more of the United States were shot dead aboard at Nuremberg and Tokyo referred to the plausibly and successfully defended the the Caroline and one British officer was formula when rejecting the defence plea right of anticipatory self-defence under arrested and charged with murder and that the German invasion of Norway had customary international law. True enough, arson.39 The British government justified been an act of anticipatory self-defence. anticipatory self-defence has some basis its action as being necessary for self-de- This may suggest that the right of an- under customary international law, and fence and self-preservation, since the ticipatory self-defence against an imminent in some limited cases it may be seen as United States did not hinder the threat- armed attack was a part of customary in- lawful. The proponents of anticipatory ening activities on its territory; it also ternational law at that time, but whether self-defence refer to the famous Caroline cited the perceived future threats posed this is still true today is another question. incident.38 The 1837 rebellion in the co- by the operations of the Caroline. Reply The restrictionist school the supporters lonial Canada found active support from of the U.S. Secretary of State Daniel of a narrower right of self-defence ar- American volunteers and private suppli- Webster to the British Government has gues that the customary international law, ers operating out of the border region long been regarded as a definitive state- predating the United Nations, could not

36 have survived the adoption of the United of every state to resort to war whenever it the delegations at the San Francisco Con- Nations Charter, and hence Article 51 is pleased was considered a right inherent ference naturally did not regard the word- the only, true and adequate representa- in state sovereignty in the nineteenth cen- ing of Article 51 as being an innovation tion of the right of self-defence in the tury, but after the abolition of such a in its reference to self-defence.43 In other United Nations Charter era.41 The right after the Second World War, state words, it is questionable whether the right counter-restrictionist school the sup- sovereignty still survived, though losing of anticipatory self-defence even existed porters of a wider right of self-defence one of its inherent components. at the very moment when different na- claims that Article 51, by pledging not to Second, the United Nations Charter tions prepared the United Nations Char- impair the inherent right of self-defence, was adopted for the very purpose of cre- ter. Nevertheless, let us suppose that the left intact and unchanged customary in- ating far wider prohibition of the use of pre-United Nations customary interna- ternational law on self-defence predating force than existed under treaty or cus- tional law allowing anticipatory self-de- the adoption of the United Nations Char- tomary international law in 1945, let alone fence did survive the inter-World War ter. in 1837. Even if earlier customary inter- period and Article 51. But this still does The so-called inherent right theory national law allowed anticipatory self-de- not mean that the scope of self-defence has numerous weaknesses. First, it may be fence, it does not mean that such self-de- was not fixed in customary international contended that the right of self-defence is fence was lawful under customary inter- law in 1945, and it cannot be reasonably inherent not in natural law, but in state national law as it existed in 1945. To ar- claimed that the customary international sovereignty. State sovereignty, however, gue that customary international law was law is not susceptible to restrictions in has a variable content, which depends on exactly the same in 1837 and 1945, one the light of subsequent state practice.44 the stage of development of the interna- has to disregard the change in the field Third, the supporters of the inherent tional legal order at any given moment.42 of regulating the use of force that took right theory argue that the right of self- So, what may have been inherent in state place in the 1920s and the 1930s as well as defence is unchangeable by the United sovereignty after the Caroline incident, to treat both the Kellogg-Briand Pact and Nations Charter and subsequent state namely, the right of anticipatory self-de- the United Nations Charter as irrelevant. practice. Indeed, some fundamental prin- fence, was not necessarily inherent in state The use of force in reaction to force was ciples of international law are only with sovereignty when and after the United the only generally accepted view as to the great difficulty, if at all, changeable by Nations was created. Indeed, the liberty justified use of force in self-defence, and subsequent treaty or state practice. These

37 are the above mentioned ius cogens norms. countries, Israel launched air strikes against Whatever customary international law However, no authority has ever identi- Egypt, claiming that it had the right to may have been, or still is, on the matter, fied the right of anticipatory self-defence anticipatory self-defence as the Egyptian states have occasionally exercised antici- as an ius cogens norm,45 whereas the ICJ forces had been deployed as part of an patory self-defence, whether calling it so did identify the prohibition of the use impending armed attack.47 However, in or not. Sometimes other states have un- of force as an ius cogens norm.46 the Security Council, the other states saw derstood the need for such action, and So far, the inherent right theory has Israels first strike as a clear proof that they have been ready to accept politically been widely discredited by the great ma- Israel was an aggressor. Even those del- and approve anticipatory self-defence in jority of states and legal authors. Due to egations which were more sympathetic those specific cases. Indeed, a threat of an the ambiguities and fogginess connected towards Israel, namely the United King- armed attack may be so direct and over- with it, states normally do not expressly dom and the United States, refrained whelming that it is not feasible to require advocate anticipatory self-defence, in fear from any discussion of the permissibil- the future victim state to wait until the of unleashing an uncontrollable creature. ity of anticipatory self-defence.48 So, Is- armed attack has actually started and then Indeed, there has been little expressis verbis rael was the only state to examine the act in self-defence. In such a case, a situa- support from states for anticipatory self- concept, and we now know that Israel tion equivalent to an armed attack exists.49 defence after the creation of the United acted on evidence that was little convinc- To be sure that anticipatory self-defence Nations (if states actually exercise antici- ing. This example illustrates appropri- is not exercised mistakenly or abusively, patory self-defence, they do not call it by ately the possibility of mistake and the it must be shown that the other state has the true name, but refer simply to their risk of abuse. A state may act forcefully committed itself to an armed attack in inherent right of self-defence). State prac- in a situation without proper reason an ostensibly irrevocable way.50 However, tice actually tends to support the oppo- the imminence of an armed attack proves all this does not amount to an open-ended site position. For example, in 1967 there to be a mistake of interpretation or a endorsement of a general right to antici- was a remarkable assembly of armed forces falsification on the part of the attacking patory self-defence. But it means that, in in the Sinai Peninsula, near the southern state. Put simply, the right to anticipa- demonstrable circumstances of extreme frontier of Israel. When the United Na- tory self-defence is dangerous to inter- necessity, anticipatory self-defence may be tions peace-keeping forces were withdrawn national peace and security, since it is a legitimate way to exercise the states right from the buffer zone between the two open to abuse by powerful states. to self-defence.51 The realities of the mod-

38 ern world and contemporary military ca- The permissibility of anticipatory self- States and the United Kingdom claimed pabilities seem to necessitate, in certain defence is least controversial in the situa- to have had clear and convincing evidence proved cases, anticipatory self-defence, be- tion where, after an armed attack, there is that the United States faced on-going at- cause otherwise the United Nations Char- clear and convincing evidence that the tacks; NATO members called the evidence ter could be called a suicide pact. Com- enemy is preparing to attack again. The compelling. After the launch of opera- mon sense does not allow for a state to victim state need not wait for a new at- tion Enduring Freedom, the United wait passively and accept its fate before it tack to be mounted, but at the same time States found documentary evidence in can defend itself. In a nuclear age and in the self-defence measures must be carried Afghanistan confirming that more armed the face of contemporary conventional out within a reasonable time from the attacks in the series were indeed being warfare, the first attack (resort to non-de- initial attack, in order to fit the planned. So, the military operation in fensive force) can have so formidably dev- characterisation of self-defence during Afghanistan was itself justified, but the astating results that the victim state is no ongoing armed attack and not to be con- coalition was rightfully criticised for the longer capable of reacting in self-defence. sidered as an armed reprisal or punish- extent of collateral damage and the means Such exceptional cases of anticipatory ment.52 The international community of warfare. self-defence are confined to instances where confirmed such an approach in relation an armed attack of sufficient gravity is with the 11 September events. The United 2.2.2. Pre-emptive self-defence imminent; the Webster formula has to be States and its allies consistently based their satisfied. The imminence depends on the justification for military action against In September 2002, President George factual circumstance of a particular case, Afghanistan on their right to self-defence, W. Bush submitted to the Congress a re- because where an armed attack by weap- not on any collective security port on the national security strategy, ons of mass destruction can reasonably authorisation from the Security Coun- which asserted, among other things, an be treated as imminent (due to impossi- cil.53 The coalition has argued that the 11 evolving right to use force pre-emptively bility or difficulty of affording an effec- September terrorist attacks were part of a against threats coming from Rogue States tive defence against such an attack once it series of armed attacks against the United and terrorists, possessing weapons of mass has been launched), an armed attack by States, which had begun already in 1993, destruction.55 The report stated that: conventional means would not be re- and that even more armed attacks in the The United States has long maintained garded as such. same series were planned.54 The United the option of preemptive actions to

39 counter a sufficient threat to our national desirable. In the field of environmental that Article 51 allowed self-defence in or- security. The greater the threat, the greater law, the precautionary principle requires der to pre-empt a threat to Israeli national is the risk of inaction and the more action to be taken to protect the envi- security.58 Israel explained that it had compelling the case for taking anticipa- ronment even in the case of uncertainty been forced to defend itself against the tory action to defend ourselves, even if about the danger. Now, if one would construction of nuclear weapons in Iraq, uncertainty remains as to the time and apply the same principle in connection which would not have hesitated to use place of the enemys attack. To forestall with self-defence, the rule would read that such weapons against Israel. The nuclear or prevent such hostile acts by our adver- in the case of uncertainty, strike. Such reactor, Israel argued, was to become op- saries, the United States will, if necessary, a conclusion is somewhat weird and erational in a matter of weeks, and Israel act preemptively. widely open to mistakes or abuses; it is decided to strike before the nuclear reac- The United States will not use force in also difficult to understand how this can tor became an immediate and greater all cases to preempt emerging threats, nor contribute to global stability and mainte- menace to Israel. So, Israel reacted neither should nations use preemption as a pre- nance of international peace and security. to an actual armed attack nor to a situa- text for aggression. Yet in an age where Pre-emptive self-defence is clearly un- tion equivalent to an armed attack, but the enemies of civilization openly and lawful under international law states may instead to a potential and remote threat. actively seek the worlds most destructive not use force against another state when All members of the Security Council dis- technologies, the United States cannot an armed attack is merely a hypothetical agreed with the Israeli interpretation of remain idle while dangers gather. 56 possibility, even in the case of weapons Article 51 and supported without reser- There is nothing in contemporary state of mass destruction. The International vations the resolution which declared the practice, case law or legal writing which Military Tribunals at Nuremberg rejected military attack by Israel in clear violation would suggest that such a broad, even the argument of Germany that the inva- of the Charter of the United Nations and overly broad, construction of a situation sion of Norway was a necessary act of self- the norms of international conduct.59 equivalent to an armed attack is a part of defence in order to prevent a future Al- True, the Security Council did not reject current customary international law.57 lied invasion and to pre-empt subsequent anticipatory self-defence as such, but more Such an approach is undoubtedly dan- possible Allied attack from there. likely concluded that Israel failed to dem- gerous, and the application of the pre- When Israel attacked the Iraqi nuclear onstrate the imminence of an armed at- cautionary principle is alarming and un- reactor in 1981, Israel specifically argued tack from Iraq.

40 There is no doubt that force can and better the interests and needs of the in- attack. Even if a state is forbidden to ac- should be used pre-emptively, but also no ternational community. Such collective quire or is ordered to destroy weapons doubt that this is the prerogative of the system can also eliminate the cases, where of mass destruction, the violation of dis- Security Council. As mentioned above, a single state abuses the possibility of a armament requirement does not itself Article 39 states that the Security Council threat or even fabricates a threat in order amount to an armed attack or a situation shall determine the existence of any threat to further its political or economic inter- equivalent to an armed attack. If the rea- to the peace and, accordingly, shall make ests. sons for the invasion of Iraq had been recommendations or decide what measures The U.S.-led intervention to Iraq in well founded, legitimate and justified, and shall be taken to maintain or restore in- March 2003 was clearly illegal in the light in the general and common interest of ternational peace and security. Nothing of the previous discussion. The coalition the international community, the United in the United Nations Charter suggests lacked a clear authorisation of the Secu- States and its allies would have obtained a that the authority of the Security Coun- rity Council to use force as well as the proper authorisation from the Security cil to take pre-emptive measures is lim- other plausible legal justification for in- Council. The members of the United ited to those threats that are imminent. vasion, namely self-defence. Did Iraq at- Nations conferred upon the Security The historical importance of the lack of tack anyone? Was there an imminent Council the primary responsibility for pre-emptive action against Nazi Germany armed attack threatening someone? No! the maintenance of international peace and as a cause of the Second World War Iraq had not done anything that would security.61 States do not have the right strongly suggests that the pre-emptive have triggered the right of self-defence. either to take over the responsibility of power of the Security Council was in- There were merely accusations that Iraq the Security Council or to assume indi- tended to be much more far-reaching was developing nuclear weapons and al- vidually a secondary responsibility. than the power of individual states to take legedly conspired with terrorists, espe- action as self-defence against a threat of cially with Osama bin Laden and al-Qaeda. 3. Conclusion an armed attack.60 The collective security But these accusations have not been con- system should be the best means to fight vincingly and publicly proven. Further- Since the oldest times, the international the threats to international peace and se- more, the mere possession of weapons of legal system has been preoccupied with curity, because the Security Council is a mass destruction without a threat of use one important question: When is the use collective institution which represents does not amount to an unlawful armed of force legal? Legal regulation of the use

41 of force has gone through a considerable sibility of the Security Council to deal also been adopted to general international law evolution; starting with the just war with the threats to international peace and and has been used outside the field of the law of treaties. doctrine in the ancient times, continu- security; states do not have the right to 6 Cf. Barcelona Traction, Light and Power Company, ing with the complete liberty to use force exercise their own complementary or par- Limited (Second Phase), ICJ Reports, 1970, p. 3, paras. from the seventeenth to the twentieth cen- allel responsibility. Fourth, an armed at- 33-34. tury and ending with the general prohi- tack need not emanate from a state actor; 7 See, for example, Rudolf Bernnhardt, Cus- tomary International Law in Rudolf Bernnhardt, bition of the use of force in the United a non-state armed attack may trigger the Encyclopedia of Public International Law, Volume I, Nations Charter. The latter recognises two right of self-defence if such an attack is of Amsterdam: North-Holland, 1992, pp. 898-905, explicit exceptions where states may legally sufficient gravity, and the involvement of for more information on customary international use force, namely individual and collec- a state is of a sufficient degree. law. Customary international law consists of actual State conduct and beliefs that such conduct tive self-defence and Security Council is law. enforcement actions. The scope of self- 1 Preamble of the Charter of the United Na- 8 See also Article 48 of the Draft Articles on defence has proved to be very difficult to tions. Responsibility of States for Internationally Wrong- 2 Hereinafter all references to articles are to those determine, but we can still reach certain ful Acts, UN Doc. A/RES/56/83 (2002). of the Charter of the United Nations if not other- 9 For example, Article 1 of the General Treaty conclusions. First, all states have the right wise stated. for the Renunciation of War (1928), otherwise of self-defence against an actual armed at- 3 Louis Henkin, International Law: Politics, Values known as the Kellogg-Briand Pact, reads that states tack. Second, states may have a limited and Functions, Dordrecht: Martinus Nijhoff Pub- condemn recourse to war for the solution of lisher, 1990, p. 146. international controversies and renounce it as an right of anticipatory self-defence against 4 The International Court of Justice has regarded instrument of national policy in their relations an imminent armed attack of sufficient the prohibition of the use of force as being a with one another. gravity under customary international law. conspicuous example of a rule of international 10 Indeed, the Brazilian proposal to extend the The arguments that the United Nations law having the character of ius cogens. Military and prohibition of the use of force to economic coer- Paramilitary in and against Nicaragua (The Merits), cion was explicitly rejected by other states. More- Charter permits anticipatory self-defence ICJ Reports, 1986, p. 3, para. 190. over, other provisions of the United Nations Char- are unpersuasive. Third, states do not have 5 Article 53 of the Vienna Convention on the ter, for example paragraph 7 of the Preamble and the right of pre-emptive self-defence Law of Treaties. However, it is important to stress Article 44, also support the position that force against a threat which has not yet here, that the definition is given in the context of means military force. The Friendly Relations the law of treaties and explains the term by the Declaration confirms that political and economic materialised and which is uncertain and effect of these norms as being non-derogable by a coercion is not covered by the prohibition of the remote in time. It is the exclusive respon- treaty. But at the same time, this definition has use of force, but by the general principle of non-

42 intervention. UN Doc. A/RES/3314 (XXIX) (1974). cil, as with all other international obligations, 24 Michael Bothe, Terrorism and the Legality 11 Ian Brownlie, International Law and the Use of may result in state responsibility under interna- of Pre-emptive Force in European Journal of Inter- Force by States, Oxford: Clarendon Press, 1963, p. tional law. national Law, Vol. 14, 2003, p. 229. 268. 20 Article 41 of the Charter of the United Na- 25 See for example Yoram Dinstein, War, Aggres- 12 Corfu Channel, ICJ Reports, 1949, p. 4. tions. sion and Self-defence, Third Edition, Cambridge: 13 Albrecht Randelzhofer, Article 2(4) in Bruno 21 Article 42 of the Charter of the United Na- Cambridge University Press, 2001, pp. 165-169; Simma, The Charter of the United Nations: A Com- tions. See, for example, UN Doc. S/RES/678 (1990) Albrecht Randelzhofer, Article 51 in Bruno mentary, Second Edition, Oxford: Oxford Univer- with which the Security Council authorised all Simma, supra note xiii, p. 803. sity Press, 2002, p. 123. the members of the United Nations to use all 26 Article 2, paragraph 4 demands that all mem- 14 Article 1, paragraph 1 of the Charter of the necessary means to end the Iraqi occupation of bers of the United Nations shall refrain from the United Nations. Kuwait and restore international peace and secu- threat or use of force and, according to Article 4, 15 Louis Henkin, Use of Force: Law and U.S. rity. paragraph 1, only states can become members of Policy in Louis Henkin et al, Right v. Might: 22 However, the United Kingdom, the United the United Nations. International Law and the Use of Force, New York: States and their allies have argued that, although 27 Article 3, paragraph g, UN Doc. A/RES/3314 Council on Foreign Relations Press, 1991, pp. 38- there was no explicit Security Council (XXIX) (1974). 39. authorisation to use force against Iraq in 2003, 28 Military and Paramilitary in and against Nicara- 16 Article 51 of the Charter of the United Na- such authorisation can be found if one interprets gua (The Merits), supra note iv, para. 195. tions. the Security Council resolutions 678, 687 and 1441 29 Michael Bothe, supra note xxiv, p. 230. 17 Cf. Antonio Cassese, International Law, Ox- together. Such an approach is more than doubt- 30 See Chapter 2.2.1. for more information. ford: Oxford University Press, 2001, p. 305. The ful because no interpretation in good faith can 31 Christopher Greenwood, International Law British Commentary on the Charter reads that it result in the authorisation to use force twelve and the Pre-emptive Use of Force: Afghanistan, will be for the Security Council to decide whether years after the First Iraqi War and because the Al-Qaida, and Iraq in San Diego International Law these measures have been taken and whether they members of the Security Council assured, while Journal, Vol. 4, 2003, p. 17. are adequate for the purpose, but at the same in adopting resolution 1441, that it did not inten- 32 UN Doc. S/RES/1368 (2001); UN Doc. S/ the event of the Security Council failing to take tionally include any automatic or hidden trigger RES/1373 (2001). any action, or if such action as it does take is to authorise the use of force against Iraq. 33 Press Release (2001) 124, available at http:// clearly inadequate, the right of self-defence could 23 Article 31, paragraph 1 of the Vienna Conven- www.nato.int/docu/pr/2001/p01-124e.htm (30 be invoked by any Member or group of Mem- tion on the Law of Treaties. It is true that the November 2003). bers as justifying any action they thought fit to convention does not officially apply to the inter- 34 The majority of states and legal authors sup- take. Misc. 9 (1945), Cmd. 6666, p. 9. pretation of the United Nations Charter because ports this position. For example, Louis Henkin 18 Article 24, paragraph 1 of the Charter of the the latter was adopted before the convention en- has written that the fair reading of Article 51 is United Nations. tered into force, but the same rule exists in cus- persuasive that the Charter intended to permit 19 Ibid. Non-compliance with the obligations tomary international law and that definitely ap- unilateral use of force only in a very narrow and imposed by the resolutions of the Security Coun- plies. clear circumstance, in self-defense if an armed at-

43 tack occurs. Louis Henkin, Nations Behave: Law not prove that the right of anticipatory self-de- the United Nations, 7 October 2001, UN Doc. S/ and Foreign Policy, Second Edition, New York: Co- fence was still alive after the creation of the United 2001/946 (2001). lumbia University Press, 1979, p. 295. Ian Brownlie Nations. The tribunals simply had to apply the 54 Mary Ellen OConnell, Lawful Self-Defense has concluded that the view that Article 51 does customary international law predating the United to Terrorism, University of Pittsburgh Law Review, not permit anticipatory action is correct and Nations because they considered state acts which 2002, Vol. 63, p. 899. arguments to the contrary are either unconvinc- also predated the United Nations. 55 National Security Strategy of the United States ing or based on inconclusive pieces of evidence. 42 Yoram Dinstein, supra note xxv, pp. 163-164. of America, available at http:// Ian Brownlie, supra note xi, p. 278. Phillip C. Jessup 43 Ian Brownlie, supra note xi, p. 274. www.whitehouse.gov/nsc/nss.pdf (30 November has stated that Article 51 very definitely narrows 44 The ICJ has confirmed that the customary 2003). the freedom of action which States had under international law concerning self-defence contin- 56 Ibid., p. 15. traditional law and found that under the Char- ues to exist alongside treaty law, that is, Article 51, 57 Michael Bothe, supra note xxiv, p. 232. ter, alarming military preparations by a neigh- but did not specify the actual contents of it. Mili- 58 Stanimir A. Alexandrov, supra note xlvii, pp. boring State would justify a resort to the Security tary and Paramilitary in and against Nicaragua (The 159-165. Council, but would not justify resort to anticipa- Merits), supra note iv, para. 176. 59 UN Doc. S/RES/487 (1981). tory force by the State which believed itself threat- 45 Mary Ellen OConnell, The Myth of Pre-emptive 60 Christopher Greenwood, supra note xxxi, p. ened. Phillip C. Jessup, A Modern Law of Nations, Self-Defence, ASIL Presidential Task Force on Ter- 19. New York: Macmillan, 1948, p. 166. rorism Paper, 2002, p. 13. 61 Article 24, paragraph 1 of the Charter of the 35 Albrecht Randelzhofer, supra note xxv, p. 804. 46 See supra note iv. United Nations. 36 Michael J. Glennon, The Fog of Law: Self- 47 See for example Stanimir A. Alexandrov, Self- Defense, Inherence, and Incoherence in Article 51 Defense against the Use of Force in International Law, of the United Nations Charter in Harvard Journal The Hague: Kluwer Law International, 1996, pp. of Law & Public Policy, Vol. 25, 2002, p. 546. 153-154. 37 Ian Brownlie, supra note xi, p. 278. 48 Anthony Clark Arend, Robert J. Beck, Interna- 38 See BFSP Vol. 26, 1937-1938, pp. 1372-1377; tional Law and the Use of Force: Beyond the UN Charter BFSP Vol. 29, 1840-1841, pp. 1126-1142; BFSP Vol. Paradigm, London: Routledge, 1993, p. 77. 30, 1841-1842, pp. 193-202 for the subsequent cor- 49 Michael Bothe, supra note xxiv, p. 231. respondence between the United Kingdom and 50 Yoram Dinstein, supra note xxv, p. 172. the United States. 51 Thomas Franck, Recourse to Force: State Action 39 Warner Meng, The Caroline in Rudolf against Threats and Armed Attacks, Cambridge: Cam- Bernnhardt, supra note vii, pp. 537-538. bridge University Press, 2002, p. 105. 40 BFSP Vol. 29, 1840-1841, p. 1138. 52 Mary Ellen OConnell, supra note xlv, pp. 9- 41 It is possible to argue that the application of 10. the Webster formula by the International Mili- 53 See, for example, Letter from the Permanent tary Tribunals at Nuremberg and Tokyo does Representative of the United States of America to