War, Aggression and Self-Defence

War, Aggression and Self-Defence Yoram Dinstein’s influential textbook is an indispensable guide to the legal issues of...

Author: Yoram Dinstein

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War, Aggression and Self-Defence

Yoram Dinstein’s influential textbook is an indispensable guide to the legal issues of war and peace, armed attack, self-defence and enforcement measures taken under the aegis of the Security Council. This fifth edition incorporates recent treaties such as the Kampala amendments of the Statute of the International Criminal Court, new case law from the International Court of Justice and other tribunals, and contemporary doctrinal debates. Several new supplementary sections – taking into account recent conflicts around the world – are also included, and consideration is given to new resolutions of the Security Council. With many segments having been rewritten to reflect recent State practice, this book remains a wide-ranging and highly readable introduction to the legal issues surrounding war and self-defence. yoram dinstein is Professor Emeritus at Tel-Aviv University. He is a former President of the University (1991–9), as well as former Rector and former Dean of the Faculty of Law. He served twice as the Charles H. Stockton Professor of International Law at the US Naval War College in Newport, RI. He was also a Humboldt Fellow at the Max Planck Institute of International Law in Heidelberg, Germany; a Meltzer Visiting Professor of Law at New York University; and a Visiting Professor of Law at the University of Toronto.

War, Aggression and Self-Defence Fifth edition YORAM DINSTEIN

cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Tokyo, Mexico City Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9781107008991 © Yoram Dinstein 2011 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published by Grotius Publications Limited 1988 Second edition published by Cambridge University Press 1994 Reprinted 1995, 1999 Third edition published by Cambridge University Press 2001 Reprinted 2002, 2003, 2004 Fourth edition published by Cambridge University Press 2005 Reprinted 2007, 2008, 2009 Fifth edition published by Cambridge University Press 2012 Printed in the United Kingdom at the University Press, Cambridge A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data Dinstein, Yoram. War, aggression, and self-defence / Yoram Dinstein. – 5th ed. p. cm. ISBN 978-1-107-00899-1 (hardback) 1. Aggression (International law) 2. War (International law) 3. Self-defense (International law) I. Title. KZ6374.D56 2011 341.6–dc22 2011009691 ISBN 978-1-107-00899-1 Hardback ISBN 978-1-107-40145-7 Paperback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Contents

Introduction to the fifth edition From the introduction to the first edition Table of cases Table of treaties Table of Security Council resolutions Table of General Assembly resolutions List of abbreviations Part I

The legal nature of war

1 What is war? I. The definition of war A. The numerous meanings of war B. An analysis of Oppenheim’s definition of war (a) Inter-State and intra-State wars (b) War in the technical sense and in the material sense (c) Total wars, limited wars and incidents ‘short of war’ (d) War as an asymmetrical phenomenon C. A proposed definition of war II. Status mixtus A. Peacetime status mixtus B. Wartime status mixtus III. The region of war A. The territories of the Belligerent Parties (a) The general rule (b) The exception: neutralized zones B. The high seas and the exclusive economic zone C. Outer space IV. Neutrality A. The basic principles B. Some concrete rules (a) Passage of belligerent military units and war materials (b) Enrollment in belligerent armed forces (c) Military supplies to Belligerent Parties

page xiii xiv xvi xix xxv xxvii xxviii 1 3 3 3 5 5 9 11 13 15 15 16 17 19 19 19 20 22 24 25 25 26 26 27 27

v

vi

Contents

2 The course of war I.

The beginning of war A. War in the technical sense B. War in the material sense II. The termination of war A. Treaties of peace (a) The significance of a treaty of peace (b) Peace preliminaries (c) The legal validity of a treaty of peace B. Armistice agreements (a) The transformation in the meaning of armistice (b) An analysis of the Israeli armistice agreements (c) The disparity and similarity between an armistice and a treaty of peace C. Other modes of terminating war (a) Implied mutual consent (b) Debellatio (c) Unilateral declaration III. The suspension of hostilities A. Different types of suspension of hostilities (a) Local cease-fire agreements (b) General cease-fire agreements (c) Cease-fire ordained by the Security Council B. The nature of cease-fire C. Denunciation and breach of cease-fire (a) The fragility of cease-fire (b) ‘Material breach’ of cease-fire agreements

Part II

The illegality of war

3 A historical perspective of the legal status of war I.

II.

III. IV. V.

The ‘just war’ doctrine in the past A. The Roman origins B. Christian theology C. The ‘fathers’ of international law Recent concepts of ‘just war’ A. Kelsen’s theory B. ‘Wars of national liberation’ C. ‘Humanitarian intervention’ The extra-legality of war The legality of war Exceptions to the general liberty to go to war A. Special arrangements B. The Hague Conventions C. The Covenant of the League of Nations

30 30 30 33 34 34 34 38 39 41 41 45 47 48 48 49 51 51 51 52 53 54 56 58 58 59

63 65 65 65 66 67 69 69 70 73 75 78 79 79 81 82

Contents

4 The contemporary prohibition of the use of inter-State force I. The Kellogg-Briand Pact II. The Charter of the United Nations A. The prohibition of the use or threat of inter-State force (a) Use of force (b) Threats of force B. The non-restrictive scope of the prohibition C. Attempts to limit the range of the prohibition III. Customary international law A. The interaction between custom and treaty B. The Charter and customary international law on the use of inter-State force (a) Article 2(4) (b) Article 2(6) C. Are the norms of the Charter and customary international law on the use of inter-State force identical? IV. Treaties other than the Pact and the Charter A. General treaties B. Regional treaties C. Bilateral treaties V. The prohibition of the use of inter-State force as jus cogens A. The significance of jus cogens (a) A clash between a treaty and peremptory norms (b) The peremptory nature of the prohibition of the use of inter-State force (c) The consequences of the peremptory nature of the prohibition B. How can jus cogens be modified? VI. State responsibility A. Application of general rules of State responsibility B. State responsibility for international crimes (a) The criminal responsibility of States (b) Erga omnes obligations (c) Punitive damages VII. Consent A. Ad hoc consent (a) Consent to foreign military assistance against local insurgents (b) Consent to other foreign uses of force in the local territory (c) The limits of consent and its withdrawal B. Consent by treaty

5 The crime of aggression I. The meaning of aggression II. Aggression as a crime A. The Nuremberg legacy (a) The background (b) The London Charter (c) The Nuremberg Judgment B. Post-Nuremberg developments C. The Rome Statute and the Kampala Amendments

vii

85 85 87 87 87 88 89 91 94 94 95 95 98 99 101 101 102 103 104 104 104 105 105 107 109 109 114 114 116 118 118 118 119 120 121 122

124 124 125 125 125 126 127 129 131

viii

Contents III. The definition of the crime of aggression A. Aggression versus war of aggression as a crime B. The criminal impact of the General Assembly Definition of Aggression IV. Individual accountability for the crime of Aggression A. The actus reus (a) Ratione materiae (b) Ratione personae (c) Ratione temporis B. The mens rea (a) Mistake of fact (b) Mistake of law (c) Duress (d) Insanity C. Inadmissible defence pleas (a) Obedience to domestic law (b) Obedience to superior orders (c) Acts of State D. The penal proceedings E. Immunities from jurisdiction (a) Foreign domestic courts (i) Diplomatic and consular agents (ii) Heads of States (iii) Certain high-ranking office-holders (iv) The limits of jurisdictional immunities (b) International criminal proceedings

136 140 141 141 142 144 145 147 148 148 149 150 150 150 153 154 156 156 156 157 158 159 160

6 Controversial consequences of the change in the legal status of war

163

I. War in the technical sense II. Inconclusive ‘police action’ III. Equal application of the jus in bello A. Self-defence (a) The theory (b) The practice (c) Some confusing judicial dicta B. Collective security IV. Impartial neutrality A. The survival of neutrality B. Non-members of the United Nations C. Qualified neutrality V. Territorial changes A. Non-annexation B. Self-determination C. Jus cogens D. Non-recognition

134 134

164 165 167 167 167 170 172 174 175 176 177 178 180 181 181 182 183

Contents

Part III

Exceptions to the prohibition of the use of inter-State force

7 The concept of self-defence I. The right of self-defence A. The meaning of self-defence B. Self-defence as a right C. Self-defence as an ‘inherent’ right II. Self-defence as a response to an armed attack A. Armed attack as a condition to self-defence B. Armed attack and preemptive self-defence (a) Anticipatory use of force (b) Article 51 and customary international law (c) The insufficiency of exceptional threats C. The beginning of an armed attack and interceptive self-defence (a) The need to look beyond the ‘first shot’ (b) Interceptive self-defence (c) ‘Imminence’ (d) A series of acts D. A small-scale armed attack (a) The gap between Article 2(4) and Article 51 (b) Frontier incidents: scale and effects (c) Choice of weapons E. The locale of an armed attack (a) The unauthorized crossing of a frontier (b) Armed attacks commencing subsequent to the crossing of a frontier (c) Armed attacks within the territory of the aggressor State (d) Armed attacks within the territory of a third State (e) Armed attacks outside the territories of all States F. The targets of an armed attack (a) The wide range of possible targets (b) Attacks against nationals abroad III. De facto organs of a State A. The employment by a State of ‘auxiliaries’ B. The criterion of effective control IV. An armed attack by non-State actors A. The language of the Charter B. The origin of attacks by non-State actors C. Attacks by non-State actors as armed attacks V. Conditions precedent to the exercise of self-defence A. Necessity B. Proportionality C. Immediacy VI. The role of the Security Council A. The two phases rule B. The options before the Security Council C. Failure to report to the Security Council

ix

185 187 187 187 189 191 193 193 194 194 196 199 201 201 203 205 206 207 207 210 212 212 213 214 214 215 216 216 216 217 219 220 221 224 224 225 227 230 231 232 233 234 234 236 239

x

Contents

8 The modalities of individual self-defence I. Self-defence in response to an armed attack by a State A. Measures ‘short of war’ (a) On-the-spot reaction (b) Defensive armed reprisals (i) The meaning of defensive armed reprisals (ii) The interplay between defensive armed reprisals and belligerent reprisals (iii) The conditions of necessity, proportionality and immediacy (iv) The legality of defensive armed reprisals (c) The protection of nationals abroad B. War (a) Necessity (b) Proportionality (c) Immediacy II. Self-defence in response to an armed attack from a State A. Extra-territorial law enforcement B. The practice of States C. Webster’s formula

9 Collective self-defence I.

The meaning of collective self-defence A. The four categories of collective self-defence (a) Individual self-defence individually exercised (b) Individual self-defence collectively exercised (c) Collective self-defence individually exercised (d) Collective self-defence collectively exercised B. Collective self-defence as the defence of self C. Is there a need for a treaty? D. Customary international law II. Regional arrangements under the Charter of the United Nations III. Collective self-defence treaties A. Mutual assistance treaties B. Military alliances C. Treaties of guarantee IV. The legal limitations of collective self-defence A. The primacy of the Charter of the United Nations B. The requirement of an armed attack (a) Armed attack as a condition to collective self-defence (b) Is a request for assistance necessary? C. Other conditions for the exercise of collective self-defence V. The modalities of collective self-defence VI. The Gulf War and collective self-defence

10 Collective security I. The meaning of collective security A. Definition B. The Covenant of the League of Nations C. The Charter of the United Nations

242 242 242 242 244 244 246 247 249 255 259 262 262 267 268 268 272 274

278 278 278 278 278 280 280 280 281 282 282 283 284 286 289 292 292 293 293 294 296 297 299

303 303 303 303 304

Contents D. The broad powers of the Security Council (a) The general discretion of the Security Council (b) Threat to the peace (i) The elasticity of the expression (ii) Threat to the peace, international terrorism and self-defence (iii) Threat to the peace in domestic situations II. The decision-making process A. The duties incumbent on United Nations Member States B. The responsibility of the Security Council III. An overview of the Security Council’s record A. The ‘Cold War’ era B. The Gulf War (a) The invasion and liberation of Kuwait (1990–1) (b) The cease-fire period (1991–2003) (c) The occupation of Iraq (2003) C. The post-‘Cold War’ era (other than the Gulf War) IV. Article 42 and alternative mechanisms A. The absence of special agreements under Article 43 B. Peacekeeping forces C. Enforcement action beyond the purview of Article 42 (a) The use of force by authorization of the Security Council (b) The role of NATO V. Is there an alternative to the Security Council? A. The General Assembly B. The International Court of Justice (a) Concurrent or consecutive competence of the Council and the Court (b) Can the Court invalidate binding decisions adopted by the Council? (c) Binding decisions of the Council and jus cogens

xi 308 308 309 309 311 313 314 314 315 317 317 319 319 321 322 325 328 328 330 333 333 336 339 339 342 342 345 348

Conclusion

351

Index of persons Index of subjects

355 363

Introduction to the fifth edition

This is a completely updated edition of a book originally published in 1988 and last revised at the end of 2004. In the few years that have elapsed since the fourth edition was issued, world events have led to the sharpening of debates over several of the topics examined in the present volume. These debates touch upon a raft of controversial questions relating to, e.g., the adequacy of the legal tools provided by the Charter of the United Nations in the face of aggression; judicial review of binding decisions of the Security Council; unilateral ‘preemptive’ military action against terrorist threats; armed attacks by non-State actors; extraterritorial law enforcement; and the degree of effective control required over acts of de facto organs of States. An update of the book is anyhow called for in light of new developments. The International Court of Justice has rendered weighty decisions, especially in the Armed Activities and Genocide proceedings. Other tribunals have also made their contributions to the case law, for instance in an Award of the Eritrea Ethiopia Claims Commission devoted exclusively to the jus ad bellum. Most significantly, the crime of aggression has been defined for the purposes of the International Criminal Court (although the actual exercise of jurisdiction by the Court is deferred until a future date). The legal literature on war, aggression and self-defence (which, prior to the Nicaragua Judgment of 1986, was desultory) is currently growing in prodigious proportions. To complement the numerous additions and changes introduced in the text, the table of contents has been expanded. The fifth edition also has an easier cross-referencing system, to enable a closer look at the way in which similar subjects mesh in diverse contexts. The numerical cross-references in the text of the book (as distinct from the indices) are to paragraphs and not to pages. To facilitate syntax, generic pronouns relating to individuals (especially in the settings of prosecution and immunities) are usually drawn in masculine form. This must not be viewed as gender-specific. References to the jus in bello and to the law of belligerent occupation have been reduced, inasmuch as these themes are now covered in full in two companion volumes which may be consulted: The Conduct of Hostilities under the Law of International Armed Conflict (2nd edn, 2010, Cambridge University Press) and The International Law of Belligerent Occupation (2009, Cambridge University Press). xiii

From the introduction to the first edition

War has plagued homo sapiens since the dawn of recorded history and, at almost any particular moment in the annals of the species, it appears to be raging in at least a portion of the globe (frequently, in many places at one and the same time). War has consistently been a, perhaps the, most brutal human endeavour. If for no other reason, the subject of war should be examined and reexamined continuously. There is a tendency today to avoid the use of the term ‘war’, regarding it as arcane and largely superseded by the phrase ‘international armed conflict’. However, apart from the fact that the expression ‘war’ – appearing as it does in many international instruments and constituting an integral part of a host of customary international legal norms – is far from outdated, a general reference to international armed conflicts ignores the important theoretical as well as practical distinctions existing between wars and other uses of inter-State force (‘short of war’). This book is divided into three parts. The first part deals with questions like: What is war? When does it commence and terminate? Is there a twilight zone between war and peace? What is the difference between treaties of peace, armistice agreements and cease-fires? Where can war be waged and what is the meaning of neutrality? These problems, with their numerous ramifications, seriously impact on the substance of international law. The focus of the discussion in the second part is the contemporary prohibition of the use of force in international relations. The current state of the law is put in relief against the background of the past. The meaning of aggression, as defined by a consensus Resolution of the United Nations General Assembly in 1974, is explored. The construct of crimes against peace, which is part of the Nuremberg legacy, is set out. Some controversial implications of the illegality and criminality of wars of aggression are fathomed, with a view to establishing the true dimensions of the transformation undergone by modern international law in this domain. The third part wrestles with the complex topics of self-defence and collective security. In the practice of States, most legal disputes concerning the use of force hinge on the alleged exercise of the individual or collective right of selfdefence. In fact, more often than not, self-defence is invoked by both xiv

From the introduction to the first edition

xv

antagonists simultaneously. The question when, and under what conditions, self-defence may lawfully take place is crucial. In this context, the scope of an armed attack – giving rise to self-defence – is investigated, and a differentiation is made between armed attacks from and by a State. The functions discharged by the Security Council in the evaluation of self-defence are probed. Other pertinent matters relate to the modalities of self-defence, e.g., can armed reprisals or forcible measures for the protection of nationals abroad be harmonized with the law of the United Nations Charter? Collective self-defence comes under a special scrutiny, and the infrastructure of the various types of treaties in which it is usually embedded is analyzed. Collective security, as an institutionalized use of force by the international community, is still an elusive concept in reality. The original mechanism devised by the Charter has yet to be activated, although some imperfect substitutes have evolved. An important subject of discourse is the relative powers – actual and potential – of the Security Council, the General Assembly and the International Court of Justice.

Table of cases (References are to page numbers)

Administrative Decision No. II, 112 Alabama Claims, 29 Al-Bashir, Prosecutor v., 162 Armed Activities on the Territory of the Congo, Case Concerning (Jurisdiction and Admissibility) (Congo v. Rwanda), 116, 349 Armed Activities on the Territory of the Congo, Case Concerning (Congo v. Uganda), 53, 90–1, 121, 124, 139, 193–4, 196, 206, 220–2, 226, 230, 240, 272, 276, 294 Armstrong Cork Company case, 76 Arrest Warrant of 11 April 2000, Case Concerning (Congo v. Belgium), 157–60 Barcelona Traction, Light and Power Company, Limited, Case Concerning (Belgium v. Spain), 116, 280 Behrami v. France, 348 Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), Advisory Opinion on, 330–1, 340, 348 Chorzów, Case Concerning the Factory at (Claim for Indemnity) (Merits) (Germany v. Poland), 110 Christiansen, Re, 171–2 Corfu Channel case (Merits) (United Kingdom v. Albania), 226, 243–4, 269 Dalmia Cement Ltd. v. National Bank of Pakistan, 18–19, 33, 44 Delalić et al., Prosecutor v., 8 East Timor, Case Concerning (Portugal v. Australia), 182, 184 Erdemović, Prosecutor v., 152–3 Eritrea Ethiopia Claims Commission – Guidance Regarding Jus ad Bellum Liability, 113–14 xvi

Table of cases

xvii

Partial Award, Jus ad Bellum (Ethiopia’s Claims 1–8), 17, 30, 92, 113, 194, 209–11, 240, 243, 259 Farben, I.G., trial (United States v. Krauch et al.), 143 Fisheries Jurisdiction case (Jurisdiction) (United Kingdom v. Iceland), 39 Furundzija, Prosecutor v., 105–6 Gabčíkovo-Nagymaros Project, Case Concerning the (Hungary/ Slovakia), 205 Genocide, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of (Preliminary Objections) (Bosnia and Herzegovina v. Yugoslavia [Serbia and Montenegro]), 110, 116, 221, 223–4, 349 Guyana and Suriname case, 89, 92 High Command trial (United States v. Von Leeb et al.), 142–4, 146, 150 Hostage trial (United States v. List et al.), 171 Justice trial (United States v. Altstoetter et al.), 171 Kadi v. Council of the European Union and Commission of the European Communities, 339, 350 Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, 350 Kupreškić et al., Prosecutor v., 247 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion on the, 40, 46, 182, 229 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion on the, 13, 16, 89, 108, 172–3, 176, 187, 212, 230, 253, 263–4 Lockerbie, Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at (Libya v. United Kingdom; Libya v. United States), 345–7 Lockerbie case (Her Majesty’s Advocate v. Al Megrahi et al.), 347 Martić, Prosecutor v., 247 Mergé case, 44 Milošević, Prosecutor v. (Preliminary Motions), 161 Ministries trial (United States v. Von Weizsaecker et al.), 129, 156, 190 Mutual Assistance in Criminal Matters, Case Concerning Certain Questions of (Djibouti v. France), 157

xviii

Table of cases

Namibia (South West Africa), Legal Consequences for States of the Continued Presence of South Africa in, notwithstanding Security Council Resolution 276, Advisory Opinion on, 314–16, 345 Naulilaa case, 248–9 Nicaragua, Case Concerning Military and Paramilitary Activities in and against (Nicaragua v. United States) – Jurisdiction, 235–6, 342 Merits, 6, 71, 74, 87, 90, 93, 95–7, 99–100, 103, 105, 111, 120, 124, 193, 196, 206, 208–11, 215, 220–4, 230, 233–6, 239–40, 253–4, 282, 293–6, 298, 342–3 Order, 111 Nissan, Attorney-General v., 332 North Sea Continental Shelf cases (Germany/Denmark; Germany/ Netherlands), 94–5 Nuremberg trial (International Military Tribunal), 102, 126–30, 134, 140–2, 146, 149–51, 153–4, 168, 170, 179, 184, 235, 274–5 Oil Platforms, Case Concerning (Iran v. United States), 173–4, 194, 206, 208, 212, 215, 217, 230–2, 248, 254, 294 Pinochet Ugarte, ex parte (No. 3), 157–8 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion on, 75 RuSHA trial (United States v. Greifelt et al.), 181 Tadić, Prosecutor v., 8, 222–4, 310 Tehran, Case Concerning United States Diplomatic and Consular Staff in (United States v. Iran), 215, 226–7, 236, 261 Tokyo trial (International Military Tribunal for the Far East) (In re Hirota and Others), 129, 142, 154, 159, 192, 197, 235 Ulysses case (Navios Corporation v. The Ulysses II et al.), 33 Zuhlke, In re, 172

Table of treaties (References are to page numbers)

1648 1871 1878 1888 1899 1899 1901 1907 1907 1907 1907

1907 1907 1913 1918

Peace of Westphalia, 34 Great Britain–United States, Washington Treaty for the Amicable Settlement of All Causes of Difference between the Two Countries, 29 Honduras–Nicaragua, Tegucigalpa Treaty of Friendship, Commerce and Extradition, 80 Constantinople Convention Respecting the Free Navigation of the Suez Maritime Canal, 21 Hague Convention (I) for the Pacific Settlement of International Disputes, 81 Hague Convention (II) Respecting the Laws and Customs of War on Land (and Annexed Regulations), 10, 42, 44, 52, 58–9 Great Britain–United States, Treaty to Facilitate the Construction of a Ship Canal (Hay-Pauncefote Treaty), 21 Hague Convention (I) for the Pacific Settlement of International Disputes, 81 Hague Convention (II) Respecting the Limitation of the Employment of Force for the Recovery of Contract Debts (Porter Treaty), 81 Hague Convention (III) Relative to the Opening of Hostilities, 30–2, 34, 51 Hague Convention (IV) Respecting the Laws and Customs of War on Land (and Annexed Regulations), 10, 16, 42, 44, 52, 58–9, 111, 127 Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, 26–8 Hague Convention (XIII) Concerning the Rights and Duties of Neutral Powers in Naval War, 26–9 Guatemala–United States, Washington Treaty for the Establishment of a Permanent Commission of Enquiry, 80 Conditions of an Armistice with Germany, 42, 47 xix

xx

1919 1919 1919 1919 1920 1921 1921 1924 1925 1925 1925 1926 1928

1932 1933 1933 1939 1940 1941 1942

1943 1943 1944 1945 1945

1945

Table of treaties

Covenant of the League of Nations, 34, 82–4, 125, 303–4, 307 Neuilly Treaty of Peace with Bulgaria, 112 St. Germain Treaty of Peace with Austria, 112 Versailles Treaty of Peace with Germany, 34, 38, 42, 47, 111–13, 125, 289 Trianon Treaty of Peace with Hungary, 112 Geneva Convention Relating to the Non-Fortification and Neutralisation of the Aaland Islands, 21 United States–Germany, Treaty of Peace, 47 Geneva Protocol on the Pacific Settlement of International Disputes (unratified), 84, 125, 127 France–Czechoslovakia, Locarno Treaty of Mutual Guarantee, 289, 291 France–Poland, Locarno Treaty of Mutual Guarantee, 289, 291 Locarno Treaty of Mutual Guarantee, 80, 291 Persia–Turkey, Teheran Treaty of Friendship and Security, 80 General Treaty for Renunciation of War as an Instrument of National Policy (Kellogg-Briand Pact of Paris), 84–7, 101, 103, 127–8, 163, 179, 192–3, 197, 235, 282 Finland–USSR, Helsinki Treaty of Non-Aggression and Pacific Settlement of Disputes, 103 London Conventions for the Definition of Aggression, 124 Rio de Janeiro Anti-War Treaty (Non-Aggression and Conciliation) (Saavedra Lamas Treaty), 102–3, 183 Great Britain–Poland, London Agreement of Mutual Assistance, 285 United Kingdom–United States, Exchange of Notes, 179 Great Britain–USSR, Moscow Agreement Providing for Joint Action between the Two Countries in the War against Germany, 279 Great Britain–USSR, London Treaty for an Alliance in the War against Hitlerite Germany and Her Associates in Europe, and Providing also for Collaboration and Mutual Assistance Thereafter, 279 Conditions of an Armistice with Italy, 43 Moscow Declaration on General Security, 165 Armistice Agreement with Rumania, 42–3 Armistice Agreement with Hungary, 42–3 Charter of the International Military Tribunal (Annexed to the London Agreement for the Establishment of an International Military Tribunal), 126–8, 130, 134–5, 141–2, 151–4, 159 Charter of the United Nations, 39–40, 69, 71–4, 87, 99–103, 105, 109–10, 123–4, 131, 135–9, 148, 169–70, 176, 178, 195, 200, 216, 250, 252, 259, 266, 275, 281, 288, 292–3, 304, 308, 328, 336–7, 339, 348, 351

Table of treaties

xxi

Article 1(1), 90, 196, 305, 309 Article 1(2), 181 Article 2(3), 90 Article 2(4), 87–98, 100–3, 107, 109, 113, 119–20, 123, 138, 189, 193–4, 197, 202, 207–8, 210, 213, 224, 259, 268, 309, 335 Article 2(5), 176–7 Article 2(6), 98–9 Article 2(7), 314 Article 10, 137 Article 11, 137 Article 24, 304, 309, 340, 342 Article 25, 54, 314–15, 345–6, 348 Article 27, 316 Article 39, 124, 136, 194, 196, 305–6, 308–9, 314–16, 318–19, 333, 352 Article 40, 45, 308 Article 41, 88, 305–7, 320, 327 Article 42, 165, 305, 307–8, 320, 327–8, 330, 333, 352 Article 43, 328–30, 333 Article 44, 329 Article 45, 329 Article 46, 88, 330 Article 47, 330 Article 48, 315 Article 49, 315 Article 50, 307 Article 51, 91, 93, 100–1, 187, 189, 191, 193–201, 204, 206–12, 224–5, 227–30, 235–45, 249, 251, 254, 258–9, 266, 268, 270, 278, 280, 282, 286, 296, 300–1, 305, 308, 318, 320–1, 325, 336, 352 Article 52, 282–3, 334 Article 53, 123, 196, 334–6, 338 Article 54, 297, 334 Article 55, 181 Article 94, 91 Article 103, 123, 175, 293, 320, 346, 348–9 Article 106, 329 Article 107, 266 Article 108, 109 Chapter IV, 340 Chapter VII, 54, 60, 91, 101, 161, 305, 309, 311, 313–17, 319–22, 325–7, 334–5, 337, 339–40, 342, 345–8, 350 Chapter VIII, 334–5

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1945 1946 1947 1947 1947 1947 1947 1947 1948 1948 1949

1949

1949 1949 1949 1949 1949 1949 1949 1949 1951 1953 1953 1953 1954 1954 1955

Table of treaties

Preamble, 88, 90 Statute of the International Court of Justice (Annexed to the Charter of the United Nations), 94 United Kingdom–Siam, Singapore Agreement for the Termination of the State of War, 35 Paris Peace Treaty with Bulgaria, 35 Paris Peace Treaty with Finland, 35 Paris Peace Treaty with Hungary, 35 Paris Peace Treaty with Italy, 35, 43 Paris Peace Treaty with Roumania, 35 Rio de Janeiro Inter-American Treaty of Reciprocal Assistance, 103, 229, 285–6 Bogotá Charter of the Organization of American States, 183 Convention on the Prevention and Punishment of the Crime of Genocide, 73–5, 110, 116, 349–50 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 10, 18, 52–3, 131, 170–1, 246 Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 10, 18, 131, 170–1, 246 Geneva Convention (III) Relative to the Treatment of Prisoners of War, 10, 18, 131, 170–1, 246 Geneva Convention (IV) Relative to the Protection of Civilians in Time of War, 10, 18, 131, 170–1, 246 Egypt–Israel, General Cease-Fire Agreement, 45 Israel–Egypt, General Armistice Agreement, 43–6, 48 Israel–Jordan, General Armistice Agreement, 43–6 Israel–Lebanon, General Armistice Agreement, 43–6 Israel–Syria, General Armistice Agreement, 43–6 North Atlantic Treaty, 228–9, 287–9, 293 San Francisco Peace Treaty with Japan, 35 Panmunjom Agreement on Prisoners of War, 48 Panmunjom Agreement Concerning a Military Armistice in Korea, 43–4, 48 United States–Republic of Korea, Washington Treaty, 284 Greece–Turkey–Yugoslavia, Bled Treaty of Alliance, Political Cooperation and Mutual Assistance, 103, 288 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 10, 246 Warsaw Treaty of Friendship, Co-operation and Mutual Assistance, 288, 293

Table of treaties

1956 1958 1958 1959 1960 1960 1961 1963 1966 1966 1966 1967

1968 1969 1971 1973 1974 1974 1977

1977

1977 1978

1979 1979 1979 1981

xxiii

USSR–Japan, Joint Declaration, 35 Geneva Convention on the High Seas, 225, 270–1 Geneva Convention on the Territorial Sea and the Contiguous Zone, 213 Washington Antarctic Treaty, 22, 24 Greece–Turkey–Cyprus, Nicosia Treaty of Alliance, 292 Nicosia Treaty of Guarantee, 292 Vienna Convention on Diplomatic Relations, 156–7 Vienna Convention on Consular Relations, 157 India–Pakistan, Tashkent Declaration, 104 International Covenant on Civil and Political Rights, 181–2 International Covenant on Economic, Social and Cultural Rights, 181–2 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 24 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, 145 Vienna Convention on the Law of Treaties, 39–41, 59–60, 88, 95, 98, 104, 106, 124, 246, 293 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 346 Egypt-Israel, Cease-Fire Agreement, 58 European Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity and War Crimes, 145 Syria–Israel, Agreement on Disengagement between Forces, 58 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 10, 16, 21–2, 27, 111, 171, 181, 246–7 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 5, 131 United States–Panama, Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal (and Annexed Protocol), 21 Egypt–Israel, Camp David Agreements (A Framework for Peace in the Middle East and Framework for the Conclusion of a Peace Treaty between Egypt and Israel), 39 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 24 Egypt–Israel, Treaty of Peace, 36–7, 104, 332–3 International Convention against the Taking of Hostages, 258–9 Egypt–Israel, Protocol Establishing the Sinai Multinational Force and Observers, 333

xxiv

1982 1983 1988

1988 1988 1988 1990 1990 1993

1994 1994 1995 1998 1998 1999 2000 2002 2010

Table of treaties

United Nations Convention on the Law of the Sea, 22, 101, 213–14, 225, 270–1 Lebanon–Israel, Treaty of Peace (unratified), 37–8 Afghanistan–Pakistan, Agreement on the Principles of Mutual Relations, in Particular on Non-Interference and Non-Intervention, 290–1 Agreement on the Interrelationships for the Settlement of the Situation Relating to Afghanistan, 291 United States–USSR, Declaration on International Guarantees, 290 Wellington Convention on the Regulation of Antarctic Mineral Resource Activities, 22 Charter of Paris for a New Europe, 103 Treaty on the Final Settlement with Respect to Germany, 35 United Nations Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, 17 Jordan–Israel, Treaty of Peace, 36–7, 104 Jordan–Israel, Washington Declaration, 37 General Framework Agreement for Peace in Bosnia and Herzegovina, 290, 336 Rome Statute of the International Criminal Court, 131–5, 137, 140, 142, 145–9, 151–2, 154–5, 159–62 The Netherlands–United Kingdom, Agreement Concerning a Scottish Trial in the Netherlands, 347 Lomé Protocol Relating to the ECOWAS Mechanism for Conflict Prevention, 122 Ethiopia–Eritrea, Peace Agreement, 36, 104 Durban Protocol Relating to the Establishment of the Peace and Security Council of the African Union (AUPSC), 122–3 Kampala Amendments to the Rome Statute of the International Criminal Court, 71, 101–2, 124, 132–45, 148, 156, 161, 201–2, 210, 214, 217, 220

Table of Security Council resolutions (References are to page numbers)

49 (1948), 52 50 (1948), 52, 56 53 (1948), 52, 56 54 (1948), 52, 54, 311, 318 56 (1948), 52 59 (1948), 52 61 (1948), 52 62 (1948), 52 82 (1950), 165, 317 83 (1950), 165 84 (1950), 165 95 (1951), 46 161 (1961), 318 188 (1964), 252 199 (1964), 334 211 (1965), 53 217 (1965), 334 232 (1966), 318–19 233 (1967), 54, 58 234 (1967), 55, 58 235 (1967), 55, 58 270 (1969), 252 276 (1970), 314 338 (1973), 58 353 (1974), 318 405 (1977), 227, 318–19 418 (1977), 318–19 419 (1977), 227 502 (1982), 317

505 (1982), 54 508 (1982), 237 509 (1982), 237 514 (1982), 55 546 (1984), 318 598 (1987), 55, 237, 264, 317–18 602 (1987), 318 660 (1990), 177, 299–300, 319–21 661 (1990), 177, 299, 307, 319–20 662 (1990), 92 665 (1990), 299, 320, 330 669 (1990), 307 670 (1990), 320 674 (1990), 113 678 (1990), 178, 299–302, 320, 323–5 686 (1991), 299 687 (1991), 55, 60, 113, 266, 299, 321, 324, 331 688 (1991), 321 689 (1991), 331 692 (1991), 113 707 (1991), 60 731 (1992), 345–6 748 (1992), 178, 345–7 757 (1992), 178 808 (1993), 131 816 (1993), 327, 334, 336 827 (1993), 130 xxv

xxvi

Table of Security Council resolutions

836 (1993), 332, 334, 336 837 (1993), 332 841 (1993), 313–14 883 (1993), 346 917 (1994), 178 940 (1994), 314, 327 955 (1994), 131 1035 (1995), 336 1088 (1996), 336 1101 (1997), 332 1127 (1997), 313 1192 (1998), 347 1199 (1998), 337 1203 (1998), 337 1227 (1999), 311 1244 (1999), 337–8 1267 (1999), 261, 326–7 1289 (2000), 331

1298 (2000), 311, 327 1368 (2001), 228-9, 311–12 1373 (2001), 228-9, 311–12, 326 1377 (2001), 311–12 1386 (2001), 312 1438 (2002), 312 1441 (2002), 60-1, 323–4 1483 (2003), 325 1506 (2003), 347 1511 (2003), 325 1540 (2004), 326 1545 (2004), 332 1546 (2004), 325 1556 (2004), 326–7 1575 (2004), 337 1593 (2005), 161 1970 (2011), 327 1973 (2011), 327

Table of General Assembly resolutions (References are to page numbers)

95 (I) (1946), 129 177 (II) (1947), 129 377 (V) (1950), 339–41 2625 (XXV) (1970), 46, 71–2, 96, 130, 183, 220, 226, 253 2793 (XXVI) (1971), 56

3314 (XXIX) (1974), 71–2, 101, 124, 129, 135–40, 146, 183, 196–7, 201, 208, 217, 220–1 42/22 (1987), 97 60/1 (2005), 100, 109

Abbreviations

AC AD AFDI AFLR AIDI AJIL APSR ARIEL ASJG AUILR AUJILP AYBIL All ER Alta.LR Amer.ULR Ar.V. Auck.ULR BFSP BYBIL Bn.JIL By.JIL CLP CNA CTS CYIL Cal.WILJ Cam.LJ Car.JICL CaseWRJIL xxviii

Appeal Cases Annual Digest and Reports of Public International Law Cases Annuaire Français de Droit International Air Force Law Review Annuaire de l’Institut de Droit International American Journal of International Law American Political Science Review Austrian Review of International and European Law Acta Scandinavica Juris Gentium American University International Law Review American University Journal of International Law and Policy Australian Year Book of International Law All England Law Reports Alberta Law Review American University Law Review Archiv des Völkerrechts Auckland University Law Review British and Foreign State Papers British Year Book of International Law Brooklyn Journal of International Law Berkeley Journal of International Law Current Legal Problems Computer Network Attacks Consolidated Treaty Series Canadian Yearbook of International Law California Western International Law Journal Cambridge Law Journal Cardozo Journal of International and Comparative Law Case Western Reserve Journal of International Law

List of abbreviations

Col.JTL Col.LR Conn.JIL Cor.LR DSB Den.JILP Den.LJ DukeJCIL ECOWAS EJIL EPIL F FFWA For.Aff. GWILR GYIL Ga.JICL Gn.JIL Hague Conventions Har.ILJ Har.JLPP Har.LR Has.ICLR Hn.JIL Hof.LR ICBM ICJ Rep. ICLQ ICTR ICTY IJIL ILC Ybk ILM ILQ ILR ILS IMT

xxix

Columbia Journal of Transnational Law Columbia Law Review Connecticut Journal of International Law Cornell Law Review Department of State Bulletin Denver Journal of International Law and Policy Denver Law Journal Duke Journal of Comparative and International Law Economic Community of West African States European Journal of International Law Encyclopedia of Public International Law (R. Bernhardt ed., 1992–2000) Federal Fletcher Forum of World Affairs Foreign Affairs George Washington International Law Review German Yearbook of International Law Georgia Journal of International and Comparative Law Georgetown Journal of International Law The Hague Conventions and Declarations of 1899 and 1907 (J. B. Scott ed., 3rd edn, 1918) Harvard International Law Journal Harvard Journal of Law and Public Policy Harvard Law Review Hastings International and Comparative Law Review Houston Journal of International Law Hofstra Law Review Inter-Continental Ballistic Missiles Reports of the International Court of Justice International and Comparative Law Quarterly International Criminal Tribunal for Rwanda International Criminal Tribunal for the (Former) Yugoslavia Indian Journal of International Law Yearbook of the International Law Commission International Legal Materials International Law Quarterly International Law Reports International Law Studies Trial of Major War Criminals before the International Military Tribunal

xxx


IRRC ISAF IYHR Int.Con. Int.Law. Int.Leg.

Int.Rel. Io.LR Ir.YIL Is.LR JCSL JICJ JILE JPP JYIL Jur.R KCLJ Ken.LJ LCP LJIL LNTS LQR LRTWC MLLWR MPYUNL MaineLR Mar.JILT Mel.JIL Mer.LR Mich.JIL Mich.LR Mich.SJIL Mil.LR Minn.JIL Mod.LR NATO NCLR NDLR NILR

International Review of the Red Cross International Security Assistance Force Israel Yearbook on Human Rights International Conciliation International Lawyer International Legislation: A Collection of the Texts of Multipartite International Instruments of General Interest (M. O. Hudson ed., 1931–50) International Relations Iowa Law Review Irish Yearbook of International Law Israel Law Review Journal of Conflict and Security Law Journal of International Criminal Justice Journal of International Law and Economics Journal of Political Philosophy Jewish Yearbook of International Law Juridical Review King’s College Law Journal Kentucky Law Journal Law and Contemporary Problems Leiden Journal of International Law League of Nations Treaty Series Law Quarterly Review Law Reports of Trials of War Criminals Military Law and Law of War Review Max Planck Yearbook of United Nations Law Maine Law Review Maryland Journal of International Law and Trade Melbourne Journal of International Law Mercer Law Review Michigan Journal of International Law Michigan Law Review Michigan State Journal of International Law Military Law Review Minnesota Journal of International Law Modern Law Review North Atlantic Treaty Organization North Carolina Law Review Notre Dame Law Review Netherlands International Law Review


NJIL NMT NWCR NYIL NYLSJICL NYUJILP PASIL PILR PSQ PYIL Peace Treaties RBDI RCADI RDSC REDI RGA RGDIP RHDI RIAA RIDP RJIL RSIDMDG SanDILJ SanDLR So.IULJ Sp. St.JLR Stan.JIL Supp. Syr.JILC TGS Tem.ICLJ Tex.ILJ Tul.LR UCLAJILFA

xxxi

Nordic Journal of International Law Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10 Naval War College Review Netherlands Yearbook of International Law New York Law School Journal of International and Comparative Law New York University Journal of International Law and Politics Proceedings of the American Society of International Law Pace International Law Review Political Science Quarterly Pace Yearbook of International Law Major Peace Treaties of Modern History 1648–1967 (F. L. Israel ed., 1967) Revue Belge de Droit International Recueil des Cours de l’Académie de Droit International Resolutions and Decisions of the Security Council Revue Egyptienne de Droit International Resolutions Adopted by the General Assembly Revue Générale de Droit International Public Revue Hellénique de Droit International Reports of International Arbitral Awards Revue Internationale de Droit Pénal Regent Journal of International Law Recueils de la Société Internationale de Droit Militaire et de Droit de la Guerre San Diego International Law Journal San Diego Law Review Southern Illinois University Law Journal Special St. John’s Law Review Stanford Journal of International Law Supplement Syracuse Journal of International Law and Commerce Transactions of the Grotius Society Temple International and Comparative Law Journal Texas International Law Journal Tulane Law Review University of California Los Angeles Journal of International Law and Foreign Affairs

xxxii


UNIKOM UNJY UNPROFOR UNTS UChi.LR UTol.LR Ut.LR Vill.LR Vir.JIL Vir.LR WCR WMD Wash.LLR Wis.ILJ YBWA YJIL YLJ ZAORV

United Nations Iraq–Kuwait Observation Mission United Nations Juridical Yearbook United Nations Protection Force United Nations Treaty Series University of Chicago Law Review University of Toledo Law Review Utah Law Review Villanova Law Review Virginia Journal of International Law Virginia Law Review World Court Reports (M. O. Hudson ed., 1934–43) Weapons of Mass Destruction Washington and Lee Law Review Wisconsin International Law Journal Year Book of World Affairs Yale Journal of International Law Yale Law Journal Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht

Part I


1

What is war?

I.

The definition of war

A.

The numerous meanings of war

1. The word ‘war’ lends itself to manifold uses. It is necessary, at the outset, to differentiate between ‘war’ as a figure of speech heightening the effect of an oral argument or a news story in the media, and ‘war’ as a legal term of art. In ordinary conversation, political manifestos, press reports or literary publications, ‘war’ may appear to be a flexible expression suitable for an allusion to any serious strife, struggle or campaign. Thus, references are frequently made to ‘war on terrorism’,1 ‘war against the traffic in narcotic drugs’, ‘class war’ or ‘war of nerves’. As a rule, this is a matter of poetic licence: the metaphor of war merely serves to convey the gravity of the situation. But the metaphor must not be taken literally, lest it create confusion and incongruities derived from the fact that, in legal parlance, the term ‘war’ is invested with a special meaning.2 A metaphorical ‘war’ may admittedly segue into a real war in the legal sense: this is what happened when Taliban-led Afghanistan gave a haven to Al-Qaeda terrorists responsible for the outrage of 11 September 2001 (9/11) (see infra 692). 2. In pursuing the legal meaning of war, a distinction must be drawn between what war signifies in the domestic law of this or that State and what it denotes in international law. War, especially a lengthy one, is likely to have a tremendous impact on the internal legal systems of the Belligerent Parties (namely, the States that take part in the international armed conflict). A decision whether war has commenced at all, is going on, or has ended, produces far-ranging repercussions in many branches of private law, exemplified by frustration of contracts or liability for insurance coverage.3 Similarly, there are multiple relevant issues arising in public law, such as constitutional ‘war powers’ (i.e. identification of the branch of 1 2 3

See National Addresses by President Bush: ‘War against Terrorism’, [2001] Digest of United States Practice in International Law 856, 857, 859 (S. J. Cummins and D. P. Stewart eds.). See H. Tigroudja, ‘Quel(s) Droit(s) Applicable(s) à la “Guerre au Terrorisme”?’, 48 AFDI 81, 87–93 (2002). See Lord McNair and A. D. Watts, The Legal Effects of War 156 et seq., 259 et seq. (4th edn, 1966).

3

4


Government juridically competent to engulf the nation in war);4 the authority to requisition enemy property; tax exemptions allowed to those engaged in military service in wartime;5 and criminal prosecutions for violations of wartime regulations (spanning a wide range of topics, from trading with the enemy to rationing of scarce commodities). In consequence, domestic judicial decisions pertaining to war are legion. All the same, one must not rush to adduce them as precedents on the international plane. If a domestic tribunal merely construes the term ‘war’ in the context of the legal system within which it operates, the outcome may not be germane to international law. Even should a judgment rendered by a national court of last resort purport to set out the gist of war in accordance with international law, this need not be regarded as conclusive (except within the ambit of the domestic legal system concerned). 3. Occasionally, domestic courts – dealing, for instance, with insurance litigations – address the question whether war is in progress not from the perspective of the legal system (national or international) as a whole, but simply in order to ascertain what the parties to a specific transaction had in mind.6 When insurance policies exclude or reduce the liability of the insurer once death results from war, the parties are free to give the term ‘war’ whatever definition they desire.7 The definition may be arbitrary and incompatible with international law. Nevertheless, there is no reason why it ought not to govern the contractual relations between the parties. 4. At times, the parties to a private transaction mistakenly believe that a wrong definition of war authentically comports with international law. If a domestic court applies that definition, one must be exceedingly careful in the interpretation of the court’s judgment. The dilemma is whether the contours of war, as traced by the court, represent its considered (albeit misconceived) opinion of the substance of international law, or merely reflect the intent of the parties. 5. When we get to international law, we find that there is no binding definition of war stamped with the imprimatur of a multilateral treaty in force. What we have is quite a few scholarly attempts to depict the general practice of States and to articulate, in a few choice words, an immensely complex idea. Instead of seeking to compare multitudinous definitions, all abounding with variable pitfalls, it may be useful to take as a point of departure one prominent effort to encapsulate the essence of war. This is the often-quoted definition, which appears in L. Oppenheim’s classical treatise on International Law:

4 5 6 7

See, e.g., D. L. Westerfield, War Powers: The President, the Congress, and the Question of War passim (1996). See W. L. Roberts, ‘Litigation Involving “Termination of War”’, 43 Ken.LJ 195, 209 (1954–5). Cf. L. Breckenridge, ‘War Risks’, 16 Har.ILJ 440, 455 (1975). See R. W. Young, ‘Note’, 42 Mich.LR 884, 890 (1953–4).

What is war?

5

War is a contention between two or more States through their armed forces, for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases.8

B.

An analysis of Oppenheim’s definition of war

6. There are four major constituent elements in Oppenheim’s view of war: (i) there has to be a contention between at least two States; (ii) the use of the armed forces of those States is required; (iii) the purpose must be overpowering the enemy (as well as the imposition of peace on the victor’s terms); and it may be implied, particularly from the words ‘each other’, that (iv) both Parties are expected to have symmetrical, although diametrically opposed, goals. 7. It is proposed to examine in turn each of these characteristic features of war. However, it must be borne in mind that when references are made to the prerequisites of war, no attempt is made – as yet – to come to grips with the central issue of the jus ad bellum, viz. the legality of war. Questions of legality will be raised in subsequent chapters of this book. In the meantime, the only question asked is what conditions have to be fulfilled for a particular course of action to be properly designated ‘war’. (a) Inter-State and intra-State wars 8. Of the four ingredients in Oppenheim’s definition of war, only the first can be accepted with no demur. ‘One element seems common to all definitions of war. In all definitions it is clearly affirmed that war is a contest between states’.9 It is indispensable to distinguish between inter-State wars (waged between two or more sovereign States confronting each other) and intra-State armed conflicts – sometimes called, confusingly, ‘civil wars’ – conducted between two or more parties within a single State (either insurgents revolting against the central Government or organized armed groups fighting each other in the effective absence of a central Government). A non-international armed conflict transcends an internal situation of disturbance and sporadic violence. Indeed, it may amount to ‘sustained and concerted military operations’, carried out by ‘dissident armed forces or other organized armed groups’ exercising control over a part of the territory.10 However, the two definitive features of a non-international armed conflict are that (i) the fighting is taking place within the territory of a single country (although the armed conflict may have spill-over effects in a neighbouring country and perhaps trigger there a parallel non-international armed 8 9 10

L. Oppenheim, II International Law 202 (H. Lauterpacht ed., 7th edn, 1952). C. Eagleton, ‘An Attempt to Define War’, 291 Int.Con. 237, 281 (1933). The quotations are from Article 1(1) of the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), [1977] UNJY 135, 136.

6


conflict); and (ii) no foreign Government is joining the hostilities against the local central Government (but see infra 9).11 Solely armed conflicts in which States are clashing with one another qualify as wars in the full sense of the term in international law, and they will constitute the exclusive object of the inquiry in the present book. Non-international armed conflicts – notwithstanding their frequency and volatility – will not be examined here. 9. It is immaterial whether every Belligerent Party recognizes the enemy’s statehood. War may actually be the device through which one State challenges the sovereignty of its opponent. As long as both Belligerent Parties satisfy objective criteria of statehood under international law,12 any war between them should be characterized as inter-State. Even so, the States involved in an inter-State war must line up on opposing sides. If a non-international armed conflict is raging in Ruritania, and Atlantica assists the central Government of Ruritania in combating those who rise in revolt against it, the domestic upheaval does not turn into an inter-State war (see infra 317). In such a case, two States (Ruritania and Atlantica) are entangled in military operations, but since they stand together against the Ruritanian insurgents, the internal nature of the conflict remains intact. Conversely, if Atlantica joins forces with the insurgents, supporting them against the central Government of Ruritania, this is no longer just a ‘civil war’: it is a fully-fledged war in the sense of international law. 10. The overall armed conflict may have separate inter-State and intra-State strands, inasmuch as some hostilities may be waged exclusively between two (or more) States, whereas others may take place solely between the local central Government and those who rebel against it.13 As the International Court of Justice enunciated in the Nicaragua case of 1986: The conflict between the contras’ forces and those of the Government of Nicaragua is an armed conflict which is ‘not of an international character’. The acts of the contras towards the Nicaraguan Government are therefore governed by the law applicable to conflicts of that character; whereas the actions of the United States in and against Nicaragua fall under the legal rules relating to international conflicts.14

11. A country may simultaneously be engaged in both an intra-State and an inter-State armed conflict, without any built-in linkage between the external and internal foes, although it is only natural for the two disconnected armed conflicts to blend in time into a single war. This is what happened, for instance, in 11 12 13 14

See San Remo Manual on the Law of Non-International Armed Conflict (M. N. Schmitt, C. H. B. Garraway and Y. Dinstein eds., 2006), 36 IYHR, Special Supplement, 2 (2006). For these criteria, see J. Crawford, The Creation of States in International Law 37 et seq. (2nd edn, 2006). See C. Greenwood, ‘The Development of International Humanitarian Law by the International Criminal Tribunal for the Former Yugoslavia’, 2 MPYUNL 97, 118–20 (1998). Case Concerning Military and Paramilitary Activities in and against Nicaragua (Merits) (Nicaragua v. United States), [1986] ICJ Rep. 14, 114.

What is war?

7

Afghanistan in 2001. The Taliban regime, having fought a longstanding ‘civil war’ with the Northern Alliance, brought upon itself an inter-State war with an American-led Coalition as a result of providing shelter and support to the AlQaeda terrorists who had launched the 9/11 attack against the United States15 (see infra 692–3). But even as the overall character of the armed conflict was transformed from an intra-State to an inter-State war, some specific hostilities continued to be waged exclusively between the domestic foes. Originally, these hostilities were conducted between the Taliban forces in Kabul and the Northern Alliance. After the overthrow of the Taliban regime in Kabul, they were carried out between the newly established Karzai Government and the Taliban insurgents. 12. In practice, the dividing line between inter-State and intra-State armed conflicts cannot always be delineated with a few easy strokes.16 Thus, if the internal strife in Ruritania culminates in the emergence of a new State of Numidia on a portion of the territory of Ruritania, and the central Government of Ruritania contests the secession, the conflict may be considered by Ruritania to be internal while Numidia (and perhaps the rest of the international community) would look upon it as an inter-State war. Objectively considered, there may be a transition from a ‘civil war’ to an inter-State war which is hard to pinpoint in time. Yet, at the end of the day the transition may be glaring for all to see. This is particularly the case if the war is terminated by a treaty of peace between Ruritania and Numidia (see infra 94): ‘Parties to a conflict that were not states at its onset can have attained that status by the time a peace agreement is reached’.17 13. The transition from an intra-State into an inter-State armed conflict may be relatively easy to spot if and when foreign States join the fray. Thus, Israel’s War of Independence started on 30 November 1947 as a ‘civil war’ between the Arab and Jewish populations of the British Mandate in Palestine.18 But on 15 May 1948, upon the declaration of Israel’s independence and its invasion by the armies of five sovereign Arab countries, the war became inter-State in character.19 14. The disintegration of Yugoslavia exposed to light a more complex situation in which a ‘civil war’ between diverse ethnic, religious and linguistic groups inside the territory of a single country was converted into an inter-State war as a result of a fragmentation process within what used to be a single State.

15 16

17 18 19

See C. Greenwood, ‘International Law and the “War against Terrorism”’, 78 Int.Aff. 301, 309 (2002). For a horizontal/vertical mixture of international and non-international armed conflicts, see Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict 26–8 (2nd edn, 2010). C. Bell, ‘Peace Agreements: Their Nature and Legal Status’, 100 AJIL 373, 380 (2006). For the facts, see N. Lorch, The Edge of the Sword: Israel’s War of Independence 1947–1949 46 et seq. (2nd edn, 1968). For the facts, see ibid., 166 et seq.

8


The armed conflict in Bosnia may serve as an object lesson. As long as Bosnia constituted an integral part of Yugoslavia, any hostilities raging there among Serbs, Croats and Bosnians clearly amounted to a ‘civil war’. However, when Bosnia-Herzegovina emerged from the political ruins of Yugoslavia as an independent country, the armed conflict transmuted into an inter-State war by dint of the cross-border involvement of Serbian (former Yugoslav) armed forces in military operations conducted by Bosnian Serbs rebelling against the Bosnian Government (in an effort to wrest control over large tracts of Bosnian land and merge them into a Greater Serbia). This was the legal position despite the fact that, from the outlook of the participants in the actual combat, very little seemed to have changed. The juridical distinction is embedded in the realignment of sovereignties in the Balkans and the substitution of old administrative boundaries by new international frontiers. 15. In 1997, the Trial Chamber of the ICTY (International Criminal Tribunal for the former Yugoslavia) held in the Tadić case that from the beginning of 1992 until May of the same year a state of international armed conflict existed in Bosnia between the forces of the Republic of BosniaHerzegovina, on the one hand, and those of the Federal Republic of Yugoslavia (Serbia/Montenegro), on the other.20 Yet, the majority of the Chamber (Judges Stephen and Vohrah) arrived at the conclusion that, as a result of the withdrawal of Yugoslav troops announced in May 1992, the conflict reverted to being non-international in nature.21 The Presiding Judge (McDonald) dissented on the ground that the withdrawal was a fiction and that Yugoslavia remained in effective control of the Serb forces in Bosnia.22 The majority opinion was reversed by the ICTY Appeals Chamber in 1999.23 The original Trial Chamber’s majority opinion had elicited much criticism from scholars;24 and even before the delivery of the final judgment on appeal, another Trial Chamber of the ICTY took a divergent view in the Delalić case of 1998.25 Still, the essence of the disagreement must be viewed as factual in nature. Legally speaking, the fundamental character of an armed conflict as international or internal can indeed metamorphose – more than once – from one stretch of time to another. Whether at any given temporal framework the war is inter-State in character (or merely a ‘civil war’) depends on the level of involvement of a foreign State in hostilities waged against the central Government of the local State.

20 21 23 24 25

Prosecutor v. Tadić (ICTY, Trial Chamber, 1997), 36 ILM 908, 922 (1997). Ibid., 933. 22 Ibid., 972–3. Prosecutor v. Tadić (ICTY, Appeals Chamber, 1999), 38 ILM 1518, 1549 (1999). See, e.g., T. Meron, ‘Classification of Armed Conflict in the Former Yugoslavia: Nicaragua’s Fallout’, 92 AJIL 236–42 (1998). Prosecutor v. Delalić et al. (ICTY, Trial Chamber, 1998), 38 ILM 56, 58 (1999).

What is war?

9

(b) War in the technical sense and in the material sense 16. The second element in Oppenheim’s definition is not uniformly in harmony with the general practice of States. According to Oppenheim, a clash of arms between the Belligerent Parties is of the essence of war. He even underlined that war is a ‘contention, i.e. a violent struggle through the application of armed force’.26 But experience demonstrates that, in reality, there are two different types of war: there is war in the material sense, but there is also war in the technical sense. 17. War in the technical sense commences with a declaration of war (see infra 79) and is terminated with a treaty of peace or some other formal step indicating that the war is over (see infra 94). The crux of the matter is the taking of formal measures purposed to signify that war is about to break out (or has broken out) and that it has ended. De facto, the armed forces of the Parties may not engage in fighting even once in the interval. As an illustration, not a single shot was exchanged in anger between a number of Allied States (particularly in Latin America) and Germany in either World War.27 Nevertheless, de jure, by virtue of the issuance of declarations of war, those countries were in a state of war in the technical sense. 18. Until a formal step is taken to bring it to a close, a state of war may produce certain legal and practical effects as regards, for example, the internment of nationals of the enemy State and the sequestration of their property, irrespective of the total absence of hostilities.28 It can scarcely be denied, either in theory or in practice, that ‘[a] state of war may exist without active hostilities’ (just as ‘active hostilities may exist without a state of war’, a point that will be analyzed infra 44–5).29 Oppenheim’s narrow definition must be broadened to accommodate a state of war that is not combined with any fighting. 19. War in the material sense unfolds regardless of any formal steps. Its occurrence is contingent only on the eruption of comprehensive hostilities between the Belligerent Parties, even in the absence of a declaration of war. This is where Oppenheim’s reference to a violent struggle is completely apposite. The decisive factor here is deeds rather than declarations. What counts is not a de jure state of war, but de facto combat. Granted, even in the course of war in the material sense, hostilities do not have to go on incessantly and they may be interspersed by periods of cease-fire (see infra 138–9). But there is no war in the material sense without some acts of warfare. 20. Warfare means the use of armed force, namely, violence. Breaking off diplomatic relations with a State, or withdrawing recognition from it, does not 26 27 28 29

Oppenheim, supra note 8, at 202. See J. Stone, Legal Controls of International Conflict: A Treatise on the Dynamics of Disputes – and War – Law 306 (2nd edn, 1959). See L. Kotzsch, The Concept of War in Contemporary History and International Law 248–9 (1956). See Q. Wright, ‘When Does War Exist?’, 26 AJIL 362, 363 (1932).

10


suffice. An economic boycott or a psychological pressure is not enough. A ‘cold war’, threats to use force, or even a declaration of war (unaccompanied by acts of violence), do not warrant the conclusion that war in the material sense exists. It is indispensable that violence will occur. 21. The setting of a foreign State’s intervention in support of insurgents in rebellion against a central Government (see supra 9) raises some perplexing questions. What degree of the foreign intervention would bring about a state of war in the material sense? It appears that the mere supply of arms by a foreign State to the insurgents (epitomized by American equipment of fighters resisting the Soviet-backed Government in Afghanistan in the 1980s) does not qualify as an actual use of armed force (see infra 585). But there comes a point – for instance, when weapons are accompanied by instructors training the rebels – at which the foreign State is deemed to be waging warfare against the local Government.30 22. The jus in bello – governing the conduct of hostilities in the course of an international armed conflict – is brought into operation as soon as war in the material sense is embarked upon, despite the absence of a technical state of war. This principle is articulated in Article 2 common to the four 1949 Geneva Conventions for the Protection of War Victims: [T]he present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.31

A similar provision appears in Article 18(1) of the 1954 Hague Cultural Property Convention.32 Of course, if a state of war exists in the technical sense only – and no hostilities are taking place – the issue of the application of the jus in bello rarely emerges in practice.33 30 31

32 33

It is noteworthy that a breach of neutrality occurs when military advisers are assigned to the armed forces of one of the Belligerent Parties in an ongoing inter-State war (see infra 71). Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 UNTS 31, 32; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, ibid., 85, 86; Geneva Convention (III) Relative to the Treatment of Prisoners of War, ibid., 135, 136; Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, ibid., 287, 288. Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 1954, 249 UNTS 240, 254. In some extreme instances, even when the state of war exists only in a technical sense, a Belligerent Party may still be in breach of the jus in bello. Thus, the mere issuance of a threat to an adversary that hostilities would be conducted on the basis of a ‘no quarter’ policy constitutes a violation of Article 40 of the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1977, [1977] UNJY 95, 110. Cf. Article 23(d) of the Hague Regulations Respecting the Laws and Customs of War on Land (Annexed to Hague Convention (II) of 1899 and (IV) of 1907), Hague Conventions 100, 107, 116.

What is war?

11

(c) Total wars, limited wars and incidents ‘short of war’ 23. The third component in Oppenheim’s definition is that the purpose of war must be the overpowering of the enemy and the imposition of peace terms. Oppenheim’s intention, no doubt, was to distinguish between a large-scale use of force (tantamount to war) and a clash of lower intensity (constituting measures ‘short of war’). Indeed, when armed units of two countries are locked in combat, the preliminary question is whether the use of force is comprehensive enough for the fighting to qualify as war. 24. Incidents involving the use of force, without reaching the threshold of war, occur quite often in the relations between States. Border patrols of neighbouring countries may exchange fire; naval units may torpedo vessels flying another flag; interceptor planes may shoot down aircraft belonging to another State; and so forth. The reasons for such incidents vary. They may happen accidentally or be caused by trigger-happy junior officers acting on their own initiative; they may be engendered by simmering tensions between the two countries; they may be the fallout of an open dispute revolving around control over a strategically or economically important area (like oil lands, a major road, a ridge of mountains or a waterway); and other motives may be at play. 25. The classification of a military action as either war or a closed incident (‘short of war’) is not always easy: in large measure, it depends on the way in which the two antagonists appraise the situation. As long as both Parties choose to consider what has transpired as a mere incident, and provided that the incident is rapidly closed, it is hard to gainsay that view. Once, however, one of them elects to engage in war, the other side is incapable of preventing that development. The State opting for war may simply issue a declaration of war, thereby initiating war in the technical sense (see supra 17, infra 79). Likewise, the State desirous of war may escalate the use of force, so that war in the material sense will take shape (see supra 19). 26. There is a marked difference between war and peace: whereas it requires two States to conclude and to preserve peace (see infra 94 et seq.), it takes a single State to embroil itself – as well as its selected enemy – in war. When comprehensive force is used by Arcadia against Utopia, war in the material sense ensues; and it is irrelevant that Utopia confines itself to responding with non-comprehensive force. Utopia, remaining completely passive, may in fact offer no resistance; nevertheless, war in the material sense can result from the unilateral measures taken by the advancing Arcadian military contingents.34 If Arcadia proceeds to ‘devastate the territory of another with fire and sword’, the invasion would be categorized as war in the material sense, discounting what the Utopian armed forces do or fail to do.35 Hence, the invasion by the Iraqi 34 35

See P. Guggenheim, ‘Les Principes de Droit International Public’, 80 RCADI 1, 171 (1952). T. Baty, ‘Abuse of Terms: “Recognition”: “War”’, 30 AJIL 377, 381, 398 (1936).

12


army and the rapid takeover of Kuwait within a few hours on 2 August 1990 brought about war in the material sense. It would be erroneous to assume that the Gulf War began only when extensive hostilities flared up in January 1991. 27. Since war in the material sense is derived from deeds rather than words, third Parties sometimes feel compelled to investigate the legal position on their own. This may come to pass either because the adversaries keep silent, while their field units are in constant battle, or what they say does not match what they do. ‘There is . . . room for the view that the opinions entertained by the belligerents need not be given conclusive effect. War may be too important a matter to be left either to the generals or to the contending parties’.36 28. A legal analysis of the true state of affairs, carried out objectively, hinges on a perception of the use of force as comprehensive. Force is comprehensive if it is employed (i) spatially, across sizeable tracts of land or far-flung corners of the ocean; (ii) temporally, over a protracted period of time; (iii) quantitatively, entailing massive military operations or a high level of firepower; (iv) qualitatively, inflicting extensive human casualties and destruction to property. Reliance on any one of the four criteria may prove adequate in certain instances, but generally only a combination of all four will paint a clear picture of the nature of the hostilities. 29. The use of force need not be unlimited for it to be comprehensive. Oppenheim’s definition postulates what is termed nowadays a ‘total’ war. Many a war is unquestionably ‘total’ in that it is conducted with total victory in mind. Total victory consists of the capitulation of the enemy, following the overall defeat of its armed forces and/or the conquest of its territory, and if this is accomplished the victor is capable of dictating peace terms to the vanquished. When carried to extremity, a total victory may bring about the complete disintegration of the enemy State (see infra 133). Thus, in unleashing the Gulf War in 1990, the Iraqi aim was to extinguish the political life of Kuwait as a sovereign State. However, when Iraq was completely occupied in 2003, the winning Coalition did not wish to mete out a similar fate to Iraq, whose sovereignty was assiduously respected. 30. Not every war is aimed at total victory. Oppenheim completely overlooked the feasibility of limited wars. Such wars are, in fact, of considerable frequency and import. In a limited war, the goal may be confined to the defeat of only some segments of the opposing military apparatus; the conquest of certain portions of the opponent’s territory (and no others); or the coercion of the enemy Government to alter a given policy (e.g., the Kosovo Air Campaign of 1999, discussed infra 896 et seq.), without striving for total victory. Now and then, it is not easy to tell a limited war (in the material sense) apart from a grave incident ‘short of war’. The difference between the two is relative: more force, employed over a longer period

36

R. R. Baxter, ‘The Definition of War’, 16 REDI 1, 4 (1960).

What is war?

13

of time, within a larger theatre of operations, is required in a war setting as compared to a situation ‘short of war’. 31. A war may be deemed ‘total’ not only when its goal is the complete subjugation of the enemy. A war is also total when the means, used to attain a limited objective, are total. That is to say, war may be catalogued as total when the resources (human and material) of a Belligerent Party are mobilized in their totality, so as to secure victory at any cost. Victory at any cost should not be confused with total victory. Surely, more often than not, a State will mobilize its full resources only when the end for which it exerts itself is total victory. But a State may conduct war à outrance for a limited reward, like a border rectification, if the issue carries an emotional load of great weight. One must distinguish between the military war aims and the ulterior motives of war. The latter can be strategic, political, economic, and even religious, ideological or cultural. War may have a hidden agenda that goes beyond the tangible or ostensible gains contemplated. 32. The counterpart of a limited war fought with unlimited means is a total war waged with less than the totality of the means available. Occasionally, a Belligerent Party – while fighting a war that is total in terms of its objective – refrains from resorting to some destructive (conventional or unconventional) weapon systems, although they are at its disposal and their use is legally permissible.37 There is a broad array of causes for such self-restraint: lofty moral impulses; a concession to public opinion at home or abroad; a desire to avoid colossal losses; fear of retaliation; or purely military considerations. Either way, hostilities do not lose their legal classification as war only because some weapons remain on the shelf. 33. For these reasons, it is better to attenuate the rigidity of Oppenheim’s definition. War need not be total to be war. At the same time, not every episodic case of use of force by States amounts to war. Only a comprehensive use of force does. The key to the definition of war should lie in the adjective ‘comprehensive’. (d) War as an asymmetrical phenomenon 34. The last factor in Oppenheim’s definition is the implicit symmetry in the positions of the contending Parties, as if both necessarily have corresponding objectives. However, the genuine war aims of one Belligerent Party are not always a mirror image of the other’s. Sometimes, an attacking State may desire solely to gain a limited advantage over a neighbouring country, but the victim is apt to respond fiercely in an effort to crush its adversary once and for all. The opposite scenario is equally conceivable. The attacking State may aim at total 37

The International Court of Justice noted without comment the argument of nuclear States that, ‘if nuclear weapons have not been used since 1945, it is not on account of an existing or nascent custom but merely because circumstances that might justify their use have fortunately not arisen’. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, [1996] ICJ Rep. 226, 254.

14


victory, whereas the other side sets its sights lower. This is what happened in the first phase of the Gulf War. Although Iraq attempted to annihilate Kuwait, the American-led Coalition which came to the aid of the latter spurned exhortations to march all the way to Baghdad in 1991. Hostilities were therefore suspended upon the liberation of Kuwait (although when the cease-fire terms were continuously disregarded by Iraq, the Coalition resumed hostilities in 2003 and brought about the total collapse of the Saddam Hussein regime; see infra 859 et seq.). 35. This raises another core issue. Ordinarily, a state of war is characterized by a specific intention to wage war against the chosen opponent; an animus belligerendi. There are those who look upon the manifestation of such an intention on the part of at least one of the Belligerent Parties as an essential component in the definition of war.38 The obvious manifestation of such an intention would be expressed in a declaration of war (see infra 79), if issued.39 However, the intention to embark upon war may be less self-evident in the absence of a declaration of war. When all is said and done, the intention is usually deduced from the fact of war, and not vice versa. 36. More significantly, the whole thesis that an animus belligerendi is intrinsic to the definition of war – albeit enticing – is insupportable. To begin with, an animus belligerendi need not stimulate the attacking State. Just as war can be imposed by Arcadia (the attacking State) on Utopia (the target State) against the latter’s will, war can also develop contrary to the original intentions harboured by Arcadia. When it mounts a military incursion into Utopian territory, Arcadia may envisage a brief armed encounter ‘short of war’. Yet, inasmuch as it is incapable of controlling the Utopian response, Arcadia may stumble into war. Arcadia acts ‘at its peril’, since the measures of force to which it resorts can be treated by Utopia as the initiation of war.40 Thus, the decision whether a seminal use of force will culminate in a state of war may be taken by the target State (Utopia).41 Furthermore, in some scenarios, the target State (Utopia) – no less than the attacking State (Arcadia) – lacks altogether an animus belligerendi. All the same, ‘if acts of force are sufficiently serious and long continued’, war may unfold between Arcadia and Utopia even though ‘both sides disclaim any animus belligerendi and refuse to admit that a state of war has arisen between them’.42 Differently phrased, an objective inquiry (conducted, e.g., by Patagonia; see supra 27) may prompt the conclusion that Arcadia and Utopia are in the midst of war although, from the subjective standpoint of its intentions (animus belligerendi), neither country desires to wage war. 38 39 40 41 42

See, e.g., C. Greenwood, ‘War, Terrorism, and International Law’, 56 CLP 505, 513, 515 (2003). See ibid., 513. See A. D. McNair, ‘The Legal Meaning of War, and the Relation of War to Reprisals’, 11 TGS 29, 38 (1925). See E. M. Borchard, ‘“War” and “Peace”’, 27 AJIL 114, 114–15 (1933). See J. L. Brierly, ‘International Law and Resort to Armed Force’, 4 Cam.LJ 308, 313 (1930–2).

What is war?

C.

15

A proposed definition of war

37. As the foregoing discussion should indicate, the term ‘war’ gives rise to more than a handful of definitional problems. No wonder that the assertion is made that no definition, serviceable for all purposes, can be provided.43 Still, in the context of the present study, ‘war’ will have the following meaning: War is a hostile interaction between two or more States, either in a technical or in a material sense. War in the technical sense is a formal status produced by a declaration of war. War in the material sense is generated by actual use of armed force, which is comprehensive on the part of at least one Belligerent Party.

II.

Status mixtus

38. In the past, the dominant opinion, as expressed by Grotius44 following Cicero,45 was that no intermediate state exists between war and peace (inter bellum et pacem nihil est medium). But in the last century, a number of scholars have strongly advocated a reconsideration of the traditional dichotomy in light of the modern practice of States. In particular, G. Schwarzenberger called for recognition of a ‘status mixtus’,46 and P. C. Jessup urged acceptance of a state of ‘intermediacy’ between war and peace.47 Other commentators deny that the notion of an intermediate status between war and peace is consonant with contemporary international law.48 39. To the degree that proponents of the status mixtus school of thought recognize an independent third rubric, lying outside the bounds of war and peace, and subject to the application of a different set of rules,49 there is nothing in the current practice of States to provide support for that view. Nor is it justified to speak loosely of a status mixtus in the sense of a twilight zone between war and peace. Legally speaking, there are only two states of affairs in international relations – war and peace – with no undistributed middle ground. 40. Whenever States disagree about the application or interpretation of international law, it is necessary and possible to establish first whether a state of war or of peace is in progress. But this is not to say that the concept of a status mixtus is without merit in international law. One must acknowledge, as an 43 44 45 46 47 48 49

See F. Grob, The Relativity of War and Peace 189 (1949). Grotius, De Jure Belli ac Pacis, Book III, § XXI, I (I Classics of International Law edn (text) 592 (1913)). Cicero, Philippics, § VIII, I, 4 (Loeb Classical edn 366 (W. C. A. Ker trans., 1926)). G. Schwarzenberger, ‘Jus Pacis ac Belli?’, 37 AJIL 460, 470 (1943). P. C. Jessup, ‘Intermediacy’, 23 ASJG 16, 17 (1953); P. C. Jessup, ‘Should International Law Recognize an Intermediate Status between Peace and War?’, 48 AJIL 98, 100 (1954). See G. I. Tunkin, Theory of International Law 265–70 (1974). See, e.g., A. N. Salpeter and J. C. Waller, ‘Armed Reprisals during Intermediacy – A New Framework for Analysis in International Law’, 17 Vill.LR 270, 271–2 (1972).

16


observable phenomenon, the applicability of some laws of peace in specific war situations and of some laws of war in certain peace settings. A status mixtus is characterized by the simultaneous operation of the laws of war (for some purposes) and the laws of peace (for others).50 A.

Peacetime status mixtus

41. In peacetime, a status mixtus exists when States resort to a limited use of force ‘short of war’. Because a state of peace continues to prevail, (i) most of the relations between the States concerned are still governed by the laws of peace, and (ii) the laws of neutrality are not activated between the antagonists and third Parties. Nevertheless, the actual fighting will be governed by the jus in bello (see supra 22), a body of rules currently subject to various designations. Increasingly, the form of expression used is ‘international humanitarian law’. This appellation – once deemed coterminous with the Geneva Conventions – is nowadays construed as covering other instruments also, such as Hague Convention (IV) of 1907 Respecting the Laws and Customs of War on Land (and the Regulations annexed thereto),51 as well as customary international law (defined infra 252).52 The present writer prefers the coinage ‘law of international armed conflict’.53 It must be perceived that the distinction between the diverse locutions – jus in bello, ‘international humanitarian law’ and ‘law of international armed conflict’ – is more semantic than real. All three turns of phrase must be understood to cover both ‘war’ and ‘short of war’ situations. 42. It is generally conceded at the present time that the relevant norms of the jus in bello must be implemented in the course of international armed conflicts of whatever type, and not only when a state of war is in effect (i.e. even when there is no bellum). The broad application of the jus in bello is reflected in the very title of Protocol I of 1977, Additional to the four Geneva Conventions, which relates to the Protection of Victims of International Armed Conflicts,54 viz. not only wars. Common Article 2 of the 1949 Geneva Conventions for the Protection of War Victims (quoted supra 22) prescribes that these instruments (wherein the term ‘war’ figures prominently) shall apply to all cases of armed conflict between Contracting Parties, ‘even if the state of war is not recognized by one of them’. It may be inferred from the last words that, if both adversaries jointly refuse to recognize the existence of a state of war, the Conventions are 50 51 52

53

See G. Schwarzenberger and E. D. Brown, A Manual of International Law 151 (6th edn, 1976). Hague Convention (IV), supra note 33, at 100, 107. The amalgamation of the two branches of law applicable in armed conflict (the ‘Hague Law’ and the ‘Geneva Law’) into ‘one single complex system, known today as international humanitarian law’ was noted by the International Court of Justice in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, supra note 37, at 256. See Dinstein, supra note 16, at 18–19. 54 Additional Protocol I, supra note 33, at 95.

What is war?

17

not operational.55 But the correct legal position appears to be that whenever force is employed in international relations, States are obligated to carry out those norms of the jus in bello that befit the situation.56 43. Contemporary instruments – dealing, for instance, with prohibited weapons – tend to make it transparently clear that they cover all armed conflicts of whatever nature (not even necessarily inter-State). Thus, under the 1993 Chemical Weapons Convention, Contracting Parties undertake ‘never under any circumstances’ to use chemical weapons.57 The scope of this injunction is so extensive that it transcends any armed conflict. It is true that the Convention expressly permits Contracting Parties to keep certain chemicals (such as tear gas) for law enforcement purposes, including domestic riot control.58 However, it is interdicted to employ the same chemicals for military purposes as a method of warfare.59 The ban covers any international armed conflict (whether characterized as war or ‘short of war’), and even non-international armed conflicts (rising above the level of riots).60 B.

Wartime status mixtus

44. In some circumstances, widespread hostilities (inflicting a large number of casualties and incalculable damage) are raging between States over a long period of time, yet the Belligerent Parties behave as if nothing out of the ordinary has happened.61 The Eritrea Ethiopia Claims Commission stated, in its Partial Award of 2005 on Jus ad Bellum, that maintaining diplomatic and economic relations ‘would appear inconsistent with a formal declaration of war’.62 But, frequently, Belligerent Parties continue to maintain full diplomatic relations,63 go on trading with each other, and otherwise assume a ‘business as usual’ posture. As pointed out (see supra 27), third States may be driven to probe independently the nature of the hostilities. An impartial examination may lead to the conclusion that in reality war is going on, official protests to the 55 56 57 58 60 61 62 63

See A. P. Rubin, ‘The Status of Rebels under the Geneva Conventions of 1949’, 21 ICLQ 472, 477 (1972). See Commentary, I Geneva Convention 32 (J. S. Pictet ed., 1952). United Nations Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, 1993, 32 ILM 800, 804 (1993) (Article I(1)). Ibid., 805–7 (Articles II(7)–(9), III(1)(e)). 59 Ibid., 806 (Article II(9)(c)). See W. Krutzsch and R. Trapp, A Commentary on the Chemical Weapons Convention 18 (1994). The Soviet-Japanese armed conflict of 1939 may serve as a good example. See I. Brownlie, International Law and the Use of Force by States 389 (1963). Eritrea Ethiopia Claims Commission, Partial Award, Jus ad Bellum (Ethiopia’s Claims 1–8), 2005, 45 ILM 430, 434 (2006). ‘Breach of diplomatic relations . . . may or may not occur on the outbreak of armed conflict. It is increasingly common for diplomatic missions to remain in position even during violent conflict’. E. Denza, Diplomatic Law: A Commentary on the Vienna Convention on Diplomatic Relations 386 (2nd edn, 1998).

18


contrary notwithstanding. Of course, any determination by Ruritania that war is going on between Arcadia and Utopia may have effects only as far as Ruritania is concerned: in terms of either domestic law (e.g., the application of exclusionary insurance clauses in proceedings before Ruritanian courts; see supra 2–3) or international law (that is, the application of the laws of neutrality to Ruritania; see infra 64 et seq.).64 45. Hostilities conducted under a veil of normalcy are liable to cause a lot of confusion. It seems to be the other side of the coin of a state of war without warfare (see supra 18): here, ostensibly, warfare occurs without a state of war. In actuality, that is not so. If States use comprehensive force against one another, war in the material sense exists. 46. Once war is going on, the jus in bello is supposed to be brought into operation in its amplitude. Can the Belligerent Parties, acting in concert, suspend the application of the jus in bello (in whole or in part)? To answer the question, a distinction must be drawn between the duties that the jus in bello imposes and the rights that it bestows. Belligerent Parties are obligated to discharge in full the duties devolving on them under the jus in bello. These duties cannot be evaded even if the Belligerent Parties grant a dispensation to one another. But States engaged in war are not compelled by international law to make use of the full spectrum of the rights accorded to them. If it so desires, each of the opposing sides is generally empowered not to exercise the entire gamut of its lawful powers. Subject to exceptions spelt out by multilateral treaties,65 a Belligerent Party is entitled to renounce its rights or to leave them in abeyance. Surely, international law does not impede warring States from avoiding, for instance, capture and condemnation as prize (after adjudication) of enemy – and, in prescribed cases, even neutral – merchant vessels and civilian aircraft (as well as their cargoes).66 By the same token, Belligerent Parties may opt to continue to maintain reciprocal commercial and diplomatic relations notwithstanding the fact that their armies are pitted in combat (see supra 44). 47. In a 1976 International Chamber of Commerce Arbitration, in the Dalmia Cement case, the Arbitrator (P. Lalive) pronounced that war must entail ‘a complete rupture of international relations’ between the Belligerent Parties, and ‘the continued existence of treaties as well as of diplomatic relations between the parties cannot be reconciled with a “state

64 65

66

See J. A. Cohan, ‘Legal War: When Does It Exist, and When Does It End?’, 27 Has.ICLR 221, 256–7 (2003–4). The four Geneva Conventions expressly rule out the conclusion of special agreements between Belligerent Parties, which affect adversely or restrict the rights of protected persons: Geneva Convention (I), supra note 31, at 34 (Article 6); Geneva Convention (II), ibid., 88 (Article 6); Geneva Convention (III), ibid., 142 (Article 6); Geneva Convention (IV), ibid., 292 (Article 7). On prize, see Dinstein, supra note 16, at 248–50.

What is war?

19

of war”’.67 As for treaties, this statement is incompatible with the modern trend denying their ipso facto termination – and, according to the Institut de Droit International, even suspension – upon the commencement of war.68 While the breaking off of diplomatic relations at the onset of hostilities may be the general rule, it can no longer be viewed as an essential aspect of war.69 48. What a wartime status mixtus requires is some finesse in appraising the conduct of the Belligerent Parties. On the one hand, it ought to be remembered that a state of war exists. Consequently, all wartime obligations must be complied with scrupulously. On the other hand, if the Parties wish to preserve a modicum of peace in the middle of war, they are entitled to do so. The only condition is that their behaviour must not run counter to overriding obligations of the jus in bello. III.

The region of war

49. War can be waged over large portions of the planet and beyond. The space subject to the potential spread of hostilities is known as the region of war. Actual hostilities may be restricted by the Belligerent Parties to a fairly narrow theatre of operations, but the potential is always there. The combat zone on land is likely to be quite limited in geographic scope, yet naval and air units (not to mention long-range missiles) may strike at targets in distant areas. The region of war consists of the following areas: A.

The territories of the Belligerent Parties

(a) The general rule 50. All the territories of the Belligerent Parties – anywhere under their sovereign sway (including territories occupied by the enemy) – come within the region of war. As a corollary, the region of war does not overstep the boundaries of neutral States, and no hostilities are permitted within their respective domains. 51. The territories of the Belligerent Parties include (i) all land areas; (ii) internal waters; (iii) archipelagic waters;70 (iv) the territorial sea; (v) the subsoil and submarine areas underneath these expanses of land and water, as well as the continental shelf; and (vi) the superjacent airspace. 67 68

69 70

Dalmia Cement Ltd v. National Bank of Pakistan (1976), 67 ILR 611, 624. Emphasis in the original. Institut de Droit International, Resolution, ‘The Effects of Armed Conflicts on Treaties’, 61(II) AIDI 278, 280 (Helsinki, 1985) (Article 2). Cf. comments by the present writer drawing attention to the contrast with the Lalive arbitral award and other sources, ibid., 215. The Arbitrator himself conceded that the position was not free of doubt. See Dalmia Cement case, supra note 67, at 623. On the status of archipelagic waters, see E. Rauch, The Protocol Additional to the Geneva Conventions for the Protection of Victims of International Armed Conflicts and the United Nations Convention on the Law of the Sea: Repercussions on the Law of Naval Warfare 32 (1984).

20


(b) The exception: neutralized zones 52. A (multilateral or bilateral) treaty may exclude from the region of any present or future war a waterway, an island or any other designated zone located within the territory of an actual or prospective Belligerent Party. Such a treaty arrangement gives rise to the ‘neutralization’ of the specific zone.71 Neutralization assimilates the status of an area controlled by a Belligerent Party to that of a neutral territory. 53. Neutralization must not be confused with demilitarization. Demilitarization may exist without neutralization, just as neutralization may exist without demilitarization (although demilitarization may be a component of neutralization). In both instances, a well-defined zone is involved. Yet, the two institutions ‘must be sharply distinguished’.72 The principal dissimilarities between the two regimes are as follows: (i) Neutralization acquires a practical significance only in time of actual warfare, while demilitarization is drawn up for periods of suspension or termination of hostilities (see, e.g., about an armistice, infra 128). (ii) Neutralization denotes that the zone to which it applies is removed, as it were, from the region of war. Demilitarization means that the zone is subject to limitations (of greater or lesser severity) as far as the stationing of armed forces and weapon systems – and the construction of fortifications and military installations – are concerned.73 (iii) Neutralization is premised on the assumption that hostilities will begin or have already begun: the goal is to prevent the neutralized zone from being engulfed in the fighting. Demilitarization is intended to minimize friction in the future by creating a buffer zone separating the military forces of the States concerned – particularly along their borders – placing the emphasis on the prevention of incidents liable to trigger hostilities. The problem is that, in the long run, demilitarized zones by themselves may turn into irritants – due to frequent charges of breaches and counter-breaches – thereby increasing tensions between the Parties instead of alleviating them. Hence, the hypothesis that ‘[p]eace lasts longer when demilitarized zones are set up’74 is often not borne out by the facts. (iv) In demilitarization, the demilitarized zone serves only as a means to the end of the maintenance of peace or armistice, or the observance of a cease-fire, everywhere. In neutralization, the neutralized zone itself is the end: the objective is safeguarding the zone from the spread of warfare raging elsewhere. 71 72 73 74

See Oppenheim, supra note 8, at 244. J. H. W. Verzijl, III International Law in Historical Perspective 500 (1970). See J. Delbrück, ‘Demilitarization’, I EPIL 999, id. See V. P. Fortna, Peace Time: Cease-Fire Agreements and the Durability of Peace 25 (2004).

What is war?

21

54. A typical neutralization arrangement is embodied in Article 4 of the 1888 Constantinople Convention on the Suez Canal, where the Contracting Parties agreed that ‘no right of war’ or ‘act of hostility’ would be allowed in the Canal and its ports of access, or within a radius of three nautical miles from those ports.75 A parallel provision – explicitly referring to neutralization – appeared in Article 3 of the 1901 Anglo-American Hay-Pauncefote Treaty, in anticipation of the construction of a canal connecting the Atlantic and Pacific oceans.76 55. In 1977, the United States and the Republic of Panama concluded a Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal.77 In general, the phrase ‘permanent neutrality’ is to be differentiated from the term ‘neutralization’.78 The concept of permanent neutrality applies not to a specific zone but to the entire territory of a country, with Switzerland as the model. A country placed under a permanent neutrality regime undertakes to remain neutral in all future wars (unless attacked), to conclude no military alliances, and to allow no foreign military bases on its soil.79 No such obligation is imposed on the Republic of Panama in the 1977 Treaty. The permanent neutrality declared therein relates only to the Panama Canal.80 Respect for the permanent neutrality of the Canal is also a theme of a special Protocol, annexed to the Treaty and open to accession by all the States of the world.81 In correct legal terminology, the 1977 Treaty and Protocol ensure not the permanent neutrality, but the neutralization, of the Panama Canal. 56. Neutralization is not restricted to international waterways. Article 6 of the 1921 Geneva Convention on the Non-Fortification and Neutralisation of the Aaland Islands lays down that, in time of war, these islands are to be considered a neutral zone and they are not to be used for any purpose connected with military operations.82 57. Protocol I Additional to the Geneva Conventions incorporates, in Article 60, a detailed stipulation relating to ‘demilitarized zones’.83 Belligerent Parties are forbidden to extend their military operations to zones on which they have conferred by agreement (concluded either in writing or verbally, either in 75 76 77 78 79 80 81 82 83

Constantinople Convention Respecting the Free Navigation of the Suez Maritime Canal, 1888, 3 AJIL, Supp., 123, 124 (1909). Great Britain–United States, Treaty to Facilitate the Construction of a Ship Canal (Hay-Pauncefote Treaty), 1901, 3 AJIL, Supp., 127, 128 (1909). United States–Panama, Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal, 1977, 72 AJIL 238 (1978). See S. Verosta, ‘Neutralization’, III EPIL 570, id. See J. L. Kunz, ‘Austria’s Permanent Neutrality’, 50 AJIL 418, 418–19 (1956). Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal, supra note 77, at 238–41. Ibid., 241–2. Geneva Convention Relating to the Non-Fortification and Neutralisation of the Aaland Islands, 1921, 9 LNTS 211, 219. Additional Protocol I, supra note 33, at 118–19.

22


peacetime or after the outbreak of hostilities) the status of a demilitarized zone. Although Article 60 refers to ‘demilitarized zones’, the exclusion of wartime military operations signifies that the zones have been neutralized. 58. The 1959 Antarctic Treaty promulgates, in Article I(1), that ‘Antarctica shall be used for peaceful purposes only’.84 There is no lucid definition of the term ‘peaceful purposes’.85 However, a plain reading of the text would suggest that it eliminates the possibility of warlike activities (‘warlike’ being the antonym of ‘peaceful’). Article 8(4)(b) of the 1988 Convention on the Regulation of Antarctic Mineral Resource Activities – when dealing with non-liability for damage in case of unforeseen disasters – refers to the possibility of an ‘armed conflict, should it occur notwithstanding the Antarctic Treaty’.86 Since an armed conflict can occur only ‘notwithstanding’ the Antarctic Treaty,87 it is clear that a regime of neutralization has been imposed on the entire continent. Article I of the Antarctic Treaty additionally provides for the demilitarization of Antarctica.88 B.

The high seas and the exclusive economic zone

59. There has never been any doubt that the high seas ‘fall within the region of war’.89 Surprisingly, Article 88 of the 1982 United Nations Convention on the Law of the Sea, echoing the language of the Antarctic Treaty (supra 58), proclaims: The high seas shall be reserved for peaceful purposes.90

Under Article 58(2), this clause applies also to the exclusive economic zone.91 A literal construction of the words used in the Convention would connote that the waging of war as such is banned throughout the high seas and the exclusive economic zone.92 60. If taken seriously, the laconic stipulation of Article 88 would bring about a veritable revolution in maritime warfare. ‘This is the shortest Article in the Convention, but in spirit it is the most far-reaching: ostensibly it challenges the historic role of the oceans as battlegrounds’.93 It is hard to believe that 84 85 86 87

88 90 92 93

Washington Antarctic Treaty, 1959, 402 UNTS 71, 72. See J. Hanessian, ‘The Antarctic Treaty 1959’, 9 ICLQ 436, 468 (1960). Wellington Convention on the Regulation of Antarctic Mineral Resource Activities, 1988, 27 ILM 859, 873 (1988). Apart from the possibility of a ‘material breach’ of the Antarctic Convention, an armed conflict may be initiated by a non-Contracting Party. See A. Watts, International Law and the Antarctic Treaty System 207 (1992). Washington Antarctic Treaty, supra note 84, at 72. 89 Oppenheim, supra note 8, at 239. United Nations Convention on the Law of the Sea, 1982, Official Text, 54. 91 Ibid., 19. See F. Francioni, ‘Use of Force, Military Activities, and the New Law of the Sea’, The Current Legal Regulation of the Use of Force 361, 375–6 (A. Cassese ed., 1986). K. Booth, Law, Force and Diplomacy at Sea 82 (1985).

What is war?

23

‘a one-sentence reference to peaceful purposes’, in an inordinately verbose and complex instrument, was intended to produce the momentous results that seem to flow from the text.94 The provision ‘is widely regarded as prohibiting only acts of aggression on the high seas’.95 Such an interpretation, which allows naval military operations on the high seas only ‘if undertaken as an exercise of the right of self-defense’,96 renders Article 88 redundant in light of Article 301 of the Convention (quoted infra 273). No wonder that some commentators suggest that Article 88 should not be overemphasized.97 The San Remo Manual on International Law Applicable to Armed Conflicts at Sea (formulated by independent experts in 1994) expressly rejects an interpretation of Article 88, which would ‘prohibit naval warfare on the high seas’.98 Similarly, this is the firm position taken by the HPCR Manual on International Law Applicable to Air and Missile Warfare (crafted by another independent Group of Experts, after consultations with Governments, in 2009).99 There is no doubt that the general practice of States since the formulation of the Convention is in stark contrast to a proposition that the text of Article 88 has to be taken at face value.100 61. The region of war at sea embraces not only the exclusive economic zone and the continental shelf of Belligerent Parties: hostile actions by naval and air forces may also be conducted in or over the exclusive economic zone and the continental shelf of neutral countries.101 All the same, the entitlement of the Belligerent Parties to engage in military operations in the exclusive economic zone and the continental shelf of neutral countries is ‘not unqualified’.102 Due regard must be given to any neutral structures in these areas, especially installations constructed for the exploitation of resources there (e.g., oil rigs).103

94 95 96

97

98 99 100 101 102 103

B. H. Oxman, ‘The Regime of Warships under the United Nations Convention on the Law of the Sea’, 24 Vir.JIL 809, 831 (1983–4). R. R. Churchill and A. V. Lowe, The Law of the Sea 208 (3rd edn, 1999). R. J. Zedalis, ‘“Peaceful Purposes” and Other Relevant Provisions of the Revised Composite Negotiating Text: A Comparative Analysis of the Existing and the Proposed Military Regime for the High Seas’, 7 Syr.JILC 1, 18 n. 72 (1979–80). See R. Wolfrum, ‘Restricting the Use of the Sea to Peaceful Purposes: Demilitarization in Being?’, 24 GYIL 200, 213 (1981). Interestingly enough, although Wolfrum is of the opinion that military activities on the high seas ought to be restricted on general grounds of freedom of navigation, he does not believe that Article 88 imposes any obligations on States exceeding those of Article 301. R. Wolfrum, ‘Military Activities on the High Seas: What Are the Impacts of the U.N. Convention on the Law of the Sea?’, 71 ILS 502, 505 (M. N. Schmitt and L. C. Green eds., 1998). San Remo Manual on International Law Applicable to Armed Conflicts at Sea 82 (L. DoswaldBeck ed., 1995). HPCR Manual on International Law Applicable to Air and Missile Warfare 1 (2009) (Rule 1(a)). See, e.g., United Kingdom Manual of the Law of Armed Conflict 350–1 (2004). See San Remo Manual, supra note 98, at 80; Commentary on the HPCR Manual on International Law Applicable to Air and Missile Warfare 307–8 (2010) (Rule 166). G. V. Galdorisi, ‘Military Activities in the Exclusive Economic Zone: Preventing Uncertainty and Defusing Conflict’, 32 Cal.WILJ 253, 279 (2001–2). See San Remo Manual, supra note 98, at 108; HPCR Manual, supra note 99, at 39 (Rule 107(e)).

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C.

Outer space

62. Pursuant to Article IV of the 1967 Treaty on Outer Space, Contracting Parties undertake (i) not to place in orbit around the Earth any objects carrying nuclear weapons or other weapons of mass destruction (WMD), install them on celestial bodies or station them in outer space; (ii) to use the Moon and other celestial bodies ‘exclusively for peaceful purposes’ (once more, in substance, the Antarctic Treaty formula: see supra 58); and (iii) not to establish military bases, installations and fortifications and not to conduct military manoeuvres or test weapons of any type on celestial bodies (a plain example of demilitarization; see supra 53).104 The precise effect of the phrase ‘exclusively for peaceful purposes’ in the 1967 Treaty proved controversial.105 But Article 3 of a further Agreement, concluded in 1979, reiterates the same general principle and specifically prohibits the threat or use of force either (i) on the Moon (and other celestial bodies within the solar system, except Earth); or (ii) from the Moon (and the other bodies) in relation to Earth or man-made spacecraft.106 63. It is noteworthy that, although outer space and celestial bodies (such as the Moon) are treated jointly as far as WMD are concerned, outer space as such does not come within the other treaty prohibitions cited. It follows that outer space can still be used for the placing of conventional weapons in space-stations.107 Moreover, it is not forbidden to fire inter-continental ballistic missiles (ICBM) through space (from one point on Earth against another) – even if they are armed with WMD – since they are not in orbit.108 Military intelligence-gathering as well as communications via satellites (set in orbit in outer space) are nowadays taken for granted, and space assets are increasingly used to direct military activities everywhere.109 Outer space must be viewed as part of the region of war.

104

105

106 107 108 109

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 1967, [1966] UNJY 166, 167. See I. A. Vlasic, ‘The Legal Aspects of Peaceful and Non-Peaceful Uses of Outer Space’, Peaceful and Non-Peaceful Uses of Space: Problems of Definition for the Prevention of an Arms Race 37, 44–7 (B. Jasani ed., 1991). Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1979, [1979] UNJY 109, 110. See also Article 1(1), ibid., 109. See M. N. Schmitt, ‘International Law and Military Operations in Space’, 10 MPYUNL 89, 104 (2006). See ibid. See J. Maogoto and S. Freeland, ‘The Final Frontier: The Laws of Armed Conflict and Space Warfare’, 23 Conn.JIL 169 (2007–8).

What is war?

IV.

Neutrality

A.

The basic principles

25

64. Neutrality ‘presupposes war between some Powers’: it is ‘the position of a State which does not participate in that war’.110 Neutrality is not contingent on any declaration of neutrality: any State which is not a Belligerent Party is considered neutral, and the laws of neutrality then apply (subject to being overridden by a binding decision of the Security Council; see infra 471).111 Neutrals simply cannot be oblivious to a war conducted by other countries. ‘The very nature of war causes its effects to extend also to non-participating States and their nationals whether they wish it or not’.112 65. A State may be neutral at the outbreak of hostilities, turning into a Belligerent Party at a later stage; that was the case with the United States in both World Wars. A State starting a multipartite war as a Belligerent Party may subsequently withdraw from the hostilities (provided that the enemy will let it do so) and become a neutral. In fact, a State may be associated with certain other countries in a war against one enemy, staying neutral in a separate war conducted by the same countries concurrently against another enemy. Accordingly, in World War II, the Soviet Union – originally neutral in the armed conflict with Germany and then bearing the brunt of the fighting against it – remained neutral, until almost the very last moment, insofar as Japan was concerned. 66. The laws of neutrality are operative only as long as the neutral State retains its neutral status. Once that State becomes immersed in the hostilities, the laws of neutrality cease being applicable, and the jus in bello takes their place. However, if the neutral State is not drawn into the war, the laws of neutrality are activated from the onset of the war until its conclusion. 67. The laws of neutrality are predicated on two fundamental, closely interlinked, rationales: (i) the desire to guarantee to the neutral State that it will sustain minimal injury by reason of the war; (ii) the desire to guarantee to the Belligerent Parties that the neutral State will be neutral not only in name but also in deed (that is to say, it will not assist one of the Belligerent Parties against the other). The two pillars of the laws of neutrality are non-participation and non-discrimination.113

110 111 112 113

E. Castrén, The Present Law of War and Neutrality 422–3 (1954). See Commentary on the HPCR Manual, supra note 101, at 51 (Rule 1 (aa)). Castrén, supra note 110, at 425. See T. Komarnicki, ‘The Place of Neutrality in the Modern System of International Law’, 80 RCADI 395, 406 (1952). Cf. Harvard Research in International Law, Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War (P. C. Jessup, Reporter), 33 AJIL, Sp. Supp., 167, 176 (1939) (Articles 4–5).

26


B.

Some concrete rules

68. Without seeking to lay out the broad sweep of the laws of neutrality, it may be advisable to trace several characteristic rules – concretizing the basic principles of non-participation and non-discrimination – which will have some bearing on the discussion in later chapters of this book. (a) Passage of belligerent military units and war materials 69. As already noted (supra 50), the region of war does not include the territories of neutral States, and no hostilities are permissible within neutral boundaries. A question of singular practical importance arises, however, in regard to non-violent passage of belligerent warships, military aircraft, troops, weapons and supplies through neutral territory. Different legal norms have evolved in land and air warfare, as compared to maritime warfare. The general rule of land warfare, enunciated in Articles 2 and 5 of Hague Convention (V) of 1907 Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, is that the movement of troops or convoys of either munitions of war or supplies, across the territory of a neutral State, is forbidden.114 Incursions by belligerent military aircraft into the airspace of a neutral country are equally proscribed by the Hague Rules of Aerial Warfare (formulated in 1923 by a Commission of Jurists)115 and the HPCR Manual.116 Contrarily, under Article 10 of Hague Convention (XIII) of 1907 Concerning the Rights and Duties of Neutral Powers in Naval War, the neutrality of a State is not impaired by the ‘mere passage’ through its territorial waters of belligerent warships or prizes.117 Subject to conditions enumerated in the Convention, belligerent warships and prizes may even enter neutral ports.118 The rules of sea and air warfare converge as regards straits used for international navigation and archipelagic sea lanes within neutral territory: the right of transit passage is enjoyed by overflying belligerent military aircraft no less than by belligerent warships sailing through.119 70. The obligations outlined in Hague Convention (V) are incurred jointly by the Belligerent Parties and the neutral State. Each of the Belligerent Parties is enjoined from moving its land forces across the neutral territory (Article 2 of the 114 115 116 117 118 119

Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, 1907, Hague Conventions 133, 133–4. Commission of Jurists to Consider and Report upon the Revision of the Rules of Warfare, Rules of Aerial Warfare (The Hague, 1923), 32 AJIL, Supp., 1, 12, 34 (1938) (Article 40). HPCR Manual, supra note 99, at 52–3 (Rules 167(a), 170(a)). Hague Convention (XIII) Concerning the Rights and Duties of Neutral Powers in Naval War, 1907, Hague Conventions 209, 211. Ibid., 211–13. Commentary on the HPCR Manual, supra note 101, at 312–13 (Rule 170(a)).

What is war?

27

Convention), and, correspondingly, the neutral State must not tolerate such movement within its territory (Article 5). The same is true of incursions by belligerent military aircraft, which are prohibited for the Belligerent Parties and which the neutral State must use all the means at its disposal to prevent or terminate.120 If Arcadia (a Belligerent Party) transports troops or launches aircraft through the territory of Ruritania (a neutral), Arcadia contravenes its duty towards both Ruritania and Utopia (the enemy). Should Arcadia act in complicity with Ruritania, they would both be in breach of their obligations vis-à-vis Utopia. (b) Enrollment in belligerent armed forces 71. Articles 4 and 5 of Hague Convention (V) do not permit the formation on neutral soil of corps of combatants, or the opening of recruiting agencies, to assist the Belligerent Parties.121 In the same vein, the neutral State must not assign military advisers to the armed forces of one of the adversaries, and, if it has sent such advisers in peacetime, it is bound to recall them once hostilities commence.122 Yet, as stipulated in Article 6 of Hague Convention (V), the neutral State incurs no responsibility when individuals cross its frontiers offering their services to one of the Belligerent Parties.123 72. The upshot of the laws of neutrality on this point is that they countenance individual initiatives, by nationals and residents of a neutral State, to serve in the armed forces of one of the Belligerent Parties.124 The domestic legislation of the neutral State may penalize such service in a foreign army in wartime, but international law only interdicts the despatch of organized expeditions.125 As long as the volunteering proceeds on a purely individual basis, it is not hindered by international law (even if the overall number of volunteers is considerable).126 Evidently, genuine volunteers must not be confused with regular troops in disguise who are falsely portrayed as ‘volunteers’.127 (c) Military supplies to Belligerent Parties 73. The Government of a neutral State must not (directly or indirectly) furnish military supplies of whatever type to any Belligerent Party: Article 6 of Hague Convention (XIII),128 the Hague Rules of Aerial Warfare129 and the HPCR

120 121 122 124

125 126 129

See HPCR Manual, supra note 99, at 53 (Rule 170(a) and (c)). Hague Convention (V), supra note 114, at 134. See Oppenheim, supra note 8, at 687. 123 Hague Convention (V), supra note 114, at 134. Under Article 47 of Additional Protocol I of 1977 (supra note 33, at 112–13), mercenaries – as defined therein – do not have the right to be combatants or prisoners of war. But the activities of mercenaries do not compromise the neutrality of their State of origin. See I. Brownlie, ‘Volunteers and the Law of War and Neutrality’, 5 ICLQ 570, 571 (1956). See ibid., 572. 127 See ibid., 578. 128 Hague Convention (XIII), supra note 117, at 210. Hague Rules of Aerial Warfare, supra note 115, at 37 (Article 44).

28


Manual130 are categorical about it with respect to naval and air warfare, and incontestably this is also the rule in land warfare. As for non-governmental supplies, Article 7 of both Hague Conventions (V) and (XIII) prescribes that a neutral State is not obligated to prevent private individuals from selling and exporting arms, ammunition and war materials to Belligerent Parties.131 The only condition, set forth in Article 9 of Hague Convention (V), is that any prohibition or limitation decided upon by the neutral State will be applied impartially to both adversaries.132 74. It follows that the neutral State is at liberty to adopt one of two contradictory policies concerning sales and exports of war materials, by private individuals, to Belligerent Parties. The neutral State is entitled to impose a total embargo on such sales and exports, abolishing them altogether. Alternatively, the neutral State may erase any barrier to private trade, and afford an opportunity for the purchase of military goods by all comers in the open market. Whether the neutral State favours the one policy or the other, what is imperative is that it will apply the same yardsticks to all Belligerent Parties. What the neutral State is barred from doing is establishing an embargo on individual sales of military supplies to one side, while giving a free hand to its opponent. 75. The neutral State may switch from one course of action to another during the war. This is what the United States did in the early days of World War II (prior to becoming a Belligerent Party). When hostilities broke out in Europe in September 1939, the law in force in the United States was the Neutrality Act of 1935, which endorsed the embargo concept and unequivocally hamstrung the export of arms, ammunition and implements of war to Belligerent Parties.133 In November 1939, Congress enacted a new Neutrality Act repealing the arms embargo.134 The revised statute placed all trade with Belligerent Parties on a ‘cash and carry’ basis.135 It allowed the export to Belligerent Parties of any articles or materials, provided that title would be transferred to a foreign Government or a foreign national in advance of the export, and that the transport would be effected in non-American vessels.136 76. Long before its entry into the War, the United States abandoned the semblance of traditional neutrality and openly supported the United Kingdom against Nazi Germany (see infra 478). But one must not gloss over the fact that, even in the period preceding the transition, although in theory the United States 130 131 132 133 134 135 136

Commentary on the HPCR Manual, supra note 101, at 318–19 (Rule 173). Hague Convention (V), supra note 114, at 134; Hague Convention (XIII), supra note 117, at 211. Hague Convention (V), supra note 114, at 134. United States, Joint Resolution (Neutrality Act, 1935), 30 AJIL, Supp., 58 (1936). The term ‘embargo’ features ibid., 59. See P. C. Jessup, ‘The “Neutrality Act of 1939”’, 34 AJIL 95, 96 (1940). See H. R. Wellman, ‘The Neutrality Act of 1939’, 25 Cor.LR 255, id. (1939–40). United States, Neutrality Act of 1939, 34 AJIL, Supp., 44, 45 (1940).

What is war?

29

was dealing with Belligerent Parties on an equal footing, the ‘cash and carry’ policy latently discriminated between them. The concept gravitated towards a preferential treatment of the Belligerent Party (United Kingdom) that ruled the waves and was actually able to pay cash and to carry, as opposed to the Belligerent Party (Germany) that could not avail itself of the open door owing to insurmountable obstacles in the way of transportation. 77. When the neutral State permits sales and exports of weapons, ammunition and war materials by private individuals to Belligerent Parties, it must be on the alert not to become a base of military operations against one of them.137 This is primarily true of ships and aircraft. If a Belligerent Party purchases a vessel or an aircraft from private individuals in a neutral country, with a view to its subsequent adaptation to military purposes, no violation of neutrality occurs. However, if the vessel or aircraft bought by a Belligerent Party leaves the neutral territory already armed and ready for action against the enemy, a breach of the laws of neutrality is committed. 78. Pursuant to Article 8 of Hague Convention (XIII),138 the Hague Rules of Aerial Warfare139 and the HPCR Manual,140 the neutral State must employ the means at its disposal to prevent the departure from its jurisdiction of a vessel or aircraft in a condition to engage in hostile operations against a Belligerent Party. The progenitor of these provisions was the 1871 Washington Treaty,141 concluded by the United States and Great Britain for the purposes of the famous Arbitration in the Alabama case. The ‘Alabama Rules’, as formulated in the Treaty, used the idiom ‘due diligence’ to describe the duty of prevention that has to be discharged by the neutral State.142 Since the interpretation of the expression by the Arbitrators143 turned out to be controversial,144 the clauses cited circumvent the problem by concentrating on the means at the disposal of the neutral State and adding that there has to be reason to believe that the vessel or aircraft is destined for use against a Belligerent Party.

137 138 139 140 141 142 143 144

Hague Rules of Aerial Warfare, supra note 115, at 37–8 (explanatory note). Hague Convention (XIII), supra note 117, at 211. Hague Rules of Aerial Warfare, supra note 115, at 38 (Article 46). HPCR Manual, supra note 99, at 55 (Rule 173 (a)). Great Britain–United States, Washington Treaty for the Amicable Settlement of All Causes of Difference between the Two Countries, 1871, 143 CTS 145, 149. Ibid., 149. Alabama Claims Award (1872), I History and Digest of the International Arbitrations to Which the United States Has Been a Party 653, 654 (J. B. Moore ed., 1898). See Oppenheim, supra note 8, at 757–8.

2

The course of war

I.

The beginning of war

A.

War in the technical sense

79. War in the technical sense starts with a declaration of war (see supra 17. As the Eritrea Ethiopia Claims Commission enunciated in its 2005 Partial Award on Jus ad Bellum: ‘In international law, the essence of a declaration of war is an explicit affirmation of the existence of a state of war between belligerents’.145 A declaration of war is a unilateral and formal announcement, issued by the constitutionally competent authority of a State, setting the exact point at which war begins with a designated enemy (or enemies). Notwithstanding its unilateral character, a declaration of war ‘brings about a state of war irrespective of the attitude of the state to which it is addressed’.146 80. According to Article 1 of Hague Convention (III) of 1907 Relative to the Commencement of Hostilities: The contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a declaration of war, giving reasons, or of an ultimatum with a conditional declaration of war.147

Article 1 explicitly mentions that reasons for a declaration of war must be given. But the causes of wars cannot be seriously established on the basis of a self-serving unilateral declaration. The main value of a declaration of war is derived from the fact that it pinpoints the precise time when a state of war enters into force. This may have far-reaching implications in the domestic law of the Belligerent Parties (see supra 2). It will further give an important notice to neutral countries.148 81. An ultimatum may take one of two forms: (i) a threat that, if certain demands are not complied with, hostilities will be initiated; (ii) a warning that, 145 146 147 148

30

Eritrea Ethiopia Claims Commission, Partial Award, Jus ad Bellum, supra note 62, at 434. M. Greenspan, The Modern Law of Land Warfare 38 (1959). Hague Convention (III) Relative to the Opening of Hostilities, 1907, Hague Conventions 96, id. See A. McDonald, ‘Declarations of War and Belligerent Parties: International Law Governing Hostilities between States and Transnational Terrorist Networks’, 54 NILR 279, 290 (2007).

The course of war

31

unless specific conditions are fulfilled by a designated deadline, war will commence ipso facto.149 Article 1 requires an ultimatum of the second type, incorporating a conditional declaration of war. An ultimatum of the first category is not deemed sufficient by itself under Article 1, and it must be followed by a formal declaration of war. Only the subsequent declaration, rather than the preliminary threat, would be in conformity with Hague Convention (III).150 82. Classical ultimatums of the second type (setting a deadline and warning that war would start automatically once it lapses) were issued by Britain and France to Nazi Germany on 3 September 1939.151 An ultimatum of the first type (no specific deadline and no automatic consequences) is exemplified in the imperative demands addressed to the Taliban regime in Afghanistan in September 2001 – shortly after the Al-Qaeda terrorist attacks of 9/11 – by the President of the United States, G. W. Bush. These non-negotiable demands related, primarily, to the handing over to the United States of Al-Qaeda leaders hiding in Afghanistan and the closing down of terrorist camps.152 The President made it clear that ‘[t]he Taliban must act, and act immediately. They will hand over the terrorists, or they will share in their fate’.153 The President explicitly stated that the Taliban must pay the price for failing to meet the earlier demands.154 In the event, military operations against Taliban and Al-Qaeda targets in Afghanistan commenced on 7 October. There is no doubt that 7 October – and not 9/11 – is the date of the beginning of the war between the United States and Afghanistan.155 83. An ultimatum, almost by definition, entails a lapse of time (brief as it may be156) providing an opportunity for compliance with the demands made. Hostilities are not supposed to begin unless that period has expired and the response is considered unsatisfactory. 84. Insofar as an outright declaration of war is concerned, Hague Convention (III) does not insist on any meaningful interval before combat starts.157 Article 1

149 150

151 152 153 154 155

156

157

See N. Hill, ‘Was There an Ultimatum before Pearl Harbor?’, 42 AJIL 355, 357–8 (1948). See ibid., 358–9. Security Council Resolution 678 (1990) (cited infra 476) is referred to by some commentators as an ultimatum to Iraq. See, e.g., M. Voelckel, ‘Faut-il Encore Déclarer la Guerre?’, 37 AFDI 7, 21 (1991). But this is not the case, inasmuch as the Gulf War had already been in progress since the Iraqi invasion of Kuwait in August 1990 (see supra 26). See VI Digest of International Law 169 (G. H. Hackworth ed., 1943). National Addresses by President Bush: ‘War against Terrorism’, supra note 1, at 857–8. Ibid., 858–9. ‘Air Strikes in Afghanistan’, [2001] Digest of United States Practice in International Law, supra note 1, at 867, 867–8. Doubts as to which of the two dates is applicable have been expressed by a number of commentators. See, e.g., L. Condorelli, ‘Les Attentats du 11 Septembre et leurs Suites: Où Va le Droit International?’, 105 RGDIP 829, 845–6 (2001). The Anglo-French ultimatums to Nazi Germany on 3 September 1939 (demanding cessation of military operations against Poland) were set in hours, not days. See Digest of International Law, supra note 151, at VI, 169. See E. C. Stowell, ‘Convention Relative to the Opening of Hostilities’, 2 AJIL 50, 53–4 (1908).

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does prescribe that the declaration must be made ‘previous’ to the commencement of hostilities, and even refers to it (on a par with an ultimatum) as a warning. However, it is significant that a proposed amendment of the Article, to the effect that 24 hours must pass between the issuance of the declaration and the outbreak of hostilities, was defeated in the course of the Hague Conference.158 The upshot is that fire may be opened almost immediately after the announcement has been made.159 A declaration of war under the Convention constitutes merely a formal measure, and it does not necessarily deny the advantage of surprise to the attacking State. 85. Hague Convention (III) cannot be considered a reflection of customary international law.160 Before the Convention, most wars were precipitated without a prelude in the form of a declaration of war.161 The practice of States has not changed substantially since the conclusion of the Convention. It is an exaggeration to allude (as does the 2004 United Kingdom Manual of the Law of Armed Conflict) to the ‘demise of the declaration of war’.162 But, undeniably, the issuance of a declaration of war prior to the commencement of hostilities is nowadays the exception rather than the rule. 86. There are many reasons for the contemporary reluctance to indulge in a declaration of war. Some of these reasons are domestic; others are international, stemming for instance from a pragmatic desire to avert the automatic application of the laws of neutrality activated during war (see supra 64 et seq.). The paucity of declarations of war at the present juncture is also linked, paradoxically, to the illegality and criminality of aggressive wars (see Chapters 4–5). The contemporary injunction against war has not yet eliminated its incidence. Nevertheless, the prohibition has definitely created a psychological environment in which Belligerent Parties prefer using a different terminology, such as ‘international armed conflict’ (see supra 41). Since States are indisposed to employ the expression ‘war’, they naturally eschew declarations of ‘war’. 87. Even when a declaration of war is issued, in many instances this is done after the first strike, so that the act constitutes no more than an acknowledgement of a state of war already in progress; occasionally, the declaration is articulated by the State under attack, and it merely records that the enemy has launched war.163 Of course, a post-attack declaration of war (by either Party) is not in accordance with Hague Convention (III).

158 159 160 161 162 163

See A. P. Higgins, The Hague Peace Conferences 204 (1909). See T. J. Lawrence, The Principles of International Law 326 (P. H. Winfield ed., 7th edn, 1923). See G. Schwarzenberger, The Law of Armed Conflict (II International Law as Applied by International Courts and Tribunals) 65–7 (1968). See P. M. Brown, ‘Undeclared Wars’, 33 AJIL 538, 539 (1939). United Kingdom Manual of the Law of Armed Conflict, supra note 100, at 28. See C. Eagleton, ‘The Form and Function of the Declaration of War’, 32 AJIL 19, 32–3 (1938).

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88. When enunciated, a declaration of war does not require ‘any particular form’, although it must be authorized by a competent organ of the State.164 The fact that no prescribed form is required does not mean that every bellicose turn of phrase, in a harangue delivered by a Head of State before a public gathering, can be deemed a declaration of war. In the Dalmia Cement International Chamber of Commerce arbitration of 1976, the Arbitrator (Lalive) held that a broadcast aired by the President of Pakistan in 1965 – in which a statement was made that Pakistan and India were ‘at war’ – did not amount to a declaration of war pursuant to international law, inasmuch as it ‘in no way was, or purported to be, a “communication” to India’.165 89. The insistence on the transmittal of an official communication of a declaration of war to the antagonist may be exaggerated. But, surely, a declaration of war – in whatever form – must (at the very least) be publicly announced in an explicit and pellucid manner. One cannot accept the assertion by a United States Federal District Court in 1958, in the Ulysses case, that Egypt had declared war against Britain and France, in November 1956, in a public speech made by President Nasser before a large crowd in Cairo.166 The Court admitted that the speech had been misunderstood or disregarded at the time, but it relied on the fact that a subsequent official Egyptian statement confirmed that it had been intended as a declaration of war.167 However, the very misunderstanding of the purport of the speech at the point of delivery weakens the Court’s position. President Nasser’s speech was simply ‘neither definite nor unequivocal’ enough as a declaration of war.168 If it is to have any value at all, a declaration of war must impart an unambiguous signal to all concerned. B.

War in the material sense

90. War in the material sense unfolds irrespective of any formal steps (see supra 19). Its occurrence is contingent only on the actual outbreak of comprehensive hostilities between two or more States. For that to happen, there is no requirement of a full-scale invasion. War in the material sense may commence with an air raid (à la Pearl Harbor) or an artillery bombardment. A scenario of a devastating computer network attack (CNA) – with massive lethal consequences – cannot be ruled out in the future (see infra 559).

164 165 166

167

Castrén, supra note 110, at 98. Emphasis in the original. Dalmia Cement case, supra note 67, at 616. Navios Corporation v. The Ulysses II et al. (1958), 161 F. Supp. 932, 942–3. The Judgment, and the reasons given therein, were affirmed by the United States Court of Appeals (4th Circuit) (260 F. 2d 959). Ibid. 168 G. O. Fuller, ‘Note’, 57 Mich.LR 610, 612 (1958–9).

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91. Actual hostilities may begin (i) without a declaration of war ever being made; (ii) prior to a declaration of war, which follows afterwards; (iii) simultaneously with a declaration of war; or (iv) subsequent to a declaration of war. Moreover, war in the material sense (viz. active hostilities) may not commence at all, notwithstanding the promulgation of a declaration of war (see supra 17). 92. When the commencement of comprehensive hostilities does not coincide with a declaration of war (especially when the declaration lags behind the inception of the actual fighting and, more particularly, when it is issued by the State under attack), there is likely to be some doubt as to whether war was triggered by the action or by the declaration.169 In such a setting, it is quite possible that different dates for the outbreak of the war will be used for disparate purposes, such as the status of enemy nationals and the application of neutrality laws.170 93. Article 2 of Hague Convention (III) stipulates that the existence of a state of war must be notified to neutral States without delay, and it shall not take effect in regard to them as long as the notification has not been received.171 All the same, the Article lays down that, if a neutral country is in fact aware of the state of war, it cannot rely on the absence of notification.172 Under modern conditions, since a state of war habitually gets wide coverage in the news media, any special notification to neutrals may well be redundant. Still, should there be any doubt whether the hostilities qualify as an all-out war or are ‘short of war’, the communication to neutral countries (or the absence thereof) is of practical importance even in the present day. II.

The termination of war

A.

Treaties of peace

(a) The significance of a treaty of peace 94. The classical and ideal method for the termination of an inter-State war is the conclusion of a treaty of peace between the Belligerent Parties. Traditionally, treaties of peace have had an extraordinary impact on the evolution of international law, from Westphalia (1648) to Versailles (1919). The cluster of treaties of peace signed at the close of World War I even encompassed, in their first part (Articles 1–26), the Covenant of the League of Nations173 (the predecessor of the United Nations). Despite their unique political standing, treaties of peace are no 169 170 171 173

Cf. E. Borchard, ‘When Did the War Begin?’, 47 Col.LR 742–8 (1947); C. Eagleton, ‘“Acts of War”’, 35 AJIL 321, 325 (1941). See M. O. Hudson, ‘The Duration of the War between the United States and Germany’, 39 Har. LR 1020, 1021 (1925–6). Hague Convention (III), supra note 147, at 96. 172 Ibid. Covenant of the League of Nations, 1919, 1 Int.Leg. 1, id.

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different juridically from other types of inter-State agreements, and they are governed by the general law of treaties.174 95. After World War II, and as a direct consequence of the ‘Cold War’, no treaty of peace could be reached with the principal vanquished country (Germany) which was divided for 45 years. It was only in 1990, following a sea change in world politics, that a Treaty on the Final Settlement with Respect to Germany175 could be formulated. The Preamble of this instrument records the fact that the peoples of the Contracting Parties (the United States, the USSR, the United Kingdom, France and the two Germanies) ‘have been living together in peace since 1945’.176 In Article 1, a united Germany (comprising the territories of the Federal Republic of Germany, the German Democratic Republic and the whole of Berlin) is established, and ‘the definitive nature’ of its borders – especially with Poland – is confirmed.177 The 1990 Treaty may be deemed a final peace settlement for Germany.178 96. Treaties of Peace with five minor Axis countries – Italy, Bulgaria, Hungary, Romania and Finland – were concluded already in 1947 at Paris.179 With Japan the Western Allied Powers arrived at a Treaty of Peace, in San Francisco, in 1951.180 The USSR was not a Contracting Party to the latter instrument. Instead, a Joint Declaration was adopted by the USSR and Japan, in 1956, whereby the state of war between the two parties was brought to an end.181 The Joint Declaration sets forth that negotiations aimed at a treaty of peace will continue.182 However, since it proclaims that the state of war is ended, and that peace, friendship and good neighbourly relations are restored,183 including diplomatic and consular relations,184 the Declaration already attains most of the objectives of an ordinary treaty of peace. 97. The Russian-Japanese instance is a good illustration of an agreement terminating bilaterally a war which was multilateral. Another example is that of a bilateral British-Siamese (Thai) agreement of 1946 for the termination of war between the parties, which constituted an integral part of World War II.185

174 175 176 178 179

180 181 182 185

See G. Schwarzenberger, ‘Peace Treaties before International Courts and Tribunals’, 8 IJIL 1, id. (1968). Treaty on the Final Settlement with Respect to Germany, 1990, 29 ILM 1186, 1187 (1990). Ibid. 177 Ibid., 1186–9. See J. A. Frowein, ‘The Reunification of Germany’, 86 AJIL 152, 157 (1992). Paris Treaty of Peace with Bulgaria, 1947, 41 UNTS 21; Paris Treaty of Peace with Hungary, 1947, ibid., 135; Paris Treaty of Peace with Roumania, 1947, 42 ibid., 3; Paris Treaty of Peace with Finland, 1947, 48 ibid., 203; Paris Treaty of Peace with Italy, 1947, 49 ibid., 3. San Francisco Treaty of Peace with Japan, 1951, 136 UNTS 45. USSR–Japan, Joint Declaration, 1956, 263 UNTS 112, id. (Article 1). Ibid., 116 (Article 9). 183 Ibid., 112 (Article 1). 184 Ibid., 114 (Article 2). United Kingdom–Siam, Singapore Agreement for the Termination of the State of War, 1946, 99 UNTS 132.

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98. In the international armed conflicts of the post-World War II era, States commonly try to avoid not only the term ‘war’ (see supra 86) but even its corollary ‘treaty of peace’. Two outstanding exceptions are the Treaties of Peace concluded by Israel with Egypt (in 1979)186 and with Jordan (in 1994).187 Another exception is the ‘Peace Agreement’ concluded by Ethiopia and Eritrea in 2000.188 99. The hallmark of a treaty of peace is that it is not just a negative instrument (in the sense of the negation of war); it is additionally a positive document (regulating the normalization of friendly relations between the former Belligerent Parties).189 The termination of war may require the inclusion in the treaty of peace of diverse provisions relating to the resolution of the armed conflict, ranging from a delimitation of new borders between the Contracting Parties (possibly entailing territorial changes compared to the pre-war situation) to reparations and/or mechanisms for the submissions of claims for indemnification. But a treaty of peace also introduces or restores amicable relations between the former Belligerent Parties. By bringing about normalization of relations between the Contracting Parties, the treaty of peace may include a plethora of arrangements regarding diplomatic and cultural exchanges; commerce and trade relations; cultural and scientific cooperation; navigation and aviation ties; etc. The quintessence of a treaty of peace is writing finis not only to the armed phase of the conflict between the Contracting Parties, but to the conflict as a whole. Hence, in appropriate circumstances, the conclusion of a treaty of peace constitutes an implied recognition of a Contracting Party as a State.190 100. The termination of war may or may not coincide with the conclusion of the treaty of peace. The Contracting Parties are expected to fix in the treaty – at their discretion – the point in time at which the termination of war is effected (the terminus ad quem). They may choose to employ language in the text, indicating that the termination of the war (i) happens upon the entry into force of the treaty; or (ii) has already occurred in the past. In the latter case, the treaty may or may not specify the exact time when this has taken place. The Israeli practice illustrates all three options. 101. In the Treaty of Peace with Egypt, Article I(1) resorts to future language: The state of war between the Parties will be terminated and peace will be established between them upon the exchange of instruments of ratification of this Treaty.191 186 187 188 189 190

191

Egypt–Israel, Treaty of Peace, 1979, 18 ILM 362 (1979). Jordan–Israel, Treaty of Peace, 1994, 34 ILM 43 (1995). Ethiopia–Eritrea, Peace Agreement, 2000, 40 ILM 260 (2001). On the distinction between positive and negative peace, see H. Rumpf, ‘The Concepts of Peace and War in International Law’, 27 GYIL 429, 431–3 (1984). Express recognition is specifically agreed upon in Article III of the Egypt–Israel Treaty of Peace, supra note 186, at 363–4. But there is every reason to believe that recognition would have been implied from the treaty in any event. Cf. H. Lauterpacht, Recognition in International Law 378 (1947). Egypt–Israel, Treaty of Peace, supra note 186, at 363.

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That is to say, the state of war between Israel and Egypt continued even after the signature of the Treaty of Peace (in March 1979), and its termination occurred only upon the subsequent exchange of the instruments of ratification (the following month). Moreover, although peace is established (accompanying the termination of war) upon ratification, ‘normal and friendly relations’ are to be effected (as per Article I(3)) only after a further interim period of three years.192 102. A different legal technique was adopted in the case of Israel and Jordan, delinking the end of war from the advent of peace. Article 1 of the Treaty of Peace between the two countries (signed at the Arava in October 1994) proclaims: Peace is hereby established between the State of Israel and the Hashemite Kingdom of Jordan (the ‘Parties’) effective from the exchange of the instruments of ratification of this Treaty.193

The onset of peace thus parallels the Israeli-Egyptian formula. But as for the state of war, the Preamble of the Israeli-Jordanian Treaty reads: Bearing in mind that in their Washington Declaration of 25th July, 1994, they [Israel and Jordan] declared the termination of the state of belligerency between them.194

The Washington Declaration of July 1994 incorporates the statement that the long conflict between the two States ‘is now coming to an end’ and that, ‘[i]n this spirit, the state of belligerency between Jordan and Israel has now been terminated’.195 The upshot is a lack of synchronization between the termination of war and the inauguration of peace. Whereas peace between Israel and Jordan was established only upon the ratification of the Arava Treaty of October 1994, the state of war between the two countries had ended already in July of that year (the date of the Washington Declaration, which was not subject to ratification). 103. A vague reference to the termination of the state of war at some unspecified point in time in the past was made in the abortive Treaty of Peace between Israel and Lebanon,196 which was signed in May 1983 (at Qiryat Shemona and Khaldeh) but never entered into force since Lebanon declined to ratify it.197 The instrument invites attention only because it sets forth in Article 1(2):

192 193 195 196 197

Ibid. See also ibid., 364 (Article III(3)), 367 (Annex I, Article I). Jordan–Israel, Treaty of Peace, supra note 187, at 46. 194 Ibid., 46. Jordan–Israel, Washington Declaration, 1994, 40 Keesing’s Record of World Events 40120 (1994). Lebanon–Israel, Treaty of Peace, 1983 (unratified). The text is published in 7 Middle East Contemporary Survey 690 (1982–3). The requirement of ratification of the instrument – as a condition precedent to its entry into force – appears in Article 10(1), ibid., 692.

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The Parties confirm that the state of war between Israel and Lebanon has been terminated and no longer exists.198

It is clear that, in Khaldeh and Qiryat Shemona, Lebanon and Israel did not terminate the war between them at the moment of either signature or ratification of the treaty of peace: they confirmed that the state of war had already ended at some indeterminate stage (in the past), and that it therefore no longer existed. In contradistinction to the termination of war by the treaty of peace itself (or some preliminary instrument) – which is a constitutive step – the notation that the war has already ended in the past is merely a declaratory utterance. 104. Patently, a treaty of peace is no guarantee of lasting peace. If the root causes of the war are not eradicated, another armed conflict may erupt in time. Indeed, the same treaty of peace which closes one war can lay the foundation for the next one: the Treaty of Versailles is a prime example of this deplorable state of affairs. If that is not enough, new bones of contention – not foreseen at the point of signature of a treaty of peace – may become catalysts to another war. When a treaty of peace is acclaimed as a ‘final’ settlement, and statesmen indulge in high-sounding prognostications as to its power of endurance, it is advisable to recall that most wars commence between States that have earlier engaged themselves in treaties of peace. The life expectancy of an average treaty of peace does not necessarily exceed the span of a generation or two. Each generation must work out for itself a fresh formula for peaceful coexistence. 105. Legally speaking, a treaty of peace cleans the slate of hostilities in the relations between the former Belligerent Parties. If new hostilities erupt between Contracting Parties to a treaty of peace, they must be viewed as a separate war and not as a resumption of the pre-treaty armed conflict. Thus, World Wars I and II constitute independent armed conflicts notwithstanding any factual nexus linking them together. This is an important point, inasmuch as the interjection of a treaty of peace signifies that a new war has to be dissected on its own merits in terms of the assessment of aggression (or armed attack) and self-defence (see Chapter 7). (b) Peace preliminaries 106. Prior to the entry into force of a definitive treaty of peace, the Belligerent Parties may agree on preliminaries of peace. Such a procedure generates the following results: (i) In the past, the peace preliminaries themselves might have brought hostilities to an end,199 whereas the ultimate treaty of peace would focus on the process of normalizing relations between the former Belligerent Parties. Nowadays, 198 199

Ibid., 691. See also 29 Keesing’s Record of World Events 32409 (1983). See Oppenheim, supra note 8, at 607.

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the function of peace preliminaries of this type will usually be served by an armistice agreement (see infra 113 et seq.). (ii) At the present time, peace preliminaries generally represent a mere ‘pactum de contrahendo on the outline of a prospective peace treaty’.200 Unless and until the projected treaty of peace actually materializes, the final curtain is not drawn on the war. As an illustration, one can direct attention to the two Camp David Framework Agreements of 1978 for Peace in the Middle East and for the Conclusion of a Peace Treaty between Egypt and Israel.201 Here the Contracting Parties agreed on certain principles and some specifics, designed to serve as guidelines for a peace settlement. However, as mentioned (supra 101), the war between Egypt and Israel was terminated only by dint of the Treaty of Peace (concluded, after further negotiations, in 1979). (c) The legal validity of a treaty of peace 107. As long as war was regarded as a lawful course of action in international affairs (see infra 207–8), a treaty of peace was considered perfectly valid, even when imposed on the defeated Party by the victor as an outcome of the use of force.202 As soon as the use of inter-State force was forbidden by international law, some scholars began to argue that a treaty of peace dictated by an aggressor ought to be rendered nugatory by duress.203 This doctrinal approach has been endorsed in Article 52 of the 1969 Vienna Convention on the Law of Treaties: A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.204

108. Article 52 reflects customary international law as it stands today. In 1973, the International Court of Justice held, in a dispute between the United Kingdom and Iceland, in the Fisheries Jurisdiction case: There can be little doubt, as is implied in the Charter of the United Nations and recognized in Article 52 of the Vienna Convention on the Law of Treaties, that under contemporary international law an agreement concluded under the threat or use of force is void.205

The International Law Commission, in its commentary on the draft of Article 52, explained that the clause does not operate retroactively by invalidating treaties of peace procured by coercion prior to the development of the modern 200 201

202 203 204 205

W. G. Grewe, ‘Peace Treaties’, III EPIL 938, 941. Egypt–Israel, Camp David Agreements, 1978: A Framework for Peace in the Middle East, 17 ILM 1466 (1978); Framework for the Conclusion of a Peace Treaty between Egypt and Israel, ibid., 1470. See Lord McNair, The Law of Treaties 207, 209 (1961). See H. Lauterpacht, I International Law 354 (E. Lauterpacht ed., 1979). Vienna Convention on the Law of Treaties, 1969, [1969] UNJY 140, 153. Fisheries Jurisdiction case (Jurisdiction) (United Kingdom v. Iceland), [1973] ICJ Rep. 3, 14.

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law banning the use of force by States.206 The Commission expressed the opinion that the provision is applicable to all treaties concluded at least since 1945 (the entry into force of the Charter of the United Nations).207 109. Article 52 does not affect equally all treaties of peace. The text makes it plain that ‘only the unlawful use of force . . . can bring about the nullity of a treaty’.208 It follows that Article 52 invalidates solely those treaties of peace, which are imposed by an aggressor State on the victim of aggression. As regards the reverse situation, Article 75 of the Convention proclaims: The provisions of the present Convention are without prejudice to any obligation in relation to a treaty which may arise for an aggressor State in consequence of measures taken in conformity with the Charter of the United Nations with reference to that State’s aggression.209

110. The invalidity of a treaty of peace concluded under duress does not result from ‘vitiated consent’: it is a sanction against the unlawfulness and even the criminality of aggressive war (see infra 339).210 Hence, there is nothing legally wrong in a treaty of peace leaning in favour of a State which was the target of aggression (assuming that it has prevailed militarily).211 One must take exception to an unqualified dictum, appearing in the 2004 Advisory Opinion of the International Court of Justice on the Wall, as regards ‘the illegality of territorial acquisition resulting from the threat or use of force’.212 The illegality of such territorial acquisition is confined to the case where the beneficiary is the aggressor. In the words of H. Waldock, ‘[c]learly, there is all the difference in the world between coercion used by an aggressor to consolidate the fruits of his aggression in a treaty and coercion used to impose a peace settlement upon an aggressor’.213 111. Article 44(5) of the Vienna Convention does not permit any separation of the provisions of a treaty falling under Article 52.214 This means that a treaty procured by coercion is void in its entirety: none of its parts may be severed from the remainder of the instrument, with a view to being saved from abrogation. The general rule would apply, inter alia, to a treaty of peace accepted under duress by the victim of aggression. But one must be mindful of the fact that such 206 207 208 209 210 211 212 213 214

Report of the International Law Commission, 18th Session, [1966] II ILC Ybk 172, 247. Ibid. I. Sinclair, The Vienna Convention on the Law of Treaties 180 (2nd edn, 1984). Emphasis in the original. Vienna Convention on the Law of Treaties, supra note 204, at 159. P. Reuter, Introduction to the Law of Treaties 140 (J. Mico and P. Haggenmacher trans., 1989). See Oppenheim’s I International Law 1292 (R. Jennings and A. Watts eds., 9th edn, 1992). Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, [2004] ICJ Rep.136, 171. H. Waldock, ‘Second Report on the Law of Treaties’, [1963] II ILC Ybk 36, 52. Vienna Convention on the Law of Treaties, supra note 204, at 152.

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a treaty is not always confined to undertakings advantageous to the aggressor. Indeed, the most momentous clause in the treaty may very well be the one terminating the war in a constitutive manner (see, e.g., supra 101). If the entire instrument is extinguished by dint of nullity, the clause(s) mandating the end of the war would be set aside along with the rest of the text. Is it to be understood that the former Belligerent Parties are put again on a war footing? The answer, as furnished by Article 43 of the Vienna Convention, is that the invalidity of a treaty does not impair duties embodied therein, if these are independently binding on the Parties by virtue of general international law.215 All States must comply with the contemporary prohibition of the use of inter-State force, and the rescission of a particular treaty of peace does not alter this basic position. 112. Article 52 refers to a treaty procured by unlawful use or threat of force as ‘void’ (supra 107). The expression is expounded by Article 69(1), which states that the ‘provisions of a void treaty have no legal force’.216 The concept underlying Article 52 is one of ‘absolute nullity’.217 It is true that a Party invoking a ground for impeaching the validity of a treaty must take certain steps enumerated in Article 65.218 The obligation to observe the procedure set out in Article 65 might suggest that, should the aggrieved State (for reasons of its own) refrain from contesting the validity of the treaty, nullification would not take place.219 However, if that were the case, the instrument would really be voidable rather than void. If a treaty of peace dictated by an aggressor is genuinely void, it must be tainted by nullity automatically and ab initio. Therefore, any competent forum should be authorized to recognize the treaty as void, even if no attempt to invoke invalidity has been made by the State directly concerned.220 B.

Armistice agreements

(a) The transformation in the meaning of armistice 113. An armistice is an agreement, concluded between Belligerent Parties, the meaning of which has undergone a radical change in the last century. Until the World Wars, an armistice was construed as an agreed-upon interlude in the fighting, viz. a suspension of hostilities between Belligerent Parties – who remained locked in a state of war with each other, even thereafter – and the expression ‘armistice’ was interchangeable in substance with a truce or a 215 218 219 220

Ibid. 216 Ibid., 158. 217 See Sinclair, supra note 208, at 160–1. Vienna Convention on the Law of Treaties, supra note 204, at 157. See C. L. Rozakis, ‘The Law on Invalidity of Treaties’, 16 Ar.V. 150, 168–9 (1973–5). See E. Jiménez de Aréchaga, ‘International Law in the Past Third of a Century’, 159 RCADI 1, 68 (1978).

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modern cease-fire (see infra 139–40). Thus, Hague Regulations 36 to 41, annexed to Hague Convention (II) of 1899 and (IV) of 1907 Respecting the Laws and Customs of War on Land, employ the expression ‘armistice’ when the subject under discussion is the suspension of hostilities.221 By contrast, in contemporary international law, the locution employed in the general practice of States for a suspension of hostilities is cease-fire (or truce) (see infra 140). As for armistice, in the current practice of States, it denotes a termination of hostilities; even though it does not introduce peace in the full sense of that term (see supra 99). The decisive point is that a modern armistice completely divests the Parties of the right to renew military operations at any time and under any circumstances whatever. By putting an end to war, an armistice today does not brook resumption of hostilities as an option. 114. The transformation undergone by ‘armistice’ as a legal term of art had its origins in the armistices which brought about the termination of World War I.222 A close look at the most famous Armistice – that of 11 November 1918 with Germany – discloses that, although concluded at the outset for a duration of only 36 days223 (a period later extended several times224), its far-reaching provisions (obligating the German armed forces, inter alia, to surrender their arms, to withdraw from occupied territories as well as from certain areas within Germany itself, etc.) barred the possibility of resumption of hostilities by the vanquished side. Only the victorious Allied and Associated Powers reserved to themselves the prerogative of renewing the fighting in case of breach of the Armistice conditions by Germany. This reading of the text is reinvigorated by the formulation of the last extension of the Armistice (without an expiry date) in February 1919.225 Of course, the Armistice did not purport to establish peace with Germany. That came about only as a result of the 1919 Versailles Treaty of Peace.226 115. The innovative trend of terminating war by armistice continued, and became more transparent, in the armistices of World War II which resemble peace preliminaries of the first category (see supra 106).227 Significantly, in the Armistices with Romania (1944) and Hungary (1945), these two countries declared that they had ‘withdrawn from the war’ against the Allied Powers.228 Romania specifically announced that it ‘has entered the war and will wage war on the side of the Allied 221 222 223 224 226 227 228

Hague Regulations, supra note 33, at 121–2. The texts of all the armistices of World War I are reproduced in I A History of the Peace Conference of Paris, Appendix V (H. W. V. Temperley ed., 1920). Conditions of an Armistice with Germany, 1918, ibid., 459, 469 (Article XXXIV). See ibid., 476–81. 225 Ibid., 480. Versailles Treaty of Peace with Germany, 1919, II Peace Treaties 1265. See A. Klafkowski, ‘Les Formes de Cessation de l’Etat de Guerre en Droit International’, 149 RCADI 217, 248–50 (1976). Armistice Agreement with Rumania, 1944, 9 Int.Leg. 139, 140 (Article l); Armistice Agreement with Hungary, 1945, ibid., 276, 277 (Article l(a)).

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Powers against Germany and Hungary’,229 and Hungary agreed to the condition that it ‘has declared war on Germany’.230 Likewise, Italy – which had concluded an Armistice with the Allies already in September 1943231 – declared war against Germany in October of that year. The Preamble to the 1947 Paris Treaty of Peace with Italy directs attention to the fact that (as a result of the declaration of war) Italy ‘thereby became a co-belligerent against Germany’.232 116. For G. G. Fitzmaurice, adhering to the traditional notion of an armistice as a mere suspension of hostilities, ‘Italy’s co-belligerency created a highly anomalous situation juridically, and one which to some extent defies legal analysis and classification’.233 After all, if the war between the Allied Powers and Italy did not end until the Treaty of Peace of 1947, Italy – the armed forces of which were fighting, after 1943, alongside Allied formations against a common foe (Germany)234 – was the co-belligerent of its enemies! Yet, once it is perceived that an armistice means the termination of war, there is no anomaly in the status of Italy during the late stage of World War II. Earlier, Italy was a co-belligerent with Germany against the Allies. Following the termination of its war with the Allies – by virtue of the 1943 Armistice – nothing prevented Italy from declaring war against Germany and becoming a co-belligerent with the Allies. The same is true of Romania and Hungary. 117. The metamorphosis in the perception of armistice reached its zenith at a later stage, with a series of General Armistice Agreements signed in 1949 between Israel, on the one hand, Egypt, Lebanon, Jordan and Syria, on the other,235 followed by the 1953 Panmunjom Agreement Concerning a Military Armistice in Korea.236 These Armistice Agreements terminated the Israeli War of Independence and the Korean War, respectively, although they did not produce peace in the full meaning of the term. The Panmunjom Agreement combined ‘concrete arrangements for cease-fire and armistice’ jointly.237 But the crux of the matter (proclaimed in the Preamble) is that the Agreement has ‘the objective of establishing an armistice which will insure a complete cessation of hostilities and of all acts of armed force in Korea until a final peace settlement is achieved’.238 The Agreement makes it crystal clear that (in the words of Article V) it will ‘remain in effect until expressly superseded either by mutually acceptable 229 231 232 233 234 235

236 237

Ibid., 140 (Article 1). 230 Ibid., 277 (Article 1(a)). Conditions of an Armistice with Italy, 1943, 9 Int.Leg. 50. Paris Treaty of Peace with Italy, supra note 179, at 127. G. G. Fitzmaurice, ‘The Juridical Clauses of the Peace Treaties’, 73 RCADI 259, 272 (1948). See Department of State, Commentary on the Additional Conditions of the Armistice with Italy, 1945, 40 AJIL, Supp., 18, id. (1946). Israel–Egypt, General Armistice Agreement, 1949, 42 UNTS 251; Israel–Lebanon, General Armistice Agreement, 1949, ibid., 287; Israel–Jordan, General Armistice Agreement, 1949, ibid., 303; Israel–Syria, General Armistice Agreement, 1949, ibid., 327. Panmunjom Agreement Concerning a Military Armistice in Korea, 1953, 47 AJIL, Supp., 186 (1953). Ibid., 188 (Article II). 238 Ibid., 186–7.

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amendments and additions or by provision in an appropriate agreement for a peaceful settlement at a political level between both sides’.239 The thesis (advanced in 1992) that ‘the Korean War is still legally in effect’,240 is untenable. 118. The Israeli Armistice Agreements carry in their titles the adjective ‘General’. This was done against the backdrop of Hague Regulation 37,241 which sets side by side a general and a local armistice (in the sense of suspension of hostilities; see infra 139). The Panmunjom Armistice Agreement already omits the adjective. The omission is consistent with the modern meaning of an armistice agreement as an end to war, for a local termination of war is an oxymoronic figure of speech. An authentic termination of war can only be general in its scope, embracing all locations. 119. The evolution in the status of armistice was noted by the Arbitrator, Lalive, in the 1976 International Chamber of Commerce Arbitration in the Dalmia Cement case: Armistice agreements, as a general rule, do not mean the end of the state of war, although recent practice, here too, seems to be changing the traditional rules. However that may be, it is clear that ‘an armistice agreement may be capable of interpretation as showing that both parties intended not only a cessation of hostilities but also the termination of the state of war between them’.242

The 2004 United Kingdom Manual of the Law of Armed Conflict starts by defining an armistice as ‘the suspension of military operations by mutual agreement between the belligerent parties’, but then concedes that ‘[a]n armistice can put an end to armed conflict if that is the intention of the parties’.243 In reality, the intention of the Parties to resort to an armistice as the legal tool to putting an end to war has been evinced in every instance since the end of World War I. In terms of actual State practice, suspension of hostilities through an instrument entitled ‘armistice’ is currently in disuse. 120. There is admittedly entrenched resistance in the legal literature to any reappraisal of the role assigned to armistice in the vocabulary of war.244 Pace this doctrinal conservatism, the terminology has to be adjusted to fit the modern practice of States.245 239 241 242 243 244 245

Ibid., 204. 240 G. von Glahn, Law among Nations 727 (6th edn, 1992). Hague Regulations, supra note 33, at 121. Dalmia Cement case, supra note 67, at 628. The quotation is from McNair and Watts, supra note 3, at 15. United Kingdom Manual of the Law of Armed Conflict, supra note 100, at 263. See, e.g., H. S. Levie, ‘The Nature and Scope of the Armistice Agreement’, 50 AJIL 880, 881–6 (1956). Cf. Italian–United States Conciliation Commission, Mergé case (1955), 11 RIAA 236, 241. See Stone, supra note 27, at 641–2, 644. Cf. M. W. Graham, ‘Armistices – 1944 Style’, 39 AJIL 286, 287 (1945).

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(b) An analysis of the Israeli armistice agreements 121. A closer look at the Israeli Armistice Agreements may illuminate the special features of armistice as a mechanism for ending wars. The first Article of all four Armistice Agreements prescribes that, with a view to promoting the return to permanent peace in Palestine, the Parties affirm a number of principles, including a prohibition of resort to military force and aggressive action.246 In keeping with these principles, the Parties are forbidden to commit any warlike or hostile act against one another.247 The Armistice Agreements clarify that they are concluded without prejudice to the ‘rights, claims and positions’248 of the Parties in the ultimate peaceful settlement of the Palestine Question.249 The purpose of the armistice is described in terms of a transition from truce to a permanent peace250 (in the case of Egypt, the Armistice Agreement expressly supersedes a previous General Cease-Fire Agreement251). Above all, the Agreements lay down that they will remain in force until a peaceful settlement between the Parties is achieved.252 122. The ‘without prejudice’ formula (so popular among lawyers) was introduced to forestall future claims of estoppel in the course of peace negotiations. The formula must not obscure the salient point that the Parties reserve only their right to reopen all outstanding issues when they eventually get to negotiate an amicable settlement of the conflict. During the intervening time, the conflict continues, but it is no longer an armed conflict. The thrust of the Armistice Agreement is that the Parties waive in an unqualified manner any legal option to resume hostilities and to resolve the conflict by force. In the words of S. Rosenne: In the sense that they are transitional they are intended to be replaced in due course by an agreed and definitive peace arrangement between the parties. It would, however, be a mistake to confuse this transiency with any temporariness.253

246

247 248 249

250 251 252 253

Israel–Egypt, General Armistice Agreement, supra note 235, at 252–4; Israel–Lebanon, General Armistice Agreement, ibid., 288–90; Israel–Jordan, General Armistice Agreement, ibid., 304–6; Israel–Syria, General Armistice Agreement, ibid., 328–30. Ibid., 254 (Egypt, Article II), 290 (Lebanon, Article III), 306 (Jordan, Article III), 330 (Syria, Article III). For the origin of this formula, cf. Article 40 (regarding provisional measures taken by the Security Council) of the Charter of the United Nations, 1945, 9 Int.Leg. 327, 343. Israel–Egypt, General Armistice Agreement, supra note 235, at 268 (Article XI); Israel–Lebanon, General Armistice Agreement, ibid., 290 (Article II); Israel–Jordan, General Armistice Agreement, ibid., 306 (Article II); Israel–Syria, General Armistice Agreement, ibid., 330 (Article II). Ibid., 268 (Egypt, Article XII), 296–8 (Lebanon, Article VIII), 318 (Jordan, Article XII), 340 (Syria, Article VIII). Ibid., 270 (Egypt, Article XII(5)). Ibid., 268 (Egypt, Article XII), 296–8 (Lebanon, Article VIII), 318 (Jordan, Article XII), 340 (Syria, Article VIII). See S. Rosenne, Israel’s Armistice Agreements with the Arab States 82 (1951).

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123. Article V(2) of the Armistice Agreement with Egypt avers that the Armistice Demarcation Line ‘is not to be construed in any sense as a political or territorial boundary’ and, again, that the line is drawn ‘without prejudice’.254 This clause is not replicated in the other Agreements, although a more diluted version has been inserted into Article VI(9) of the Agreement with Jordan255 and Article V(l) of the Armistice Agreement with Syria256 (there is no counterpart in the Armistice Agreement with Lebanon). Once more, the disclaimer may be taken as lip service. An analysis of the Armistice Agreements in all their aspects shows that ‘the armistice demarcation lines can be regarded as equivalent to international frontiers, with all the consequences which that entails’.257 When a line of demarcation between States is sanctioned in such a way that it can be revised only by mutual consent (and not by force), it becomes a political or territorial border.258 The line may not be deemed ‘final’, but the frontiers of no country in the world are impressed with a stamp of finality. All international frontiers can be altered by mutual consent, and history shows that many of them undergo kaleidoscopic modifications through agreements between neighbouring countries.259 124. It is noteworthy that when the Security Council, in 1951, had to deal with an Israeli complaint concerning restrictions imposed by Egypt on the passage of ships through the Suez Canal, the Council adopted Resolution 95 pronouncing that the armistice between the two countries ‘is of a permanent character’ and that, accordingly, ‘neither party can reasonably assert that it is actively a belligerent’.260 It plainly emerges from the text of the Resolution, and from the thorough discussion preceding it, that the Council totally rejected an Egyptian contention that a state of war continued to exist with Israel after the Armistice.261 Furthermore, in the Advisory Opinion on the Wall, the International Court of Justice took it for granted that the Israeli-Jordanian Armistice Demarcation Line, popularly called the Green Line – established in the 1949 Armistice Agreement – is the boundary between Israel and the West Bank.262

254 255 256 257 258

259 260 261 262

Israel–Egypt, General Armistice Agreement, supra note 235, at 256. Israel–Jordan, General Armistice Agreement, supra note 235, at 312. Israel–Syria, General Armistice Agreement, supra note 235, at 332. Rosenne, supra note 253, at 48. A distinction between armistice demarcation lines and other international boundaries is made in the Friendly Relations Declaration, General Assembly Resolution 2625 (XXV), 25 RGA 121, 122 (1970). It is submitted that this distinction is no longer valid in most cases. See Verzijl, supra note 72, at VI, 459–553. Security Council Resolution 95 (1951), 6 RDSC 10, 11 (1951). See N. Feinberg, Studies in International Law 87–92 (1979). Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra note 212, at 166–7.

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(c)

The disparity and similarity between an armistice and a treaty of peace 125. Just like a treaty of peace (see supra 105), an armistice agreement brings war to a close and also cleans the slate of hostilities between the Parties (so that any new set of hostilities between them must be considered a separate war rather than a continuation of the previous one). Nevertheless, although bringing war to an end, an armistice agreement – like the first category of preliminaries of peace (supra 106) – is not the equivalent of a treaty of peace. Whereas a treaty of peace is multi-dimensional (both negating war and providing for amicable relations; see supra 99), an armistice agreement is restricted to the negative aspect of the demise of war. To the extent that a distinction is drawn between associative and dissociative peace (the latter amounting to ‘the absence of war, a peace defined negatively’),263 an armistice has to be marked as a dissociative peace. 126. Comparatively speaking, the negation of war is of much greater import than the introduction or restoration of, say, trade or cultural relations. Still, the mere conclusion of an armistice agreement does not imply recognition of an enemy as a new State. Furthermore, notwithstanding an armistice, diplomatic relations need not be established or reestablished. The frontiers (the Armistice Demarcation Lines) may remain closed, and, in general, relations between the Parties will probably be strained. The gist is that the armed phase of the conflict is over, but relations between the Parties may be riven by tensions and the issues in conflict may continue unabatedly to fester bilateral relations. Hence, even after an armistice agreement has been signed, the conclusion of a treaty of peace remains a high priority item on the agenda, in order to ensure the normalization of relations between the Parties. When the advent of a treaty of peace in the postarmistice period is delayed, as has been the case both in the Arab-Israeli conflict and in Korea, the situation is fraught with danger and the chances of another conflagration always loom large on the political horizon. 127. Since a modern armistice terminates war, it cannot be left to local military commands but must be concluded in a formal inter-governmental agreement – namely, a treaty – following negotiations that may be lengthy and elaborate. Yet, unlike a treaty of peace, which is always subject to ratification, an armistice agreement usually enters into force immediately (or almost immediately) upon signature.264 In theory, an armistice can also be imposed on the Belligerent Parties 263 264

B. V. A. Röling, ‘International Law and the Maintenance of Peace’, 4 NYIL 1, 7 (1973). Compare, e.g., the November 1918 Armistice – which entered into force within six hours after signature (Conditions of an Armistice with Germany, supra note 223, at 459 (Article I)) – and the Versailles Treaty of Peace of 1919 (cited supra note 226), which failed to get the crucial ratification by the United States. As a result, a separate Treaty of Peace between the United States and Germany was concluded in 1921. The text appears in VI A History of the Peace Conference of Paris, supra note 222, at 650.

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by a binding decision of the Security Council. But in actuality this has never happened: the Council has always confined its cessation-of-hostilities resolutions to cease-fires. 128. A modern armistice agreement, amounting to a termination of war, must be indefinite in its projected application: a termination of war and a limited period of application amount to a contradiction in terms. An armistice agreement may or may not go into detail about effecting a cease-fire along the front line, since a cease-fire arrangement may actually precede the armistice (as happened between Egypt and Israel; see supra 121). Nevertheless, the armistice demarcation lines do not have to match any previous cease-fire lines, and they may entail military evacuations. Thus, the Israel-Egypt Armistice Agreement provided for withdrawal of Egyptian troops from the Faluja Pocket in which they had been encircled following the earlier General Cease-Fire Agreement.265 There may be other provisions in an armistice agreement, e.g., with respect to demilitarization (see supra 53) – with or without a supervisory mechanism – and the exchange of prisoners of war.266 C.

Other modes of terminating war

129. A war may be terminated not only in a treaty of peace or in an armistice agreement. It may also come to an end by (i) implied mutual consent; (ii) as a result of debellatio of one of the Belligerent Parties; or (iii) by a unilateral declaration. (a) Implied mutual consent 130. When Belligerent Parties enter into a treaty of peace or an armistice agreement, war is terminated by mutual consent expressed in the instrument. It is not requisite, however, that the mutual consent to end a war be verbalized by the Parties. Such consent may be inferred by implication from their behaviour: a state of war may come to a close thanks to a mere termination of hostilities on both sides.267 131. Naturally, an examination of the legal consequences of the absence of actual warfare must be conducted prudently. The fact that all is quiet along the front line is not inescapably indicative of a tacit consent to put paid to hostilities. A lull in the fighting or a formal cease-fire (see infra 138–9) may account for the military inactivity. War cannot be regarded as ended unless some supplementary 265 266

267

Israel–Egypt, General Armistice Agreement, supra note 235, at 254 (Article III). On the demilitarized zone in Korea, see Panmunjom Agreement Concerning a Military Armistice in Korea, supra note 236, at 187 (Article I). On arrangements relating to prisoners of war (an exceptionally thorny problem in the negotiations), see ibid., 199 (Article III). See also the earlier Panmunjom Agreement on Prisoners of War, 1953, 47 AJIL, Supp., 180 (1953). See C. C. Tansill, ‘Termination of War by Mere Cessation of Hostilities’, 38 LQR 26–37 (1922).

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evidence is discernible (over a period of time) that neither Belligerent Party proposes to resume the hostilities.268 Such evidence must unequivocally show that the Parties have not merely suspended hostilities, but have opted to terminate them. It may be distilled, inter alia, from the establishment or resumption of previously non-existent or ruptured diplomatic relations.269 132. To give tangible form to the scenario of a state of war continuing despite a lengthy hiatus in the fighting, one can take the case of Israel and Iraq. Iraq was one of the Arab countries that invaded Israel in 1948. Unlike its co-belligerents (Egypt, Lebanon, Jordan and Syria), Iraq took advantage of the fact that it has no common border with Israel and refused to sign an armistice agreement (simply pulling its troops out of the combat zone). After prolonged periods of avoiding a military confrontation, Iraqi and Israeli armed forces clashed again in June 1967 and in October 1973.270 In 1981, Israeli aircraft destroyed an Iraqi nuclear reactor (under construction), which had the capacity of manufacturing nuclear weapons.271 In the present writer’s opinion, the only plausible legal justification for the bombing of the reactor is that the act represented another round of hostilities in an ongoing armed conflict (see infra 527). In 1991 – in the course of the Gulf War – Iraq fired dozens of Scud missiles against Israeli objectives (mostly, centres of population),272 despite the fact that Israel was not a member of the American-led Coalition which had engaged in combat to restore the sovereignty of Kuwait. The launching of these imprecise missiles amounted to indiscriminate bombardment of civilians, in breach of the jus in bello.273 While the jus is the same in every bellum, it is useful to single out the relevant framework of hostilities. The Iraqi missile offensive against Israel must be observed in the legal context not of the Gulf War but of the war between Iraq and Israel which started in 1948.274 That war was still in progress in 1991, unhindered by its inordinate prolongation since 1948, for hostilities had flared up intermittently. As a matter of fact, the war has not come to an end even two decades later. (b) Debellatio 133. A debellatio is a situation in which one of the Belligerent Parties is utterly defeated, to the point of its total disintegration as a sovereign State. Since

268 269 270 271 272 273 274

See J. M. Mathews, ‘The Termination of War’, 19 Mich.LR 819, 828 (1920–1). See Kotzsch, supra note 28, at 251. See U. Shoham, ‘The Israeli Aerial Raid upon the Iraqi Nuclear Reactor and the Right of SelfDefense’, 109 Mil.LR 191, 206 n. 67 (1985). See ibid., 191, 207–10. For the facts, see J. N. Moore, Crisis in the Gulf: Enforcing the Rule of Law 24–5 (1992). See Dinstein, supra note 16, at 128. See L. R. Beres, ‘After the Gulf War: Israel, Pre-Emption, and Anticipatory Self-Defense’, 13 Hn.JIL 259, id. (1990–1).

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the war is no longer inter-State in character, it is terminated by itself. Even though the extinction of an existing State as a result of war is not to be lightly assumed, there comes a time when it can no longer be denied.275 134. A debellatio necessarily involves effective belligerent occupation of the whole territory of one Belligerent Party by another. But it must be borne in mind that belligerent occupation of the enemy’s territory (even the entire territory) does not per se denote debellatio.276 A country in the position of Kuwait, in 1990, was not at risk of debellatio – notwithstanding its total occupation by Iraqi armed forces – because its Government went into exile and a large Coalition soon came to its aid militarily. The three cumulative parameters of debellatio are:277 (i) The entire territory has been occupied, no remnant being left for the exercise of sovereignty. (ii) The armed forces of the State in question are no longer in the field (usually there is an unconditional surrender 278), and no allied forces carry on fighting by proxy. (iii) The Government of the State has passed out of existence, and no other Government (not even a Government in exile) continues to offer effective opposition. In other words, what is required for debellatio is that all organized resistance has disappeared, and the occupied State has been ‘reduced to impotence’.279 135. The phenomenon of debellatio has been recognized in many instances before World War II.280 After the War – following the unconditional surrender of the Nazi armed forces281 – it was argued by some commentators that the legal status of Germany came under the rubric of debellatio.282 However, diverse other theses were equally advanced.283 The position at the time was so intricate that, in the same Allied country (the United Kingdom), different dates were used for different legal purposes to mark the termination of the war with Germany.284

275 276 277 278

279 280 281 282 283 284

Cf. Crawford, supra note 12, at 715–16. See Y. Dinstein, The International Law of Belligerent Occupation 2 (2009). See Greenspan, supra note 146, at 600–3. An unconditional surrender (or a capitulation without condition) is a purely military measure conceding complete defeat and renouncing unreservedly the resumption of hostilities. See N. Ando, Surrender, Occupation, and Private Property in International Law: An Evaluation of US Practice in Japan 60–5 (1991). C. Phillipson, Termination of War and Treaties of Peace 9 (1916). See Verzijl, supra note 72, at III, 361–2 (1970). Act of Military Surrender of Germany, 1945, 9 Int.Leg. 312. See Schwarzenberger, supra note 160, at 467, 730. Cf. H. Kelsen, ‘The Legal Status of Germany according to the Declaration of Berlin’, 39 AJIL 518–26 (1945). See T. Schweisfurth, ‘Germany, Occupation after World War II’, II EPIL 582, 587–8. See F. A. Mann, Foreign Affairs in English Courts 33 (1986).

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(c) Unilateral declaration 136. Just as war can – and, under Hague Convention (III) (see supra 80), must – begin with a unilateral declaration of war, it can also end with a unilateral declaration.285 In this way, the United States proclaimed – in 1951 – the termination of the state of war (World War II) with Germany.286 137. The technique of a unilateral declaration for the termination of war may be looked upon not as an independent mode for bringing war to a close, but as an offshoot of one of the two preceding methods. As indicated (supra 25–6), Arcadia can impose war on Utopia by a unilateral declaration or act. Just as Utopia is unable to prevent Arcadia from submerging them both in war, Utopia cannot effectively terminate the war as long as Arcadia is bent on continuing it. A unilateral declaration by Utopia ending the war is an inane gesture, if Arcadia is able and willing to go on fighting. ‘For war can be started by one party, but its ending presupposes the consent of both parties, if the enemy state survives as a sovereign state’.287 A unilateral declaration by Utopia promulgating that the war is over has a valid effect only when Arcadia is either completely defeated (undergoing debellatio) or is willing to abide by the declaration.288 If both Utopia and Arcadia exist at the end of the war, both must agree to finish it. Still, such an agreement may consist of a formal declaration by Utopia and the tacit consent of Arcadia (or vice versa).289

III.

The suspension of hostilities

A.

Different types of suspension of hostilities

138. A suspension of hostilities may evolve de facto when military operations by both sides just grind to a standstill. A respite of this nature may endure for a long period of time. But since neither Belligerent Party is legally committed to refrain from resuming hostilities, the fighting can break out again at any moment without advance warning.290 139. More importantly, Belligerent Parties may assume an obligation de jure to abstain from combat in the course of a war (which goes on). A number of terms are used to depict a legal undertaking to suspend hostilities: (i) truce, (ii) cease-fire, and in the past also (iii) armistice. As noted (supra 113 et seq.), 285 286 287 288 289 290

See Anonymous, ‘Judicial Determination of the End of the War’, 47 Col.LR 255, 258 (1947). This was done in a Proclamation by President Truman pursuant to a joint resolution by Congress. Termination of the State of War with Germany, 1951, 46 AJIL, Supp., 12 (1952). J. L. Kunz, ‘Ending the War with Germany’, 46 AJIL 114, 115 (1952). See D. Ottensooser, ‘Termination of War by Unilateral Declaration’, 29 BYBIL 435, 442 (1952). See F. C. Balling, ‘Unconditional Surrender and a Unilateral Declaration of Peace’, 39 APSR 474, 476 (1945). See M. Sibert, ‘L’Armistice’, 40 RGDIP 657, 660 (1933).

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the last term – armistice – has undergone a drastic change in recent years and now conveys a termination, rather than a suspension, of hostilities. The current usage of the term ‘cease-fire’, in lieu of ‘armistice’, must be recalled when one examines the 1899/1907 Hague Regulations 36 to 41 (cited ibid.). These clauses do not employ the phrase ‘cease-fire’. Instead, they refer to ‘armistice’, commensurately with the vocabulary prevalent before the two World Wars. However, since their avowed aim is to govern the suspension of hostilities, they must be deemed applicable to present-day cease-fires as opposed to modern armistices. 140. The expression ‘truce’ is steeped in tradition and history. It acquired particular resonance in the Middle Ages, in the form of the Truce of God (Treuga Dei). This was an ecclesiastical measure by which the Catholic Church suspended warfare in Christendom on certain days of the week, as well as during Lent and church festivals.291 The phrase ‘cease-fire’ has been introduced into international legal parlance only in the post-World War II era. Although some scholars ascribe to truce and cease-fire divergent implications, the present practice of States – for the most part – treats them as synonymous.292 As examples for an indiscriminate use of the two terms, it is possible to adduce successive resolutions adopted by the Security Council during Israel’s War of Independence in 1948.293 141. Unlike the termination of war, its suspension – by cease-fire or truce – may be partial or total in scope. Hague Regulation 37 differentiates between a general cease-fire (originally, ‘armistice’) suspending all military operations everywhere, and a local cease-fire suspending such operations only between certain units at particular locations.294 (a) Local cease-fire agreements 142. A cease-fire (or truce) may apply to a limited sector of the front, without impinging on the continuation of combat elsewhere. The object of such a local suspension of hostilities is to enable the opposing sides to evacuate the wounded, bury the dead, conduct negotiations, and so forth. A local cease-fire may be agreed upon on the spot by military commanders (who may be relatively junior in rank), without the involvement of their respective Governments. The agreement would then be informal, and it does not have to be in writing.295 143. Article 15 of Geneva Convention (I) of 1949 for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field stipulates that, 291 292 293 294 295

See ‘God, Truce of’, V The New Encyclopaedia Britannica 319, id. (15th edn, 1998). See P. Mohn, ‘Problems of Truce Supervision’, 478 Int.Con. 51, 53–7 (1952). Security Council Resolutions 49, 50, 53, 54, 56, 59, 61 and 62 (1948), 3 RDSC 19–30 (1948). Hague Regulations, supra note 33, at 121. See Oppenheim, supra note 8, at 550.

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whenever circumstances permit, a suspension of hostilities is to be arranged locally so as to facilitate the removal, exchange and transport of the wounded left on the battlefield or within a besieged or encircled area.296 The Article employs the term ‘armistice’, but what is actually meant in current terminology is a cease-fire. (b) General cease-fire agreements 144. Belligerent Parties may enter into an agreement suspending hostilities everywhere within the region of war (defined supra 49 et seq.). The duration of a general cease-fire (or truce) may be predetermined in the agreement or it may be left open. 145. A general cease-fire agreement is normally made in writing by (or with the approval of) the Governments concerned. In that case, it has the status of a treaty under international law.297 The essence of a general cease-fire is an agreement on the conditions under which hostilities are suspended. There are two sine qua non specific elements: time (at which the cease-fire is due to enter into force on all fronts, although different schedules may be set for diverse geographic sectors) and space (fixing precisely the demarcation lines between the opposing military formations, with or without a buffer demilitarized zone; the lines are usually marked on detailed maps attached to the text).298 146. A cease-fire must give an opportunity for military orders suspending hostilities to filter down, through the command channels, to all combat units. Thus, Security Council Resolution 211 (1965) – which brought about a cease-fire in the 1965 India-Pakistan War – was adopted on 20 September, yet demanded that the cease-fire take effect on 22 September, at 0700 hours GMT.299 In some instances, the unavoidable interval is even longer. 147. Cease-fire lines merely reflect the military situation on the ground at the time hostilities are suspended and – unlike armistice lines (see supra 123) – they are not permeated with any degree of finality. It ensues from the International Court of Justice’s 2005 Judgment in the Armed Activities (Congo v. Uganda) case that, if a cease-fire is concluded between Utopia and Arcadia, establishing a timetable for a staggered withdrawal of Arcadian forces from Utopian territory, acceptance by Utopia of this process (allowing some Arcadian forces to remain in their positions for a prescribed period) does not imply acknowledgement by Utopia of the lawfulness of their presence on its soil.300 In this, a cease-fire 296 297 298 299 300

Geneva Convention (I), supra note 31, at 40–2. See R. R. Baxter, ‘Armistices and Other Forms of Suspension of Hostilities’, 149 RCADI 353, 371–2 (1976). The author did not differentiate between the terms ‘cease-fire’ and ‘armistice’. See S. Bastid, ‘The Cease-Fire’, 6(1) RSIDMDG 31, 37 (1973). Security Council Resolution 211 (1965), 20 RDSC 14, id. (1965). Case Concerning Armed Activities on the Territory of the Congo (Congo v. Uganda), [2005] ICJ Rep. 168, 210–11.

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agreement is wholly different from a treaty of peace,301 which may validate the consequences of the use of force by the victim of aggression (see supra 109–10). 148. Nothing prevents the Belligerent Parties from appending to a general cease-fire agreement additional clauses, which transcend the technicalities of the suspension of hostilities. The option to set a wider agenda is particularly apposite to the issue of release of prisoners of war. Pursuant to Article 118 (first Paragraph) of Geneva Convention (III) of 1949 Relative to the Treatment of Prisoners of War, prisoners of war must be released ‘without delay after the cessation of active hostilities’.302 The correct interpretation of this stipulation is not free of doubt (since the phrase ‘cessation of active hostilities’ may be reconciled with both suspension and termination of war), but it appears that – by itself – the mere conclusion of a cease-fire does not automatically obligate the Parties to release prisoners of war.303 Consequently, if they desire to bring about such release, they must say so explicitly in the text of the cease-fire agreement.304 Semantically, the added provision is liable to produce an outcome that may seem strange. Should a cease-fire agreement set a date for release of prisoners of war, and should a Belligerent Party extend their detention beyond that date, the act would constitute a cease-fire violation although no fire has been opened. (c) Cease-fire ordained by the Security Council 149. The Security Council, performing its functions under Chapter VII of the Charter of the United Nations (see infra 810), may order Belligerent Parties to cease fire. Unequivocal language to that effect is contained, for example, in Resolution 54 (1948)305 adopted at the time of Israel’s War of Independence. Under Article 25 of the Charter (quoted infra 835), Members of the United Nations are legally bound to accept and carry out mandatory decisions of the Security Council. 150. In practice, the Council does not rush to issue direct cease-fire orders: ordinarily, it shows a proclivity for milder language. In the Falkland Islands War of 1982, the Council only requested the Secretary-General ‘to enter into contact with the parties with a view to negotiating mutually acceptable terms for cease-fire’.306 On other occasions, the Council called upon the Parties to cease fire,307 and less 301 302 303

304 305 306 307

See P. N. O’Kowa, ‘Congo’s War: The Legal Dimension of a Protracted Conflict’, 77 BYBIL 203, 236–8 (2006). Geneva Convention (III), supra note 31, at 224. See Y. Dinstein, ‘The Release of Prisoners of War’, Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of J. Pictet 37, 44–5 (C. Swinarski ed., 1984). See W. Heintchel von Heinegg, ‘Factors in War to Peace Transition’, 27 Har.JLPP 843, 854 (2004). Security Council Resolution 54 (1948), supra note 293, at 22. Security Council Resolution 505 (1982), 37 RDSC 17, id. (1982). See, e.g., Security Council Resolution 233 (1967), 22 RDSC 2, id. (1967).

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frequently demanded a cease-fire.308 As long as the Council is merely calling for a cease-fire, its resolution has the hallmark of a non-binding recommendation.309 The Parties are then given an opportunity to craft a cease-fire agreement of their choosing. Naturally, if they fail to reach an agreement, the Council may be driven in time to ordain a cease-fire. In the Iran-Iraq War, the Security Council issued a call for a cease-fire in 1982,310 demanding it only in Resolution 598 of 1987.311 The text and the circumstances imply that ‘the change in the wording from calling for a cease-fire to demanding one’ conveyed a shift from a recommendation to a binding decision.312 151. The most peremptory and far-reaching cease-fire terms were imposed on Iraq following Security Council Resolution 687 (1991),313 after the defeat of that country by an American-led Coalition in the first phase of the Gulf War (see infra 798). Resolution 687 is ‘unparalleled’ in the extent to which the Security Council was prepared to go in dictating cease-fire conditions, especially where disarmament of WMD was concerned.314 These disarmament obligations were derived not from general international law but solely from the cease-fire conditions that Iraq was forced to accept.315 152. Notwithstanding its unique range, the regime established in Resolution 687 – as its text explicitly elucidates – brings into effect no more than ‘a formal cease-fire’.316 A labelling of Resolution 687 as a ‘permanent cease-fire’317 is a contradiction in terms: a cease-fire, by definition, is a transition-period arrangement (although it may last for a long time).318 The suggestion that, ‘despite the terminology used in Resolution 687, it is clearly more than a mere suspension of hostilities’ – for its substance ‘is that of a peace treaty’319 – is not only completely inconsistent with the plain text of the resolution: it also fails to correspond with subsequent events (see infra 866–7). 308 309 310 311 312 313 314 315 316 317 318

319

See, e.g., Security Council Resolutions 234 and 235 (1967), 22 RDSC 3, id. (1967). Yet, see L. M. Goodrich, E. Hambro and A. P. Simons, Charter of the United Nations: Commentary and Documents 306 (3rd edn, 1969). Security Council Resolution 514 (1982), 37 RDSC 19, id. (1982). Security Council Resolution 598 (1987), 42 RDSC 5, 6 (1987). M. Weller, ‘Comments: The Use of Force and Collective Security’, The Gulf War of 1980–1988 71, 85 (I. F. Dekker and H. H. G. Post eds., 1992). Emphasis in the original. Security Council Resolution 687 (1991), 46 RDSC 11–15 (1991). D. M. Morriss, ‘From War to Peace: A Study of Cease-Fire Agreements and the Evolving Role of the United Nations’, 36 Vir.JIL 801, 891–2 (1995–6). See R. Wedgwood, ‘The Fall of Saddam Hussein: Security Council Mandates and Preemptive Self-Defense’, 97 AJIL 576, 579 (2003). For this crucial phrase, see supra note 313, at 12. J. Lobel and M. Ratner, ‘Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime’, 93 AJIL 124, 148 (1999). Rather inconsistently, those who lean in favour of the interpretation of Resolution 687 as a ‘permanent cease-fire’ sometimes question how a cease-fire can come to an end after more than a decade. See N. Boldt, ‘Book Review’ [of the fourth edition of this book], 49 GYIL 702, 703–4 (2006). C. Gray, ‘After the Cease-Fire: Iraq, the Security Council and the Use of Force’, 65 BYBIL 135, 144 (1994).

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153. The General Assembly, too, may call upon Belligerent Parties to effect an immediate cease-fire. This is what the General Assembly did in December 1971,320 after the outbreak of war between India and Pakistan (ultimately culminating in the creation of the independent State of Bangladesh). When such a resolution is passed by the General Assembly, it can only be issued as a recommendation and can never be binding (see infra 904). As a non-mandatory exhortation, the resolution may be ignored with impunity, just as India disregarded the resolution in question.321 154. In recent years, most cease-fires have come in the wake of Security Council resolutions: either the Belligerent Parties carry out a mandatory decision of the Council or they arrive at an agreement at the behest of the Council. Even during the ‘Cold War’, as long as the Council was not in disarray owing to the exercise or the threat of a veto (see infra 843), a cease-fire resolution became almost a conditioned reflex in response to the outbreak of hostilities. Generally speaking, the Council has tended to act as a fire-brigade, viewing its paramount task as an attempt to extinguish the blaze rather than dealing with causes of the conflagration. 155. Often, a cease-fire avoids setting a specific terminal date, being couched in an open-ended language. Yet, a cease-fire may also be limited to a predetermined timeframe. A prime example is Security Council Resolution 50 (1948), adopted in May 1948 – following the invasion of Israel (upon its establishment) by Arab armies – which called for ‘a cessation of all acts of armed force for a period of four weeks’.322 After several delays, this cease-fire (known as the First Truce) came into force in June and ended indeed after four weeks. In July, in Resolution 53 (1948), the Security Council addressed an appeal to the Parties (plainly not binding) ‘to accept in principle the prolongation of the truce’;323 but hostilities resumed nevertheless. B.

The nature of cease-fire

156. The suspension of hostilities must not be confused with their termination.324 A termination of hostilities means that the war is over: the Parties are no longer Belligerent Parties, and any subsequent hostilities between them would indicate the outbreak of a new war (see supra 105). Conversely, a suspension of hostilities connotes that the state of war goes on, but temporarily there is no actual

320 321 322 323 324

General Assembly Resolution 2793 (XXVI), 26 RGA 3, id. (1971). See P. Bretton, ‘De Quelques Problèmes du Droit de la Guerre dans le Conflit Indo-Pakistanais’, 18 AFDI 201, 211 (1972). Security Council Resolution 50 (1948), supra note 293, at 20. Security Council Resolution 53 (1948), supra note 293, at 21, id. For an illustration of such confusion, see V. A. Ary, ‘Concluding Hostilities: Humanitarian Provisions in Cease-Fire Agreements’, 148 Mil.LR 186, 187–92 (1995).

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warfare. Psychologically, a lengthy general cease-fire lasting indefinitely is a state of no-war and no-peace. Legally, this is an unmistakable case of war. The state of war is not terminated, despite the absence of combat in the interval. 157. A cease-fire, even when longstanding, is not meant to last forever qua cease-fire. A cease-fire is merely supposed to be a springboard for diplomatic action: to provide ‘a breathing space for the negotiation of more lasting agreements’.325 It gives the Belligerent Parties a chance to negotiate peace terms without being subjected to excessive pressure, and to turn the suspension into a termination of hostilities. But no indispensable bond ties cease-fire and peace. On the one hand, the conclusion of a treaty of peace (or an armistice) may not be preceded by any formal cease-fire.326 On the other hand, a cease-fire may break down, to be followed by further bloodshed. 158. The pause in the fighting, brought about by a cease-fire, is no more than a convenient juncture for direct negotiations or for efforts to be exerted by third Parties to broker a peace arrangement. Even a binding cease-fire decree issued by the Security Council may prove ‘too brittle to withstand the strains between the parties’ over a protracted period.327 Should the Belligerent Parties fail to exploit the opportunity to move from war to peace, the period of quiescence is likely to become the precursor of additional rounds of hostilities (which may even surge upward in intensity). This is only to be anticipated. A cease-fire entrenches positions of control gained in the fighting preceding it.328 In freezing the military state of affairs extant at the moment when combat is suspended, a cease-fire favours that Belligerent Party which came into possession of most ground before the deadline. While the guns are silent, the opposing sides will rearm and regroup. If no serious peace negotiations take place, and no peace is consummated, the Belligerent Party most interested in a return to the status quo ante will look for an opportune moment (militarily as well as politically) to mount an offensive, in order to dislodge the enemy from the positions acquired on the eve of the ceasefire. A cease-fire in and of itself is, consequently, no harbinger of peace. All that a cease-fire can accomplish is set the stage for peace negotiations (or any other mode of amicable settlement of disputes). If the Belligerent Parties contrive to hammer out peace terms, success will be due more to the exercise of diplomatic and political skills than to the cease-fire as such. 159. The Arab-Israeli conflict is a classical illustration of a whole host of cease-fires, either by consensual arrangement between the Belligerent Parties or by fiat of the Security Council, halting hostilities without bringing them to an 325 326 327 328

S. D. Bailey, ‘Cease-Fires, Truces, and Armistices in the Practice of the UN Security Council’, 71 AJIL 461, 469 (1977). See C. Rousseau, Le Droit des Conflits Armés 202 (1983). Morriss, supra note 314, at 815. See K. H. Kaikobad, ‘‘‘Ius ad Bellum”: Legal Implications of the Iran-Iraq War’, The Gulf War of 1980–1988, supra note 312, at 51, 64–65.

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end. Thus, if we take as an example the mislabelled ‘Six-Day War’ (sparked in June 1967 and proceeding through several cycles of hostilities), the Council insisted on immediate cease-fire, e.g., in June 1967329 and in October 1973.330 Israel and Egypt negotiated a cease-fire agreement, e.g., in November 1973.331 Israel and Syria agreed on a cease-fire, e.g., in May 1974.332 In none of these cases did the ceasefire, whether initiated by the Parties or by the Council, terminate the war. In the relations between Israel, on the one hand, and Egypt and Jordan, on the other, the ‘Six-Day War’ ended only in consequence (or on the eve) of the Treaties of Peace in 1979 and 1994 respectively (see supra 101–2). In the relations between Israel and Syria, the ‘Six-Day War’ is not over yet, after more than four decades, since the bilateral peace process (albeit started) has not been crowned with success. 160. A number of rounds of hostilities between Israel and Egypt or Syria (most conspicuously, the so-called ‘Yom Kippur War’ of October 1973) are incorrectly adverted to as ‘wars’. Far from qualifying as separate wars, these were merely non-consecutive timeframes of combat, punctuated by extended cease-fires, in the course of a single ongoing war that had commenced in June 1967. C.

Denunciation and breach of cease-fire

(a) The fragility of cease-fire 161. Cease-fires are intrinsically fragile (see supra 158). Under Hague Regulation 36, if the duration of a suspension of hostilities is not defined, each Belligerent Party may resume military operations at any time, provided that an appropriate warning is given in accordance with the terms of the ceasefire (originally, ‘armistice’).333 The language of Regulation 36 seems to the present writer to be imprecise. It is submitted that a general cease-fire, if concluded without specifying a finite date of expiry, ought to be read as undertaken for a reasonable period. Within that (admittedly flexible) stretch of time, none of the Belligerent Parties can be allowed to denounce the cease-fire unilaterally. Flouting a cease-fire shortly after its conclusion (in apparent reliance on Regulation 36) will surely divulge lack of good faith on the part of the antagonist acting in this manner.334 Only when a reasonable period has elapsed does the continued operation of the agreement depend on the goodwill of both Belligerent Parties, and the cease-fire may be unilaterally denounced at will.

329 330 331 332 333 334

Security Council Resolutions 233, 234 and 235 (1967), supra notes 307–8, at 2–3. Security Council Resolution 338 (1973), 28 RSDC 10 (1973). Egypt–Israel, Cease-Fire Agreement, 1973, 12 ILM 1312 (1973). Syria–Israel, Agreement on Disengagement between Forces, 1974, 13 ILM 880 (1974). Hague Regulations, supra note 33, at 121. All treaties must be performed and interpreted in good faith. See Articles 26 and 31(1) of the Vienna Convention on the Law of Treaties, supra note 204, at 148–9.

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162. Hague Regulation 36 contains an obligation to give advance notice to the adversary when denunciation of a cease-fire agreement occurs. But the specifics depend on what the cease-fire agreement prescribes. When the agreement is silent on this issue, hostilities may be ‘recommenced at once after notification’.335 If fire may be opened at once, the practical value of notification becomes inconsequential. Whether immediately or after a notification, the lex specialis of Hague Regulation 36 clearly overrides the lex generalis of Article 56(2) of the Vienna Convention on the Law of Treaties, which requires a twelve months minimum notice of the intention to denounce a treaty.336 163. A prolonged general cease-fire arrangement that fails to segue into a termination of the war is prone to charges – and counter-charges – of violations. Cease-fire (originally, ‘armistice’) violations are the theme of Hague Regulations 40 and 41. Regulation 41 enjoins that, should the violations be committed by private individuals acting on their own initiative, the injured Party would be entitled to demand their punishment or compensation for any losses sustained.337 Under Regulation 40, a serious violation of the cease-fire by one of the Parties empowers the other side to denounce it and, in cases of urgency, to resume hostilities immediately.338 164. Hague Regulations 40 and 41 posit in effect a three-pronged classification of cease-fire violations: (i) ordinary violations, not justifying denunciation of the cease-fire (assuming that denunciation is not anyhow permissible under Article 36); (ii) serious violations, permitting the victim to denounce the ceasefire, but requiring advance notice before the recommencement of hostilities; and (iii) serious violations pregnant with urgency, enabling the victim to denounce the cease-fire and reopen hostilities immediately (without advance notice).339 165. The three categories of cease-fire violations are not easily applicable in reality. The question whether a breach of the cease-fire is serious, or whether any urgency is involved, seldom lends itself to objective verification. It must not be overlooked that a violation considered a minor infraction by one Party may assume grave proportions in the eyes of its adversary.340 (b) ‘Material breach’ of cease-fire agreements 166. The emphasis placed by Hague Regulation 40 on serious cease-fire violations corresponds to the locution ‘material breach’ appearing in Article 60 (1) of the Vienna Convention on the Law of Treaties (as a ground for

335 336 337 339 340

Oppenheim, supra note 8, at 556. Vienna Convention on the Law of Treaties, supra note 204, at 154. Hague Regulations, supra note 33, at 122. 338 Ibid. See Oppenheim, supra note 8, at 556. See R. Monaco, ‘Les Conventions entre Belligérants’, 75 RCADI 277, 337–8 (1949).

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termination or suspension of bilateral treaties).341 The applicability of the ‘material breach’ criterion to general cease-fire agreements had been recognized in the international legal literature even before the Vienna Convention was crafted in its final form.342 167. The meaning of the phrase ‘material breach’ is not unequivocal.343 Article 60(3) of the Vienna Convention defines a ‘material breach’ as either ‘a repudiation of the treaty not sanctioned by the present Convention’ or a ‘violation of a provision essential to the accomplishment of the object or purpose of the treaty’.344 Which provision of a treaty is to be considered ‘essential’? It is generally recognized that, in the context of a ‘material breach’, the term covers any ‘important ancillary provision’ of a treaty.345 Thus, the WMD disarmament clauses in the cease-fire conditions – set in Security Council Resolution 687 (1991) (see supra 151) – were decidedly essential, albeit ancillary to the suspension of hostilities, and their violation constituted a ‘material breach’. 168. The topic of a general cease-fire and its ‘material breach’ became a critical issue in the last phase of the Gulf War (in 2003). It is therefore noteworthy that, as early as August 1991 (a few months after the entry into force of the cease-fire suspending hostilities), the Security Council – acting under Chapter VII of the Charter, in Resolution 707 (1991) – already condemned Iraq’s serious violation of its disarmament obligations and pronounced that the violation ‘constitutes a material breach of the relevant provisions of resolution 687’.346 Continuous findings by the Council of Iraq’s non-compliance with its obligations persisted for more than a decade.347 The capstone was Resolution 1441 (2002), in which the Security Council (again acting under Chapter VII) decided that ‘Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687 (1991)’.348 Some commentators believe that the concept of ‘material breach’ became relevant due to an alleged ‘semi-treaty’ character of Resolution 687.349 But this is wrong. ‘Material breach’ came into the picture solely as a result of Iraq’s defiance of the cease-fire terms which it had accepted. 341 342 343 344 345 346 347 348 349

Vienna Convention on the Law of Treaties, supra note 204, at 155. Cf. Baxter, supra note 297, at 386. See Q. Wright, ‘The Termination and Suspension of Treaties’, 61 AJIL 1000, 1003 (1967). For a detailed analysis of the expression ‘material breach’, see M. M. Gomaa, Suspension or Termination of Treaties on Grounds of Breach 25–50 (1996). Vienna Convention on the Law of Treaties, supra note 204, at 156. A. Aust, Modern Treaty Law and Practice 295 (2nd edn, 2007). Security Council Resolution 707 (1991), 46 RDSC 22, 23 (1991). For a recital of these findings, see N. Rostow, ‘International Law and the 2003 Campaign against Iraq’, 80 ILS 21, 24–5 (R. B. Jaques ed., 2006). Security Council Resolution 1441 (2002), [2002–3] RDSC 114, 116. See M. Jacobsson, ‘The Use of Force and the Case of Iraq’, Peace and Security: Current Challenges in International Law 373, 383 (D. Amnéus and K. Svanberg-Torpman eds., 2004).

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169. A determination of ‘material breach’ lays the ground for the resumption of hostilities by the other side to a general cease-fire agreement. In the case of Iraq, that determination need not have been made (in an objectively binding fashion) by the Security Council. Ordinarily, the adversary in the armed conflict – i.e. in this instance, the Coalition (or even any of its component elements) – has the prerogative of arriving at that conclusion, based on a subjective assessment of the situation. However, in Resolution 1441, the Security Council also afforded Iraq ‘a final opportunity to comply with its disarmament obligations’. Consequently, the Coalition had to hold fire until it became clear that Iraq had persisted in a policy of adamant non-compliance (see infra 865). 170. In the absence of a ‘material breach’ by the antagonist, a renewal of hostilities by a Belligerent Party before a cease-fire has expired would contravene its provisions. Nonetheless, it must be underscored that this will merely be another round of hostilities within the ambit of the same war, and no new war is started. Contrary to the approach taken by some commentators,350 cease-fire violations must not be looked upon as triggering a new armed attack or a new exercise of self-defence (see infra 387, 690). Cease-fire violations as such are simply irrelevant to the determination of armed attack versus self-defence, which must be predicated exclusively on an analysis of the commencement of the armed conflict. The reopening of fire in an ongoing war does not affect the legal position in this crucial respect.

350

See, e.g., O. Corten and A. Lagerwall, ‘La Violation d’un Cessez-le-Feu Constitue-t-Elle Nécessairement une Violation de l’Article 2§4 de la Charte des Nations Unies?’, 61 RHDI 87, 118 et seq. (2008).

Part II


3

A historical perspective of the legal status of war

I.

The ‘just war’ doctrine in the past

A.

The Roman origins

171. A distinction between ‘just war’ (bellum justum) and ‘unjust war’ (bellum injustum) can be traced back to the jus fetiale. This body of law existed in ancient Rome, from the days of the Kings until the late republican era.351 The fetiales were a college of priests charged with a number of duties, some of which pertained to the inception of war. 172. Cicero stated that it may be gathered from the code of the fetiales that no war is considered just, unless it is preceded by an official demand for satisfaction or warning, and a formal declaration has been made.352 It follows that two indispensable conditions of a procedural nature had to be met before the commencement of hostilities. The first requisite was that a demand be addressed to the opponent, insisting on satisfaction for the grievance caused to Rome (such satisfaction taking the form of restitution, withdrawal of forces, etc.), with a fixed time allowed for a proper response.353 The second condition was that a formal declaration of war had to be issued. The declaration entailed an elaborate ceremony, culminating in a spear being hurled across the Roman frontier into the enemy’s territory, and including the recital of ancient legal formulas recorded in detail by Livy.354 It appears that, apart from the ritualistic and procedural aspects of their duties, the fetiales were also empowered to pronounce whether there were sufficient substantive grounds justifying the outbreak of hostilities (e.g., violation of a treaty or the sanctity of ambassadors, infringement of territorial rights or offences committed against allies).355 351 352 353 354 355

See A. Nussbaum, A Concise History of the Law of Nations 10–11 (2nd edn, 1954). Cicero, De Officiis, Book I, § XI, 36 (Loeb Classical edn 38–9 (W. Miller trans., 1913)). See also Cicero, De Re Publica, Book III, § XXIII, 35 (Loeb Classical edn 212–13 (C. W. Keyes trans., 1928)). See C. Phillipson, II The International Law and Custom of Ancient Greece and Rome 329–39 (1911). Livy, Ab Urbe Condita, Book I, § XXII, 5–14 (1 Loeb Classical edn 114–19 (B. O. Foster trans., 1919)). See Phillipson, supra note 353, at 182, 328.

65

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173. As a rule, the political powers in Rome were disallowed to go to war (during the relevant period) without the explicit and prior approval of the fetiales.356 Yet, it is only fair to observe that, to all intents and purposes, the fetiales were the servants of their political masters and ‘practically bound to do their bidding’.357

B.

Christian theology

174. The bellum justum doctrine did not disappear with the jus fetiale. Instead, it was espoused by Christian theology and Canon Law. As long as the Roman Emperors were pagans, the Church upheld a pacifistic posture, and even forbade Christians to enlist as soldiers.358 But, after Christianity had become the official religion of the Empire in the days of Constantine, the Church was compelled to alter its view about war: from that point onwards, Christians were expected to shed their blood for the Empire.359 Evidently, the Church had to find theological grounds for such a radical modification of its basic concept. This was done by St Augustine, who revived the bellum justum doctrine as a moral tenet. In his celebrated book De Civitate Dei, St. Augustine enunciated the fundamental principle that every war was a lamentable phenomenon, but the wrong suffered at the hands of the adversary imposed ‘the necessity of waging just wars’.360 175. The theologians and canonists who followed St Augustine accepted his approach and expatiated upon the theme of the just war. The most influential contribution was made by St Thomas Aquinas, who propounded that for war to be just it had to fulfil three conditions: (i) the war had to be conducted not privately but under the authority of a prince (auctoritas principis); (ii) there had to be a just cause (causa justa) for the war; and (iii) it was not enough to have a just cause from an objective viewpoint, but it was necessary to have the right intention (intentio recta) to promote good and to avoid evil.361 The Thomist analysis pushed to the fore the question of the justice of causes of war. The canonists began to wrangle over meticulous lists of such causes, which often reflected personal and political predilections.362 356 357 358 359 360 361 362

See ibid., 328. A. S. Hershey, ‘The History of International Relations during Antiquity and the Middle Ages’, 5 AJIL 901, 920 (1911). See J. von Elbe, ‘The Evolution of the Concept of the Just War in International Law’, 33 AJIL 665, 667 (1939). See ibid. St Augustine, De Civitate Dei Contra Paganos, Book XIX, § VII (VI Loeb Classical edn 150–1 (W. C. Greene trans., 1960)). St Thomas Aquinas, Summa Theologiae, Secunda Secundae, Quaestio 40, 1 (XXXV Blackfriars edn 80–3 (1972)). See A. Vanderpol, La Doctrine Scolastique du Droit de Guerre 63 (1925).

A historical perspective

C.

67

The ‘fathers’ of international law

176. At the close of the Middle Ages, concurrently with the growth of the nation-States, modern international law came into being. The ‘fathers’ of international law363 were jurists and scholars in the sixteenth and seventeenth centuries, all Europeans – at the outset only Catholics, but at the most formative stage also Protestants – who attempted to articulate (sometimes, practically to invent) rules of conduct binding on States. Among other concepts and institutions, these eminent scholars imported into the new international legal system the well-established religious (Catholic) doctrine that only a just war is permissible. Having done that, the ‘fathers’ of international law, emulating the canonists, deemed it necessary to set out lists of just causes for war. These lists, too, were coloured by the bias of the respective writers. 177. For instance, the Spanish Dominican professor, Victoria, wrestled with the subject of his country’s war against the Indians in America. Victoria rejected the premise that the Indians (as pagans) were beyond the pale of the law and bereft of any rights.364 He maintained that, to be admissible, war against the Indians (no less than war against Christians) had to be just.365 But ultimately Victoria justified what was happening in the New World, asserting that the Indians had violated the fundamental rights of the Spaniards to travel freely among them, to carry on trade and to propagate Christianity.366 178. The formulation of international law in a manner consistent with the personal inclinations of the author was not confined to wars against ‘infidels’ in the New World. A just war could also be undertaken against Christians in Europe, in the service of either the Catholic Church or the Protestant cause.367 Moreover, the Spanish jurist Ayala, who held a position resembling that of a Judge Advocate General in the armed forces of Philip II (engaged in a struggle to put down insurrection in the Netherlands), contended that ‘a prince has a most just cause of war when he is directing his arms against rebels and subjects who abjure his sovereignty’.368 179. Not only did each of the ‘fathers’ of international law produce his own favoured enumeration of just causes of war, but the divergent lists spread the mantle of justice over a wide variety of controversial causes. According to

363 364 365 367 368

On controversies relating to the relative standing of the ‘fathers’ of international law, see Nussbaum, supra note 351, at 296 et seq. Victoria, De Indis et de Jure Belli Relectiones 125 (Classics of International Law edn, J. P. Bate trans., 1917). Ibid., 151–8. 366 Ibid. See G. Parker, ‘Early Modern Europe’, The Laws of War: Constraints on Warfare in the Western World 40, 43–4 (M. Howard, G. J. Andreopoulos and M. R. Shulman eds., 1994). Ayala, De Jure et Officiis Bellicis et Disciplina Militari, Book I, § II, 12–13 (II Classics of International Law edn, J. P. Bate trans., 11 (1912)).

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Suárez, ‘any grave injury to one’s reputation or honour’ was a just cause of war.369 Textor opined that, under certain circumstances, refusal of passage of troops en route to wage war against a third Party ‘gives a just cause, if not for declaring war against the refuser, at any rate for opening a way by sword and arms’.370 Other jurists identified many additional just causes of war. 180. The expansion of the catalogue of just causes brought to prominence a perplexing problem. For the medieval theologians and canonists, any dispute as to the interpretation or application of the just war doctrine (or any other doctrine) could be resolved authoritatively by the Catholic Church. But when the doctrine was secularized, and absorbed into the mainstream of international law, the absence of an impartial authority – empowered to sift the evidence and appraise the justice of the cause of a concrete war – became readily apparent. Under these conditions, could war qualify as just on both sides? 181. Victoria argued that, even though war could really be just (from an objective standpoint) only on one side, it was not impossible that the other Party acted in good faith under ‘invincible ignorance’ either of fact or of law, and in such a case war (subjectively speaking) was just from the latter’s perspective as well.371 A similar position was taken by Grotius.372 Gentili carried this thought further by contending that, even in objective terms, war could be just on one side but still more just on the other side.373 Indeed, if a broad roster of independent just causes of war is admitted, this conclusion is almost unavoidable. Should the honour of Arcadia be slighted by Ruritania, Arcadia would have a just cause for war (consistent with Suárez’s thesis). Yet, if Arcadia were to attack, Ruritania might also invoke a just cause for war, i.e. self-defence. As a consequence, both antagonists in the same conflict would fight one another in the name of justice, and each would be entitled to do so. 182. The postulate that the two opposing sides in war may simultaneously rely on the justice of their clashing causes, and that they will be equally right, brought the just war doctrine in international law to a cul de sac. In almost every armed conflict, justice is appealed to by all Parties. If the competing claims are screened on a comparative basis, and on balance only one of them can emerge as validated by considerations of justice, the register of just causes may conceivably serve as a useful guide for States in evaluating actions and reactions. However, once war qualifies as objectively just on the part of both adversaries, 369 370 371 372 373

Suárez, Selections from Three Works, De Triplici Virtute Theologia: Charitate, Disputation XIII, § IV, 3 (II Classics of International Law edn, G. L. Williams et al. trans., 817 (1944)). Textor, Synopsis Juris Gentium, § XVII, 37 (II Classics of International Law edn, J. P. Bate trans., 178 (1925)). Victoria, supra note 364, at 177. Grotius, supra note 44, at Book II, § XXIII, XIII (II Classics of International Law edn, 565–6). Gentili, De Jure Belli, Book I, § VI, 48–52 (II Classics of International Law edn, J. C. Rolfe trans., 31–3 (1933)).


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there is scarcely a reason why any State should feel inhibited from going to war at will. Surely, when pressed, each Government can drum up some plausible justification for any policy that it wishes to pursue. If that justification need not be superior to the claims of its foe, the requirement of a just cause ceases in effect to be a hurdle on the path to war. 183. In the nineteenth (and early part of the twentieth) century, the attempt to differentiate between just and unjust wars in positive international law was discredited and abandoned.374 States continued to use the rhetoric of justice when they went to war, but the justification produced no legal reverberations. Most international lawyers conceded openly that ‘[w]ith the inherent rightfulness of war international law has nothing to do’.375 Or, in the acerbic words of T. J. Lawrence, distinctions between just and unjust causes of war ‘belong to morality and theology, and are as much out of place in a treatise on International Law as would be a discussion on the ethics of marriage in a book on the law of personal status’.376 II.

Recent concepts of ‘just war’

A.

Kelsen’s theory

184. H. Kelsen (among others) promoted the concept that war is lawful only when it constitutes a sanction against a violation of international law by the opponent.377 According to Kelsen, war ‘is permitted only as a reaction against an illegal act, a delict, and only when directed against the State responsible for this delict’.378 185. One of the central features of Kelsen’s theory, as originally constructed, is that it treated war as a lawful response (a sanction) in every instance of noncompliance with international law (a delict), even if that non-compliance had not involved the use of force.379 Once the use of inter-State force was prohibited, other than in exceptional circumstances defined by the Charter of the United Nations (see infra 233, 244), Kelsen adjusted the theory to the evolution of international law. He still regarded war as lawful only when constituting a sanction, but the nature of the delict had changed: lawful war now had to be a counterwar, waged in response to an illegal war by the other side.380 186. There is a threefold difficulty inherent in Kelsen’s theory. First, factually, war may be an inefficacious sanction. Victory in war is contingent not on right 374 375 376 377 378 380

See J. L. Brierly, ‘International Law and Resort to Armed Force’, 4 Cam.LJ 308, id. (1930–2). G. B. Davis, The Elements of International Law 272 (G. E. Sherman ed., 4th edn, 1916). Lawrence, supra note 159, at 311. See H. Kelsen, Principles of International Law 33–4 (lst edn, 1952). H. Kelsen, General Theory of Law and State 331 (1945). 379 Ibid., 333. See Kelsen, supra note 377, at 28–9.

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but on might, and a weak State resorting to hostilities against a strong one is apt to find it a painful and counterproductive experience. Second, in the absence of an impartial forum juridically competent to determine on the merits whether a specific war ought to be considered a genuine sanction, the opposing side may challenge the legality of the war. It may argue that the war, instead of amounting to a sanction (a lawful counterwar), is actually no more than a delict (an unlawful war). Third, as long as the original delict could consist of any conduct in contravention of international law (such as a failure to repay a loan), there was a distinct possibility of a glaring disproportion between the delict and the sanction. After all, war always generates inevitable casualties, destruction and suffering, and it cannot be contemplated as a proper sanction unless warranted by compelling reasons. 187. Kelsen was not unaware of the obvious inadequacy immanent in the role of war as a general sanction, but he explained it away in light of the primitive nature of the international legal system.381 Kelsen called his theory ‘the bellum justum doctrine’,382 although he admitted that the term ‘just’ in the present context means ‘legal’.383 Basically, J. L. Kunz was right in stating that the concept of bellum justum has been replaced by that of bellum legale: what counts is a breach of the norms of existing international law, rather than ‘the intrinsic injustice of the cause of war’.384 This is an important corrective. Confusion between bellum legale and bellum justum can be fraught with danger, given the disparate and occasionally irreconcilable perceptions of justice, compared to the relative ascertainability of the law. 385

B.

‘Wars of national liberation’

188. During the period of decolonization of former European possessions worldwide, persistent attempts were made to justify in positive international law the use of force by States in support of ‘wars of national liberation’, carried out by peoples in exercise of the right of self-determination (see infra 486). The real issue was not the legality of the ‘war of national liberation’ per se, inasmuch as an uprising unfurling the banner of self-determination does not amount to an inter-State war (liberation or statehood being the contested goal). The focal question was whether a foreign State – embracing the cause of the ‘national liberation movement’ – was entitled to intervene actively in the hostilities, in order to assist in the overthrow of the ‘yoke of colonialism’. Those answering the question in the affirmative believed that colonialism was ‘a purely evil state 381 383 384 385

Ibid., 35–6. 382 Ibid., 33; Kelsen, supra note 378, at 331. Kelsen, supra note 377, at 34 n. 16. J. L. Kunz, ‘Bellum Justum and Bellum Legale’, 45 AJIL 528, 532 (1951). See Y. Dinstein, ‘The Interaction of International Law and Justice’, 16 IYHR 9, 13–17 (1986).


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and one which it is legal and just to fight against’.386 As the argument ran, whereas traditional international law permitted a foreign State to lend its support only to the central Government against insurgents (see infra 317), ‘under the new theory of just wars’ the reverse is supposedly true: military intervention from the outside would be lawful solely when directed against the central Government on behalf of a ‘national liberation movement’.387 189. Usually, the rationale – offered (principally by the former Soviet Union and Third World countries) in sustaining the legality of the use of inter-State force when extended in aid of ‘wars of national liberation’ – was that these were just wars.388 The obstacle confronting the interventionist school of thought was that the Charter of the United Nations does not incorporate support of ‘wars of national liberation’ among the lawful exceptions to the general prohibition of recourse to inter-State force (see infra 249). 190. In his Dissenting Opinion in the Nicaragua case of 1986, Judge Schwebel criticized the majority of the International Court of Justice because a brief dictum in its Judgment ‘may be understood as inferentially endorsing’ the legality of forcible ‘intervention in the promotion of so-called “wars of liberation”’.389 In fact, the Court’s dictum390 is no more than a faint hint in that direction, and Judge Schwebel may have overreacted. 191. Nevertheless, important milestones on the path pursued by advocates of foreign intervention in ‘wars of national liberation’ were set in two consensus resolutions adopted by the General Assembly: the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (Friendly Relations Declaration),391 as well as the 1974 Definition of Aggression. 192. Article 7 of the Definition of Aggression states: Nothing in this Definition, and in particular article 3 [replicated in Article 8 bis of the Statute of the International Criminal Court quoted infra 367], could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right and referred to in the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in 386 387

388

389 390 391

A. Shaw, ‘Revival of the Just War Doctrine?’, 3 Auck.ULR 156, 170 (1976–9). D. J. Scheffer, ‘Use of Force after the Cold War: Panama, Iraq, and the New World Order’, Right v. Might: International Law and the Use of Force 109, 137 (L. Henkin et al. eds., 2nd edn, 1991). See the statement of Chairman Khrushchev: ‘Moral, material and other assistance must be given so that the sacred and just struggle of the peoples for their independence can be brought to its conclusion’, cited by R. E. Gorelick, ‘Wars of National Liberation: Jus ad Bellum’, 11 CaseWRJIL 71, 81 (1979). Nicaragua case (Merits), supra note 14, at 350–1. ‘The Court is not here concerned with the process of decolonization; this question is not in issue in the present case’. Ibid., 108. General Assembly Resolution 2625 (XXV), supra note 258, at 123.

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accordance with the Charter of the United Nations, particularly peoples under colonial and racist regimes or other forms of alien domination; nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity with the above-mentioned Declaration.392

Textually, the veiled terms of Article 7 reflect a compromise between irreconcilable views.393 Politically, the adoption of the clause gave a boost to the concept that a ‘war of national liberation’ is a just war. Legally, the right to receive (and presumably to give) support from the outside for a ‘national liberation’ war remains subordinated to the Principles of the Charter. Such subordination is implicit in every General Assembly resolution, which – if clashing with the Principles of the Charter – may be deemed ultra vires. But in any event, the superiority of the Charter is spelt out in Article 6 of the Definition: Nothing in this Definition shall be construed as in any way enlarging or diminishing the scope of the Charter, including its provisions concerning cases in which the use of force is lawful.394

There cannot be any misunderstanding that in any instance of divergence between the two, the Charter trumps the Definition. Article 6 (in general terms) and even Article 7 (in more concrete terms) clarify that irrefutable position. Article 7 cannot be construed as a licence for one State to use force against another – for the sake of fortifying the right of peoples to selfdetermination – in circumstances exceeding the bounds of the Charter. Since the Charter forbids the use of inter-State force, except in the exercise of selfdefence or as a measure of collective security decided upon by the Security Council (see infra 244), any professed dispensation from this prohibition would be contradictory to the Charter. 193. The alleged licence of one State to use force against another in abetting a ‘war of national liberation’ is predicated not on legal norms but on claims of justice (as perceived by the claimants). Because a people striving for independence from alien domination is the soi-disant beneficiary of a just cause, a State endorsing that cause is purportedly authorized by international law to go to war against another State. The long and short of it is that, in the name of justice, the existing legal proscription of the use of inter-State force (see infra 233) is corroded by political motivations.395

392 393 394 395

General Assembly Resolution 3314 (XXIX), 29(1) RGA 142, 144 (1974). See B. B. Ferencz, ‘The United Nations Consensus Definition of Aggression: Sieve or Substance’, 10 JILE 701, 714 (1975). General Assembly Resolution 3314 (XXIX), supra note 392, at 144. See D. E. Graham, ‘The 1974 Diplomatic Conference on the Law of War: AVictory for Political Causes and a Return to the “Just War” Concept of the Eleventh Century’, 32 Wash.LLR 25, 44 (1975).


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194. The principal shortcoming of any forcible intervention aimed at bolstering a ‘war of national liberation’ is that, in similarity to the bellum justum doctrine as practiced in its heyday, the just cause of the war happens to coincide with the political and ideological slant of the Party resorting to force.396 In the words of Judge Schwebel, ‘the lack of beauty is in the eyes of the beholder’.397 Over the years – with the process of decolonization of European possessions overseas virtually wound up, and following the collapse of the Soviet Union – the pressure to support ‘wars of national liberation’ has ‘largely died out’.398 But it is the irony of fate that the most sanguinary ‘war of national liberation’ waged at the outset of the twenty-first century has been the internal armed conflict in Chechnya, in which the heirs of the USSR have been engaged in quelling an attempt to secede from the Russian Federation by a people invoking the right to self-determination (resorting to large-scale terrorism in pursuit of that goal).399

C.

‘Humanitarian intervention’

195. Towards the end of the twentieth century, the recrudescence of the just war doctrine took a new turn. The rhetoric of justice shifted from those oppressed by European colonialists to those persecuted by their own Government anywhere. Strong doctrinal support developed in favour of legalizing forcible measures of ‘humanitarian intervention’, employed by Atlantica for the sake of coercing Patagonia to cease and desist from massive violations of international human rights.400 Nothing in the Charter of the United Nations substantiates a unilateral right of one State to use force against another under the guise of securing the implementation of human rights.401 Yet, the advocates of ‘humanitarian intervention’ emphasize the significance of several allusions in the Charter to the need to promote and encourage respect for human rights and fundamental freedoms, as well as stress the import of the 1948 Genocide Convention.402 In addition, they rely on State practice of intervention on behalf of downtrodden minorities and individuals in the nineteenth (and early twentieth) century.403 396 397 398 399 400 401 402 403

See W. D. Verwey, ‘Humanitarian Intervention’, The Current Legal Regulation of the Use of Force, supra note 92, at 57, 69–70. Nicaragua case (Merits), supra note 14, at 351. See D. Wippman, ‘The Nine Lives of Article 2(4)’, 16 Minn.JIL 387, 397 (2007). On the ethnic animosities underlying the turbulence in the North Caucasus, see R. Menon and G. E. Fuller, ‘Russia’s Ruinous Chechen War’, 79 For.Aff. 32, 33–5 (2000). See M. S. McDougal and W. M. Reisman, ‘Response’, 3 Int.Law. 438–45 (1968–9). See T. M. Franck and N. S. Rodley, ‘After Bangladesh: The Law of Humanitarian Intervention by Military Force’, 67 AJIL 275, 299–302 (1973). See McDougal and Reisman, supra note 400, at 442–4. See M. Reisman and M. S. McDougal, ‘Humanitarian Intervention to Protect the Ibos’, Humanitarian Intervention and the United Nations 167, 179–83 (R. B. Lillich ed., 1973).

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196. Commentators have drawn comparisons between ‘humanitarian intervention’ and medieval just war criteria, and have accordingly dubbed the intervenors ‘knights of humanity’.404 As a rule, interventionists believe that they are pursuing a higher goal: ‘the ideal of justice backed by power’.405 The pitfall is that there can be countervailing subjective opinions as to whether a course of action is just, and there is too much room for abuse of the law in the name of justice. Indeed, the human rights record of the intervening country itself (flying the banner of humanitarianism) can be blemished: the intervenor may avail itself of a mere ‘opportunity to redeem its own failings in the eyes of the international community’.406 197. The present writer believes that the arguments in support of unilateral ‘humanitarian intervention’ do not stand up to close scrutiny. The examples evoked from State practice of the nineteenth (and early twentieth) century have no resonance in the present era, bearing in mind that during the period in question international law did not hinder the use of force for whatever reason, good or bad407 (see infra 207–8). By virtue of the Charter of the United Nations, only the Security Council is empowered to take forcible action against a State which is in breach of its international undertakings to respect human rights (see infra 251). In the 1986 Nicaragua case, the International Court of Justice rejected the notion that the United States could employ force against Nicaragua in order to ensure respect for human rights in that country.408 It is almost impossible to avoid the conclusion that this ruling ‘unmistakably places the Court in the camp of those who claim that the doctrine of humanitarian intervention is without validity’.409 Yet, despite the conspicuously broad range of the Court’s pronouncement, attempts have been made to ‘read [it] narrowly’.410 The Nicaragua Judgment has certainly not curbed the enthusiasm of commentators seeking to disencumber the preservation of human rights from the heavy weight of the Charter’s prohibition of the use of inter-State force.411 198. As for the Genocide Convention, it promulgates in Article I: 404 405 406 407 408 409 410 411

O. Ramsbotham and T. Woodhouse, Humanitarian Intervention in Contemporary Conflict: A Reconceptualization 228–9 (1996). M. J. Glennon, ‘The New Interventionism: The Search for a Just International Law’, 78 For.Aff. 2, 7 (1999). K. Nowrot and E. W. Schabacker, ‘The Use of Force to Restore Democracy: International Legal Implications of the ECOWAS Intervention in Sierra Leone’, 14 AUILR 321, 411 (1998–9). See R. R. Baxter, ‘Comments’, Humanitarian Intervention and the United Nations, supra note 403, at 14–15. Nicaragua case (Merits), supra note 14, at 134–5. N. S. Rodley, ‘Human Rights and Humanitarian Intervention: The Case Law of the World Court’, 38 ICLQ 321, 332 (1989). See F. R. Tesón, Humanitarian Intervention: An Inquiry into Law and Morality 333 (3rd edn, 2005). See, e.g., A. D’Amato, ‘The Invasion of Panama Was a Lawful Response to Tyranny’, 84 AJIL 516, 520 (1990).


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The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.412

Already in 1951, in its Advisory Opinion on Reservations to the Genocide Convention, the International Court of Justice confirmed that ‘the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation’.413 199. The question that arises is: what remedies are available to a State desirous of precluding or terminating the perpetration of genocide on foreign soil? Article VIII of the Convention sets forth: Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide . . .414

Article IX establishes the compulsory jurisdiction of the International Court of Justice in case of a dispute relating to the application or interpretation of the Convention (including the issue of State responsibility for genocide).415 It follows that no State acting alone (or even jointly with like-minded allies) has a legal option of resorting to force against another State, with a view to averting genocide or bringing it to an end. ‘Knights of humanity’ (see supra 196) are out of date and out of place in the contemporary world. Those wishing to take effective action against genociders must turn to the competent (political or judicial) organs of the United Nations. The competent organs – the Security Council and the International Court of Justice – have the authority to redress the situation (by ordaining the measures necessary in their discretion), but no ‘general licence’ for the use of force is provided to ‘vigilantes and opportunists’.416 III.

The extra-legality of war

200. War occurs in human history so repetitively that there is a tendency to take it for granted. For many centuries, war was accepted with resignation as a perennial fact of life. The popular outlook was that war is tantamount to a ‘providential visitation to be compared with plague or flood or fire’.417 In similarity to these and other natural disasters (such as earthquakes and volcanic 412 413 414 416 417

Convention on the Prevention and Punishment of the Crime of Genocide, 1948, 78 UNTS 277, 280. Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, [1951] ICJ Rep. 15, 23. Genocide Convention, supra note 412, at 282. 415 Ibid. I. Brownlie, ‘Thoughts on Kind-Hearted Gunmen’, Humanitarian Intervention and the United Nations, supra note 403, at 139, 147–8. C. Eagleton, International Government 455 (3rd edn, 1957).

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eruptions), war was expected to inflict itself upon mankind in cyclical frequency. Like the plague, war would appear every once in a while, leave death and devastation in its wake, and temporarily pass away to return at a later date.418 201. The analogy between war and catastrophes caused by nature influenced lawyers, who have occasionally suggested that war falls into the same ‘category of events, considered incapable of legal control but entailing legal consequences’.419 Just as no legal system can forbid thunderbolts or droughts, it has been assumed that international law cannot possibly interdict war. War has been deemed beyond the reach of international law and, therefore, ‘neither legal nor illegal’.420 As A. Nussbaum put it, ‘[t]he “outbreak” of war is a meta-juristic phenomenon, an event outside the range and control of the law’.421 The ItalianAmerican Conciliation Commission, in its decision of 1953 in the Armstrong Cork case, also adverted to the state of war as an ‘extra-juridical regime’.422 202. This line of approach proved particularly attractive in the nineteenth (and early twentieth) century, although most international lawyers were not prepared to follow the proposition to its logical conclusion. J. Westlake held that ‘[i]nternational law did not institute war, which it found already existing, but regulates it with a view to its greater humanity’.423 In somewhat different terms, W. E. Hall commented that ‘[i]nternational law has . . . no alternative but to accept war, independently of the justice of its origin, as a relation which the parties to it may set up if they choose, and to busy itself only in regulating the effects of the relation’.424 The latest (seventh) edition (dated 1952) of the second volume of Oppenheim’s International Law, edited by H. Lauterpacht, still includes the statement that ‘[w]ar is a fact recognised, and with regard to many points regulated, but not established, by International Law’.425 203. The jargon typical of those who represented war as an extra-legal phenomenon is that international law only ‘finds’ or ‘accepts’ war as a fait accompli. It is universally acknowledged that, once war begins, international law can and does regulate the relations between the Belligerent Parties (as well as between them and neutrals). However, the exponents of the extra-legality of war believed that, while there is plenty of room for a jus in bello (governing the conduct of hostilities),426 there can be no real jus ad bellum (imposing

418 419 420 421 422 423 424 425

See W. R. Harris, Tyranny on Trial 514 (rev. edn, 1999). Q. Wright, ‘Changes in the Conception of War’, 18 AJIL 755, 756 (1924). The author modified his position at a later date. See Q. Wright, II A Study of War 891–3 (1942). J. L. Brierly, The Outlook for International Law 22 (1944). A. Nussbaum, ‘Just War – A Legal Concept’, 42 Mich.LR 453, 477 (1943–4). Armstrong Cork Company case (1953), 14 RIAA 159, 163. J . Westlake, II International Law 3 (2nd edn, 1913). W. E. Hall, A Treatise on International Law 82 (A. P. Higgins ed., 8th edn, 1924). Oppenheim, supra note 8, at 202. 426 See Dinstein, supra note 16, passim.


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normative limitations on the unleashing of hostilities). ‘Law cannot say when, but only how war is to be waged’.427 204. The proposition that war is a meta-juridical occurrence may be tempting, but it is devoid of foundation. The assimilation of war to events taking place in nature is artificial and delusive.428 Unlike earthquakes and epidemics, war is caused by human beings. Every form of human behaviour is susceptible of regulation by law. No category of human behaviour is excluded a priori from the range of application of legal norms (actual or potential). At bottom, the undisputed ability of international law to control the conduct of combatants in the course of war (the jus in bello) proves that it can equally restrict the freedom of action of the Parties in the generation of war (thus creating a jus ad bellum). When an epidemic is raging, law is utterly unable to dictate to the virus not only when (and if) to mount an assault upon the human body, but also how to go about it. From a jurisprudential standpoint, there is no real difference between governing the ‘when’ and the ‘how’ of war. 205. Certainly, international law does not ‘establish’ war (see supra 202). For that matter, domestic law does not ‘establish’ murder or robbery. War, as a form of human conduct, resembles murder or robbery more than flood or drought. In the same way that murder and robbery are prohibited by domestic law, war can be forbidden by international law. For a long time, international law admittedly did refrain from obtruding upon the liberty of States to go to war. Yet, this forbearance did not mean that international law had a built-in impediment depriving it of the power to ban war. In reality, by not prohibiting recourse to war, international law indicated that war was tolerated and, therefore, permitted. War can be legal or illegal, but it is misleading to suggest that it is extra-legal.429 206. Upon analysis, the theory of the extra-legality of war is of far greater moment than the concept of its legality (see infra 207 et seq.). Moving from the legality to the extra-legality of war is a transition from bad to worse.430 If war is lawful in a given era, it can still be disallowed afterwards. But if war is extra-legal, it can never be made unlawful. Consequently, the prohibition of the use of inter-State force in the twentieth century (see infra 233) implies (i) a denial of the doctrine of its extra-legality; as well as (ii) a confirmation of the hypothesis that, prior to the interdiction, war used to be legal.

427 428 429 430

C. A. Pompe, Aggressive War an International Crime 140 (1953). Emphasis in the original. This is a summation of the legal position taken by D. Anzilotti and others. See R. W. Tucker, ‘The Interpretation of War under Present International Law’, 4 ILQ 11, 13 (1951). See ibid. See J. N. Moore, ‘Strengthening World Order: Reversing the Slide to Anarchy’, 4 AUJILP 1, 5 (1989).

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IV.

The legality of war

207. Subsequent to the virtual demise of the just war doctrine in the nineteenth century (see supra 183), the predominant conviction was that every State had a right – namely, an interest protected by international law – to embark upon war whenever it pleased. The discretion of States in this matter was portrayed as unfettered. States could ‘resort to war for a good reason, a bad reason or no reason at all’.431 Among the valid reasons for war would figure the desire to use it as a sanction against non-compliance with international law (as perceived by Kelsen, supra 184–5). Equally, war could be employed as a means to challenge and upset the international legal status quo.432 At one and the same time, war ‘had a static as well as a dynamic function’: to enforce existing rights and to defy them.433 208. War came to be characterized as ‘a right inherent in sovereignty itself’.434 Moreover, the war-making right was thought of as the paramount attribute of sovereignty.435 When the statehood of a specific political entity was in doubt, the best litmus test comprised of checking whether the prerogative of launching war at will was vested in it.436 The international legal freedom to wage war for whatever reason even impacted upon the constitutions and basic laws of quite a few countries. Some of these instruments, when spelling out to which branch of Government the war-making power was entrusted, overtly applied different procedures to the initiation of offensive and defensive wars.437 209. When observed through the lens of legal theory, the freedom to indulge in war without thereby violating international law seemed to create an egregious anomaly. It did not make much sense for the international legal system to be embedded in respect for the sovereignty of States, while each State had a sovereign right to destroy the sovereignty of others.438 On the one hand, it was incumbent on every State to defer to a plethora of rights accorded to other States under both customary and treaty law. On the other hand, each State was at

431

432 433 435 436

437 438

H. W. Briggs, The Law of Nations 976 (2nd edn, 1952). It has been suggested that ‘even before the League of Nations any war in Europe had to have a justifying cause or reason’. S. Verosta, ‘The Unlawfulness of Wars of Aggression before 1914’, I Essays in Honour of Judge Taslim Olawale Elias 117, 124 (E. G. Bello and B. A. Ajibola eds., 1992). But the evidence produced (the Greek-Turkish War of 1897) is not persuasive. See J. L. Kunz, ‘The Law of Nations, Static and Dynamic’, 27 AJIL 630, 634 (1933). Ibid. 434 A. S. Hershey, The Essentials of International Public Law 349 (1912). See M. Virally, ‘Panorama du Droit International Contemporain’, 183 RCADI 9, 99 (1983). For that reason, some writers maintained that States like Switzerland – subjected to a regime of permanent neutrality (supra 55) – could not ‘be said to possess complete external sovereignty’, since they were deprived of ‘the right to engage in any except strictly defensive warfare’. H. Taylor, A Treatise on International Public Law 174 (1901). See E. D. Dickinson, The Equality of States in International Law 202–4 (1920). See C. De Visscher, Theory and Reality in Public International Law 286 (P. E. Corbett trans., 1957).


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liberty to attack any other State whenever it pleased. J. L. Brierly termed this state of affairs ‘a logical impossibility’.439 210. The apparent incongruity may be examined from a somewhat different point of departure. In the final analysis, every legal system has to protect the vital interests of its subjects. States are the primary subjects of international law. Hence, it is arguable that ‘[a] system of international law must premise the right of states to exist’.440 When international law recognized the privilege of States to engage in war at their discretion, the net result was that the right of the target State to exist could be repudiated at any moment.441 What emerged was a deep-rooted inconsistency in the international legal order, which ‘both asserts and denies the right of states to exist’.442 Some scholars even reasoned that the inconsistency was calamitous to international law. To their minds, by not restraining war and thus failing to protect the fundamental interests of its principal subjects (the States), international law was not genuine law.443 211. This was by no means the prevalent opinion. Many writers totally disavowed the notion that the freedom of war was not in harmony with the existence of a true international legal system.444 Others simply sidestepped the issue. In any event, irrespective of any scholarly bafflement, States and statesmen in the nineteenth (and early twentieth) century did not consider the freedom of war to be a fatal flaw in the structure of international law. Nor did they find it inconceivable that, by invoking its own sovereignty, each State was empowered to challenge the sovereignty of other States. The practice of States in that period was ‘dominated by an unrestricted right of war’,445 and conceptual criticisms were largely ignored.

V.

Exceptions to the general liberty to go to war

A.

Special arrangements

212. Precisely because the liberty to go to war was regarded by States as the general rule, there is no dearth of bilateral treaties in the nineteenth (and early twentieth) century, in which the Contracting Parties assumed an obligation not to resort to war in their reciprocal relations. Concomitantly, the Parties consented to seek an amicable settlement (e.g., mediation or arbitration) whenever a dispute might arise between them. However, such a treaty was applicable only inter partes, without diminishing from the freedom of action of signatories 439 440 442 444 445

Brierly, supra note 420, at 21. Q. Wright, ‘The Present Status of Neutrality’, 34 AJIL 391, 399 (1940). Ibid., 400. 443 See Kelsen, supra note 378, at 340. See, e.g., L. Oppenheim, II International Law 55 (lst edn, 1906). Brownlie, supra note 61, at 19.

441

Ibid., 399–400.

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vis-à-vis third States. In addition, the treaty usually had a fixed time limit (which could frequently be extended), subject to the right of each Contracting Party to terminate the treaty on notice. Once the treaty was no longer in force, the States concerned regained the option to commence hostilities against one another. 213. As an illustration, we may take a treaty concluded between Honduras and Nicaragua in 1878, in which these two countries agreed that ‘there shall in no case be war’ between them and, in the event of a dispute, undertook to turn to arbitration by a friendly nation.446 Each Party was entitled to give notice after four years, so as to terminate the treaty.447 214. The trend of concluding bilateral treaties of this kind continued well into the post-World War I era. But in the 1920s and 1930s, States preferred to couch their obligations in terms of ‘non-aggression pacts’ (thereby clearly retaining the right to wage wars of self-defence). A good example is a 1926 treaty between Persia (present-day Iran) and Turkey, wherein the Parties committed themselves ‘not to engage in any aggression against the other’ and ‘not to participate in any hostile action whatsoever directed by one or more third Powers against the other Party’.448 215. Occasionally, a non-aggression pact had more than two Contracting Parties. The most important non-aggression instrument of the period was the 1925 Locarno Treaty of Mutual Guarantee, in which Germany and France, and also Germany and Belgium, were mutually bound not to ‘resort to war against each other’449 (see infra 773). 216. A different approach was reflected in a series of bilateral agreements, known as the Bryan treaties (named after the American Secretary of State who originated them), which were concluded between the United States and dozens of other countries on the eve of World War I.450 In these treaties, the Contracting Parties agreed to submit all disputes to investigation by an International Commission, and the Commission was instructed to complete its report within one year.451 Pending the investigation and the ensuing report, the Parties pledged ‘not to declare war or begin hostilities’.452 217. The Bryan treaties did not negate the right of any State to start war eventually. What the treaties sought to accomplish was the introduction of a ‘cooling-off period’ of one year to enable passions to subside.453 The underlying 446 447 448 449 450 451 452 453

Honduras–Nicaragua, Tegucigalpa Treaty of Friendship, Commerce and Extradition, 1878, 152 CTS 415, 416 (Article II). Ibid., 423 (Article XXXV). Persia–Turkey, Teheran Treaty of Friendship and Security, 1926, 106 LNTS 261–3. Locarno Treaty of Mutual Guarantee, 1925, 54 LNTS 289, 293 (Article 2). See Anonymous, ‘The Bryan Peace Treaties’, 7 AJIL 823, 824–5 (1913). See, e.g., Guatemala–United States, Washington Treaty for the Establishment of a Permanent Commission of Enquiry, 1913, 218 CTS 373, 373–4. Ibid., 373 (Article I). See A. Zimmern, The League of Nations and the Rule of Law 1918–1935 129 (1939).


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supposition was that delay as such (or the gaining of time) would be advantageous, since the Parties were expected to become progressively more amenable to reason.454 As a matter of fact, reliance on lapse of time as a factor allaying suspicions and fears is not empirically corroborated in all instances. Some international disputes are easier to tackle, and to settle, at an earlier stage. Passage of time, far from cooling off hot tempers, may only exacerbate incipient tensions.

B.

The Hague Conventions

218. The first steps, designed to curtail somewhat the freedom of war in general international law (through multilateral treaties), were taken in the two Hague Peace Conferences of 1899 and 1907. Under Article 2 of Hague Convention (I) of both 1899 and 1907 for the Pacific Settlement of International Disputes, Contracting Parties agreed that in case of a serious dispute, before making ‘an appeal to arms’, they would resort (‘as far as circumstances allow’) to good offices or mediation of friendly States.455 The liberty to go to war was circumscribed here in an exceedingly cautious way, leaving to the discretion of the Parties the determination whether to employ force or to search for amicable means of settling the dispute. 219. Article 1 of Hague Convention (II) of 1907 Respecting the Limitation of the Employment of Force for the Recovery of Contract Debts – often called the Porter Convention (after the American delegate who had advocated it) – obligated Contracting Parties ‘not to have recourse to armed force’ for the recovery of contract debts (claimed from one Government by another as being due to its nationals), unless the debtor State refused an offer of arbitration, prevented agreement on a compromis or rejected an arbitral award.456 Hague Convention (II) echoed the Drago Doctrine (propounded by an Argentinian Foreign Minister), which had denied the justification of war as a mode of compelling payment of a public debt.457 The scope of the limitation on the freedom of war, as formulated in the Convention, was quite narrow. First, war was still permissible if the debtor State refused to go through the process of arbitration or abide by its results. Second, the Convention did not apply to direct interGovernmental loans and was confined to contractual debts to foreign nationals (whose claims were espoused by their respective Governments).458 Still, it is 454 455 456 457 458

See J. F. Williams, Some Aspects of the Covenant of the League of Nations 136–8 (1934). Hague Convention (I) of 1899 and 1907 for the Pacific Settlement of International Disputes, Hague Conventions 41, 43. Hague Convention (II) of 1907 Respecting the Limitation of the Employment of Force for the Recovery of Contract Debts, Hague Conventions 89, id. See A. S. Hershey, ‘The Calvo and Drago Doctrines’, 1 AJIL 26, 28–30 (1907). See G. W. Scott, ‘Hague Convention Restricting the Use of Force to Recover on Contract Claims’, 2 AJIL 78, 90 (1908).

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arguable that, from this modest beginning, ‘a shift in the notion of the jus ad bellum’ started to take place.459 C.

The Covenant of the League of Nations

220. The first multilateral attempt to move in the direction of qualifying the right to go to war in a more comprehensive fashion was taken – albeit cautiously and subject to several caveats – in the 1919 Covenant of the League of Nations. In Article 10, Members of the League pledged ‘to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League’.460 This was an abstract provision, which lent itself to more than one interpretation. Hence, Article 10 had to be read in conjunction with, and subject to, the more specific stipulations following it.461 221. Article 11 of the Covenant enunciated that any war or threat of war was a matter of concern to the entire League.462 Pursuant to Article 12, if any dispute likely to lead to rupture arose between Members of the League, they were required to submit it to arbitration, judicial settlement or inquiry by the League’s Council.463 Members were bound ‘in no case to resort to war until three months after the award by the arbitrators or the judicial decision, or the report of the Council’. The award of the arbitrators or the judicial decision had to be rendered ‘within reasonable time’. The Council’s report had to be arrived at no later than six months after the submission of the dispute. 222. Article 13 specified which subject-matters were ‘generally suitable’ for submission to either arbitration or judicial settlement.464 Members were obligated to carry out in good faith any arbitral award or judicial decision. They agreed that they ‘will not resort to war’ against another Member complying with the award or decision. 223. In accordance with Article 15, disputes between Members of the League, when not submitted to arbitration or judicial settlement, had to be brought before the Council.465 The Council’s role was restricted to issuing recommendations, as distinct from binding decisions. However, under Paragraph 6 of the Article, if the Council’s report was carried unanimously (excluding the Parties to the dispute), Members consented ‘not to go to war with any party to the dispute which complies with the recommendations of the report’. If the Council failed to reach a unanimous report (apart from the Parties to the dispute), Paragraph 7 459 460 461 462 463 464 465

C. R. Rossi, ‘Jus ad Bellum in the Shadow of the 20th Century’, 15 NYLSJICL 49, 60 (1994–5). Covenant of the League of Nations, supra note 173, at 7. See A. V. Levontin, The Myth of International Security 23 (1957). Covenant of the League of Nations, supra note 173, at 7. Ibid., 7–8 (original version), 25 (amended text). Ibid., 8 (original version), 26–7 (amended text). Ibid., 9–10 (original version), 28–9 (amended text).


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reserved the right of Members to take any action that they considered necessary for the maintenance of right and justice. Paragraph 8 precluded the Council from making any recommendation if it thought that the dispute had arisen out of a matter, ‘which by international law is solely within the domestic jurisdiction of that party’. Article 15 also enabled referral of the dispute from the Council to the Assembly of the League, in which case it was the Assembly that was empowered to make recommendations. An Assembly report, if adopted by the votes of all the Members of the Council and a majority of the other Members (again not counting the Parties to the dispute), had the same force as a unanimous report of the Council. 224. In all, the Covenant did not abolish the right of States to resort to war. Subject to specific prohibitions, detailed in the Articles cited, war remained lawful.466 If looked at from a complementary angle of vision, one could easily discern a number of ‘gaps’ in the legal fence installed by the Covenant around the right of States to resort to war. The ‘gaps’ opened the legal road to war in the following circumstances:467 (i) The most blatant case in which the liberty to plunge into war was kept intact resulted from Article 15(7). In the absence of unanimity in the Council or a proper majority in the Assembly, excluding the votes of Parties to the dispute, the Parties retained their freedom of action. (ii) In light of Article 15(8), the Council (or the Assembly) was incompetent to reach a recommendation if in its judgement the matter came within the domestic jurisdiction of a Party to the dispute. Since no recommendation would be adopted, the Parties preserved their freedom of action. Thus, paradoxically, an international war could be triggered by a dispute that was ostensibly non-international in character. (iii) It was implied in Article 12 that, if the Council (or the Assembly) did not arrive at a recommendation within six months – or, alternatively, if either an arbitral award or a judicial decision was not delivered within reasonable time – the Parties would be free to take any action that they deemed fit. (iv) Articles 13 and 15 forbade going to war against a State complying with an arbitral award, a judicial decision, a unanimous recommendation of the Council, or an Assembly recommendation based on the required majority. In conformity with Article 12, no war could be undertaken within three months of the award, decision or recommendation. The upshot was that, after three months, war could be started against a State failing to comply with the award, decision or recommendation. (v) Naturally, all the limitations on the freedom of war applied to the relations between League Members inter se. The Covenant did not, and could not, 466 467

See A. Möller, II International Law in Peace and War 88 (H. M. Pratt trans., 1935). See J. B. Whitton, ‘La Neutralité et la Société des Nations’, 17 RCADI 453, 479–90 (1927).

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curtail that freedom in the relations between non-Members and Members (and a fortiori between non-Members among themselves). Article 17 provided that, in the event of a dispute between a Member and a nonMember or between non-Members, the non-Member(s) should be invited to accept the obligations of membership for the purposes of the dispute, and then the stipulations of Articles 12 et seq. would apply.468 It goes without saying that non-Members had an option to accede to such an invitation or to decline it. 225. Shortly after the entry into force of the Covenant, initiatives were taken to close these ‘gaps’. The most famous attempt was made in the Geneva Protocol on the Pacific Settlement of International Disputes, which was adopted by the Assembly of the League in 1924 but never entered into force.469 The keystone of the Protocol was Article 2, whereby the Contracting Parties agreed ‘in no case to resort to war’, except in resistance to aggression or with the consent of the League’s Council or Assembly.470 Article 2 was intended to abolish the general right to go to war.471 Yet, since the Protocol remained abortive, war did not become illegal in principle until the Kellogg-Briand Pact of 1928 (see infra 226–7).

468 469 470

Covenant of the League of Nations, supra note 173, at 12. Geneva Protocol on the Pacific Settlement of International Disputes, 1924, 2 Int.Leg. 1378, 1379. Ibid., 1381. 471 See P. J. Noel Baker, The Geneva Protocol 29–30 (1925).

4

The contemporary prohibition of the use of inter-State force

I.

The Kellogg-Briand Pact

226. 1928 was a watershed date in the history of the legal regulation of the use of inter-State force. That was when the General Treaty for Renunciation of War as an Instrument of National Policy, known as the Kellogg-Briand Pact (after the American Secretary of State and the French Foreign Minister), was signed in Paris.472 Before the outbreak of World War II, the Pact had 63 Contracting Parties,473 a record number for that period. 227. The Kellogg-Briand Pact comprised only three Articles, including one of a technical nature. In Article l, the Contracting Parties solemnly declared that ‘they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another’.474 In Article 2, they agreed that the settlement of all disputes with each other ‘shall never be sought except by pacific means’.475 228. With the Kellogg-Briand Pact, international law progressed from jus ad bellum to jus contra bellum.476 Yet, the jus contra bellum engendered by the Kellogg-Briand Pact was flawed in four ways: (i) the issue of self-defence was not addressed in the text; (ii) no agreed-upon limits were set on the legality of war as an instrument of international policy; (iii) the abnegation of war did not embrace the entire international community; and (iv) forcible measures ‘short of war’ were eliminated from consideration. 229. War of self-defence. No provision pertaining to this vitally important subject was incorporated in the text of the Pact. Nevertheless, formal notes reserving the right of self-defence were exchanged between the principal

472 473 474 476

General Treaty for Renunciation of War as an Instrument of National Policy (Kellogg-Briand Pact of Paris), 1928, 94 LNTS 57. A list of the 63 States that ratified or adhered to the Pact by the end of 1938 appears in 33 AJIL, Sp. Supp., 865 (1939). Kellogg-Briand Pact, supra note 472, at 63. 475 Ibid. See M. Howard, ‘Temperamenta Belli: Can War Be Controlled?’, Restraints on War 1, 11 (M. Howard ed., 1979).

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signatories prior to the conclusion of the Pact,477 and there never was any doubt that the renunciation of war had to be construed accordingly. In any event, under the Preamble of the Pact, any Contracting Party ‘which shall hereafter seek to promote its national interests by resort to war should be denied the benefits furnished by this Treaty’.478 In other words, if Arcadia went to war against Utopia in violation of the Pact, Arcadia could no longer benefit from the renunciation of war. Consequently, Utopia would be allowed to mount a war of self-defence against Arcadia. It appears from the way the Preamble was phrased that permission to embark upon hostilities, in response to a violation of the Pact by Arcadia, would be granted not only to Utopia (the State under attack) but also to Ruritania (any other country). This is akin to the current concept of collective self-defence in response to an armed attack (see infra 740). However, since the topic of self-defence was not expressly regulated in the Pact, its parameters were not set out. In addition, no competent body was established to determine whether a State employing force was acting in self-defence or in breach of the Pact. 230. War as an instrument of international policy. Inasmuch as Article 1 of the Pact forbade war only as an instrument of national policy, war remained lawful as an instrument of international policy. That made recourse to war admissible, primarily, under the aegis of the League of Nations (see infra 807). But the ‘national policy’ formula gave rise to the interpretation that other wars – in pursuit of religious, ideological and similar (not strictly national) goals – were also permitted.479 J. H. W. Verzijl fostered the thesis that a Contracting Party was entitled to resort to armed action if there was no other way to carry out an arbitral award or judicial decision, for that did not fall under the heading of war as an instrument of national policy.480 Kelsen, in keeping with the perception of war as a sanction (see supra 184–5), argued that ‘a war which is a reaction against a violation of international law, and that means a war waged for the maintenance of international law, is considered an instrument of international and hence not of national policy’.481 Yet, to the extent that war was undertaken in response to an ordinary violation of international law, the analysis could not be harmonized with the requirement in Article 2 of the Pact that the settlement of all disputes ‘shall never be sought except by pacific means’.482

477 478 479 480 482

Identic Notes of the United States to other Governments in relation to the Pact are reproduced in 22 AJIL, Supp., 109–13 (1928). Replies appear in 23 ibid., Supp., 1–13 (1929). Kellogg-Briand Pact, supra note 472, at 59–61. See H. Wehberg, The Outlawry of War 76 (1931). Verzijl, supra note 72, at VIII, 109–10, 600 (1976). 481 Kelsen, supra note 377, at 43. On the import of Article 2 in the interpretation of the Pact, see J. L. Brierly, ‘Some Implications of the Pact of Paris’, 10 BYBIL 208, id. (1929).

Prohibition of use of inter-State force

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231. War outside the span of the reciprocal relations of the Contracting Parties. The renunciation of war in Article 1 was circumscribed to the relations between Contracting Parties inter se. Therefore, the freedom of war was preserved as between Contracting and non-Contracting Parties (and, obviously, among non-Contracting Parties). 232. Use of inter-State force ‘short of war’. The limitation of the Pact to the renunciation of ‘war’ elicited much criticism in the international legal literature. The term ‘war’ is not defined in the Pact and this raises certain problems (see supra 37). But, regardless of definitional issues, the use of the term ‘war’ in the Pact carried the disturbing implication that recourse to inter-State force ‘short of war’ was left to the discretion of Contracting Parties.483 As indicated (supra 24–5), clashes ‘short of war’ are rather frequent and it is not always easy to tell them apart from full-scale wars. II.

The Charter of the United Nations

A.

The prohibition of the use or threat of inter-State force

(a) Use of force 233. When the Charter of the United Nations was drafted in San Francisco, in 1945, one of its principal aims was redressing the shortcomings of the KelloggBriand Pact. The pivot on which the present-day jus ad bellum hinges is Article 2(4) of the Charter, which proclaims: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.484

Although an innovation at the time it was crafted, Article 2(4) – as affirmed by the International Court of Justice in the Nicaragua case – reflects customary international law (for full details, see infra 255 et seq.). 234. The relatively terse text of Article 2(4) has a number of crucial aspects. First and foremost, Article 2(4) is confined to the use (or threat) of force by United Nations Members ‘in their international relations’. In other words, ‘[t]he use of force solely within a State is not covered’.485 As long as an armed conflict is strictly non-international in character (see supra 8), it simply does not come within the reach of Article 2(4).

483 484 485

See C. H. M. Waldock, ‘The Regulation of the Use of Force by Individual States in International Law’, 81 RCADI 455, 471–4 (1952). Charter of the United Nations, supra note 248, at 332. A. Randelzhofer, ‘Article 2(4)’, I The Charter of the United Nations: A Commentary 112, 121 (B. Simma ed., 2nd edn, 2002).

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235. The second, by no means secondary, point is that Article 2(4) avoids the term ‘war’. Although mainly ‘intended to outlaw war in its classic sense’, a wider term – namely, ‘force’ – is deliberately resorted to.486 By prohibiting the use (or threat) of force in international relations, Article 2(4) transcends war and covers equally other uses of inter-State force (which may be regarded as ‘short of war’). 236. Third, the expression ‘force’ in Article 2(4) is not preceded by the adjective ‘armed’, whereas the full phrase ‘armed force’ appears elsewhere in the Charter: in the Preamble,487 in Article 41 (quoted infra 816) and in Article 46.488 As a result, over the years, there have been many ‘acrimonious’ debates (for example, in the context of the codification of the law of treaties) about the scope of the ‘force’ to which Article 2(4) adverts, and, in particular, whether it extends to economic pressure.489 Still, when studied in context, the term ‘force’ in Article 2(4) must denote violence.490 It does not matter what specific means – kinetic or electronic491 – are used to bring it about, but the end result must be that violence occurs or is threatened. Therefore, psychological or economic pressure (e.g., in the form of economic boycott) as such does not come within the purview of the Article, unless coupled with the use or at least the threat of force.492 (b) Threats of force 237. Article 2(4) goes beyond the actual use of force, whether or not reaching the level of war, and forbids mere threats of force. Notwithstanding a dissident view expressed in the legal literature,493 it is clear that not every threat of force by one State against another is interdicted. For a threat of force to be unlawful, it has to relate to a projected use of force that is unlawful (i.e. in breach of the Charter).494 Differently phrased, it is perfectly lawful for Atlantica to issue a warning (in a sense, a reminder) to Apollonia that, by following a certain course of action, it is running the risk of inviting the use of force in accordance with the Charter, namely, in self-defence or as an enforcement measure of a binding resolution of the Security Council (see infra 244).

486 487 489 490 491 492 493 494

O. Schachter, ‘International Law in Theory and Practice’, 178 RCADI 9, 138 (1982). Charter of the United Nations, supra note 248, at 330. 488 Ibid., 345. R. D. Kearney and R. E. Dalton, ‘The Treaty on Treaties’, 64 AJIL 495, 534–5 (1970). See B. Reschke, ‘Use of Force, Prohibition of’, A Concise Encyclopedia of the United Nations 842, 843 (H. Volger ed., 2nd edn, 2010). See Y. Dinstein, ‘Computer Network Attacks and Self-Defense’, 76 ILS. 99, 103 (M. N. Schmitt and B. O’Donnell eds., 2001). See H. Wehberg, ‘L’Interdiction du Recours à la Force. Le Principe et les Problèmes qui se Posent’, 78 RCADI 1, 69 (1951). See N. Stürchler, The Threat of Force in International Law 273–4 (2007). See M. Roscini, ‘Threats of Armed Force and Contemporary International Law’, 54 NILR 229, 236–7 (2007).


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238. This construction of Article 2(4) is confirmed by the 1996 Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons: The notions of ‘threat’ and ‘use’ of force under Article 2, paragraph 4, of the Charter stand together in the sense that if the use of force itself in a given case is illegal – for whatever reason – the threat to use such force will likewise be illegal. In short, if it is to be lawful, the declared readiness of a State to use force must be a use of force that is in conformity with the Charter. 495

The Court’s statement of the law was quoted with approval by the Arbitral Tribunal in the 2007 Award in the Guyana and Suriname case,496 and irrefutably it reflects the generally accepted interpretation of Article 2(4). 239. A threat of force must not be confused with an ultimatum (see supra 81). Usually, a threat of force is viewed as ‘a form of coercion’.497 But Article 2(4) does not require that an illegal threat of force be accompanied with any concrete demands. A threat of force, not in compliance with the Charter, is unlawful as such.498 All the same, it is uncertain how oblique or implicit an unlawful threat of force can be, and whether a demonstration of force per se (without any verbalization of a threat) may suffice.499 B.

The non-restrictive scope of the prohibition

240. Two specific objectives, against which the use (or threat) of inter-State force is forbidden in Article 2(4), are the ‘territorial integrity’ and the ‘political independence’ of States (supra 233). These dual idioms, when standing alone, may invite a rigid interpretation blunting the edge of Article 2(4). Thus, it has been suggested that the use of force within the boundaries of a foreign State does not constitute a violation of its territorial integrity, unless a portion of the State’s territory is permanently lost.500 While the argument is not particularly persuasive, it should spotlight the potential consequences likely to flow from a restrictive reading of Article 2(4). If the injunction against recourse to force in international relations were to be confined to specific situations affecting only the territorial integrity and the political independence of States, a legion of loopholes would inevitably be left open.501 495 496 497 498 499 500 501

Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, supra note 37, at 246. Guyana and Suriname case (Arbitral Award, Permanent Court of Arbitration, 2007), 47 ILM 166, 229–30 (2008). R. Sadurska, ‘Threats of Force’, 82 AJIL 239, 241 (1988). See N. D. White and R. Cryer, ‘Unilateral Enforcement of Resolution 687: A Threat Too Far?’, 29 Cal.WILJ 243, 253 (1998–9). See Roscini, supra note 494, at 239–40. See A. D’Amato, International Law: Process and Prospect 58–9 (1987). See J. Stone, Aggression and World Order: A Critique of United Nations Theories of Aggression 43 (1958).

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241. In underscoring the reference to the territorial integrity and the political independence of States, the narrow construction of Article 2(4) fails to give proper account to the conjunctive phrase ‘or in any other manner inconsistent with the Purposes of the United Nations’. In the present writer’s opinion, these words form the centre of gravity of Article 2(4), because they create ‘a residual “catch-all” provision’.502 Indeed, the travaux préparatoires of the Charter indicate that the expressions ‘territorial integrity’ and ‘political independence’ had not originally been included in the text and were added later for ‘particular emphasis’, there being no intention to restrict the all-embracing prohibition of force inconsistent with the Purposes of the United Nations.503 242. The primary Purpose of the United Nations is enshrined in Article 1(1) of the Charter: To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace.504

Already the first Paragraph of the Preamble of the Charter elucidates the raison d’être of the Organization in enunciating the determination ‘to save succeeding generations from the scourge of war’505 (interestingly, here the term ‘war’ is not dispensed with). Moreover, Article 2(3) prescribes: All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.506

Article 2(4) is ‘inseparable’ from Article 2(3), and these two consecutive Paragraphs must be perused together.507 243. The correct interpretation of Article 2(4), given the other stipulations cited as a background, is that any use of inter-State force by Member States for whatever reason is banned, unless explicitly allowed by the Charter.508 It is noteworthy that, in the 1986 Nicaragua Judgment, the International Court of Justice pronounced that Article 2(4) articulates the ‘principle of the prohibition of the use of force’ in international relations.509 The principle was presented by the Court in a non-restrictive fashion, and a careful dissection of the Judgment will disclose that this is no accident. In the Armed Activities case of 2005, the

502 503 504 507 508 509

Cf. M. Lachs, ‘The Development and General Trends of International Law in Our Time’, 169 RCADI 9, 162 (1980). See Randelzhofer, supra note 485, at 123. Charter of the United Nations, supra note 248, at 331. 505 Ibid., 330. 506 Ibid., 332. See J. Charpentier and B. Sierpinski, ‘Article 2(3)’, I La Charte des Nations Unies: Commentaire Article par Article 425, id. (J.-P. Cot and A. Pellet eds., 3rd edn, 2005). See J. Mrazek, ‘Prohibition of the Use and Threat of Force: Self-Defence and Self-Help in International Law’, 27 CYIL 81, 90 (1989). Nicaragua case (Merits), supra note 14, at 100.


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Court put it even more succinctly: ‘[t]he prohibition against the use of force is a cornerstone of the United Nations Charter’.510 But being too succinct is not always a blessing, inasmuch as the Court omitted here the requisite qualifying words to the effect that the prohibition applies only to the use of force in international relations (see supra 234). 244. The sweeping exclusion of recourse to inter-State force, under Article 2(4), is subject to exceptions. But these are laid down in other provisions of the Charter. Not counting the licence to take action against the enemy States of World War II (Articles 53 and 107),511 there are only two enduring settings in which the Charter permits the use of inter-State force: (i) when collective security measures are taken by fiat of the Security Council (under Chapter VII; see infra 810); or (ii) in self-defence (Article 51 quoted infra 498). The exact range of application of these exceptional situations will be discussed in detail in Part III of this book. C.

Attempts to limit the range of the prohibition

245. Ever since the entry into force of the Charter, strenuous efforts have been made to portray diverse types of inter-State armed action, not amounting to either self-defence or collective security (activated by the Security Council), as exempt from the general obligation established in Article 2(4). 246. One assertion along these lines is that, if a State does not comply with a judgment rendered by the International Court of Justice, the aggrieved Party is entitled to seek execution through the use of force.512 But the claim must be rejected.513 The aggrieved Party may only turn to the Security Council, which – under Article 94(2) of the Charter – is empowered to ‘make recommendations or decide upon measures to be taken to give effect to the judgment’.514 The Council can determine that non-compliance with the judgment forms a threat to the peace and, by dint of this decision, decree or authorize the use of force against the non-complying State515 (see infra 810 et seq.). Yet, the Council ‘is not obliged to act, but has discretion’ in the matter.516 In any event, in the absence of a binding decision of the Council, no State – or group of States – is 510 511 512 513 514 515 516

Case Concerning Armed Activities on the Territory of the Congo, supra note 300, at 223. Charter of the United Nations, supra note 248, at 347–8, 362–3. See C. Vulcan, ‘L’Exécution des Décisions de la Cour Internationale de Justice d’après la Charte des Nations Unies’, 51 RGDIP 187, 195 (1947). See O. Schachter, ‘The Enforcement of International Judicial and Arbitral Decisions’, 54 AJIL 1, 15–16 (1960). Charter of the United Nations, supra note 248, at 359. See H. Mosler and K. Oellers-Frahm, ‘Article 94’, II The Charter of the United Nations: A Commentary, supra note 485, at 1174, 1177. K. Oellers-Frahm, ‘Article 94 UN Charter’, The Statute of the International Court of Justice: A Commentary 159, 174–5 (A. Zimmermann, C. Tomuschat and K. Oellers-Frahm eds., 2006).

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entitled, under the Charter, to unilaterally undertake forcible measures in order to execute a judgment. 247. It has also been propounded that resort to force by Carpathia would be concordant with Article 2(4), if the purpose of the military operation is the recovery of a territory allegedly belonging to that State and ‘illegally occupied’ by Numidia, because in such circumstances there is supposedly no infringement of Numidian territorial integrity (leading examples are the Indian invasion of Goa in 1961 and the Argentine invasion of the Falkland Islands in 1982).517 This position, too, cannot be sustained.518 The argument was carried to an incongruous length when, in 1990, Iraq deigned to annex the entire territory of a sovereign neighbouring State (Kuwait) by reviving flimsy historical claims. The international community categorically rejected the transparent attempt by Iraq to circumvent Article 2(4). In Resolution 662, the Security Council decided that the ‘annexation of Kuwait by Iraq under any form and whatever pretext has no legal validity, and is considered null and void’.519 248. In 2005, the Eritrea Ethiopia Claims Commission – in its special Partial Award on Jus ad Bellum – rejected the argument ‘that recourse to force by Eritrea would have been lawful because some of the territory concerned was territory to which Eritrea had a valid claim’.520 The Commission pronounced that ‘the practice of States and the writings of eminent publicists show that selfdefense cannot be invoked to settle territorial disputes’, pointing out that ‘border disputes between States are so frequent that any exception to the prohibition of the threat or use of force for territory that is allegedly occupied unlawfully would create a large and dangerous hole in a fundamental rule of international law’.521 This statement of the law was quoted with approval in the 2007 Award of the Arbitral Tribunal in the Guyana and Suriname case.522 249. Other attempts to slip through the tight net of Article 2(4) are reflected in constant endeavours to revive the just war doctrine in contemporary international law (see supra 188 et seq.). As long as European decolonization was at issue, the contention – largely characteristic of the former Soviet bloc and Third World countries – was that inter-State force is excluded from the ambit of Article 2(4) when marshalled on behalf of the just cause of selfdetermination523 (see infra 486). It was averred that military support lent by Pacifica to a ‘war of national liberation’, conducted against Apollonia by a people exercising the right of self-determination, would not contradict Article 2(4). Laborious explanations were offered, with a view to developing a legal rationale

517 518 520 521 523

See O. Schachter, ‘The Right of States to Use Armed Force’, 82 Mich.LR 1620, 1627 (1984). See ibid., 1627–8. 519 Security Council Resolution 662 (1990), 45 RDSC 20, id. (1990). Eritrea Ethiopia Claims Commission, Partial Award, Jus ad Bellum, supra note 62, at 432–3. Ibid. 522 Guyana and Suriname case, supra note 496, at 227. See J. Zourek, ‘Enfin une Définition de l’Agression’, 20 AFDI 9, 24 (1974).


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that would validate the use of force by Pacifica against Apollonia despite Article 2(4). Foremost among them was the proposition that, since at its inception a colonial regime had been installed by armed force, the continued denial of the right of self-determination amounts to ‘permanent’ aggression.524 Yet, this impressionistic picture is ‘surely a distortion’.525 Unless the condition of selfdefence or collective security (undertaken or authorized by the Security Council) is satisfied, there is no way to reconcile Article 2(4) with recourse to force by one State against another, even if the target is a colonial Power.526 In the words of Judge Schwebel (in his Dissenting Opinion in the Nicaragua case): it is lawful for a foreign State . . . to give to a people struggling for self-determination moral, political and humanitarian assistance; but it is not lawful for a foreign State . . . to intervene in that struggle with force.527

250. By the same token, notwithstanding fervent pleadings to the contrary,528 should Atlantica use force unilaterally in order to overthrow a despotic (even genocidal) regime in Patagonia, this would run afoul of Article 2(4).529 Claims for the legality of forcible measures taken on behalf of the victims of violations of human rights are often premised on the underlying assumption that, because no change is sought in the territorial integrity of Patagonia and no challenge is posed to its political independence, a ‘humanitarian intervention’ by Atlantica does not come within the bounds of Article 2(4).530 There is a cognate question, whether Atlantica may protect its own nationals against an attack upon them by Patagonia under the rubric of self-defence. That issue will be examined separately (infra 575 et seq., 676 et seq.). However, the exponents of the putative right of ‘humanitarian intervention’ minimize the link of nationality and focus on the protection of individuals or minority groups from oppression by their own Government.531 251. Generally, adherents to the ‘humanitarian intervention’ school of thought studiously avoid the terminology of self-defence and insist that the forcible measures taken are lawful, not by virtue of compatibility with Article 51 (the saving clause quoted infra 498) but as a result of being compatible with Article 2(4) (the general rule).532 This is a misreading of the Charter. No

524 526 527 528 529 530 531 532

Gorelick, supra note 388, at 77. 525 L. Henkin, How Nations Behave 144 (2nd edn, 1979). See O. Schachter, ‘Just War and Human Rights’, 1 PYIL 1, 8 (1989). Nicaragua case (Merits), supra note 14, at 351. See W. M. Reisman, ‘Coercion and Self-Determination: Construing Charter Article 2(4)’, 78 AJIL 642–5 (1984). See O. Schachter, ‘The Legality of Pro-Democratic Invasion’, 78 AJIL 645–50 (1984). See J.-P. L. Fonteyne, ‘The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity under the U.N. Charter’, 4 Cal.WILJ 203, 253–4 (1973–4). See R. B. Lillich, ‘Forcible Self-Help by States to Protect Human Rights’, 53 Io.LR 325, 332 (1967–8). See J. R. D’Angelo, ‘Resort to Force by States to Protect Nationals: The U.S. Rescue Mission to Iran and Its Legality under International Law’, 21 Vir.JIL 485, 496 (1980–1).

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individual State (or group of States) is authorized to act unilaterally, in the domain of human rights or in any other sphere, as if it were the policeman of the world.533 It is well worth recording the failure of an attempt – made in the Institut de Droit International, in its Santiago Session of 2007 – to resolve that ‘[i]t appears that in grave circumstances, unilateral Humanitarian Interventions that have not received the authorization of the United Nations may be deemed lawful’.534 Pursuant to the Charter, the Security Council – and the Security Council alone – is legally competent to undertake or to authorize forcible ‘humanitarian intervention’ (see supra 197).535 The subject will be addressed again when the powers of the Council are examined (infra 899). III.

Customary international law

A.

The interaction between custom and treaty

252. The interaction between custom and treaty in international law is multilayered.536 Customary international law is defined as ‘evidence of a general practice accepted as law’ (to repeat the well-known formula appearing in Article 38(1)(b) of the Statute of the International Court of Justice).537 Two elements are condensed here: the (objective) practice of States and (the subjective) opinio juris sive necessitatis (i.e. ‘a belief that this practice is rendered obligatory by the existence of a rule of law requiring it’).538 As for the practice of States, it needs to be general but it does not have to be universal.539 253. Customary international law and treaty law are not kept apart in ‘sealed compartments’,540 and there is a lot of cross-fertilization between them. In particular, it is important to stress (using the phraseology of the International Court of Justice in the North Sea Continental Shelf cases) that a treaty may ‘generate’ custom.541 In the words of the Court, a treaty norm may pass into the 533

534

535 536 537 538 540 541

It is submitted that this is not only the law as it is, but also the law as it should be. Consequently, proposals to amend the Charter, with a view to introducing ‘humanitarian intervention’ as an exception to the rule laid down in Article 2(4) (see M. J. Levitin, ‘The Law of Force and the Force of Law: Grenada, the Falklands, and Humanitarian Intervention’, 27 Har.ILJ 621, 652–5 (1986)), are not only unrealistic; they are also undesirable. Institut de Droit International, Discussion of a Report of a Sub-Group on Humanitarian Intervention, 72 AIDI 237 et seq. (Santiago, 2007). The text quoted appears ibid., 290. For the final text, see ibid., 361. For the views of the present writer, see ibid., 292–4. See B. Simma, ‘NATO, the UN and the Use of Force: Legal Aspects’, 10 EJIL 1, 5 (1999). See Y. Dinstein, ‘The Interaction between Customary International Law and Treaties’, 322 RCADI 245, 346–416 (2006). Statute of the International Court of Justice, Annexed to the Charter of the United Nations, 1945, 9 Int. Leg. 510, 522. See Dinstein, supra note 536, at 265–99. 539 See ibid., 282–5. Jiménez de Aréchaga, supra note 220, at 13. North Sea Continental Shelf cases (Germany/Denmark; Germany/Netherlands), [1969] ICJ Rep. 3, 41.


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general corpus of customary international law as a result of post-treaty general practice of States – accepted by the opinio juris – ‘so as to become binding even for countries which have never, and do not, become parties to the Convention’.542 Indeed, Article 38 of the Vienna Convention on the Law of Treaties specifically sets forth that treaty norms may become binding on third States as rules of customary international law.543 254. When treaty law generates customary international law, the norm which has its genesis in a treaty is binding on a non-Contracting Party post hoc although not propter hoc.544 Historically, the obligations incurred by the non-Contracting Party ‘owe their origin to the fact that the treaty supplied the basis for the growth of a customary rule of law’.545 Yet, legally, these obligations are assumed by nonContracting Parties qua customary law, and the treaty (which has a ‘stimulating function’ in the formative process of customary law) continues to be binding only on Contracting Parties.546 From the standpoint of non-Contracting Parties, it is not the treaty that counts but the relevant customary law norm.547 B.

The Charter and customary international law on the use of inter-State force

(a) Article 2(4) 255. As shown (supra 233), upon its adoption, Article 2(4) of the Charter of the United Nations was innovative. Hence, at that time, it was binding only on Contracting Parties to the Charter and not on other States. However, by now, not only has membership in the United Nations grown so as to span almost the entire international community, but Article 2(4) may surely be seen as having generated new customary international law. Having been cloned into customary international law, the interdiction of the use of inter-State force (originally enshrined in Article 2(4)) at present obligates all States (whether or not Members of the United Nations). 256. The proposition that the use of inter-State force has been proscribed not only in the Charter but also in customary international law is upheld by the 1986 Nicaragua Judgment. In the proceedings before the Court, both Parties were in agreement that ‘the principles as to the use of force incorporated in the United Nations Charter correspond, in essentials, to those found in customary 542 544 545 546 547

Ibid. 543 Vienna Convention on the Law of Treaties, supra note 204, at 150. See J. L. Brierly, ‘Règles Générales du Droit de la Paix’, 58 RCADI 5, 223–4 (1936). R. F. Roxburgh, International Conventions and Third States 74 (1917). M. E. Villiger, Customary International Law and Treaties 181–2, 186 (2nd edn, 1997). It is necessary, for that reason, to pay special attention to the particular practice and opinio juris of non-Contracting Parties. See M. H. Mendelson, ‘The Nicaragua Case and Customary International Law’, The Non-Use of Force in International Law 85, 95–6 (W. E. Butler ed., 1989).

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international law’.548 All the same, the Court deemed it necessary to confirm the existence of a general opinio juris about the binding character of the customary prohibition of inter-State force.549 257. In determining the tenor of customary international law, the Nicaragua Judgment550 relied inter alia on the Friendly Relations Declaration, unanimously adopted in 1970 by the United Nations General Assembly. The Declaration, in its first Principle, reiterates the wording of Article 2(4) of the Charter, except that the duty to refrain from the use of force is imposed on ‘[e]very State’ instead of ‘[a]ll Members’ (see supra 233).551 This was done deliberately, on the ground that all States are now subject to the same rule.552 258. While the Court in the Nicaragua case placed special weight on the opinio juris of States, it did not strive to investigate ‘the ways in which governments actually behave’ where the use of force is concerned.553 The omission is not unrelated to the incontrovertible fact that recourse to force continues to permeate international relations. The incidence of inter-State force is so widespread that T. M. Franck argued in 1970 that its proscription is totally eroded in world affairs, and that Article 2(4) ‘mocks us from its grave’.554 In 2002, the same author (while challenging the strict application of the black-letter law of Article 2(4), which leaves no allowance for exceptional situations) seems to have shied away from such a harsh conclusion.555 However, a year later he asserted that ‘Article 2(4) has died again, and, this time, perhaps for good’.556 259. Personal vacillations aside, scholarly assaults upon Article 2(4) – predicated on the record of (real or perceived) multiple violations of its strictures – continue unabated.557 Yet, violations of this key provision of the Charter hardly turn it into a dead letter. As pointed out by L. Henkin, in response to Franck, a persistent recourse to inter-State force need not suggest the disappearance of the legal norm expressed in Article 2(4).558 Although the criminal codes of all States are constantly trampled underfoot by countless criminals, the unimpaired legal validity of these codes is universally conceded.

548 551 552 553 554 555 556 557 558

Nicaragua case (Merits), supra note 14, at 99. 549 Ibid., 99–100. 550 Ibid. General Assembly Resolution 2625 (XXV), supra note 258, at 122. See R. Rosenstock, ‘The Declaration of Principles of International Law Concerning Friendly Relations: A Survey’, 65 AJIL 713, 717 (1971). F. L. Kirgis, Jr, ‘Custom on a Sliding Scale’, 81 AJIL 146, 147 (1987). T. M. Franck, ‘Who Killed Article 2(4)? Or: Changing Norms Governing the Use of Force by States’, 64 AJIL 809, id., 835 (1970). See T. M. Franck, Recourse to Force: State Action against Threats and Armed Attacks 174–91 (2002). T. M. Franck, ‘What Happens Now? The United Nations after Iraq’, 97 AJIL 607, 610 (2003). See, e.g., J. d’Aspremont, ‘Mapping the Concepts behind the Contemporary Liberalization of the Use of Force in International Law’, 31 UPJIL 1089, 1089–90 (2010). L. Henkin, ‘The Reports of the Death of Article 2(4) Are Greatly Exaggerated’, 65 AJIL 544, 547 (1971).


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260. To be sure, if it might be proved that Article 2(4) is generally ignored by States, no rules of customary international law could conceivably be generated by this (supposedly barren) clause. The question whether Article 2(4) is brazenly disregarded in international relations is, therefore, of immense import. Nevertheless, in providing an answer to the question, the uppermost consideration should be that – in spite of the frequent roar of guns – States involved in international armed conflicts uniformly profess their fidelity to Article 2(4).559 261. When resorting to force in international relations, States ordinarily invoke the right of self-defence (see infra 503). Sometimes, Governments misrepresent the law or apply incorrect legal terminology to label their action (see infra 638). But the telling point is that Governments, however they understand or misunderstand the jus ad bellum, are not prepared – in this day and age – to endorse the proposition that there are no legal restraints whatever on the employment of inter-State force. ‘No state has ever suggested that violations of article 2(4) have opened the door to free use of force’.560 When Governments charge each other with infringements of Article 2(4), as happens all too frequently, such accusations are always contested. The plea that Article 2(4) is dead has never been put forward by any Government. 262. The Court in the Nicaragua case commented on the way that States behave and account for their behaviour: It is not to be expected that in the practice of States the application of the rules in question should have been perfect, in the sense that States should have refrained, with complete consistency, from the use of force . . . The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule.561

The discrepancy between what States say and what they do may be due to pragmatic reasons, militating in favour of a choice of the line of least exposure to censure.562 Even so, a disinclination to challenge the validity of a legal norm

559

560 561 562

For an expression of this fidelity, see the consensus Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations, General Assembly Resolution 42/22, 42(1) RGA 287, 288 (1987). O. Schachter, ‘In Defense of International Rules on the Use of Force’, 53 UChi.LR 113, 131 (1986). Nicaragua case (Merits), supra note 14, at 98. See T. Meron, ‘The Geneva Conventions as Customary Law’, 81 AJIL 348, 369 (1987).

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has a salutary effect in that it shows that the norm is accepted, if only reluctantly, as the rule. There is a common denominator between those who try (even disingenuously) to take advantage of the refinements of the law, and those who rigorously abide by its letter and spirit. They all share a belief in the authority of the law. (b) Article 2(6) 263. Article 2(6) of the Charter of the United Nations declares: The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.563

Today this text is fully in concordance with the customary prohibition of the use of force in international relations and, therefore, it raises no eyebrows. Yet, at the time of the adoption of the Charter, when the fulcrum of the injunction against use of force was Article 2(4) – which is expressly addressed only to ‘All Members’ of the United Nations (although forbidding the use of force by them against ‘any state’, viz. either a fellow Member or a non-Member; see supra 233) – there was a serious question about the legal justification of Article 2(6). 264. Some commentators initially maintained that Article 2(6) was a ‘revolutionary’ stipulation, in that it indirectly imposed on non-Member States the legal regime of Article 2(4).564 If Article 2(6) purported to do that, it would indeed be revolutionary. One of the basic tenets of international law is that no treaty can bind third States without their consent. Article 35 of the Vienna Convention on the Law of Treaties lays down that an obligation may arise for a third State from a provision of a treaty only if the third State accepts the obligation expressly and in writing.565 Article 35 ‘is so worded as to make it clear that the juridical basis of the obligation for the third State is not the treaty itself but the collateral agreement whereby the third State has accepted the obligation’.566 265. However, it is not required to regard Article 2(6) as a deviation from the fundamental precept concerning treaty obligations and third States. As the text of Article 2(6) indicates, the duty established therein devolves not on nonMember States but on the Organization itself.567 What the Article says is that the Organization is obligated to take the necessary steps against non-Member States, if they undermine international peace and security. Palpably, when the 563 564 565 566 567

Charter of the United Nations, supra note 248, at 332. H. Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems 106–7, 110 (1950). Vienna Convention on the Law of Treaties, supra note 204, at 150. Sinclair, supra note 208, at 101. See R. L. Bindschedler, ‘La Délimitation des Compétences des Nations Unies’, 108 RCADI 307, 404–5 (1963).


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Organization discharges its duty vis-à-vis a non-Member State, any steps taken must be in keeping with general customary international law.568 266. Even when the prohibition of the use of inter-State force was not yet established in customary international law, there was no need to view Article 2(6) as breaching any fundamental principle of international law. After all, as long as the liberty of States to go to war survived intact in customary international law, the resultant freedom of action was a double-edged sword. If a non-Member State unleashed war invoking such freedom, the United Nations Organization was equally entitled to employ counter-force in the name of the self-same privilege. When lack of restraint on the use of force characterized international relations, any State (including a combination of States represented in the United Nations) could stick to its guns: this was not a privilege of the aggressor non-Member State alone. 267. Naturally, once the unbridled prerogative of States to indulge in war has been effaced from customary international law, the use of force by any State (be it a Member or a non-Member) against another becomes a contravention of the new norm. If so, the United Nations Organization may take counter-action against a flagrant violation of international law. C.

Are the norms of the Charter and customary international law on the use of inter-State force identical?

268. In the Nicaragua proceedings, there was disagreement on whether the customary and Charter prohibitions of the use of inter-State force are identical, and on whether the customary rule can still be operative in the relations between Members of the United Nations.569 The Court arrived at three conclusions: (i) Customary law and the provisions of the Charter do not match exactly in regulating the use of force in international relations: there are variations between them on a number of points, especially insofar as the right of selfdefence is concerned (for a glaring example, see infra 634).570 (ii) Even if the customary and Charter norms did overlap in every respect, customary law would retain its discrete identity – and continue to exist side by side with the Charter law – so that it may be applied between the Parties when, for some reason, an adjudication cannot rest on the law of the Charter (as transpired in the case before the Court).571 (iii) No conflicting standards of conduct have evolved in the Charter and customary law on the use of inter-State force.572 Charter and customary

568 569 572

See G. G. Fitzmaurice, ‘Fifth Report on Law of Treaties’, [1960] II ILC Ybk 69, 88. Nicaragua case (Merits), supra note 14, at 92–3, 96. 570 Ibid., 93–4. 571 Ibid., 94–6. Ibid., 96–7.

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norms in this area are not completely identical. But at bottom there is no marked divergence between them, for customary international law has consolidated under the influence of the Charter.573 269. There is every reason to agree with the Court’s finding that a great deal of similarity, if no identity, exists between contemporary customary and Charter jus ad bellum. However, the Court did not examine in detail whether any difference of degree might exist between customary international law and Article 2(4) (as distinct from Article 51 relating to self-defence and quoted infra 498). It may be taken for granted that pre-Charter customary international law was impacted upon by the Charter and that, grosso-modo, customary and Charter jus ad bellum have in time converged. But did the process of change in customary international law come to a halt in the post-Charter era? 270. There is no ground to maintain that the congruence of Charter and customary international law with respect to the prohibition of the use of interState force has diminished since the Nicaragua Judgment was delivered. There are numerous pronouncements, which expressly reiterate the obligation of States to refrain from the use (or threat) of force in a manner inconsistent with the Charter. A prominent illustration is the ‘World Summit Outcome’, issued by consensus by Heads of States and Governments who gathered at the General Assembly of the United Nations in 2005.574 271. Although present-day customary international law can be looked upon essentially as a replica of Article 2(4), it is hard to believe that the exact correlation of the two will ‘freeze’ indefinitely.575 By its very nature, customary international law alters over the years, albeit incrementally. Will the general practice of States, accepted as law, remain steadfast in its faith in every aspect of Article 2(4)? As pointed out (supra 245 et seq.), efforts are frequently made to limit the scope of the overall prohibition of the use of inter-State force. Such attempts may not be able to override the text of Article 2(4),576 but they may leave their imprint on customary international law. It seems logical to prognosticate that a dissonance between Article 2(4) and customary international law may eventually develop (subject to the problem of modifying jus cogens; see infra 290 et seq.). Nonetheless, the present author cannot share the view that contemporary customary law has already changed – or is in the process of changing – to the point that the jus ad bellum is on the cusp of becoming ‘protean’ in nature.577

573 574 575 576 577

Ibid. World Summit Outcome, General Assembly Resolution 60/1, 60 (1) RGA 3, 15 (2005). See A. D’Amato, ‘Trashing Customary International Law’, 81 AJIL 101, 104 (1987). On modification of a treaty by custom, see Dinstein, supra note 536, at 415–16. See S. D. Murphy, ‘Protean Jus ad Bellum’, 27 By.JIL 22, 26 et seq. (2009).


IV.

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Treaties other than the Pact and the Charter

272. The interdiction of the use of inter-State force has been reiterated in numerous international treaties subsequent to the Kellogg-Briand Pact and the Charter of the United Nations. Strictly speaking, there is no need to repeat the language of the Charter. Still, in some settings, a reminder of the prohibition of recourse to force in international relations may serve a useful purpose. This can be done on the multilateral, regional or bilateral level. A.

General treaties

273. Occasionally, the prohibition of the use (or threat) of inter-State force is reaffirmed in general multilateral treaties, each governing a certain branch of international law. A leading illustration is Article 301 of the 1982 United Nations Convention on the Law of the Sea: In exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.578

Although Article 301 largely reiterates the language of Article 2(4) of the Charter, it is noteworthy that – after the words ‘or in any other manner inconsistent with’ – it uses the phrase ‘the principles of international law embodied in the Charter of the United Nations’, in lieu of the original terminology (‘the Purposes of the United Nations’; see supra 233). Apparently, the recast formulation is intended to highlight the point that ‘Article 301 refers not only to Chapter I of the UN Charter (Purposes and Principles) but to other parts too, such as Chapter VII, which includes Article 51 (right of self-defence)’.579 Of course, the reference in Article 301 is to States Parties in the Convention, and not necessarily to Members of the United Nations. 274. Article 8 bis, Paragraph 2 (quoted infra 367), added in 2010 to the Statute of the International Criminal Court, incorporates in the definition of the crime of aggression: the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.

This terminology follows Article 1 of the 1974 General Assembly Definition of Aggression.580 The core of the wording is borrowed from Article 2(4) of the 578 579 580

United Nations Convention on the Law of the Sea, supra note 90, at 136. Wolfrum, ‘Military Activities on the High Seas’, supra note 97, at 505. General Assembly Resolution 3314 (XXIX), supra note 392, at 143.

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Charter (quoted supra 233). Yet, there are a number of alterations. The aggression formulation: (i) relates to ‘a State’, rather than Members of the United Nations (in an explanatory note to the General Assembly Definition, the framers commented that the term ‘State’ includes non-Members of the United Nations; embraces a group of States; and is used without prejudice to questions of recognition581); (ii) the mere threat of force is excluded; (iii) the adjective ‘armed’ is interposed before the noun ‘force’; (iv) ‘sovereignty’ is mentioned together with the territorial integrity and the political independence of the victim State; (v) the victim is described as ‘another’ (rather than ‘any’) State; (vi) the use of force is forbidden whenever it is inconsistent with the United Nations Charter as a whole, and not only with the Purposes of the United Nations. 275. Some of these points are of peripheral, if not nominal, significance. Others are of greater moment. The cardinal divergence from Article 2(4) is that the threat of force per se does come within the range of the crime (and, indeed, the very definition) of aggression, since an actual use of armed force is absolutely required. In the past, the threat of force itself was considered by many to amount to aggression. In fact, in the Nuremberg trial, the International Military Tribunal held (in its Judgment of 1946) that the Anschluss of Austria by Nazi Germany in March 1938 – although achieved without bloodshed – followed methods employed by ‘an aggressor’, inasmuch as ‘[t]he ultimate factor was the armed might of Germany ready to be used if any resistance was encountered’.582 As far as the Subsequent Proceedings at Nuremberg are concerned (see infra 334), the Judgments seem to support the thesis that a crime against peace may be committed by mere threat of aggression, if the weaker country ‘succumbs without the necessity of a “shooting war”’.583 It should be added that the Draft Code of Offences against the Peace and Security of Mankind, formulated by the International Law Commission in 1954, brands as an offence ‘[a]ny threat by the authorities of a State to resort to an act of aggression against another State’.584 B.

Regional treaties

276. Clauses recapitulating the proscription of the use of force in international relations typically feature in treaties concluded on a regional basis. Examples may be drawn from several continents. In America, as early as 1933, in the Rio de Janeiro Anti-War Treaty (Non-Aggression and Conciliation) – commonly

581 582 583 584

Ibid. Nuremberg trial (International Military Tribunal, 1946), 1 IMT 171, 194. See T. Taylor, ‘The Nuremberg War Crimes Trials’, 450 Int.Con. 243, 340–1 (1949). Draft Code of Offences against the Peace and Security of Mankind, Report of the International Law Commission, 6th Session, [1954] II ILC Ybk 140, 151 (Article 2(2)).


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designated, after an Argentine Foreign Minister, the Saavedra Lamas Treaty – the American States, joined by several European countries, condemned wars of aggression and undertook to settle all disputes through pacific means.585 The 1947 Rio de Janeiro Inter-American Treaty of Reciprocal Assistance also includes a formal condemnation of war, bolstered by a general undertaking not to resort to force in any manner inconsistent with the United Nations Charter.586 277. Recurrent commitments to refrain from the use of inter-State force have been made in Africa. Thus, under the auspices of the African Union, a NonAggression and Common Defence Pact was concluded in Abuja in 2005.587 A Protocol on Non-Aggression and Mutual Defence in the Great Lakes Region was incorporated in Article 5 of the Pact on Security, Stability and Development in the Great Lakes Region done at Nairobi in 2006.588 278. Most significantly, the language of Article 2(4) of the Charter was reproduced in the 1975 Helsinki Final Act, adopted by the Conference on Security and Co-operation in Europe.589 Although the Helsinki Final Act does not form a treaty, the International Court of Justice cited it in the Nicaragua case as evidence for the emergence of customary international law banning the use of inter-State force.590 Upon the demise of the ‘Cold War’, in the 1990 Charter of Paris for a New Europe, the States participating in the Helsinki process renewed their pledge to refrain from the threat or use of force.591 C.

Bilateral treaties

279. In the bilateral relations between States, quite a few non-aggression pacts were concluded after the Kellogg-Briand Pact, with a view to ‘confirming and completing’ it.592 This is no longer common practice today. Yet, some bilateral or trilateral treaties of political and military cooperation restate the duty not to employ force in any way contrary to the United Nations Charter.593 The 585 586 587 588 589 590 591 592 593

Rio de Janeiro Anti-War Treaty (Non-Aggression and Conciliation), 1933, 163 LNTS 393, 405 (Article 1). Rio de Janeiro Inter-American Treaty of Reciprocal Assistance, 1947, 21 UNTS 77, 95 (Article 1). Abuja Non-Aggression and Common Defence Pact, 2005 (mimeographed). Nairobi Protocol on Non-Aggression and Mutual Defence in the Great Lakes Region, 2006, 46 ILM 173, 177 (2007). Conference on Security and Co-operation in Europe, Helsinki Final Act, 1975, 14 ILM 1292, 1294 (1975). Nicaragua case (Merits), supra note 14, at 100. See also ibid., 133. Conference on Security and Co-operation in Europe, Charter of Paris for a New Europe, 1990, 30 ILM 190, 196 (1991). See, e.g., Finland–USSR, Helsinki Treaty of Non-Aggression and Pacific Settlement of Disputes, 1932, 157 LNTS 393, 395 (Preamble). See, e.g., Greece–Turkey–Yugoslavia, Bled Treaty of Alliance, Political Co-operation and Mutual Assistance, 1954, 211 UNTS 237, 241 (Article I).

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impulse to reaffirm the prohibition of the use or threat of force is strongest among countries ascending from the depths of war. That explains the texts of the 1966 Indian–Pakistani Tashkent Declaration,594 the 1988 Afghan–Pakistani Agreement,595 the two Israeli Treaties of Peace – the one with Egypt (1979),596 and the other with Jordan (1994)597 – as well as the Ethiopia– Eritrea Peace Agreement of 2000.598 V.

The prohibition of the use of inter-State force as jus cogens

A.

The significance of jus cogens

(a) A clash between a treaty and peremptory norms 280. Article 53 of the Vienna Convention on the Law of Treaties, as its title corroborates, addresses the subject of jus cogens: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.599

Article 44(5) of the Convention (cited supra 111) does not permit separation of the provisions of a treaty falling under Article 53. It ensues that ‘[i]f only part of a treaty conflicts with an existing jus cogens the whole of the treaty is void, not just the offending part’.600 281. Article 53 applies to those cases in which a treaty is invalidated upon its conclusion owing to a clash with a pre-existing peremptory norm. A complementary provision appears in Article 64 of the Vienna Convention: If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.601

What it comes down to is that a treaty, although valid at the time of its conclusion, may be invalidated thereafter, as a result of the evolution of a conflicting jus cogens in the meantime.602 594 595 596 597 598 599 600 601 602

India–Pakistan, Tashkent Declaration, 1966, 5 ILM 320, id. (1966). Afghanistan–Pakistan, Agreement on the Principles of Mutual Relations, in Particular on NonInterference and Non-Intervention, 1988, 27 ILM 581, 582 (1988) (Article II (3)). Egypt–Israel, Treaty of Peace, supra note 186, at 363–4 (Article III). Jordan–Israel, Treaty of Peace, supra note 187, at 46 (Article 2). Ethiopia–Eritrea, Peace Agreement, supra note 188, at 260 (Article 1). Vienna Convention on the Law of Treaties, supra note 204, at 154. Aust, supra note 345, at 319. Vienna Convention on the Law of Treaties, supra note 204, at 157. See Report of the International Law Commission, 18th Session, supra note 206, at 248–9, 261.


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(b)

The peremptory nature of the prohibition of the use of inter-State force 282. The locution ‘general international law’ in the setting of jus cogens covers both treaties and custom.603 Evidently, not every treaty or custom comes within the compass of general international law: the expression is restrictive in that it excludes the possibility of regional peremptory norms.604 Article 53’s phrase ‘accepted and recognized by the international community of States as a whole’ (in French, ‘dans son ensemble’) need not be construed as a requirement of unanimity.605 On the other hand, for a general treaty to qualify, it must be universal or semi-universal in its range of application (like the United Nations Charter). Otherwise, it will be necessary to admit the insupportable contingency of non-Contracting Parties being exempt from jus cogens.606 283. Articles 53 and 64 do not specify which norms of general international law are to be considered peremptory in nature. But the International Law Commission, in its commentary on the draft of the Vienna Convention, identified the Charter’s prohibition of the use of inter-State force as ‘a conspicuous example’ of jus cogens.607 The Commission’s position was quoted by the International Court in the Nicaragua case.608 In a Separate Opinion, President Singh underscored that ‘the principle of non-use of force belongs to the realm of jus cogens’.609 In another Separate Opinion, Judge Sette-Camara also expressed the firm view that the non-use of force can be recognized as a peremptory rule.610 In 2001, when concluding its work on State Responsibility, the International Law Commission observed that ‘it is generally agreed that the prohibition of aggression is to be regarded as peremptory’.611 (c) The consequences of the peremptory nature of the prohibition 284. A peremptory norm (jus cogens) – in the words of a Trial Chamber of the ICTY in the Furundzija case – is ‘a norm that enjoys a higher rank in the international hierarchy than treaty law and even “ordinary” customary rules’.612 What is it that marks out peremptory norms (constituting jus cogens), as compared to ordinary norms of general international law (amounting to mere jus dispositivum)? ‘The most conspicuous consequence’ of the higher rank of peremptory norms – as the Furundzija Judgment put it – ‘is that the principle in 603 604 605 606 607 608 611 612

See G. M. Danilenko, ‘International Jus Cogens: Issues of Law-Making’, 2 EJIL 42, 49 (1991). See G. Gaja, ‘Jus Cogens Beyond the Vienna Convention’, 172 RCADI 271, 284 (1981). See A. Gómez Robledo, ‘Le Ius Cogens International: Sa Genèse, Sa Nature, Ses Fonctions’, 172 RCADI 9, 67,106 (1981). See A. Orakhelashvili, Peremptory Norms in International Law 112 (2006). Report of the International Law Commission, 18th Session, supra note 206, at 247. Nicaragua case (Merits), supra note 14, at 100. 609 Ibid., 153. 610 See ibid., 199. Draft Articles on Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission, 53rd Session, 43, 283 (2001). Prosecutor v. Furundzija (ICTY, Trial Chamber, 1998), 38 ILM 317, 349 (1999).

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issue cannot be derogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force’. In other words, the special standing of jus cogens is manifested less in enjoining States from contrary behaviour (violations), and more in aborting attempted derogations from the general norms.613 285. This point has to be fully grasped. Breaches of all legal norms, however characterized (be they jus cogens or jus dispositivum), are forbidden. If Arcadia and Numidia were to conclude today a pact of aggression against Utopia, the action envisaged would be a flagrant violation of general (Charter as well as customary) international law. For such a contravention of the law to be perpetrated, it is immaterial whether States act jointly or severally. Neither Arcadia nor Numidia, when acting on its own, is permitted to wage an aggressive war against Utopia. What each is disallowed to do separately, the two of them are forbidden to do together. 286. When an international legal norm is classified as jus cogens, what is meant is not just that a particular pattern of State conduct is banned. The peremptory nature of the injunction signifies that the contractual freedom of States is curtailed. Hence, a pact of aggression concluded between Arcadia and Numidia against Utopia will not only be stigmatized as a violation of the Charter, as well as general customary international law, but it will also be void ab initio614 (on the meaning of the term ‘void’ under the Vienna Convention, see supra 112). However, the rule does not apply to all treaties projecting recourse to inter-State force. There is an intrinsic difference between a pact plotting an unlawful use of force (aggression) and a treaty for an effective deployment of lawful measures of counter-force (collective self-defence) in the event of an armed attack by a third Party615 (see infra 751). Only the former instrument, and not the latter, will be annulled. Should a dispute arise as to whether a specific treaty is invalid on the ground of conflict with jus cogens, the International Court of Justice is vested with compulsory jurisdiction in the matter under Article 66(a) of the Vienna Convention.616 287. A pact of aggression ought not to be confused with a treaty, concluded between Arcadia and Numidia, colliding with ordinary rights of Utopia (i.e. rights derived from jus dispositivum). The validity of an ordinary treaty between Arcadia and Numidia is not stripped as a result of an infringement of Utopia’s rights. Arcadia and Numidia will bear international responsibility towards Utopia, but their treaty remains in force.617 By contrast, a pact of aggression,

613 614 615 616 617

See J. Sztucki, Jus Cogens and the Vienna Convention on the Law of Treaties 67–8 (1974). See G. G. Fitzmaurice, ‘Third Report on Law of Treaties’, [1958] II ILC Ybk 20, 40. See Sinclair, supra note 208, at 216. Vienna Convention on the Law of Treaties, supra note 204, at 157. See Report of the International Law Commission, 18th Session, supra note 206, at 217.


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being in conflict with jus cogens, would be invalid. It is perhaps easier to understand the need for the distinction between these two categories of instruments when it is perceived that a pact of aggression is an agreement to commit a crime618 (see infra 339). Even without waiting for the actual consummation of the crime, the preparatory act contemplating it – namely, the treaty – is rescinded as a conspiracy to commit a crime.619 288. Furthermore, Arcadia and Numidia are disallowed to conclude a treaty derogating from jus cogens, even in their mutual relations inter se. It has been argued that ‘if two states enter into a treaty sanctioning the use of force by one of them against the other, use of force is a misnomer and the treaty is not contrary to Article 2(4)’.620 However, this is a misrepresentation of the current jus ad bellum. Arcadia and Numidia cannot enter into a valid agreement in which they absolve each other from the prohibition of the use of inter-State force inter se and decide to settle a dispute by war. 289. Arcadia and Numidia have no legal competence to sanitize the illegality of the use of force by one of them against the other even if they make an express pledge to safeguard the rights of non-Contracting Parties.621 All States have an interest, currently protected by international law, that no war will break out anywhere (be it in close proximity or in the most distant part of the globe), lest the conflagration spread to other countries far and near. A treaty initiating war by consent is abrogated, although its impact is allegedly limited to the relations inter partes, because of its potential deleterious effects on the international community. There is no contracting out of jus cogens obligations and no creation of a lex specialis running counter to it. B.

How can jus cogens be modified?

290. As the International Law Commission has remarked, ‘it would clearly be wrong to regard even rules of jus cogens as immutable and incapable of modification in the light of future developments’.622 Article 53 (quoted supra 280) expressly allows for the possibility of modification of jus cogens, but this must be brought about in the same way that the original norm was established. The net result is that, whereas two States cannot validly agree to release themselves from the prohibition of recourse to force in international relations, the international community as a whole is in a more advantageous position. Having constructed the peremptory norm, the international community may

618 620 621 622

See Gaja, supra note 604, at 301. 619 See Jiménez de Aréchaga, supra note 220, at 65. O. Spiermann, ‘Humanitarian Intervention as a Necessity and the Threat or Use of Jus Cogens’, 71 NJIL 523, 535 (2002). Cf. Fitzmaurice, supra note 614, at 40. See Report of the International Law Commission, 18th Session, supra note 206, at 248.

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amend it (by narrowing or broadening its scope), supersede it with another rule, or even repeal it altogether. Pragmatically speaking, given the difficulties with which the process of modification of jus cogens is fraught (see infra 291 et seq.), it is more likely to end with alteration than with abrogation of an existing peremptory norm.623 291. A modification of an existing peremptory norm through the emergence of a conflicting general custom may prove hard to accomplish, since custom usually consists of a series of unilateral acts which in the setting of an incompatible jus cogens could be judged as lacking any legal effect.624 That is to say, the existing peremptory norm may invalidate the process designed to bring about its modification.625 Arguably, a declaratory resolution, adopted by consensus by the United Nations General Assembly,626 may be of help.627 But surely such a resolution cannot cement a new custom, powerful enough to trample on jus cogens, unless it is based on widespread State practice.628 292. The modification of jus cogens should be easier to attain through a general (multilateral) treaty terminating or amending prior obligations. Yet, the process of concluding a general treaty, intended to modify an existing jus cogens, is not free from obstructions. I. Sinclair regarded the process as ‘enigmatic’, because the modifying treaty ‘would, at the time of its conclusion, be in conflict with the very rule of jus cogens which it purports to modify’.629 The present writer is inclined to think that the enigma is more apparent than real, provided that, ‘at the time of its conclusion’, the modifying treaty has gained the backing of the international community as a whole. General support for the treaty would demonstrate that it constitutes ‘a subsequent norm of general international law having the same character’ (in the words of Article 53 quoted supra 280) as the original jus cogens. 293. What is the proper manner of manifesting general support by the international community for a treaty modifying jus cogens? T. Meron seems to adhere to the view that the mere formulation of the modifying treaty by a large majority of States indicates the emergence of a new jus cogens, ‘even before the entry into force’ of that treaty.630 This probably goes too far. The required support

623 624 625 626

627 628 629 630

See Orakhelashvili, supra note 606, at 127–30. On this problem, see C. L. Rozakis, The Concept of Jus Cogens in the Law of Treaties 89–90 (1976). See M. Glennon, ‘De l’Absurdité du Droit Impératif (Jus Cogens)’, 110 RGDIP 529, 533 (2006). Consensus resolutions of the General Assembly may provide important evidence as regards the emergence of a new customary rule. See Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, supra note 37, at 254–5. See L. Hannikainen, Peremptory Norms (Jus Cogens) in International Law: Historical Development, Criteria, Present Status 266 (1988). See, e.g., G. M. Danilenko, Law-Making in the International Community 252 (1993). Sinclair, supra note 208, at 226. Emphasis in the original. T. Meron, Human Rights Law-Making in the United Nations 184 n. 150 (1986).


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for the novel peremptory norm is expressed only by the consent of States to be bound by the modifying treaty. Hence, the entry into force of the modifying treaty has to be conditioned on ratification or accession by the bulk of the international community. If the modifying treaty – negotiated, and perhaps signed, by almost all States – stipulates that it will enter into force following the deposit of a relatively small number of ratifications or accessions, the treaty is likely to be considered void, at the point of ostensible entry into force, due to an unequal clash with the very jus cogens which it tries to revise. But if the modifying treaty obtains an impressive number of ratifications and accessions prior to entry into force, it should manage to overcome the hurdle of the pre-existing jus cogens and gain validity. In becoming a valid and binding instrument, it alters the obsolete peremptory norm. 294. The problem of modifying jus cogens is further complicated by the issue of a hypothetical amendment of the United Nations Charter. Such an amendment is permissible when a certain procedure, prescribed in Article 108,631 is complied with. The amending power covers every single clause in the Charter, bar none. At some indefinite time in the future, Member States may theoretically avail themselves of the existing mechanism to amend Article 2(4). Such an amendment is not likely to be agreed upon any time soon. As recently as 2005, the ‘World Summit Outcome’ emphatically reaffirmed that ‘the relevant provisions of the Charter are sufficient to address the full range of threats to international peace and security’.632 Patently, these provisions are therefore far from being an ‘anachronism’ (as alleged by some observers633). 295. Even if an amendment of Article 2(4) were to be contemplated, it must not be forgotten that the current prohibition of the use of inter-State force derives its peremptory nature not only from the Charter, but also from an independently valid general customary law (see supra 255–6). The quandary is whether a hypothetical amendment of Article 2(4), unaccompanied by a corresponding change in the general practice of States, would be considered a sufficient lever for modifying the existing customary jus cogens. VI.

State responsibility

A.

Application of general rules of State responsibility

296. As the International Law Commission phrased it, in 2001, in Article 1 of the finalized Draft Articles on Responsibility of States for Internationally Wrongful Acts: 631 632 633

Charter of the United Nations, supra note 248, at 363. World Summit Outcome, supra note 574, at 15. See D. H. Joyner, ‘Jus ad Bellum in the Age of WMD Proliferation’, 40 GWILR 233, 245 (2008–9).

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Every internationally wrongful act of a State entails the international responsibility of that State.634

In conformity with this general rule, recourse to inter-State force – in breach of both the United Nations Charter and customary international law – gives rise to State responsibility. As will be shown (infra 360), the planning or execution of an act of aggression may also lead to the imposition of penal sanctions on certain individuals who acted as organs of the aggressor State. But individual accountability (for aggression) and State responsibility (for any unlawful use of inter-State force) exist simultaneously rather than alternatively: one does not detract from the other. 297. What is the essence of State responsibility? The International Law Commission stated, in Article 31(1), that ‘[t]he responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act’.635 This is based on the holding of the Permanent Court of International Justice, in the Chorzów Factory case of 1928, that ‘it is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation’.636 The Court went on to say that ‘reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed’.637 The aspiration to bring about a restitutio in integrum may be frustrated by the fact that restoring the status quo ante is not feasible in realistic terms.638 If restitution in kind is ruled out, the duty to make reparation becomes a duty to pay financial compensation for the damage caused.639 When the injury sustained cannot be made good or financially assessable – so that neither restitution nor compensation is the right remedy – reparation may take the shape of ‘satisfaction’.640 Thus, in the Genocide case of 2007, the International Court of Justice ruled that satisfaction is the appropriate form of reparation for the breach of an obligation to prevent genocide.641 Satisfaction denotes ‘an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality’.642 298. Satisfaction will usually not suffice in circumstances of State responsibility arising for an unlawful use of inter-State force (particularly for waging aggressive

634 636 637 638 639 640 641 642

Draft Articles on State Responsibility, supra note 611, at 43. 635 Ibid., 51. Case Concerning the Factory at Chorzów (Claim for Indemnity) (Merits) (Germany v. Poland) (A/17, 1928), 1 WCR 646, 664. Ibid., 677–8. See Draft Articles on State Responsibility, supra note 611, at 52 (Article 35). See ibid. (Article 36). Cf. Factory at Chorzów case, supra note 636, at 678. Draft Articles on State Responsibility, supra note 611, at 52 (Article 37(1)). Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), [2007] ICJ Rep. 43, 234. Draft Articles on State Responsibility, supra note 611, at 52 (Article 37(2)).


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war). Restitution in kind is possible when property which has been seized by the aggressor State is traceable643 (a prospect of the utmost importance in connection with spoliation of treasures of art). But, on the whole, since war causes death and irreversible destruction on a vast scale, restitution in kind cannot be considered a pragmatic remedy. Payment of compensation must be looked upon as the most effective mode of reparation. In principle, the compensation should relate to all losses and injuries suffered by the victim States and their nationals as a result of the unlawful use of force.644 299. Upon termination of an international armed conflict, the (former) Belligerent Parties may conclude a special agreement turning over the appraisal of compensation to judges, arbitrators or assessors. But the International Court of Justice may acquire jurisdiction in the matter even without a special agreement (and even when the conflict is not over). In the Nicaragua case of 1986, having rejected an American challenge to its jurisdiction and having determined that the United States employed unlawful force against Nicaragua (thus incurring an obligation to make reparation for all injuries caused), the Court decided to settle the form and amount of such reparation at a later stage.645 Eventually, in 1991, Nicaragua renounced its right of action and the Court recorded the discontinuance of the proceedings.646 300. The obligation of an aggressor State to indemnify the victims of aggression (for the violation of the jus ad bellum) must not be confused with the independent liability of a Belligerent Party to pay compensation for breaches of the jus in bello. The latter duty is spelt out in Article 3 of Hague Convention (IV) of 1907,647 and in Article 91 of Additional Protocol I of 1977 to the Geneva Conventions.648 There is no guarantee that, if infractions of the jus in bello are committed in wartime, the aggressor State will turn out to be the culpable Party. It is entirely plausible that the victim of aggression will be responsible for some, if not most of, the contraventions. The obligation to pay compensation for breaches of the jus in bello ‘applies equally to each party to the conflict, whether aggressor or defender’.649 Should the victim of aggression have to indemnify losses on this ground, a set-off (reducing the amount of compensation owed by the aggressor State for its breach of the jus ad bellum) may be called for. 643 644 645 646 647 648 649

See, e.g., Article 238 of the Versailles Treaty of Peace with Germany, supra note 226, at 1394; Article 75 of the Paris Treaty of Peace with Italy, 1947, 49 UNTS 3, 157–8. See Q. Wright, ‘The Outlawry of War and the Law of War’, 47 AJIL 365, 372 (1953). Nicaragua case (Merits), supra note 14, at 142–3, 146–9. Case Concerning Military and Paramilitary Activities in and against Nicaragua (Order) (Nicaragua v. United States), [1991] ICJ Rep. 47, 48. Hague Convention (IV), supra note 33, at 103. Additional Protocol I, supra note 33, at 132. See R. Wolfrum and D. Fleck, ‘Enforcement of International Humanitarian Law’, The Handbook of International Humanitarian Law 675, 707 (D. Fleck ed., 2nd edn, 2008).

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301. The pecuniary losses borne by a victim of aggression may be fixed, in the form of a lump-sum settlement in a treaty of peace. Once such a procedure is followed, much depends on policy considerations. The lump-sum settlement may reflect the principle that ‘the burdens of war are to be placed on the belligerents who spawn them’, but it may also mirror the opposing goal of post-war reconstruction and reconciliation.650 Another factor, not to be overlooked, is that a State emerging from a debilitating war will scarcely be in condition to carry a heavy financial load. An extended war is so devastating that any fair evaluation of the damages to be paid may end up with staggering amounts, in excess of the economic capacity of the State to which responsibility is attributed. This is especially true if remote (or indirect) losses, causally linked to the war, are to be taken into account.651 Excessive war reparations are liable to famish a country in a manner that may be regarded as incompatible with the basic human rights of its civilian population.652 302. The issue of excessive war reparations always brings to mind the case of Germany in the wake of World War I. In Article 231 of the 1919 Versailles Treaty of Peace, Germany accepted responsibility (shared with its allies)653 ‘for causing all the loss and damage to which the Allied and Associated Governments and their nationals have been subjected as a consequence of the war imposed upon them by the aggression of Germany and her allies’654 (a detailed list of compensable damages was produced in a special annex655). Article 232 recognized that the resources of Germany were not sufficient to make complete reparation for all such loss and damage, and the compensation was limited to damage done to the civilian population of the Allied and Associated Powers and their property. To determine the amount, an Inter-Allied Reparation Commission was set up under Article 233.656 German resentment of these clauses soured international relations in the post-War era. Ultimately, the actual 650 651

652 653

654 655 656

R. B. Lillich and B. H. Weston, International Claims: Their Settlement by Lump Sum Agreements, I, 167 (1975). The United States–Germany Mixed Claims Commission held (per E. B. Parker, Umpire): ‘It matters not whether the loss be directly or indirectly sustained as long as there is a clear, unbroken connection between Germany’s act and the loss complained of. It matters not how many links there may be in the chain of causation connecting Germany’s act with the loss sustained, provided there is no break in the chain and the loss can be clearly, unmistakably, and definitely traced, link by link, to Germany’s act.’ Administrative Decision No. II (1923), 7 RIAA 23, 29–30. Cf. G. Cottereau, ‘De la Responsabilité de l’Iraq selon la Résolution 687 du Conseil de Sécurité’, 37 AFDI 99, 113–14 (1991). See F. Domb, ‘Human Rights and War Reparation’, 23 IYHR 77, 94–5 (1993). Parallel provisions appeared in St Germain Treaty of Peace with Austria, 1919, Peace Treaties, III, 1535, 1598 et seq. (Articles 177 et seq.); Neuilly Treaty of Peace with Bulgaria, 1919, ibid., 1727, 1769 et seq. (Articles 121 et seq.); Trianon Treaty of Peace with Hungary, 1920, ibid., 1863, 1923 et seq. (Articles 161 et seq.). Versailles Treaty of Peace, supra note 226, at 1391. Annex I to Article 232, A History of the Peace Conference of Paris, supra note 222, at III, 218–19. Versailles Treaty of Peace, supra note 226, at 1392.


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indemnities remitted fell far short of the levels of expectations of the architects of the Treaty of Versailles, and, according to some calculations, Germany may have paid no net reparations at all.657 In retrospect, J. M. Keynes, the prominent economist, proved right in his admonition that a ‘Carthagenian peace is not practically right or possible’.658 303. The Treaty of Versailles is by no means the only model for war reparations.659 After the outbreak of the Gulf War, the Security Council – in Resolution 674 (1990) – reminded Iraq that ‘under international law it is liable for any loss, damage or injury arising in regard to Kuwait and third States, and their nationals and corporations, as a result of the invasion and illegal occupation of Kuwait by Iraq’.660 The Council further invited States ‘to collect relevant information regarding their claims, and those of their nationals and corporations, for restitution or financial compensation by Iraq’. In Resolution 687 (cited supra 151) – in which the terms of the cease-fire were laid down – the Council reiterated Iraq’s liability under international law and decided that a fund to pay compensation for the ensuing claims would be created out of Iraqi oil revenues. The Compensation Fund and a Compensation Commission were established in Resolution 692 (1991).661 304. Millions of claims by and on behalf of individuals, as well as several Governmental claims, were filed with the United Nations Compensation Commission.662 By 2010, the Commission had awarded more than 52 billion dollars, of which approximately 30 billion were made available to claimants.663 These astounding figures ‘dwarf all previous efforts in the area of international claims resolution’.664 305. A much more modest approach was taken by the Eritrea Ethiopia Claims Commission. In a Partial Award of 2005 on Jus ad Bellum, the Commission arrived at the conclusion that Eritrea had violated Article 2(4) of the United Nations Charter (quoted supra 233) by resorting to armed force to attack and occupy Ethiopian territory.665 Nevertheless, in its 2007 Decision on Guidance Regarding Jus ad Bellum Liability, the Commission stressed that the Award ‘did not include a finding that Eritrea had waged an aggressive war, had occupied large parts of Ethiopia, or otherwise engaged in the sort of widespread lawlessness that the Security Council identified in the case of the invasion and 657 658 659 660 661 662 663 665

See D. Thomson, Europe since Napoleon 566–8 (2nd edn, 1962). J. M. Keynes, The Economic Consequences of the Peace 23 (II Collected Writings of J. M. Keynes, 1971). Cf. I. Seidl-Hohenveldern, ‘Reparations after World War II’, IV EPIL 180–4. Security Council Resolution 674 (1990), 45 RDSC 25, 26 (1990). Security Council Resolution 692 (1991), 46 RDSC 18, id. (1991). See United Nations Compensation Commission, Status of Processing and Payment of Claims (28 October 2010). Ibid. 664 D. D. Caron, ‘Introductory Note’, 35 ILM 939, id. (1996). Eritrea Ethiopia Claims Commission, Partial Award, Jus ad Bellum, supra note 62, at 434.

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occupation of Kuwait’.666 It therefore pronounced that the compensable damages from the breach of the jus ad bellum ought to be based on ‘proximate cause’, giving weight to ‘whether particular damage reasonably should have been foreseeable to an actor committing the international delict in question’.667 This decision still leaves many questions open.668 B.

State responsibility for international crimes

(a) The criminal responsibility of States 306. An allusion has already been made (supra 296) to the existence of individual criminal accountability for acts of aggression (a matter that will command attention in Chapter 5). Can a State, too, bear criminal responsibility for such an act? Calls for recognition of the penal responsibility of States have been made since the 1920s.669 Then as now, quite a few scholars,670 as well as representatives of States,671 have flatly denied that there is any merit in the idea. At times, writers take contradictory positions on this issue. Thus, G. I. Tunkin declared in one context that ‘the concept of criminal responsibility of a state is wholly unfounded’.672 Further on, in the same book, he registered the emergence in international law of a new phenomenon of ‘sanctions relating to the international crimes of a state’, including ‘measures having the character of preventive punishment’ (like the treatment of Germany after World War II).673 307. It is elementary that a State, as an artificial legal person, cannot actually be subjected to certain penal sentences (like imprisonment). However, from the outset of the debate, it has been argued that military, diplomatic and economic measures may serve as penal sanctions against States.674 More recently, actions such as those taken against Germany and Japan after World War II (e.g., ‘the destruction of factories capable of increasing the military potential’) have been offered for consideration as penal sanctions available against States.675 Schwarzenberger even advocated the policy of treating States like Nazi 666 667 668

669 670 671 672 674 675

Eritrea Ethiopia Claims Commission, Decision, Guidance Regarding Jus ad Bellum Liability, 2007, 46 ILM 1121, 1125 (2007). Ibid., 1122. See E. V. Koppe, ‘Compensation for War Damages under Jus ad Bellum’, The 1998–2000 War between Eritrea and Ethiopia: An International Legal Perspective 417, 431–3 (A. de Guttry, H. H. G. Post and G. Venturini eds., 2009). For a brief summary, see V. V. Pella, ‘Towards an International Criminal Court’, 44 AJIL 37, 50–1 (1950). See K. Marek, ‘Criminalizing State Responsibility’, 14 RBDIL 460, 483 (1978–9). See also P.-M. Dupuy, ‘Observations sur le “Crime International de l‘Etat”’, 84 RGDIP 449–86 (1980). See L. Henkin, R. C. Pugh, O. Schachter and H. Smit, International Law Cases and Materials 559 (3rd edn, 1993). Tunkin, supra note 48, at 402. 673 Ibid., 422. See V. V. Pella, ‘Plan d’Un Code Répressif Mondial’, 12 RIDP 348, 369 (1935). Pella, supra note 669, at 52.


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Germany, which deliberately plan and pursue ‘wholesale aggression’ (to be distinguished from an ordinary case of resorting to unlawful force), in the manner of ‘outlaws’: such States should ‘forfeit their international personality and put themselves beyond the pale of international law’.676 These are farfetched and not very attractive proposals. After all, when penal sanctions are inflicted on a State (an incorporeal juristic person), they are tantamount to the collective punishment of the State’s population, striking at the innocent together with the guilty.677 Modern conceptions of international human rights exclude the possibility of exposing the civilian population of a State to indiscriminate collective punishment (see supra 301).678 308. The International Law Commission confronted the conundrum of the criminal responsibility of States and found (not surprisingly) that it is not easy to resolve. In 1996, when the Commission adopted the Draft Code of Crimes against the Peace and Security of Mankind, it explicitly referred to the fact that a crime of aggression must be ‘committed by a State’ (see Article 16, quoted infra 343). Yet, the Draft Code is confined to individual criminal accountability,679 and the Commission clarified that this is ‘without prejudice to any question of the responsibility of States under international law’.680 It has been suggested that the Commission ‘tergiversates’ when it requires a determination that a crime of aggression is committed by a State but separates the issue from any connection with State responsibility.681 However, arguably, the act of the State itself – while unlawful (giving rise to State responsibility) – need not amount to a crime, even if the individual involvement in that same act (aggression) is punishable.682 309. In its separate and independent study of State Responsibility (which went on for decades), the International Law Commission – on the initiative of its Special Rapporteur, R. Ago683 – was for many years inclined to address the specific legal consequences of international crimes684 (although the practical connotations spelt out in the Draft Articles were not dramatic685). The Commission’s approach to the subject of international crimes underwent a 676 677 679 680 681 682 683 684 685

G. Schwarzenberger, ‘The Judgment of Nuremberg’, 21 Tul.LR 329, 351 (1946–7). See P. N. Drost, I The Crime of State 292 (1959). 678 See Brownlie, supra note 61, at 153. Draft Code of Crimes against the Peace and Security of Mankind, Report of the International Law Commission, 48th Session, [1996] II (2) ILC Ybk 17, 18 (Article 2). Ibid., 23 (Article 4). J. Allain and J. R. W. D. Jones, ‘A Patchwork of Norms: A Commentary on the 1996 Draft Code of Crimes against the Peace and Security of Mankind’, 8 EJIL 100, 108 (1997). See C. Antonopoulos, ‘Whatever Happened to Crimes against Peace?’, 6 JCSL 33, 40 (2001). See R. Ago, ‘Fifth Report on State Responsibility’, [1976] II (l) ILC Ybk 3, 32–5. See Chapter IV (Articles 51–3) of the tentative Draft Articles on State Responsibility, 37 ILM 440, 458–9 (1998). On the effect of the text, see D. W. Bowett, ‘Crimes of State and the 1996 Report of the International Law Commission on State Responsibility’, 9 EJIL 163, 172 (1998); C. Tomuschat, ‘International Crimes by States: An Endangered Species’, International Law: Theory and Practice (Essays in Honour of Eric Suy) 253, 256–8 (K. Wellens ed., 1998).

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radical change when the Draft Articles were brought to their conclusion (under the guidance of a new Special Rapporteur, J. Crawford). In its final text, the Commission dropped altogether the reference to international crimes,686 replacing it with rather anodyne provisions dealing with serious breaches of obligations under peremptory norms of general international law.687 In particular, the Commission set forth – in Article 41 – that when a serious breach of an obligation under peremptory norms of general international law takes place, States must cooperate to bring it to an end through lawful means and no State shall ‘recognize as lawful’ a situation created by such a serious breach.688 (b) Erga omnes obligations 310. Ordinarily, when Patagonia (through an act of commission or omission) is in breach of an international obligation, there is a particular State (Atlantica) or a group of States (Atlantica, Numidia et al.) vested with the right correlative to that obligation. Hence, only Atlantica, Numidia etc. will have a jus standi to institute an international claim against Patagonia. If Ruritania does not possess a right corresponding to the Patagonian obligation, it has no jus standi in the dispute. In political, economic and other terms, Ruritania may have a genuine interest in any Atlantican or Numidian initiative challenging Patagonian behaviour. Yet, that interest is not protected by international law. 311. In the 1970 Barcelona Traction case, the International Court of Justice held that there are some obligations in contemporary international law which arise ‘towards the international community as a whole’ – the Court specifically referred, as an illustration, to those derived ‘from the outlawing of acts of aggression’ – and these obligations are ‘obligations erga omnes’, inasmuch as all States have ‘a legal interest’ in the protection of the rights involved.689 The concept of erga omnes obligations has since been reaffirmed by the Court in diverse contexts, ranging from self-determination (see infra 486) to genocide.690 312. In the exceptional circumstances of erga omnes obligations, international law protects the interests not merely of a specific State or group of States, but of all the States in the world. Each State is vested with rights corresponding to erga omnes obligations, thus obtaining a jus standi in the matter.691 Still, jus standi to demand what? In Article 48 of the 2001 Draft Articles on State Responsibility, the

686 687 689 690

691

For an explanation, see Draft Articles on State Responsibility, supra note 611, at 277–82. Ibid., 53–4 (Articles 40–1). 688 Ibid., 53. Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), [1970] ICJ Rep. 3, 32. See Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Preliminary Objections) (Bosnia and Herzegovina v. Yugoslavia), [1996] ICJ Rep. 595, 616. See also Case Concerning Armed Activities on the Territory of the Congo (Jurisdiction and Admissibility) (Congo v. Rwanda), [2006] ICJ Rep. 6, 31–2. See Y. Dinstein, ‘The Erga Omnes Applicability of Human Rights’, 30 Ar.V. 16, 18–19 (1992).


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International Law Commission (while deliberately avoiding the expression ‘erga omnes obligations’692 ) enunciates that, when an obligation breached is owed to the international community as a whole, any State – other than the injured State – may claim from the responsible State not only cessation of the wrongful act (as well as assurances and guarantees of non-repetition) but also performance of the obligation of reparation in the interest of the injured State.693 The Commission admitted that the latter aspect of the provision ‘involves a measure of progressive development’694 (that is to say, it reflects lex ferenda rather than lex lata). In 2005, the Institut de Droit International – in a resolution, adopted in Krakow, addressing the issue of erga omnes obligations – basically endorsed the Commission’s approach.695 All the same, even if a State which is not the injured State may act in the interest of the victim of the wrongful act, there is no doubt that it cannot demand any monetary compensation for itself.696 313. There are obvious similarities between jus cogens obligations (see supra 280 et seq.) and obligations erga omnes, but these two expressions must not be conflated.697 Jus cogens invalidates treaties attempting to contract out of peremptory obligations (see supra 284–6). ‘The erga omnes nature of obligations, however, indicates no clear superiority of that obligation over other obligations’.698 G. Gaja rightly pointed out that, ‘[a]s has been widely held in literature, peremptory norms represent an inner circle within the wider circle of norms establishing obligations erga omnes. This is because obligations erga omnes are not necessarily imposed by peremptory norms’.699 Another way of phrasing the same idea is that ‘all peremptory norms create obligations erga omnes, but not all erga omnes obligations derive from peremptory norms’.700 The full implications of erga omnes obligations not constituting jus cogens are debatable.701 But for the purposes of this book this is of little consequence, for the obligation to refrain from the use of inter-State force may indubitably be pigeonholed as both jus cogens (see supra 283) and erga omnes (see supra 311).

692 695 696

697 698

699 700 701

Draft Articles on State Responsibility, supra note 611, at 321. 693 Ibid., 56. 694 Ibid., 323. Institut de Droit International, Resolution, ‘Obligations Erga Omnes in International Law’, 71 (II) AIDI 287, 287–9 (Krakow, 2005) (Article 2). See B. Simma, ‘International Crimes: Injury and Countermeasures. Comments on Part 2 of the ILC Work on State Responsibility’, International Crimes of States 283, 301 (J. H. H. Weiler, A. Cassese and M. Spinedi eds., 1989). See M. Ragazzi, The Concept of International Obligations Erga Omnes 72 (1997). M. Koskenniemi, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, Report of a Study Group of the International Law Commission, 58th Session, 193 (UN doc. A/CN.4/L.682, 2006). G. Gaja, ‘Obligations and Rights Erga Omnes in International Law’, Second Report, 71(I) AIDI 189, 192 (Krakow, 2005). See also First Report, ibid., 119, 128. K. Zemanek, ‘New Trends in the Enforcement of Erga Omnes Obligations’, 4 MPYUNL 1, 6 (2000). See C. J. Tams, Enforcing Obligations Erga Omnes in International Law 151–7 (2005).

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(c) Punitive damages 314. It has been noted (supra 297) that compensation, as a measure of reparation, is supposed to cover the actual damage caused. Additionally, a proposal has been raised, in the course of the deliberations of the International Law Commission, to impose on the perpetrators of international crimes – as an exceptional measure – ‘severe punitive damages’.702 Of course, if punitive damages could be meted out to the aggressor State, they would constitute a monetary punishment (comparable to a fine in domestic criminal law).703 At a certain point, the Commission resolved that ‘damages reflecting the gravity of the infringement’ should be paid in case of gross breaches.704 However, this text encountered opposition by Governments on the ground that ‘damages reflecting the gravity of the breach’ are ‘scarcely different from “punitive damages”’.705 Ultimately, the Commission arrived at the categorical conclusion that ‘the award of punitive damages is not recognized in international law even in relation to serious breaches of obligations arising under peremptory norms’.706 315. One reason for the reluctance to pursue the path of imposing punitive damages on aggressor States is that, if the economic burden of paying ordinary compensation for war losses is liable to be too onerous to bear (see supra 301), the chances of collecting punitive damages from the responsible State is a fortiori slender. Should that State default, there would be no point in driving it to bankruptcy. In the first place, an insolvent State will surely lack the capacity to discharge its war debts. Besides, ability to pay punitive damages cannot conceivably serve as an exclusive yardstick when the future of a State is at stake. A State cannot be equated with a commercial concern threatened with bankruptcy, inasmuch as there are essential governmental functions which must continue to be exercised no matter what.707 VII.

Consent

A.

Ad hoc consent 316. Article 20 of the Draft Articles on State Responsibility prescribes:

Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.708 702 703 704 705 706 707 708

Summary Records of the International Law Commission, 46th Session, [1994] I ILC Ybk 135. See F. Malekian, International Criminal Responsibility of States 179–80, 196 (1985). Draft Articles on State Responsibility, supra note 684, at 456 (Article 45(2)(c)). See C. J. Tams, ‘Do Serious Breaches Give Rise to Any Specific Obligations of the Responsible State?’, 13 EJIL 1161, 1169 (2002). Draft Articles on State Responsibility, supra note 611, at 279. See J. F. Williams, ‘A Legal Footnote to the Story of German Reparations’, 13 BYBIL 9, 31 (1932). Draft Articles on State Responsibility, supra note 611, at 48.


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The Article as quoted ‘reflects the basic international law principle of consent’.709 This principle has a wide catchment area, but it raises several issues where the use of force is concerned. (a) Consent to foreign military assistance against local insurgents 317. Generally speaking, military assistance may be ‘rendered by one state to another at the latter’s request and with its consent, which may be given ad hoc or in advance by treaty’.710 It is true that, under Article 2 of a 1975 Resolution of the Institut de Droit International on ‘The Principle of Non-Intervention in Civil Wars’, it is forbidden to extend foreign assistance to any Party in a ‘civil war’.711 But this prohibition is irreconcilable with traditional international law,712 and it is equally inconsistent with the more modern practice of States.713 Contemporary international practice is replete with instances of detachments of armed forces sent by one State to another, at the latter’s request, in order to help in safeguarding law and order in the face of intractable domestic turmoil.714 A prime example is that of the Regional Assistance Mission to the Solomon Islands (RAMSI), created by the Pacific Islands Forum and led by Australia, sent in 2003 to the Solomon Islands – at the request of that country – with a view to restoring internal security.715 318. International law draws a sharp distinction between the central Government, on the one hand, and insurgent groups, on the other (see supra 9). Unless a ‘civil war’ gains such scope that the insurgents are granted recognition of belligerency (implying that foreign States must remain neutral in the armed conflict despite the fact that it is not international in nature),716 intervention from the outside is permissible against the insurgents at the request of the central Government. Differently put, under ordinary circumstances (absent recognition of belligerency), when an insurgency is raging within Ruritanian territory, Atlantica is allowed to lend military assistance to the Ruritanian Government (if requested to do so) with a view to stamping out the uprising. Since Atlantica and Ruritania are then using force jointly against non-State actors (the Ruritanian insurgents), there is no inter-State clash, and Article 2(4) of the Charter (quoted supra 233) does not come into play. Conversely, Pacifica is legally barred from intervening militarily in aid of the 709 711 712 713 714 715 716

Ibid., 173. 710 Oppenheim’s, supra note 211, at 435. Institut de Droit International, Resolution, ‘The Principle of Non-Intervention in Civil Wars’, 56 AIDI 545, 547 (Wiesbaden, 1975). See J. W. Garner, ‘Questions of International Law in the Spanish Civil War’, 31 AJIL 66, 67–9 (1937). Cf. L. Doswald-Beck, ‘The Legal Validity of Military Intervention by Invitation of the Government’, 56 BYBIL 189–252 (1985). See Oppenheim’s, supra note 211, at 435–6. See ‘Australian Practice in International Law 2003’, 24 AYBIL 337, 426–8 (2005). See Oppenheim’s, supra note 211, at 165.

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insurgents against the central Government of Ruritania. In the Nicaragua case, the International Court of Justice firmly concluded that forcible intervention from the outside, ‘in support of an opposition within another State’, constitutes a breach of the prohibition of the use of inter-State force.717 319. The difficulty is that this sharply delineated dichotomy – of military assistance to the central Government versus forcible intervention in support of insurgents – may be easier to maintain in the abstract than in concrete cases. Ruritania may plunge into chaotic turbulence, with several claimants to constitutional legality or none at all (‘failed State’ is a locution occasionally used718). Should Atlantica contemplate forcible intervention at the request of one of the feuding Ruritanian armed groups, it may be incapable of identifying any remnants of the central Government and determining who has rebelled against whom.719 The Institut’s position would probably be corroborated in such a situation. Otherwise, if Atlantica and Pacifica were both to intervene militarily in the Ruritanian ‘civil war’ – in support of two opposing factions, each claiming that it is the true Government of the country720 – they would probably clash with each other, with an inter-State armed conflict as the outcome. (c) Consent to other foreign uses of force in the local territory 320. Apollonia may wish to send troops into Utopia, the purpose being not to assist the Utopian Government in quashing an insurgency, but to safeguard Apollonia’s own security. This would be the case when Apollonia desires to employ force against an organized armed group or terrorists who have a base of operations in Utopia from which they emerge to strike at Apollonian targets. For its part, Utopia may grant its consent to the entry into its territory by Apollonian armed forces, with a view to eliminating the bases of the organized armed group or terrorists.721 Once Utopia consents to the presence and activities of the Apollonian troops on its soil, there is no breach of the prohibition of interState use of force. It is important to understand that ‘Article 2(4) of the UN Charter does not take away the sovereign right of States to permit other states to use force on their territory’.722 The lawfulness of such military operations conducted by the armed forces of a foreign State – with the full consent of the

717 718 719 720 721 722

Nicaragua case (Merits), supra note 14, at 110–11. See D. Thürer, ‘The “Failed State” and International Law’, 81 IRRC 731, 733–4 (1999). See R. R. Baxter, ‘Ius in Bello Interno: The Present and Future Law’, Law and Civil War in the Modern World 518, 525 (J. N. Moore ed., 1974). For an example, see C. Gray, International Law and the Use of Force 96 (3rd edn, 2008). See M. N. Schmitt, ‘Counter-Terrorism and the Use of Force in International Law’, 32 IYHR 53, 111 (2002). A. Abass, ‘Consent Precluding State Responsibility: A Critical Analysis’, 53 ICLQ 211, 224 (2004).


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local State – was explicitly acknowledged by the International Court of Justice in the Armed Activities case.723 We shall return to this topic (infra 711), in order to examine whether in some exceptional circumstances Apollonia may conduct such military operations even in the absence of Utopian consent. (c) The limits of consent and its withdrawal 321. A perennial problem relating to consent is the possibility of abuse. Utopian consent to the presence and activities of Apollonian armed forces on its soil must be buttressed by clear evidence dispelling any possible doubts about its genuine character.724 As was pointed out, in the context of the Soviet military intervention in Hungary in 1956 (allegedly by request), ‘consent of a state cannot be deduced from the request of a puppet government acting in its name but set up by foreign intervention’.725 The same statement of the law could equally be made in the setting of the Soviet military intervention in Afghanistan in 1979 (ostensibly at the invitation of the Kabul Government).726 But it is not necessary to go to extremes. The international record abounds with consents and invitations of doubtful validity. A case in point is that of the United States military intervention in Panama, in 1989. This was partly predicated on the consent of a democratically elected President of Panama (whose election had been set aside by the incumbent Government of General Noriega) sworn in, on an American military base, simultaneously with the launching of the military intervention.727 Plainly, all claims of consent must be subjected to a thorough scrutiny. 322. When genuine consent is granted by Utopia to entry of Apollonian armed forces into its territory and their engagement in military operations, it is necessary to keep in mind that – in the language of the Armed Activities Judgment – Apollonia is restricted by ‘the parameters of that consent, in terms of geographic location and objectives’.728 Moreover, as stressed by the Court, the Utopian consent can always be withdrawn (no formalities being necessary, in the absence of a treaty).729 This is a crucial point. As long as consent is in force (and within its parameters), the presence of the Apollonian troops in Utopia is lawful. But withdrawal of consent pulls the rug from under 723 724 725 726 727

728 729

Case Concerning Armed Activities on the Territory of the Congo, supra note 300, at 198–9. See A. Orakhelashvili, ‘Legal Stability and Claims of Change: The International Court’s Treatment of Jus ad Bellum and Jus in Bello’, 75 NJIL 371, 381 (2006). Q. Wright, ‘Intervention, 1956’, 51 AJIL 257, 275 (1957). See W. M. Reisman and J. Silk, ‘Which Law Applies to the Afghan Conflict?’, 82 AJIL 459, 472–4, 485 (1988). See S. Chesterman, ‘Rethinking Panama: International Law and the US Invasion of Panama, 1989’, The Reality of International Law: Essays in Honour of Ian Brownlie 57, 85–6 (G. S. Goodwin-Gill and S. Talmon eds., 1999). Case Concerning Armed Activities on the Territory of the Congo, supra note 300, at 198–9. Ibid., 197.

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the legality of that presence and Apollonia must extract its troops without undue delay. Failure to do so will eo ipso constitute an act of aggression against Utopia (see infra 367, sub-paragraph (e) of the quoted text). B.

Consent by treaty

323. It has been suggested that consent to the entry of foreign troops in the exercise of military assistance against local insurgents must be given ad hoc and not ‘as a blanket authorization for the future’.730 But, as noted (supra 317), Utopia may express its consent to accept military assistance from Apollonia not only ad hoc but also ‘in advance by treaty’ – which can be either bilateral or multilateral – a prominent example being a treaty of guarantee (see infra 770). Moreover, there is a growing tendency in the African Continent to allow by treaty regional military intervention in internal armed conflicts and in other grave situations. This is epitomized in Article 25 of the 1999 Lomé Protocol Relating to the ECOWAS Mechanism for Conflict Prevention, Management and Resolution, Peace-Keeping and Security.731 Even prior to the Lomé Protocol, ECOWAS (the Economic Community of West African States) had already intervened militarily through ECOMOG (Cease-Fire Monitoring Group) in a number of ‘civil wars’, mainly in Liberia (1990) and Sierra Leone (1997).732 In both instances, appeals to ECOWAS for intervention were issued by crumbling central Governments.733 324. The African tendency to allow by treaty a forcible intervention in the affairs of member States reached its apogee in the 2002 Durban Protocol.734 The Durban Protocol sets up a ‘Peace and Security Council of the African Union’ (AUPSC) and confers upon it extensive powers, including the deployment of forces.735 ‘It is expected to consider the right to intervene when the situation so warrants and make appropriate recommendations to the Assembly of the Union for possible intervention’, even without the ad hoc consent of the member State concerned.736

730 731

732 733 734 735 736

A. Cassese, International Law 371 (2nd edn, 2005). Lomé Protocol Relating to the ECOWAS Mechanism for Conflict Prevention, Management, Resolution, Peace-Keeping and Security, 1999, Africa: Selected Documents on Constitutive, Conflict and Security, Humanitarian, and Judicial Issues 261, 274 (J. I. Levitt ed., 2003). See J. Levitt, ‘African Interventionist States and International Law’, African Interventionist States 15–50 (O. Furley and R. May eds., 2001). See J. Levitt, ‘Humanitarian Intervention by Regional Actors in Internal Conflicts: The Cases of ECOWAS in Liberia and Sierra Leone’, 12 Tem.ICLJ 333, 343, 365 (1998). Durban Protocol Relating to the Establishment of the Peace and Security Council of the African Union (AUPSC), 2002, Africa: Selected Documents, supra note 731, at 161, 163. Ibid., 169 (Article 7). B. Kioko, ‘The Right of Intervention under the African Union’s Constitutive Act: From NonInterference to Non-Intervention’, 85 IRRC 807, 817 (2003).


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325. It goes without saying that a treaty like the Durban Protocol can apply only between Contracting Parties. No forcible intervention can be undertaken by ECOWAS or the African Union except within the consensual sphere of application of the respective Protocol. Consent is also valid only as long as it lasts. Assuming that a central Government is in place, it can always withdraw the State’s consent by denouncing the treaty. Nevertheless, if conditions have deteriorated to the point that there is no central authority in control of the country (which has become a ‘failed State’), no group or junta is vested with the competence to withdraw the consent previously expressed in the treaty. 326. The Durban Protocol, ‘while paying lip-service to the primacy of the UN Security Council, seeks, at every turn, to dissipate its pre-eminence’.737 However, any attempt by a regional treaty to impose a legal regime which is incompatible with the United Nations Charter – purporting to authorize a regional body like ECOWAS or the African Union to intervene forcibly notwithstanding the clear wishes of an established central Government – would run counter to Article 103 of the Charter (quoted infra 778). It must be recalled that, given the jus cogens nature of Article 2(4) (see supra 283), a regional treaty cannot contract out of the general prohibition of the use of force.738 Pursuant to Article 53(1) of the Charter (quoted infra 889), regional organizations can use force against a State only under the authority of the Security Council (see also infra 887).

737 738

J. Allain, ‘The True Challenge to the United Nations System of the Use of Force: The Failures of Kosovo and Iraq and the Emergence of the African Union’, 8 MPYUNL 237, 287 (2004). Article 26 of the Draft Articles on State Responsibility expressly subjects the provision regarding consent to the obligation of compliance with peremptory norms (supra note 611, at 50).

5

The crime of aggression

I.

The meaning of aggression

327. The terms ‘aggression’ and ‘aggressor’ are constantly used in the context of the unlawful use of force by States. This is done even in key provisions of binding treaties – preeminently, the Charter of the United Nations (see especially Article 39 quoted infra 810) and the Vienna Convention on the Law of Treaties (see Article 75 quoted supra 109) – which do not make any attempt to define aggression. Needless to say, absent a definition, the precise contours of aggression lend themselves to heated discussions and disagreements. 328. Efforts to arrive at a definition of aggression in a binding form were made in a series of agreements concluded by the USSR with neighbouring countries already in 1933.739 But these definitions leave a lot to be desired and obviously they were never applicable to non-Contracting Parties. Within the framework of the United Nations, endeavours to define aggression started early on. It took quite some time before the impetus favouring such a definition overcame resistance that, initially, was considerable. However, in 1974 the General Assembly managed to adopt by consensus its landmark Definition of Aggression (cited supra 192). The text has proved to be widely – albeit not universally740 – accepted in the legal doctrine. Moreover, at least one Paragraph of the Definition (namely, Article 3(g), to be quoted infra 367) was taken by the International Court of Justice – in the Nicaragua case of 1986 – ‘to reflect customary international law’;741 and the Court relied on that provision again in the 2005 Armed Activities case.742 As we shall see (infra ibid.), in 2010 the whole of Article 3 was incorporated into a new Article 8 bis of the Statute of the International Criminal Court. Indisputably, the General Assembly Definition of Aggression may now be viewed as the most authoritative text on the subject. 739 740 741 742

London Conventions for the Definition of Aggression, 1933, 147 LNTS 67; 148 ibid., 211. For a scathing criticism of the Definition, see J. Stone, ‘Hopes and Loopholes in the 1974 Definition of Aggression’, 71 AJIL 224–46 (1977). Nicaragua case (Merits), supra note 14, at 103. Case Concerning Armed Activities on the Territory of the Congo, supra note 300, at 223.

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II.

Aggression as a crime

A.

The Nuremberg legacy

125

(a) The background 329. The paucity of effective sanctions calculated to enforce respect for legal norms is a pervasive problem in every branch of international law, but nowhere is the need for such sanctions more evident than in the domain of the jus ad bellum. Even at the preliminary stages of the process culminating in the imposition of a legal ban on the use of inter-State force, it was widely recognized that, unless coupled with meaningful sanctions, the interdiction of aggressive war was liable to be chimerical. To be meaningful, sanctions in this context must go beyond the bounds of State responsibility (see supra 296 et seq.). Only if it dawns on the actual decision-makers that – when they carry their country along the path of war in contravention of international law – they expose themselves to individual criminal accountability, are they likely to hesitate before taking the fateful step. 330. At the end of World War I (prior to the proscription of war by positive international law), plans were set in motion to prosecute the German Kaiser, Wilhelm II, on account of his personal responsibility for the War. In Article 227 of the Versailles Treaty of Peace, the Allied and Associated Powers charged the Kaiser with ‘a supreme offence against international morality and the sanctity of treaties’.743 As the language of the Article suggests, the Kaiser’s acts were looked upon as an offence not against international law but against international morality744 (and the sanctity of treaties, a phrase with a religious more than a legal flavour). In any event, the Kaiser found asylum in the Netherlands, not a Contracting Party to the Treaty of Versailles, and that country refused to extradite him on the ground that it was not obligated by international law to do so.745 331. In the era between the two World Wars, the criminality of aggressive war was heralded in several international instruments, none of which was legally binding. Thus, the Preamble of the unratified 1924 Geneva Protocol on the Pacific Settlement of International Disputes, crafted as a device to close the ‘gaps’ in the Covenant of the League of Nations (see supra 225), enunciated that ‘a war of aggression constitutes . . . an international crime’.746

743 744 745 746

Versailles Treaty of Peace, supra note 226, at 1389. See L. C. Green, ‘Superior Orders and Command Responsibility’, 27 CYIL 167, 191–2 (1989). For the text of the Dutch note, see J. B. Scott, ‘The Trial of the Kaiser’, What Really Happened at Paris 231, 243–4 (E. M. House and C. Seymour eds., 1921). Geneva Protocol on the Pacific Settlement of International Disputes, supra note 469, at 1380.

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(b) The London Charter 332. The criminalization of aggressive war in a treaty in force was attained only in the aftermath of World War II, upon the conclusion of the Charter of the International Military Tribunal annexed to an Agreement done in London in 1945.747 Article 6 of the Charter748 establishes the jurisdiction of the International Military Tribunal over crimes against peace, war crimes and crimes against humanity. Paragraph (a) of the Article defines crimes against peace as follows: planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.

Article 6 specifically adds: Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.

The London Agreement originally had as signatories the four dominant Powers – the United States, the USSR, the United Kingdom and France – but later it was adhered to by 19 additional Allied nations.749 The Charter of the International Military Tribunal served as the fulcrum for the Nuremberg trial of the major German war criminals (see infra 335 et seq.). 333. Article 6(a) of the London Charter represents a singular advance in the evolution of international law. The text ‘creates the impression that crimes against peace could be accomplished through either wars of aggression or wars that violate international treaties’.750 But what is apparently meant is a single crime constituting a war of aggression initiated in breach of either customary international law or treaties.751 334. The nucleus of Article 6(a) of the London Charter was soon reiterated, with some variations, in Article II(1)(a) of Control Council Law No. 10 (forming the legal foundation of the so-called Subsequent Proceedings at Nuremberg, in which lower-level German war criminals were tried by American Military Tribunals),752 and in Article 5(a) of the Charter of the International Military Tribunal for the Far East (issued in a Proclamation by General D. MacArthur, in his capacity as Supreme Commander of the Allied Powers in the region, and designed for the trial of the major Japanese war criminals).753 747 748 750 752 753

Charter of the International Military Tribunal, Annexed to the London Agreement for the Establishment of an International Military Tribunal, 1945, 9 Int.Leg. 632, 637. Ibid., 639–40. 749 Ibid., 632. G. Werle, Principles of International Criminal Law 485 (2nd edn, 2009). 751 See ibid. Control Council Law No. 10, 1945, 1 NMT xvi, xvii. Charter of the International Military Tribunal for the Far East, 1946, 14 DSB 361, 362 (1946).


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(c) The Nuremberg Judgment 335. In its Judgment of 1946, the International Military Tribunal at Nuremberg held that Article 6(a) of the London Charter is declaratory of modern international law, which regards war of aggression as a grave crime.754 Hence, the Tribunal rejected the argument that the provision of the Article amounted to ex post facto criminalization of the acts of the defendants, in breach of the nullum crimen sine lege principle (cf. infra 352).755 The Tribunal relied heavily on the renunciation of war in the Kellogg-Briand Pact.756 The Pact had established the illegality of war as an instrument of national policy (see supra 227), and from that the Judgment inferred that ‘those who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in so doing’.757 336. The International Military Tribunal conceded that the Kellogg-Briand Pact had neither expressly promulgated that aggressive war is a crime nor set up courts to try offenders.758 But this is also true of Hague Convention (IV) of 1907 (see supra 41). Hague Convention (IV) – through its Regulations – prohibits certain practices in warfare, such as the maltreatment of prisoners of war, the employment of poisoned weapons, and the improper use of flags of truce.759 Since 1907, these forbidden acts have been viewed as war crimes, notwithstanding the fact that the Convention does not designate them as criminal and does not introduce penal sanctions.760 The Tribunal considered the criminality of war as analogous and even more compelling.761 The Judgment adduced diverse non-binding instruments (like the Geneva Protocol of 1924; see supra 331), whereby aggressive war had been stigmatized as a crime, finding in them evidence for the dynamic development of customary international law.762 The kernel of the Tribunal’s position was that: Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.763

In other words, the banning of war is devoid of any practical significance, unless international law is prepared to mete out real penalties to flesh-and-blood offenders acting on behalf of the artificial legal person that is the State. 337. The Nuremberg decision concerning crimes against peace has instigated harsh criticism,764 which cannot be easily dismissed. No doubt, the weakest link

754 755 761 764

Nuremberg trial, supra note 582, at 219–23. Ibid., 219. 756 Ibid., 219–20. 757 Ibid., 220. 758 Ibid. 759 Ibid. 760 Ibid., 220–1. Ibid., 221. 762 Ibid., 221–2. 763 Ibid., 223. See, e.g., F. B. Schick, ‘The Nuremberg Trial and the International Law of the Future’, 41 AJIL 770, 783–4 (1947).

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in the chain constructed by the International Military Tribunal is the certitude that the illegality of war (under the Kellogg-Briand Pact) ineluctably leads to its criminality.765 International law renders many an act of State unlawful, yet in most instances that does not mean that the forbidden conduct becomes a crime. Why is the injunction against war different from other international legal prohibitions? A reply to the question may be gleaned in another section of the Judgment: War is essentially an evil thing. Its consequences are not confined to the belligerent States alone, but affect the whole world. To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.766

The decisive point is that war is a cataclysmic event. There is no way in which war can be waged as if it were a chess game. In the nature of things, blood and fire, suffering and pain, are the concomitants of war. As a result, war simply must be a crime. 338. The stand taken by the International Military Tribunal at Nuremberg is not invulnerable. If wars by their very nature (because of the devastation associated with them) are viewed as mala in se,767 it is incomprehensible how they could have retained their legality in the centuries preceding the KelloggBriand Pact (see supra 207–8). If, for most of its duration, international law managed to adapt itself to the lawfulness of war, surely the proscription of war may be deemed an achievement that is sufficient unto itself. Why are criminal sanctions, directed against the individual organs of the State, assumed to be sine qua non to such an extent that they have to be looked upon as implicit in the Pact? 339. These and other difficulties were hotly debated in the late 1940s. It seems only fair to state that when the London Charter was concluded, Article 6(a) was not really declaratory of pre-existing customary international law.768 The Nuremberg Judgment was innovative when it ingested the criminality of war into general international law.769 However, the issue is no longer of great importance. It is virtually irrefutable that present-day positive customary law reflects the Judgment. War of aggression currently constitutes a crime against international law.

765 766 767 768 769

See Pompe, supra note 427, at 245. Nuremberg trial, supra note 582, at 186. This well-known dictum is based on a passage from Lord Wright, ‘War Crimes under International Law’, 62 LQR 40, 47 (1946). See Q. Wright, ‘The Law of the Nuremberg Trial’, 41 AJIL 38, 63 (1947). See L. Gross, ‘The Criminality of Aggressive War’, 41 APSR 205, 218–20 (1947). See G. A. Finch, ‘The Nuremberg Trial and International Law’, 41 AJIL 20, 33–4 (1947).


B.

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Post-Nuremberg developments

340. The Nuremberg criminalization of aggressive war was upheld, in 1948, by the International Military Tribunal for the Far East at Tokyo.770 It was also endorsed in other trials of the criminals of World War II, most conspicuously in the Ministries trial, in 1949, the last of the Subsequent Proceedings at Nuremberg.771 341. Over the decades since then, the Nuremberg legacy has found support in a string of uncontested United Nations General Assembly resolutions, complemented by studies undertaken by the International Law Commission. As early as 1946, the General Assembly affirmed the principles of international law recognized by the Charter and the Judgment of the International Military Tribunal.772 In 1947, the General Assembly instructed the International Law Commission to formulate these principles and also to prepare a Draft Code of Offences against the Peace and Security of Mankind.773 The Commission composed the ‘Nürnberg Principles’ in 1950: the text recites the Charter’s definition of crimes against peace, emphasizing that offenders bear responsibility for such crimes and are liable to punishment.774 342. The first phase of the Commission’s work on the Draft Code of Offences against the Peace and Security of Mankind was completed in 1954 (see supra 275). Article 2(1) of the Draft Code characterized as an offence ‘[a]ny act of aggression’.775 Article 1 laid down that the offences incorporated in the Draft Code ‘are crimes under international law, for which the responsible individuals shall be punished’.776 343. A serious examination of the 1954 Draft Code was suspended until a definition of aggression could be agreed upon.777 For two decades, the Draft Code therefore remained dormant. Finally, in 1974, the General Assembly produced its consensus Definition of Aggression, stating unequivocally in Article 5(2) that ‘war of aggression is a crime against international peace’ (see infra 359). In the wake of the formulation of the Definition, the work on the

770 771 772 773 774

775 776 777

Tokyo trial (In re Hirota and Others, International Military Tribunal for the Far East, 1948), I The Tokyo Judgment 28 (B. V. A. Röling and C. F. Rütor eds., 1977). Ministries trial (United States v. Von Weizsaecker et al., Nuremberg, 1949), 14 NMT 314, 318–22. General Assembly Resolution 95 (I), 1(2) RGA 188, id. (1946). General Assembly Resolution 177 (II), 2 RGA 111, 112 (1947). Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, Report of the International Law Commission, 2nd Session, [1950] II ILC Ybk 364, 374, 376. Draft Code of Offences against the Peace and Security of Mankind, supra note 584, at 151. Ibid., 150. See L. Gross, ‘Some Observations on the Draft Code of Offences against the Peace and Security of Mankind’, 13 IYHR 9, 20 (1983).

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Draft Code was restarted.778 It was concluded in 1996, when the International Law Commission – having pondered no less than thirteen reports submitted by a Special Rapporteur (D. Thiam) – adopted the final text of a new Draft Code of Crimes against the Peace and Security of Mankind (the term Crimes having replaced Offences).779 The crime of aggression is contained in Article 16 of the Draft Code: An individual who, as leader or organizer, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a State shall be responsible for a crime of aggression.780

In the commentary, the Commission stressed that the branding of aggression as a crime against the peace and security of mankind is drawn from the London Charter as interpreted and applied by the International Military Tribunal.781 344. Irrespective of the codification undertaken by the International Law Commission, the General Assembly – in the 1970 Friendly Relations Declaration – proclaimed that ‘war of aggression constitutes a crime against peace, for which there is responsibility under international law’.782 345. In all, the criminality of aggressive war in the post-Nuremberg era has undeniably entrenched itself as an impregnable concept of international law. Nevertheless, for many years it appeared that the concept was not lending itself to practical use, inasmuch as no indictments for violations of the jus ad bellum have followed the multiple armed conflicts of the post-World War II era.783 The idea of charging Saddam Hussein with a long list of international offences, above all the crime of waging aggressive war against Kuwait, was advanced in the early 1990s.784 But, after his apprehension in 2003, Saddam Hussein was handed over for trial by domestic Iraqi courts and he was convicted of other crimes.785 346. In 1993, the Security Council – in Resolution 827 – decided to establish an ad hoc international tribunal for prosecuting persons responsible for serious violations of international humanitarian law in the territory of the former Yugoslavia since 1991.786 The Council approved a report submitted by the

778 779 780 782 783 784 785 786

See ibid., 26 et seq. Draft Code of Crimes against the Peace and Security of Mankind, supra note 679, at 17. Ibid., 42–3. 781 Ibid., 43. General Assembly Resolution 2625 (XXV), supra note 258, at 122. See J. F. Murphy, ‘Crimes against Peace at the Nuremberg Trial’, The Nuremberg Trial and International Law 141, 153 (G. Ginsburgs and V. N. Kudriavtsev eds., 1990). See A. M. Warner, ‘The Case against Saddam Hussein – The Case for World Order’, 43 Mer.LR 563, 598–601 (1991–2). See M. C. Bassiouni and M. W. Hanna, ‘Ceding the High Ground: The Iraqi High Criminal Court Statute and the Trial of Saddam Hussein’, 39 CaseWRJIL 21–97 (2006–8). Security Council Resolution 827 (1993), 48 RDSC 29, id. (1993).


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United Nations Secretary-General (pursuant to an earlier resolution787), which incorporated a Statute of the ICTY.788 The Statute limits the subject-matter jurisdiction of the ICTY to grave breaches of the Geneva Conventions of 1949, violations of the laws and customs of war, genocide and crimes against humanity.789 There is no mention of crimes against peace (or any form of aggression). 347. In 1994, a second ad hoc tribunal was established by the Security Council – in Resolution 955 – this time with respect to crimes committed in Rwanda (ICTR).790 Here the subject-matter jurisdiction covers genocide, crimes against humanity and violations of Article 3 common to the Geneva Conventions and of Additional Protocol II.791 Once more, crimes against peace (by whatever designation) are not listed. They are also excluded from the mandate of other, ‘hybrid’, criminal tribunals subsequently established in various places, from Sierra Leone to Cambodia.792

C.

The Rome Statute and the Kampala Amendments

348. Unlike the constitutive texts of the ICTY and ICTR, Article 5(1) of the 1998 Rome Statute of the International Criminal Court lists ‘crime of aggression’ – together with genocide, crimes against humanity and war crimes – among ‘the most serious crimes of concern to the international community as a whole’, with respect to which subject-matter jurisdiction is conferred on the newly established Court.793 Still, by contrast to the other crimes subjected to the jurisdiction of the Court, the crime of aggression was not defined in Rome. Article 5(2) expressly defers the exercise of jurisdiction by the Court over this crime: The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.794

349. Articles 121 and 123 of the Statute govern amendment and review procedures, envisaged as commencing seven years after the entry into force of 787 788 789 790 791 792 793 794

Security Council Resolution 808 (1993), 48 RDSC 28, id. (1993). Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), 32 ILM 1163 (1993). Ibid., 1170–4 (Articles 2–5). Security Council Resolution 955 (1994), 49 RDSC 15, id. (1994). Ibid., 16 (Articles 2–4). On these tribunals, see W. A. Schabas, The UN International Criminal Tribunals: The former Yugoslavia, Rwanda and Sierra Leone 5–6 (2006). Rome Statute of the International Criminal Court, 1998, [1998] UNJY 294, 296. Ibid.

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the Statute.795 Article 123(3) enables the adoption of an amendment at a meeting of an Assembly of the States Parties or a Review Conference by two-thirds majority.796 But, as for entry into force, there are two possibilities. Under Article 121(4), an amendment to the Statute – ‘[e]xcept as provided in paragraph 5’ – enters into force for all States Parties after ratification or acceptance by seven-eighths of them.797 For its part, Article 121(5) reads: Any amendment to article 5 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.798

The two procedures are in stark contrast to each other. On the one hand, Article 121(4) raises a very high bar, but – once the seven-eighths majority requirement is met – the amendment will apply to all States Parties799 (although Article 121(6) enables a State Party which has not accepted the amendment to withdraw from the Statute with immediate effect800). On the other hand, Article 121(5), while removing the bar and setting no minimum number of ratifications, does not apply the amendment to any State Party that has not accepted it. 350. The Rome Statute entered into force in 2002, and the Review Conference took place in Kampala in 2010. The Conference resolved ‘to activate the Court’s jurisdiction over the crime of aggression as early as possible’.801 With that in mind, Article 5(2) of the Rome Statute was deleted and a new Article 8 bis802 (defining the crime of aggression) was inserted in the Statute (see infra 360, 367). Agreement was also reached as regards Elements of Crime in Article 8 bis803 (designed, in the language of Article 9(1) of the Rome Statute, to ‘assist the Court in the interpretation and application’ of the text804). Moreover, two new Articles – 15 bis805 (dealing with referral of cases to the Court by a State or proprio motu investigations initiated by the Prosecutor) and 15 ter806 (relating to referral by the Security Council) – impose a number of extremely important caveats on the exercise of jurisdiction by the Court. Minor additions were also made elsewhere in the Statute (see infra 384, 421). All these supplementary clauses were viewed as a single amendment package to Article 5, and the Conference resolved that they ‘shall enter into force in accordance 795 799 800 801 802 804 805

Ibid., 357–9. 796 Ibid., 359. 797 Ibid., 358. 798 Ibid. See R. S. Clark, ‘Article 121’, Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article 1751, 1752 (O. Triffterer ed., 2nd edn, 2008). Rome Statute, supra note 793, at 358. Kampala Review Conference, Resolution 6, 49 ILM 1334, id. (2010). Annex I, ibid., 1334–5. 803 Annex II, ibid., 1336–7. Rome Statute, supra note 793, at 301. Article 9 was also amended in Kampala, to embrace the new Elements of Crime (Annex I, supra note 802, at 1336). Annex I, supra note 802, at 1335–6. 806 Ibid., 1336.


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with article 121, paragraph 5’ (quoted supra 349).807 It follows that the seveneighths majority requirement mandated in Article 121(4) does not apply to any part of the package.808 351. Common Paragraph 2 of Articles 15 bis and 15 ter proclaims that ‘[t]he Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties’. Thus, a minimum number of ratifications or acceptances (not mentioned in Article 121(5) quoted supra 349) is set as a condition precedent to the activation of the Court’s jurisdiction over the crime of aggression. But does this indicate that, once the prescribed number of ratifications is arrived at, the jurisdiction of the Court may be exercised over non-ratifying States Parties (subject to a saving clause mentioned infra 354)? Although there is substantial doubt as to what the Conference really had in mind,809 the hard fact is that such an expansive interpretation of common Paragraph 2 is incompatible with Article 121(5), whereby any amendment to Article 5 would only enter into force for those States Parties that have ratified or accepted it. If common Paragraph 2 is to be reconciled with Article 121(5), the prescribed number of ratifications has to be construed as an additional (rather than alternative) requisite for entry into force. 352. The language of common Paragraph 2 plainly excludes the exercise of the Court’s jurisdiction over crimes of aggression committed in the past. Albeit disappointing those who were hoping that the Court would deal with previous acts of aggression, this corresponds with the principles of nullum crimen sine lege and nulla poena sine lege, which are enshrined in Articles 22–3 of the original Rome Statute.810 353. Most significantly, a common Paragraph 3 of Articles 15 bis and 15 ter further defers the Court’s exercise of jurisdiction over the crime of aggression. This will not occur until another decision is taken – by the same majority of States Parties as required in the process of amending the Statute (two-thirds) – subsequent to 1 January 2017. It follows that, despite the fact that a definition of the crime of aggression is at last in place, it cannot be put in effect for almost seven additional years (and possibly longer). The resolution ‘to activate the Court’s jurisdiction over the crime of aggression as early as possible’ (supra 350) cannot, therefore, be taken literally. 354. Paragraph 4 of Article 15 bis adds that ‘[t]he Court may, in accordance with article 12, exercise jurisdiction over a crime of aggression, arising from an 807 808 809 810

Resolution 6, supra note 801, at 1334. See D. Scheffer, ‘The Complex Crime of Aggression under the Rome Statute’, 23 LJIL 897, 902–3 (2010). See C. Kress and L. von Holtzendorff, ‘The Kampala Compromise on the Crime of Aggression’, 8 JICJ 1179, 1212–16 (2010). Rome Statute, supra note 793, at 307–8.

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act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar’. This opt-out mechanism is rather confusing when it is borne in mind that, as suggested above (supra 351), the new amendments enter into force only for those States that have ratified them. Does Paragraph 4 envisage ratifying or non-ratifying States Parties availing themselves of the opt-out mechanism? If the latter, why would a non-ratifying State Party – which, anyhow, is not bound by the new amendments – feel impelled to lodge a non-acceptance declaration? If the former, what is the point in a posture entailing the combination of a plus (ratification) with a minus (non-acceptance)? It appears that the outcome of this strange arithmetic is that a ratifying State Party may contribute to bringing the new legal regime into effect for other States while insulating itself from similar consequences. 355. In conformity with Paragraph 5 of Article 15 bis, the Court shall not exercise its jurisdiction over the crime of aggression when committed on the territory – or by nationals – of a State that is not a Party to the Statute. 356. As per Paragraph 6 of Article 15 bis, before the Prosecutor proceeds with an investigation in respect of the crime of aggression, it is necessary to ascertain whether the Security Council has determined that an act of aggression by the State concerned has been committed. If no such determination has been made, the Security Council may always – in conformity with a procedure established in Article 16 of the original Rome Statute811 (mentioned explicitly in Paragraph 8) – bring about a deferral of the investigation for a year, and the deferral may be renewed. 357. The Kampala decision to postpone the exercise of the Court’s jurisdiction over the crime of aggression (see supra 353) – just like the original inability at Rome to define the crime (see supra 348) – reflects practical discords that have not yet been put to rest. However, it is beyond dispute (especially after Kampala) that, in principle, the international community considers aggression to be a crime under existing international law.

III.

The definition of the crime of aggression

A.

Aggression versus war of aggression as a crime

358. As noted (supra 332), Article 6(a) of the London Charter defines crimes against peace as related to a series of acts culminating in the waging of a ‘war of aggression’. The inseparability of crimes against peace from aggressive wars is also the message conveyed in the Nuremberg Judgment (see supra 337). By 811

Ibid., 304.


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contrast, the International Law Commission – in the 1954 Draft Code – defined ‘[a]ny act of aggression’ as an offence against the peace and security of mankind (see supra 342). Similarly, Article 16 of the 1996 Draft Code (quoted supra 343) deals with acts of aggression generically, rather than wars of aggression specifically. 359. Article 5(2) of the 1974 General Assembly consensus Definition of Aggression states: A war of aggression is a crime against international peace. Aggression gives rise to international responsibility.812

The text thus differentiates between aggression as such (which only ‘gives rise to international responsibility’) and war of aggression (which is ‘a crime against international peace’).813 The drafters of the Definition thereby signalled clearly that not every act of aggression constitutes a crime against peace: only war of aggression does.814 That is to say, an act of aggression ‘short of war’ – as distinct from a war of aggression – would not result in individual criminal accountability,815 although it would bring about the application of the rules of State responsibility (see supra 296 et seq.). 360. The Rome Statute – following in the footsteps of the International Law Commission – speaks about the crime of aggression generically. This apparent extension of the sweep of the crime of aggression to acts ‘short of war’, if taken at face value, is a striking departure from the law as perceived in the London Charter and in the General Assembly Definition of Aggression. The departure from the conceptual underpinning of the Definition of Aggression would be especially paradoxical in light of the fact that the Kampala amendment of the Statute incorporates verbatim the text of Article 3 of the Definition as the substance of the crime of aggression (see infra 367). However, there is less to the discrepancy than meets the eye. This is due to the careful language of the new Article 8 bis, Paragraph 1, forged in Kampala (see supra 350): 1. For the purpose of this Statute, ‘crime of aggression’ means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

812 813 814 815

General Assembly Resolution 3314 (XXIX), supra note 392, at 144. See G. Gilbert, ‘The Criminal Responsibility of States’, 39 ICLQ 345, 360 (1990). See B. Broms, ‘The Definition of Aggression’, 154 RCADI 299, 357 (1977). See J. Hogan-Doran and B. T. van Ginkel, ‘Aggression as a Crime under International Law and the Prosecution of Individuals by the Proposed International Criminal Court’, 43 NILR 321, 335 (1996).

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361. We shall deal with the first half of this stipulation further on (infra 373). What has to be accentuated at this juncture is that, as stipulated in the latter part of Paragraph 1, an act of aggression – to qualify as a crime subject to the jurisdiction of the International Criminal Court – must, ‘by its character, gravity and scale’, constitute a ‘manifest violation’ of the United Nations Charter. This formulation creates a high threshold for individual culpability.816 What is a ‘manifest violation’ of the Charter? The Kampala Conference added an ‘understanding’ to the effect that, ‘in establishing whether an act of aggression constitutes a manifest violation of the Charter of the United Nations, the three components of character, gravity and scale must be sufficient to justify a “manifest” determination. No one component can be significant enough to satisfy the manifest standard by itself’.817 362. The understanding underlines the conjunctive nature of the three conditions of ‘character, gravity and scale’ (the last two expressions having their roots in dicta of the International Court of Justice; see infra 552, 555): only when all three interlock can an act be branded as a crime of aggression. Acts of aggression ‘short of war’ are not likely to fulfil the triple cumulative conditions. As will be seen (infra 367), Paragraph 2 of Article 8 bis (following the text of the General Assembly Definition of Aggression) itemizes concrete acts of aggression, some of which can definitely be considered ‘short of war’. Nevertheless, the threshold of ‘character, gravity and scale’ (established in Paragraph 1) leaves no doubt that minor acts of aggression – even if enumerated in Paragraph 2 – would not pass muster as crimes within the jurisdiction of the Court. This is also tied in to Article 2 of the Definition of Aggression (quoted infra 370), which speaks of ‘sufficient gravity’, thus laying down a de minimis requirement.

B.

The criminal impact of the General Assembly definition of Aggression

363. Although Article 5(2) of the General Assembly consensus Definition of Aggression pronounces war of aggression to be a crime against international peace (see supra 353), the Definition as a whole is not engrossed in the criminal ramifications of aggression. The Resolution, to which the Definition of Aggression is annexed, makes it plain that the primary intention of the General Assembly was to recommend the text as a guide to the Security Council when the latter is called upon to determine (within its collective security mandate under the United Nations Charter) the existence of an act of aggression818 (see Article 39 quoted infra 810). While the General Assembly is 816 817 818

See K. M. Fletcher, ‘Defining the Crime of Aggression: Is There an Answer to the International Criminal Court’s Dilemma?’, 65 AFLR 229, 257 (2010). Kampala Review Conference, Resolution 6, Annex III, supra note 801, at 1337, 1338. General Assembly Resolution 3314 (XXIX), supra note 392, at 143.


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incompetent to dictate a definition of aggression to the Security Council, it is empowered to offer guidelines in the form of a recommendation for the benefit of the Council. Under Articles 10 and 11(1) of the United Nations Charter, the General Assembly is authorized to make recommendations to the Security Council.819 Of course, the Council is free to exercise its powers as it deems fit. Indeed, the Security Council has never expressly cited the Definition of Aggression, which has had no visible impact on its deliberations.820 364. It must be understood that it is not imperative for the Security Council, in carrying out its mandate under the United Nations Charter, to determine specifically that aggression has been perpetrated. As we shall see (infra 811), the powers of the Council remain identical in the face of either aggression, a breach of the peace or a threat to the peace (regardless of the exact classification of the activities examined by the Council, as long as they can be categorized under one of these three rubrics). There being no practical consequence to the specific labelling, the Council is not inclined to delve into issues of aggression (see infra 845), and it prefers to focus on threats to the peace. 365. The General Assembly Definition of Aggression has not been glossed over by the International Court of Justice. As indicated (supra 328), Article 3(g) of the Definition (quoted infra 367) was held by the Court to be declaratory of customary international law. But endorsement of a certain clause by the Court does not necessarily affect in practical terms the outlook of the Security Council. It should also be taken into account that aggression may appear in a different light when inspected by the Security Council for political purposes and when a judicial inquiry is made into legal responsibility borne by a State or an individual.821 366. The International Criminal Court is in a different position – compared to the Security Council or even to the International Court of Justice – considering that the gravamen of any relevant judicial proceedings before it is the crime of aggression. The specific configuration of that crime is crucial to the exercise of jurisdiction by the Court. Searching for an authoritative definition, the States Parties arrived in Kampala at the conclusion that there was no better articulation of aggression than in the text of the General Assembly consensus Definition. This should not be surprising. Indeed, from the very first edition of the present book (well before the adoption of the Rome Statute),822 this author has argued that the main potential value of the Definition of Aggression lies in the context

819 820 821 822

Charter of the United Nations, supra note 248, at 334–5. See M. C. Bassiouni and B. B. Ferencz, ‘The Crime against Peace and Aggression: From Its Origin to the ICC’, I International Criminal Law 207, 227 (M. C. Bassiouni ed., 3rd edn, 2008). See J. I. Garvey, ‘The U.N. Definition of “Aggression”: Law and Illusion in the Context of Collective Security’, 17 Vir.JIL 177, 193–4 (1976–7). See page 120 of the first edition of this book (1988).

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of international criminal law, rather than in the proclaimed goal of providing a guide to the Security Council. 367. The linchpin of the definition of aggression appears in Paragraph 2 of the new Article 8 bis of the Statute of the International Criminal Court (see supra 350): 2. For the purpose of paragraph 1, ‘act of aggression’ means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression: (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) 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 the acts listed above, or its substantial involvement therein.

The framers of the Kampala amendment made no bones about the source of Sub-Paragraphs (a) to (g), which are lifted word-for-word from the General Assembly Definition of Aggression. The relevant clause is Article 3 of the Definition, where the seven (Sub-)Paragraphs are preceded by a brief chapeau: ‘Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression’.823 The key phrase ‘regardless of a declaration of war’ appears also in the second sentence of the chapeau of Paragraph 2 of Article 8 bis. 368. It has already been noted (supra 274) that the first sentence of the chapeau of Paragraph 2 of Article 8 bis echoes Article 2(4) of the United Nations Charter (quoted supra 233). Still, two departures from the matrix of Article 2(4) stand out: 823

General Assembly Resolution 3314 (XXIX), supra note 392, at 143.


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(i) Article 8 bis, Paragraph 2, speaks about inconsistency with the United Nations Charter as a whole, as distinct from the Purposes of the United Nations. This broader reference to the Charter contributes to a better appreciation that no inter-State force employed in conformity with the Charter – either by fiat of the Security Council or in self-defence (see supra 244) – can conceivably be considered an act of aggression. (ii) The threat of force is excluded (see, in greater detail, supra 275). It ensues that a mere threat of aggression (not amounting to its planning or preparation; see supra 360) is not subject to the jurisdiction of the International Criminal Court. This is perhaps regrettable when a small State is so intimidated by the threat of massive force – especially by a major Power – that it prefers ‘capitulation without a fight’.824 369. The replication of Paragraphs (a) to (g) of Article 3 of the General Assembly Definition of Aggression as Sub-Paragraphs in the second Paragraph of Article 8 bis implies that each of the seven clauses has been deemed by the Kampala Conference to be declaratory of customary international law. As noted (supra 328), thus far only (Sub-)Paragraph (g) has gained that standing by pronouncement of the International Court of Justice. Furthermore, not every word chosen by the framers is necessarily pellucid (see infra 574). Yet, it is not easy to refute the customary nature of the core of any of the seven (Sub-)Paragraphs. Most conspicuously, no State doubts that – in harmony with customary law – an outright invasion (covered by (Sub-)Paragraph (a)) amounts to an act of aggression. This is strongly supported by the Separate Opinion of Judge Simma in the Armed Activities case.825 370. The words ‘in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974’, appearing in the second sentence of the chapeau of Paragraph 2 of Article 8 bis (as quoted supra 367), may imply more than a mere cite of source. After all, Article 3 of the General Assembly Definition of Aggression – the text of which is encompassed in Paragraph 2 of Article 8 bis – is explicitly subjected to Article 2 of the Definition (see supra 361). Article 2 declares that ‘[t]he first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression’, but the commission of an act of aggression may be determined otherwise ‘in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity’.826 The demand for ‘sufficient gravity’ is now embedded in the ‘character, gravity and scale’ conditions set up by Paragraph 1 of Article 8 bis (as quoted supra 360). However, it is necessary to pay particular heed to the allusion to the 824 825 826

See Ferencz, supra note 393, at 713. Case Concerning Armed Activities on the Territory of the Congo, supra note 300, at 334–5. General Assembly Resolution 3314 (XXIX), supra note 392, at 143.

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prima facie – i.e., non-conclusive – evidentiary value of the first use of force. This general proposition may have immense practical import in a criminal context. What it means is that the opening of fire only creates a rebuttable presumption of culpability.827 When all the facts are weighed carefully, they may lead to the conclusion that the other side is actually accountable for the perpetration of the crime of aggression. 371. This is not to say that every segment of the General Assembly consensus Definition can be read into Article 8 bis. Plainly, in the criminal field there can be no effect to Article 4 of the General Assembly Definition, which prescribes that the acts inscribed in Article 3 do not exhaust the scope of the definition and the Security Council may determine that other acts are tantamount to aggression.828 Surely, the Security Council is free – for its own purposes – to categorize as aggression acts falling outside the spectrum of Article 3. However, any new constellation of aggression – emerging in future practice of the Council but not included in Article 3 (and, therefore, not engraved in Article 8 bis) – cannot be branded as a crime coming under the jurisdiction of the International Criminal Court.829 In criminal matters, the governing principle is nullum crimen sine lege (see supra 352), and – in the language of Article 22(2) of the original Rome Statute – ‘[t]he definition of a crime shall be strictly construed and shall not be extended by analogy’.830

IV.

Individual accountability for the crime of Aggression

372. In 1996, the International Law Commission – in its comments on Article 16 of the Draft Code of Crimes against the Peace and Security of Mankind (quoted supra 343) – accentuated the unique feature of the crime of aggression: The rule of international law which prohibits aggression applies to the conduct of a State in relation to another State. Therefore, only a State is capable of committing aggression by violating this rule of international law which prohibits such conduct. At the same time, a State is an abstract entity which is incapable of acting on its own. A State can commit aggression only with the active participation of the individuals who have the necessary authority or power to plan, prepare, initiate or wage aggression.831

After quoting the International Military Tribunal at Nuremberg, the Commission added:

827 828 829 830 831

See P. Rambaud, ‘La Définition de l’Agression par l’Organisation des Nations Unies’, 80 RGDIP 835, 872 (1976). General Assembly Resolution 3314 (XXIX), supra note 392, at 143. See Fletcher, supra note 816, at 260. Rome Statute, supra note 793, at 308. Draft Code of Crimes against the Peace and Security of Mankind, supra note 679, at 43.


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Thus, the violation by a State of the rule of international law prohibiting aggression gives rise to the criminal responsibility of the individuals who played a decisive role in planning, preparing, initiating or waging aggression.832

The issues that have to be broached relate to the actus reus (examined ratione materiae, ratione personae and ratione temporis), as well as the mens rea, required to convict a person of the crime of aggression. A.

The actus reus

(a) Ratione materiae 373. The actus reus of the crime of aggression covers not only its execution, but also its planning, preparation or initiation. Paragraph 1 of the new Article 8 bis of the Statute of the Criminal Court (quoted supra 360) refers to ‘the planning, preparation, initiation or execution’ of an act of aggression. The wording is spawned by the counterpart phrase ‘planning, preparation, initiation or waging’ of crimes against peace in Article 6(a) of the London Charter of the International Military Tribunal (quoted supra 332), with ‘execution’ replacing ‘waging’. 374. Planning consists of ‘the formulation of a design or scheme for a specific war of aggression’, whereas preparation is comprised of ‘the various steps taken to implement the plan’ before the actual outbreak of hostilities.833 Initiation is linked to the commencement of the war, while execution continues as long as the war is in progress. 375. Naturally, planning and preparation to commit an act of aggression are usually scrutinized (as they were at Nuremberg) with the advantage of hindsight, after aggression has already been consummated. However, planning and preparation for aggression constitute crimes as soon as they are committed. In theory, their perpetrators might have been brought to trial and punishment even if no execution of aggression materialized, i.e. despite the fact that execution was a matter of conjecture and not part of the historical record.834 In practice, that is not the position taken in the case of the International Criminal Court, since one of the Elements of Crime agreed upon in Kampala (see supra 350) is that the act of aggression ‘was committed’ in actuality. 376. Article 6(a) of the London Charter also covers ‘participation in a common plan or conspiracy’, and ‘accomplices’. In the 1954 Draft Code, conspiracy, complicity and attempts to commit any act of aggression – to which direct incitement was added – were deemed offences against the peace and security of mankind.835 Conspiracy was omitted, however, from Article 16 832 834 835

Ibid. 833 Greenspan, supra note 146, at 455. See P. C. Jessup, ‘The Crime of Aggression and the Future of International Law’, 62 PSQ 1, 8 (1947). Draft Code of Offences against the Peace and Security of Mankind, supra note 584, at 152 (Article 2(13)).

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of the 1996 Draft Code (quoted supra 343). The term does not appear in Article 8 bis of the Statute of the International Criminal Court. 377. Conspiracy is the least precise expression used in Article 6(a) of the London Charter, and it may cast a very wide net.836 In its Judgment, the International Military Tribunal at Nuremberg pronounced that ‘the conspiracy must be clearly outlined in its criminal purpose. It must not be too far removed from the time of decision and of action’.837 378. Notwithstanding the deletion of conspiracy from Article 8 bis of the Statute of the International Criminal Court, account has to be taken of the fact that, in its case law, the ICTY (dealing admittedly with crimes other than aggression) has developed an alternative construct of a ‘joint criminal enterprise’.838 This fits in with the provision of Article 25(3) of the original Rome Statute.839 Article 25(3) additionally addresses issues of attempts, complicity and incitement. But see (infra 384) the new Paragraph added in Kampala to this Article. (b) Ratione personae 379. Who can commit acts of aggression? Paragraph 1 of Article 8 bis of the Statute of the International Criminal Court (quoted supra 360) focuses on ‘a person in a position effectively to exercise control over or to direct the political or military action of a State’. A footnote appended to the Elements of Crime (see supra 350) explains that more than one person may meet these criteria. 380. There is an obvious need not to inflate the numbers of persons who are indictable for the crime of aggression. If all those who execute the acts qualifying as such a crime could be arraigned, all combatants in the armed forces of the aggressor State would become criminals automatically (and the rosters of those subject to criminal charges could actually embrace many civilians too). This was one of the foremost criticisms levelled at the London Charter and the Nuremberg trial by their detractors.840 Indeed, the broad interpretation of the London term ‘waging’ was subscribed to in a Separate Opinion by the President of the International Military Tribunal for the Far East (W. F. Webb) in the Tokyo trial.841 381. Contrarily, in the High Command trial of 1948 (part of the Subsequent Proceedings at Nuremberg), an American Military Tribunal ruled that the criminality of aggressive war attaches only to ‘individuals at the policy-making level’, whereas those acting as mere instruments of the policy-makers ‘cannot be 836 837 838 839 840 841

See A. L. Goodhart, ‘The Legality of the Nuremberg Trials’, 58 Jur.R. 1, 10–11 (1946). Nuremberg trial, supra note 582, at 225. See R. Cryer, H. Friman, D. Robinson and E. Wilmshurst, An Introduction to International Criminal Law and Procedure 367–70 (2nd edn, 2010). Rome Statute, supra note 793, at 308–9. See Viscount Maugham, U.N.O. and War Crimes 18–39, 52–8 (1951). Tokyo trial, supra note 770, at 475.


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punished for the crimes of others’.842 In parallel proceedings of the same year, in the I. G. Farben trial, the Tribunal declared that only those persons in the political, military or industrial spheres who bear responsibility for the formulation and execution of policies are to be held liable for crimes against peace; since a departure from this concept would lead to incongruous results: the entire population could then be charged with the crimes, including the private soldier on the battlefield, the farmer who supplied the armed forces with foodstuffs, and even the housewife who conserved essential commodities for the military industry.843 382. Notwithstanding some dicta weakening it, the general principle that can be derived from the Subsequent Proceedings at Nuremberg is that criminal liability for wars of aggression is limited to the policy-making level.844 The International Law Commission in 1950 arrived at the conclusion that only ‘high-ranking military personnel and high State officials’ can be guilty of waging war of aggression.845 In Article 16 of its 1996 Draft Code (quoted supra 343), the Commission strictly defined the crime of aggression as limited to leaders or organizers. 383. It cannot be denied that individual accountability for the crime of aggression is not reduced, even in a dictatorship, to certain individuals at the pinnacle of power. As the Tribunal in the High Command trial rightly observed: ‘No matter how absolute his authority, Hitler alone could not formulate a policy of aggressive war and alone implement that policy by preparing, planning and waging such a war’.846 The question is where to draw the line. Where the military hierarchy is concerned, the High Command Tribunal declined to set a fixed rank, somewhere between the private soldier and the Commander-inChief, at which criminal liability for war of aggression begins.847 The Tribunal did say that criminality hinges on the actual power of an individual to ‘shape or influence’ the war policy of his country.848 384. The phrase ‘shape or influence’ is a fairly elastic term. Some critics regard it as ‘too broad in that, especially in democracies, an excessively large group of people would be covered’.849 At Kampala a different formula – which considerably restricts the range of policy-level decisionmakers850 – was adopted in Paragraph 1 of Article 8 bis (quoted supra 360). The same formula is reiterated in a new Paragraph 3 bis, inserted 842 843 844 845 846 847 849 850

High Command trial (United States v. Von Leeb et al., Nuremberg, 1948), 11 NMT 462, 486, 489. I.G. Farben trial (United States v. Krauch et al., Nuremberg, 1948), 8 NMT 1081, 1124–5. See G. Brand, ‘The War Crimes Trials and the Laws of War’, 26 BYBIL 414, 420–1 (1949). Nürnberg Principles, supra note 774, at 376. High Command trial, supra note 842, at 486. Ibid., 486–7. 848 Ibid., 488–9. K. Ambos, ‘The Crime of Aggression after Kampala’, 53 GYIL 463, 490 (2010). See K. J. Heller, ‘Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression’, 18 EJIL 477, 488 (2007).

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in Article 25 of the Statute (dealing with individual criminal responsibility): ‘In respect of the crime of aggression, the provisions of this article shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State’.851 385. Whatever criterion is employed, relevant leadership echelons – capable of committing acts of aggression – are by no means circumscribed to the military. Surely, the crime of aggression may be committed by civilians, no less than military personnel: the most conspicuous example relates to members of the cabinet or senior Government officials whose input is apt, at times, to outweigh that of generals and admirals.852 (c) Ratione temporis 386. The execution of acts of aggression is a continuous crime. Of course, the crucial point in the determination of whether a State has resorted to aggression is its initiation.853 Yet, this does not mean that persons who steer an aggressor State during an advanced stage of the perpetration of the crime of aggression – not having been involved in its inception – cannot be arraigned. Periodic reviews of the changing situation are inevitable in the course of prolonged hostilities. Those who mould a decision to persist in the crime of aggression may be indicted, although they had nothing to do with the initiation of the crime. 387. The identification of the aggressor State on the basis of the commencement of aggression means that subsequent events do not affect the legal analysis. The aggressor, satisfied with the immediate territorial or other gains, may assume a pacifying posture. The victim State, desiring to dislodge the aggressor from its positions, may be operationally on the offensive. These shifting strategies do not remove the legal stamp of aggression, which – from the onset – is irreversibly attached to one of the States concerned. The relative standing of the Belligerent Parties as aggressor and victim States is not eroded by the tide of hostilities (see infra 690), nor is it altered by the means and methods of warfare. Even if the victim State violates a cease-fire suspending hostilities, it still does not trade places with the aggressor (see supra 170). Furthermore, if the aggressor State conducts hostilities in perfect harmony with the jus in bello, while the armed forces of the victim State commit war crimes and crimes against humanity, the legal position under the jus ad bellum remains the same as regards responsibility for the crime of aggression.

851 852 853

Annex I, supra note 802, at 1336. The International Military Tribunal convicted several high-ranking civilians of crimes against peace. See Y. Dinstein, ‘The International Military Tribunal at Nuremberg’, 37 IYHR 1, 10 (2007). See High Command trial, supra note 842, at 486.


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388. A temporal problem arising after the commission of any crime is that of possible prescription. The statutory limitation of crimes is not a principle recognized by all States in their domestic legislation, and it has certainly not consolidated as an international legal norm.854 The question is whether the crime of aggression is exempt from the operation of general statutes of limitation obtaining within the domestic legal system of the prosecuting State. There are two international conventions promulgating the non-applicability of statutory limitations to war crimes and crimes against humanity: one drafted in 1968 by the General Assembly,855 the other concluded in 1974 under the auspices of the Council of Europe.856 Neither instrument is germane to the crime of aggression. The exemption of this crime from domestic statutes of limitations was discussed in the context of the United Nations instrument, but ultimately the General Assembly decided (for political and practical reasons, without prejudging the legal issue) not to deal with the matter.857 On the other hand, the Rome Statute of 1998 promulgates in Article 29: The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations.858

Once the Kampala amendments enter into force, the subject may assume practical importance as regards the crime of aggression. B.

The mens rea

389. All existing international crimes have two constituent elements: the criminal act (actus reus), and a criminal intent or at least a criminal consciousness (mens rea).859 The indispensability of mens rea as an essential component of international crimes is proclaimed in Article 30 of the Rome Statute in terms of intent and knowledge: 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 854 855 856 857 858 859

See F. Weiss, ‘Time Limits for the Prosecution of Crimes against International Law’, 53 BYBIL 163, 165, 185 (1982). Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, 1968, [1968] UNJY 160. European Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity and War Crimes, 1974, 13 ILM 540 (1974). See N. Lerner, ‘The Convention on the Non-Applicability of Statutory Limitations to War Crimes’, 4 Is.LR 512, 519–20 (1969). Rome Statute, supra note 793, at 310. See Y. Dinstein, ‘Defences’, I Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts, 371, 371–2 (G. K. McDonald and O. Swaak-Goldman eds., 2000).

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2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this article, ‘knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. ‘Know’ and ‘knowingly’ shall be construed accordingly.860

390. It is indisputable that, for the crime of aggression to be completed, the actus reus must be accompanied by mens rea (often termed animus aggressionis).861 The significance of criminal intent as an essential ingredient of this specific crime was brought into relief by the Judgment in the High Command trial.862 The Tribunal noted that almost all nations, including even a traditionally neutral country like Switzerland, arm and prepare for the eventuality of war.863 ‘As long as there is no aggressive intent, there is no evil inherent in a nation making itself militarily strong’.864 The International Military Tribunal at Nuremberg, in acquitting H. Schacht of the crimes with which he had been charged, emphasized that a rearmament programme by itself is not criminal: to qualify as a crime against peace, rearmament must be undertaken as part of a plan to wage aggressive war.865 Indeed, insofar as a rearmament programme is concerned, the element of intent is so predominant in the composition of the crime of aggression that its absence precludes the consolidation of the actus reus itself. 391. The manufacture or purchase of armaments is not the only course of action which may appear in a different light, depending on the intention. In most countries, staff officers devote a lot of time and energy to the production of contingency plans for a host of hypothetical scenarios,866 especially war. Provided that these are genuine contingency plans, and that they are premised on the assumption of self-defence, their authors cannot be regarded as criminals. The high command may even simulate ‘war games’, and carry out manoeuvres to test operational concepts for combat readiness. Once more, in the absence of aggressive designs, these actions are not criminal. 392. Intent must not be confused with motive. Article 5(1) of the General Assembly Definition of Aggression states that ‘[n]o consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression’.867 This clause underscores that the motive does not count: even ‘a good motive does not prevent an act from being illegal’.868 860 861 862 863 866 867 868

Rome Statute, supra note 793, at 310. See S. Glaser, ‘Culpabilité en Droit International Pénal’, 99 RCADI 467, 504–5 (1960). High Command trial, supra note 842, at 486. Ibid., 487–8. 864 Ibid., 488. 865 Nuremberg trial, supra note 582, at 309. Cf. H. Meyrowitz, ‘The Function of the Laws of War in Peacetime’, 251 IRRC 77, 83 (1986). General Assembly Resolution 3314 (XXIX), supra note 392, at 143. A. V. W. Thomas and A. J. Thomas, The Concept of Aggression in International Law 52 (1972).


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393. The intent to commit a crime of aggression may be formed by only one or a few individuals at the helm of a State. Others at the policy-making level need not be personally guided by the same intent. This is of particular relevance to the phase of preparations. The acid test is whether, in assisting the preparations for aggression, an individual was actually aware of the aggressive schemes.869 If he knew that aggression was being planned, this may suffice to establish the requisite mens rea.870 The reverse side of the coin is that when a person (although actively participating in honing the military machinery) does not possess personal knowledge as to aggressive plans, he cannot be convicted of the crime. 394. Lack of mens rea can be translated into assorted defences (also known as justifications or excuses871) that may preclude conviction in individual proceedings. The principal defences which are relevant to the crime of aggression are: (a) Mistake of fact 395. The defence of mistake of fact is starkly recognized in Article 32(1) of the Rome Statute: 1. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.872

In other words, an act which would otherwise be an international crime may be excused should the Court be satisfied that the accused committed it under an honest but mistaken belief in the existence of facts which, if true, would have made his conduct legal. 396. The defence of mistake of fact rests on the well-established principle ignorantia facti excusat, and is corroborated by several judicial decisions delivered in war crimes trials relating to serious violations of the jus in bello.873 There is no reason to exclude criminal breaches of the jus ad bellum from the general rule. Thus, if it can be factually determined that – when launching hostilities against Atlantica (subsequently condemned as an act of aggression) – policymakers in Patagonia mistakenly believed bona fide that they were acting in selfdefence against an armed attack (see infra 498),874 this absence of mens rea should exonerate them from individual criminal accountability. 869 871

872 873 874

See Nuremberg trial, supra note 582, at 310. 870 Cf. ibid., 282–4. The classification into justifications and excuses is typical of Continental jurisprudential thinking. Some scholars attempt to introduce the dual terminology into international criminal law. See A. Cassese, ‘Justifications and Excuses in International Criminal Law’, I The Rome Statute of the International Criminal Court: A Commentary, 951, 951–3 (A. Cassese, P. Gaeta and J. R. W. D. Jones eds., 2002). However, so far, no such distinction has been drawn either in customary or in treaty law. See ibid., 954–5. Rome Statute, supra note 793, at 311. See United Nations War Crimes Commission, XV LRTWC 184 (1949). The question has been posed by R. Lapidoth, ‘Book Review’ [of the first edition of this book], 23 Is.LR 557, 559 (1989).

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(b) Mistake of law 397. The defence of mistake of law is also accepted, under certain circumstances, by Article 32(2) of the Rome Statute: 2. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime, or as provided for in article 33.875

The implication is that the rule ignorantia juris non excusat – widely upheld by domestic legal systems – has not been espoused by international criminal law. Several scholars take the view that, owing to the relative uncertainty of many rules of international criminal law (as compared to the prohibitions of domestic law), there is no room for a false presumption that every person is acquainted with the international normative scheme.876 The war crimes trials of the post-World War II period seem to disclose a tendency to admit ignorance of international law as an excuse, particularly when the relevant norms are disputable.877 398. It has to be recalled that, under Paragraph 1 of Article 8 bis of the Statute of the International Criminal Court (quoted supra 360), a manifest violation of the United Nations Charter must occur for a crime of aggression to be committed. The Elements of Crime attached to Article 8 bis (see supra 350) stress that the perpetrator must be aware of the factual circumstances establishing that the use of force is inconsistent with the United Nations Charter, but there is no requirement to prove that he has made a legal evaluation to that effect. This does not preclude the accused from claiming that his action was rooted in mistake of law. However, such a claim may be less credible when relied upon by policymakers who exercise control over the machinery of a State, having perpetrated the crime of aggression. After all, these top-level functionaries are more likely than plain soldiers to be knowledgeable about international law. Even highranking officers and civilians may invoke ignorantia juris when the more subtle points of self-defence are at issue (see Chapters 7–9). But the penumbra of uncertainty, which is characteristic of some segments of the contemporary jus ad bellum, should not be exaggerated. (c) Duress 399. The definition of the defence of duress appears in Article 31(1)(d) of the Rome Statute: 875 876 877

Rome Statute, supra note 793, at 311. Article 33 of the Statute is examined infra 409 et seq. See Dinstein, supra note 859, at 377. See United Nations War Crimes Commission, supra note 873, at 182–3.


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1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person’s conduct: ... (d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person’s control.878

400. The defence of duress means that an act which would otherwise be an international crime may be excused, if the Court is satisfied that the accused committed it in the absence of moral choice (that is to say, that the choice available to him was morally vitiated by the constraints of the situation). As the International Military Tribunal at Nuremberg phrased it, the ‘true test’ of criminal responsibility is ‘whether moral choice was in fact possible’.879 401. In principle, duress has been expressly accepted as an admissible defence in international judicial proceedings, subject to stringent conditions.880 But, empirically, when the leaders of a nation deliberate the pros and cons of embarking upon a crime of aggression against a foreign country, the decision is seldom (if ever) motivated by coercion in the full legal sense of the term. (d) Insanity 402. Article 31(1)(a) of the Rome Statute excludes criminal responsibility when: (a) The person suffers from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law.881

This denotes that an accused will not be held criminally accountable for the crime of aggression if he acted as a result of insanity (the presumption being that every person is of sound mind). 403. Apart from a mental disease adversely affecting the capacity to appreciate the unlawfulness of an act at the time of its commission, there is an issue of the mental health of the accused at the time that he is put on trial. At Nuremberg, the International Military Tribunal decided not to try one of the original defendants (G. Krupp von Bohlen) because of his ‘physical and mental condition’.882 878 880 882

Rome Statute, supra note 793, at 310–11. 879 Nuremberg trial, supra note 582, at 224. See Dinstein, supra note 859, at 374–5. 881 Rome Statute, supra note 793, at 310. Nuremberg trial, supra note 582, at 171–2.

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C.

Inadmissible defence pleas

404. There are a number of spurious defence pleas, which are quite popular. However, they are not confirmed by the general practice of States and must, consequently, be dismissed: (a) Obedience to domestic law 405. When international law defines certain acts as crimes, this applies directly to the individuals who are accountable. In other words, criminal responsibility is not contingent on the State concerned grafting the crime onto its domestic penal code. This is one of the Nürnberg Principles, as formulated by the International Law Commission.883 406. Moreover, any provision of domestic law which collides head-on with international criminal law is annulled thereby. In the words of the Tribunal in the High Command trial: International common law must be superior to and, where it conflicts with, take precedence over national law or directives issued by any national governmental authority. A directive to violate international criminal common law is therefore void and can afford no protection to one who violates such law in reliance on such a directive.884

The logic of the general rule is enhanced when the defendants are leading statesmen and military commanders who bear responsibility for the crime of aggression. If policy-makers could seek refuge behind domestic enactments (often products of their own efforts), the prohibitions of international law might have an evanescent existence. Even in a dictatorship, the despot must rely on some key individuals to assist him in expounding and administering the national policy. As the International Military Tribunal at Nuremberg held: Hitler could not make aggressive war by himself. He had to have the co-operation of statesmen, military leaders, diplomats, and business men . . . They are not to be deemed innocent because Hitler made use of them, if they knew what they were doing.885

(b) Obedience to superior orders 407. When superior orders are issued, they may be illegal from the perspective of domestic law as much as international law. Should that be the case, no clash between the two legal systems would be fuelled by the unlawful orders. Nevertheless, a doctrine was developed by Oppenheim886 and others, whereby commanders alone incur responsibility for the crimes of their subordinates

883 884 886

Nürnberg Principles, supra note 774, at 374–5 (Principle II and Commentary). High Command trial, supra note 842, at 508. 885 Nuremberg trial, supra note 582, at 226. See Oppenheim, supra note 444, at 264–5.


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(respondeat superior), so that obedience to superior orders is an admissible defence per se. The usual expectation is that the shield of respondeat superior will be raised by lower echelons. Yet, even senior German officials, who wielded immense power in the Nazi hierarchy, tried to shift their responsibility to the dead Führer. 408. Under Article 8 of the London Charter of the International Military Tribunal: The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.887

The proper meaning of this provision is that the fact of obedience to superior orders must not play any part at all in the evaluation of criminal responsibility (in connection with any defence whatever), and it is only relevant in the assessment of punishment.888 The International Military Tribunal at Nuremberg fully endorsed the provision of Article 8, while adding in a somewhat improper context the ‘moral choice’ test (see supra 400).889 The International Law Commission introduced the element of moral choice into the Nürnberg Principles,890 whereas it employed different terminology in the 1954 Draft Code.891 In 1996, the Commission followed in the footsteps of the London Charter when it prescribed in Article 5: The fact that an individual charged with a crime against the peace and security of mankind acted pursuant to an order of a Government or a superior does not relieve him of criminal responsibility, but may be considered in mitigation of punishment if justice so requires.892

409. Article 33(1) of the Rome Statute employs different language: 1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a government or of a superior, whether military or civilian, shall not relieve that person of responsibility unless: (a) The person was under a legal obligation to obey orders of the government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful.893 887 888 889 890 891 892 893

Charter of the International Military Tribunal, supra note 747, at 640. See Y. Dinstein, The Defence of ‘Obedience to Superior Orders’ in International Law 117 (1965). Nuremberg trial, supra note 582, at 224. Nürnberg Principles, supra note 774, at 375 (Principle IV). Draft Code of Offences against the Peace and Security of Mankind, supra note 584, at 152 (Article 4). Draft Code of Crimes against the Peace and Security of Mankind, supra note 679, at 23. Rome Statute, supra note 793, at 311.

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The basic precept of the Rome Statute is the same as that enshrined in the London Charter: obedience to superior orders is no defence. Still, the Statute recognizes an exception related to the defence of mistake of law (defined in Article 32(2) quoted supra 397). When three cumulative conditions are met (the existence of a legal obligation to obey the order, the lack of knowledge of the order’s illegality, and the fact that it is not manifestly unlawful), criminal responsibility can be relieved. 410. Article 33(1) provides a fragmented solution to a wide-ranging problem. There is nothing wrong with the reference to knowledge of the law and manifest illegality.894 But, by concentrating exclusively on obedience to superior orders as an element in the context of the defence of mistake of law, the framers of the Statute disregarded possible combinations between obedience to superior orders and the defences of mistake of fact and duress. In the opinion of the present writer, there is no difference in this respect between mistake of law, mistake of fact and duress, which in practice are often intertwined with obedience to superior orders. When the evidence shows that the accused in the dock obeyed orders under duress (within the acceptable scope of that defence), or without being aware of the true state of affairs or the illegality of the order (within the permissible bounds of the dual defence of mistake), he ought to be relieved of criminal responsibility. 411. It is submitted that the correct legal position should be set forth as follows: the fact that a defendant acted in obedience to superior orders cannot constitute a defence per se, but is a factual element which may be taken into account – in conjunction with other circumstances – within the compass of an admissible defence based on lack of mens rea (specifically, duress or mistake). This statement of the law, first advanced by the present writer,895 has been adopted by Judges McDonald and Vohrah in their Joint Separate Opinion in the Judgment of the Appeals Chamber of the ICTY in the Erdemović case.896 412. Even when a plea of obedience to superior orders is deemed inadmissible as a reason for relieving a defendant of responsibility, it may nevertheless 894

895 896

The reference to manifest illegality in Article 33(1) has been criticized on the ground that all crimes enumerated in the Rome Statute are serious and consequently all orders to commit them are manifestly unlawful. See P. Gaeta, ‘The Defence of Superior Orders: The Statute of the International Criminal Court versus Customary International Law’, 10 EJIL 172, 190–1 (1999). However, the definitions of the gravest of crimes may be surrounded by a periphery of uncertainty (see supra 398). See Dinstein, supra note 888, at 88, 214, 252. ‘We subscribe to the view that obedience to superior orders does not amount to a defence per se but is a factual element which may be taken into consideration in conjunction with other circumstances of the case in assessing whether the defences of duress or mistake of fact are made out.’ Prosecutor v. Erdemović (Sentencing Appeal) (ICTY, Appeals Chamber, 1997), 111 ILR 298, 333.


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be considered in mitigation of punishment where the circumstances of the case warrant such a conclusion. As seen (supra 408), Article 8 of the London Charter – which utterly removes obedience to superior orders from the purview of any defence whatever – allows weighing that fact in mitigation of punishment ‘if the Tribunal determines that justice so requires’. Obviously, when alleviation of punishment is permitted, this is not mandatory but is merely within the discretion of the Court. In the Erdemović case, the ICTY Trial Chamber observed that ‘tribunals have tended to show more leniency in cases where the accused arguing a defence of superior orders held a low rank in the military or civilian hierarchy’.897 It is self-evident that high-ranking policy-makers held accountable for aggressive war can scarcely expect mitigation of punishment, notwithstanding evidence that they have complied with orders.

(c) Acts of State 413. According to Kelsen and others, the crime of aggressive war is imputed by international law to the State, and no criminal responsibility can be attached to individuals acting in their capacity as organs of that State.898 Approval of the acts of State doctrine would have totally obstructed the goal of punishing the initiators of the crime of aggression, inasmuch as the perpetrators are by definition acting on behalf of a State (see the quotation from the International law Commission, supra 372). 414. In conformity with Article 7 of the London Charter, the official position of a defendant (even as Head of State) does not free him from responsibility, nor will it mitigate his punishment.899 The International Military Tribunal at Nuremberg flatly repudiated the concept underlying Kelsen’s thesis: The principle of international law, which under certain circumstances, protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings.900

415. The rejection of the theory that the official position of a person can relieve him of responsibility figures prominently in the Nürnberg Principles,901

897 898 899 900 901

Prosecutor v. Erdemović (Sentencing Judgment) (ICTY, Trial Chamber, 1996), 108 ILR 180, 199. See H. Kelsen, ‘Collective and Individual Responsibility for Acts of State in International Law’, [1948] JYIL 226, 238–9. Charter of the International Military Tribunal, supra note 747, at 640. Nuremberg trial, supra note 582, at 223. Nürnberg Principles, supra note 774, at 375 (Principle III).

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as well as in the two Draft Codes of 1954902 and 1996.903 Article 27 of the Rome Statute is more detailed than other texts: 1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or government, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.904

Incontrovertibly, as a general rule today, the attribution of an act to the State – albeit engendering State responsibility (see supra 296 et seq.) – does not negate the criminal liability of the individuals acting on behalf of the State.905 416. As both Article 7 of the London Charter and Article 27(1) of the Rome Statute (see supra 414–15) emphasize, official capacity as such is no reason for mitigation of punishment. Indeed, the fact that crimes are perpetrated by high-ranking officials ‘may frequently be evaluated as an aggravating circumstance’.906 D.

The penal proceedings

417. How is an individual to be held responsible for the crime of aggression? Rudimentary considerations of due process require that this be done only by a court of law, and not by a political body (not even the Security Council). One of the Nürnberg Principles is that a person charged with crimes against peace or other offences ‘has the right to a fair trial on the facts and law’.907 Judicial guarantees for a fair trial are incorporated in the 1996 Draft Code.908 Detailed provisions about the rights of the accused appear in the Rome Statute.909 418. As noted (supra 335, 340), two International Military Tribunals with jurisdiction over crimes against peace functioned, at Nuremberg and at Tokyo, after World War II. However, these judicial bodies were set up by the victors in 902 903 904 905 906 907 908 909

Draft Code of Offences against the Peace and Security of Mankind, supra note 584, at 152 (Article 3). Draft Code of Crimes against the Peace and Security of Mankind, supra note 679, at 26 (Article 7). Rome Statute, supra note 793, at 309. See Article 58 and Commentary, Draft Articles on Responsibility of States for Internationally Wrongful Acts, supra note 611, at 363–5. O. Triffterer, ‘Article 27’, Commentary on the Rome Statute of the International Criminal Court, supra note 799, at 779, 790. Nürnberg Principles, supra note 774, at 375 (Principle V). Draft Code of Crimes against the Peace and Security of Mankind, supra note 679, at 33 (Article 11). Rome Statute, supra note 793, at 331–2 (Articles 66–7).


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that War – for the ad hoc prosecution of the major enemy war criminals – and, having discharged their duties, they were dismantled.910 It has also been mentioned (supra 346–7) that the two ad hoc International Tribunals created by the Security Council (ICTY and ICTR) have no jurisdiction over the crime of aggression. The International Criminal Court does, but – as indicated (supra 353) – its exercise of jurisdiction over the crime of aggression is postponed (at least) until 2017. For the time being, therefore, there is no international penal tribunal competent to deal with those accused of the crime of aggression. By default, offenders can solely be tried and punished by domestic tribunals. 419. The rationale for entrusting an international criminal court with jurisdiction over the crime of aggression is palpable. Trials of some international crimes may have a lot of merit even when conducted before domestic courts. But the specific nature of the crime of aggression is such that no domestic proceedings can conceivably dispel doubts regarding the impartiality of the judges. 420. Only a small number of countries include the crime of aggression in their domestic penal code.911 In theory, a deposed tyrant and his henchmen may be tried before courts of their own country for the crime of instigating aggression.912 As for other States, it is not entirely clear whether jurisdiction over the crime of aggression is universal.913 The Institut de Droit International, in adopting a Resolution on Universal Criminal Jurisdiction (in Krakow, 2005), limited its scope to genocide, crimes against humanity and war crimes.914 Even if universal jurisdiction regarding aggression is posited, only enemy (or former enemy) States – rather than neutrals – are likely to try offenders charged with the crime. The trouble is that any panel of judges comprised exclusively of enemy (or former enemy) nationals will be suspected of irrepressible bias, giving rise to assertions of ‘victor’s justice’.915 421. Once the International Criminal Court will commence exercising jurisdiction over the crime of aggression, a real possibility may arise of a person accused of the crime facing double jeopardy. Article 20 of the Rome Statute was formulated to ensure the application of the principle of ne bis in idem, in case that the accused has already been convicted or acquitted by another court with 910 911 912 913 914

915

See R. K. Woetzel, The Nuremberg Trials in International Law 40 (1962). See M. Wagner, ‘The ICC and Its Jurisdiction – Myths, Misperceptions and Realities’, 7 MPYUNL 409, 473 (2003). See R. Wolfrum, ‘Iraq – From Belligerent Occupation to Iraqi Exercise of Sovereignty: Foreign Power versus International Community Interference’, 9 MPYUNL 1, 31 (2005). See C. Tomuschat, ‘Universal Criminal Jurisdiction with Respect to the Crime of Genocide, Crimes against Humanity and War Crimes’ (Provisional Report), 71 (I) AIDI 215, 229–30. Institut de Droit International, Resolution, ‘Universal Criminal Jurisdiction with Respect to the Crime of Genocide, Crimes against Humanity and War Crimes’, 71 (II) AIDI 297 (Krakow, 2005). See, e.g., R. H. Minear, Victor’s Justice: The Tokyo War Crimes Trial 180 (1971).

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respect to the same acts, except where the other proceedings were for the purpose of shielding him from the jurisdiction of the International Criminal Court or otherwise not conducted in accordance with the recognized norms of due process.916 In Kampala, Article 20 underwent a minor amendment, to align it with the adoption of the new Article 8 bis (supra 350).917 E.

Immunities from jurisdiction

(a) Foreign domestic courts 422. Under customary international law, certain individuals benefit from at least some immunity from the jurisdiction of foreign courts. The immunity can apply either ratione personae (to wit, as regards any act that they commit, whether in an official or in a private capacity) or ratione materiae (namely, with respect only to acts committed in an official capacity). (i) Diplomatic and consular agents 423. The most obvious jurisdictional immunity is enjoyed by serving diplomatic agents. A foreign diplomatic agent benefits from full immunity ratione personae from the criminal jurisdiction of the domestic courts of the country to which he is accredited. This jurisdictional immunity – applicable to any type of criminal prosecution in the receiving State – is deeply rooted in customary international law,918 and is reconfirmed in Article 31(1) of the 1961 Vienna Convention on Diplomatic Relations.919 Since diplomatic immunity is all-embracing – relating, as it does, to any criminal prosecution in the receiving State – it covers also international crimes, including the crime of aggression. 424. As an American Military Tribunal held, in 1949, in the Ministries trial, the immunity ratione personae of diplomatic agents ‘continues only so long as the diplomatic agent is accredited to the country, plus such additional time as may be necessary to permit him to leave its boundaries’.920 Thereafter, under Article 39(2) of the Vienna Convention, diplomatic immunity ‘shall continue to subsist’, but only ‘with respect to acts performed by such a person in the exercise of his functions as a member of the mission’.921 This is an immunity ratione materiae, strictly confined in its application to official acts performed in

916 918 919 920 921

Rome Statute, supra note 793, at 307. 917 Annex I, supra note 802, at 1336. See Y. Dinstein, ‘Diplomatic Immunity from Jurisdiction Ratione Materiae’, 15 ICLQ 76, 76–8 (1966). Vienna Convention on Diplomatic Relations, 1961, 500 UNTS 96, 112. Ministries trial, supra note 771, at 661. Vienna Convention on Diplomatic Relations, supra note 919, at 118.


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the discharge of diplomatic functions.922 Diplomatic functions are defined in Article 3 of the Vienna Convention.923 Inasmuch as the crime of aggression uncontestedly exceeds the range of diplomatic functions, it is not sheathed by immunity ratione materiae. 425. For the same reason, consular immunity from jurisdiction is irrelevant to international crimes. Under Article 43(1) of the 1963 Vienna Convention on Consular Relations, consular jurisdictional immunity applies (even during the tenure of the consular officer) only ‘in respect of acts performed in the exercise of consular functions’.924 Consular functions are defined in Article 5 of the Convention,925 and an act committed beyond their scope does not qualify for immunity.926 It follows that the perpetration of the crime of aggression can never be shielded by consular immunity. (ii) Heads of States 426. When an incumbent Head of State is sued in the domestic courts of a foreign country, he enjoys a jurisdictional immunity ratione personae comparable to diplomatic immunity.927 The construct that a Head of State while in office is protected by immunity ratione personae was underscored by Lord Hope in the Pinochet case of 1999 (relating to a former Chilean President).928 The Institut de Droit International, in a resolution adopted in Vancouver in 2001, stated the rule categorically: In criminal matters, the Head of State shall enjoy immunity from jurisdiction before the courts of a foreign State for any crime he or she may have committed, regardless of its gravity.929

The full immunity of serving Heads of States from the criminal jurisdiction of foreign States was confirmed by the International Court of Justice on two occasions: in the Arrest Warrant Judgment of 2002 (see full quotation infra 428) and in the 2008 Judgment in the Mutual Assistance case.930 427. The real issue about Heads of States relates to their immunity from the criminal jurisdiction of foreign States once they step down from their lofty 922 923 924 925 926 927 928 929

930

See Dinstein, supra note 918, at 81–9. Vienna Convention on Diplomatic Relations, supra note 919, at 98. Vienna Convention on Consular Relations, 1963, [1963] UNJY 109, 122. Ibid., 111–12. See Y. Dinstein, Consular Immunity from Judicial Process 48–61 (1966). See Oppenheim’s, supra note 211, at 1038. Ex parte Pinochet Ugarte (No. 3) (United Kingdom House of Lords), [1999] 2 All ER 97, 152. Institut de Droit International, Resolution, ‘Immunities from Jurisdiction and Execution of Heads of State and of Government in International Law’, 69 AIDI 743, 753 (Vancouver, 2001) (Article 13(2)). Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), [2008] ICJ Rep. 177, 236–7.

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position. Some degree of jurisdictional immunity ratione materiae endures sine die in respect of certain acts performed by the Head of State while he was in office. This immunity, as pointed out by Lord Millett in the Pinochet case, is confined to official acts performed in the capacity of a Head of State.931 Obviously, strictly private acts are not covered.932 But the question is whether the immunity encompasses all official acts. The answer given in the Pinochet case is that the immunity ratione materiae of former Heads of States is subject to exceptions in respect of war crimes and other serious international crimes.933 For its part, the International Court of Justice – in the Arrest Warrant Judgment of 2002 (see infra 428) – made no overt reference to international crimes as recognized exceptions to the jurisdictional immunities of former Heads of States (or any other State officials) charged before foreign domestic courts. However, in 2001, the Institut de Droit International resolved that a former Head of State ‘may be prosecuted and tried when the acts alleged constitute a crime under international law’.934 In 2009, the Institut categorically declared that ‘[n]o immunity from jurisdiction other than personal immunity in accordance with international law applies with regard to international crimes’.935 For the purposes of the last resolution, ‘“international crimes” means serious crimes under international law such as genocide, crimes against humanity, torture and war crimes’.936 Although aggression is not named, it certainly constitutes a serious crime under international law. (iii) Certain high-ranking office-holders 428. In the Arrest Warrant case of 2002, the International Court of Justice pronounced: in international law it is firmly established that, as also diplomatic and consular agents, certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal.937

In this case, Belgium – invoking universal jurisdiction – sought to prosecute the incumbent Foreign Minister of Congo for the commission of war crimes and 931 932 933 934 935

936 937

Pinochet case, supra note 928, at 172. Lord Millett relied on an analogy from diplomatic immunity ratione materiae, citing the present writer (supra note 918, at 82). For an illustration, see H. Fox, The Law of State Immunity 441–2 (2002). See, e.g., Pinochet case, supra note 928, at 152 (Lord Hope). Institut de Droit International, supra note 929, at 753 (Article 13(2)). Institut de Droit International, Resolution, ‘Immunity from Jurisdiction of the State and of Persons Who Act on Behalf of the State in Case of International Crimes’, 73 AIDI 226, 227 (Naples, 2009) (Article III(1)). Ibid. (Article I(1)). Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belgium), [2002] ICJ Rep. 3, 20–1.


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crimes against humanity. The Court held that, in order to ensure the effective performance of his functions, customary international law grants a Foreign Minister – throughout the duration of his office – full immunity from the criminal jurisdiction of another State.938 The Court stressed: In this respect, no distinction can be drawn between acts performed by a Minister for Foreign Affairs in an ‘official’ capacity, and those claimed to have been performed in a ‘private capacity’, or, for that matter, between acts performed before the person concerned assumed office as Minister for Foreign Affairs and acts committed during the period of office.939

Moreover, the Court concluded that – under customary international law – there is no exception to this full immunity rule even where war crimes and crimes against humanity are concerned.940 Presumably, the same sweeping immunity ratione personae would cover the crime of aggression (which was not mentioned in the Judgment). The Court did not regard provisions like Article 7 of the London Charter and Article 27 of the Rome Statute (see supra 414–15) – which concern international criminal tribunals – as relevant to the rule of customary international law applicable to proceedings before domestic courts.941 429. It clearly follows from the Arrest Warrant Judgment that serving Heads of Governments (even when they are not Heads of States) enjoy the same immunities from the criminal jurisdiction of foreign States as serving Foreign Ministers.942 It is less lucid whether these immunities also apply to other serving Ministers (e.g., Ministers of Defence) and high-ranking officeholders.943 But the rationale of the immunity, if and when granted, is involvement in international relations. When high-ranking office-holders travel on behalf of their respective States, they must be able to do so without fear of being arrested for whatever reason by the law enforcement agencies of foreign countries.944 (iv) The limits of jurisdictional immunities 430. In 1948, the International Military Tribunal for the Far East declared in the Tokyo trial: Diplomatic privilege does not import immunity from legal liability, but only exemption from trial by the Courts of the State to which an Ambassador is accredited.945

938 942 943 945

Ibid., 22–3. 939 Ibid., 23. 940 Ibid., 24. 941 Ibid. See C. Wickremasinghe, ‘Immunities Enjoyed by Officials of States and International Organizations’, International Law 380, 395 (M. D. Evans ed., 3rd edn, 2010). See ibid. 944 See V. Simbeye, Immunity and International Criminal Law 113 (2004). Tokyo trial, supra note 770, at 456.

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In the Arrest Warrant case of 2002, the International Court of Justice emphasized: while jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility.946

As the Court put it, immunity does not mean impunity.947 Accordingly, the Court held that there is no bar to the prosecution of a Foreign Minister – or any other high-ranking office-holder – enjoying jurisdictional immunity in four sets of circumstances:948 (aa) When prosecution is conducted under domestic law in the home country of a high-ranking office-holder. (bb) When the State represented by the high-ranking office-holder waives the immunity from the jurisdiction of another State. (cc) When a person ceases to serve as a high-ranking office-holder and he is prosecuted before the domestic court of another State (provided that the court has jurisdiction under international law) in respect of acts committed by him – even during his period of office – in his private capacity. (dd) When a high-ranking office-holder is prosecuted before an international criminal court vested with jurisdiction (the Court specifically quoted Article 27(2) of the Rome Statute quoted supra 415). 431. These points deserve a few additional comments: (aa) Prosecution of a high-ranking office-holder by his own State indisputably goes beyond the realm of international law. (bb) Waiver of immunity can be ‘explicit or implied, provided it is certain’,949 and it can be effected either ad hoc or in advance by treaty.950 (cc) The formulation of the law as regards the possibility of putting a former high-ranking office-holder on trial (by a foreign domestic court) for acts committed in his private capacity is a source of some misgivings about the scope of the immunity abiding insofar as official acts are concerned. Can crimes under international law be considered official (non-private) acts? See supra 427. (b) International criminal proceedings 432. Article 27(2) of the Rome Statute (quoted supra 415) expressly prescribes that jurisdictional immunities recognized by general international law

946 949 950

Arrest Warrant case, supra note 937, at 25. 947 Ibid. 948 Ibid., 25–6. Institut de Droit International, supra note 929, at 749 (Article 7(1)). See A. Orakhelashvili, ‘Arrest Warrant of 11 April 2000’, 96 AJIL 677, 681 (2002).


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do not bar prosecution before the International Criminal Court. For sure, when the constitutive instrument of an international court or tribunal explicitly negates jurisdictional immunities – in the vein of Article 27(2) of the Rome Statute – this is conclusive for Contracting Parties. Each Contracting Party may be deemed to have waived thereby the jurisdictional immunity of any office-holder representing it. Still, what about non-Contracting Parties? This depends on whether Article 27(2) may be viewed as a reflection of customary international law. A Trial Chamber of the ICTY, in 2001 – in the Milošević case – arrived at that conclusion, pronouncing that Article 27(2) serves ‘as evidence of the customary character of the rule that a Head of State cannot plead his official position as a bar to criminal liability in respect of crimes over which the International Tribunal has jurisdiction’.951 However, State practice is by no means clear on this issue. 433. Interestingly, Article 98(1) of the Rome Statute – in dealing with surrender for trial – refers to the ‘diplomatic immunity of a person or property of a third State’ and the need to ‘first obtain the cooperation of that third State for the waiver of the immunity’.952 Although there is some doubt as to the meaning of the expression ‘third State’ in this context, it should be interpreted as applying to non-Contracting Parties.953 It follows that, in the absence of waiver by a non-Contracting Party, diplomatic immunity remains intact.954 434. The legal position is presumably similar with respect to other jurisdictional immunities relating to non-Contracting Parties. Article 15 bis, Paragraph 5 (as added in Kampala and mentioned supra 355) prescribes that the Court shall not exercise its jurisdiction over the crime of aggression when committed on the territory – or by nationals – of a State that is not a Party to the Statute. Yet, it is important to note that no similar limitation appears in Article 15 ter relating to referral of the crime of aggression to the Court by the Security Council, acting under Chapter VII of the United Nations Charter. So what about jurisdictional immunities of nationals of non-Contracting Parties? 435. In Resolution 1593 (2005), the Security Council – acting under Chapter VII of the United Nations Charter – referred to the International Criminal Court the situation in Darfur.955 In March 2009, a first warrant of arrest for war crimes (in a non-international armed conflict) was issued against

951 952 953 954 955

Prosecutor v. Milošević (Preliminary Motions) (ICTY, Trial Chamber, 2001), para 31. Rome Statute, supra note 793, at 350. See D. Akande, ‘International Law Immunities and the International Criminal Court’, 98 AJIL 407, 423–5 (2004). W. A. Schabas, An Introduction to the International Criminal Court 73 (3rd edn, 2007). Security Council Resolution 1593 (2005), 44 ILM 1008, id. (2005).

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a sitting Head of State – the President of Sudan – with the approval of a PreTrial Chamber of the International Criminal Court.956 Since Sudan is not a Contracting Party to the Rome Statute, one cannot speak of a waiver of immunity in this instance.957 The question whether the Security Council has implicitly removed the immunity of Sudan’s incumbent President cannot be fully resolved at the time of writing.958

956 957 958

Prosecutor v. Al-Bashir (International Criminal Court, Pre-Trial Chamber, 2009), paras. 41–5. See S. Williams and L. Sherif, ‘The Arrest Warrant for President al-Bashir: Immunities of Incumbent Heads of State and the International Criminal Court’, 14 JCSL 71, 77–8 (2009). For the view that the waiver of immunity in Article 27(2) of the Rome Statute only applies to States Parties – even when a situation is referred to the International Criminal Court by the Security Council – see W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute 451 (2010).

6

Controversial consequences of the change in the legal status of war

436. The profound change that has gripped the international legal system, as a result of the prohibition of the use of inter-State force (see supra 233) and the criminalization of acts of aggression (see supra 332 et seq.), raises searching questions in regard to a number of concepts and institutions rooted in the obsolete axiomatic postulate that States are free to commence hostilities at will (see supra 207–8). It is true that, in some measure, the international community has already adjusted itself to the new legal environment. This is manifest, for instance, in the current invalidity of peace treaties dictated by the aggressor to the victim of aggression (see supra 107 et seq.). But modification of time-honoured doctrines encounters intractable difficulties (both practical and theoretical) in many areas. 437. The need for adaptation of the law to the present status of inter-State force is particularly attractive when adumbrated against the silhouette of the antiquated perception of the two antagonists in war (aggressor and victim) as intrinsically equal in jus ad bellum standing. It is noteworthy that, as pointed out already by Grotius, the Latin word bellum is derived from the more ancient term duellum.959 For centuries, international law treated war in the same manner that domestic law used to deal with the duel. War, like a duel, was viewed with toleration. The parity of the contenders was taken for granted, and the sole concern was about adherence to criteria of ‘fair play’. Yet, just as the duel is no longer permitted by national legal systems, war is now forbidden by international law.960 The modern jus ad bellum treats one of the Belligerent Parties as a criminal while the other is either the victim of the crime or has come to the victim’s rescue. The question is whether, as a result, the ground has not been cut 959 960

Grotius, supra note 44, at Book I, § I, II (II Classics of International Law edn, 33). In fact, it was the prohibition of the duel that largely guided and encouraged the proponents of the outlawry of war in lobbying for the Kellogg-Briand Pact. ‘They were thinking in terms of generations, not of decades.’ It is obvious that the frequency of war has not yet been sharply reduced, despite its proscription. But there was also a lengthy interval between the formal banning of the duel and its virtual disappearance. What really counts today is that duelling has been all but eliminated. It is hoped that the fate of war will ultimately be the same. See Wright, supra note 644, at 369.

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from under certain legal norms linked to the idea of the equality of Belligerent Parties. I.

War in the technical sense

438. Can a formal state of war, in the technical sense (see supra 17), be warranted today? Evidently, full-scale hostilities may break out de facto in breach of international law. When that happens, the reality of conflict must be acknowledged, and the jus in bello will apply (subject to possible reservations as to the mode and extent of its application, to be considered infra 451 et seq.). But do States retain the capacity to initiate a de jure state of war? A number of scholars deny that war can ‘now lawfully exist as a technical condition’, maintaining that a wrongdoer should not be allowed ‘to assert belligerent rights arising out of his own wrongdoing’.961 439. Assuming that large-scale hostilities are actually raging, and that the jus in bello ought to be applied in its plenitude, a negation of the existence of a state of war appears to be no more than a hollow semantic gesture. Why alter the terminology if no tangible consequences emanate from the change? The argumentation against recognition of a state of war is more compelling in those situations where the war breaks out by a mere declaration, when – without resorting to hostilities, conceivably without even running any risk – the country issuing the declaration takes steps seriously impinging on the rights of individuals, e.g., through the sequestration of the property of enemy nationals (see supra 18).962 The time may have come to eliminate this opportunity to use a state of war, existing essentially on paper, for what may be viewed as curtailment of domestic due process of law and even unjust enrichment by Governments at the expense of individuals. 440. As for a state of war in the material sense (see supra 19), another issue comes to the fore. N. Feinberg and others have asked whether the state of war can continue to exist de jure subsequent to the de facto cessation of hostilities.963 Feinberg opined that, upon the actual cessation of hostilities, the relationship between the two opposing sides must revert from war to peace.964 This is a tempting idea, but it is not borne out by the general practice of States. Suffice it to cite Article I(1) of the 1979 Treaty of Peace between Egypt and Israel (quoted supra 101), which provides for the termination of the state of war and the establishment of peace between the Parties upon ratification. For several years prior to the conclusion of the Treaty of Peace, Israel and Egypt were not engaged in hostilities. Nevertheless, the state of war continued until it was explicitly ended by consent of the Parties. 961 962 964

E. Lauterpacht, ‘The Legal Irrelevance of the “State of War”’, 62 PASIL 58, 63–5 (1968). Cf. Wright, supra note 644, at 365. See Kotzsch, supra note 28, at 248–9. 963 Feinberg, supra note 261, at 96. Ibid., 97.

Controversial consequences

II.

165

Inconclusive ‘police action’

441. Is it possible that an international force – carrying out enforcement action by virtue of a binding decision, adopted by the Security Council under Article 42 of the Charter of the United Nations (quoted infra 818) – will desist from its operations before they are crowned with complete success? The question has not yet arisen in its full dimensions, since so far no enforcement action has been taken by the Security Council under Article 42 (see infra 872). However, a comparison between World War II and the Korean War will make the dilemma more vivid. 442. During World War II, the Allies expressed their determination to continue the fighting until the Axis Powers ‘have laid down their arms on the basis of unconditional surrender’.965 The policy of unconditional surrender was tenaciously adhered to, and hostilities did not come to a close until the total collapse of the enemy States. All that happened in the pre-Charter era and in a War conducted by the Allies on the legal basis of collective self-defence (see Chapter 9), rather than collective security (see Chapter 10). 443. The position was remarkably different at the time of the Korean War. When hostilities commenced, in June 1950, the United Nations Organization (although beset by the ‘Cold War’) had been functioning for a number of years. The Security Council formally determined that the armed attack by North Korea against the Republic of Korea constituted a breach of the peace.966 It further recommended that Member States render assistance to the victim State, in order to repel the armed attack and restore the peace.967 Such assistance was promptly extended by the United States and other countries. In July 1950, the Security Council welcomed this development, recommended to all Members providing military forces that they put their contingents under a unified command, and permitted the use of the United Nations flag in the course of operations against North Korea.968 By flying the United Nations flag, troops from various countries – under American command – appeared to constitute a United Nations force,969 although strictly speaking this was a coalition of the willing fighting in collective self-defence (see infra 804). 444. Security Council recommendations have merely a hortatory effect and are not legally binding (see infra 814). Hence, the military action in Korea, pursued in compliance with the Council’s recommendations, was permissive in nature. The Council, having determined the existence of a breach of the peace, could in theory adopt a mandatory decision ordaining enforcement measures by United Nations Members. In opting for a recommendation, the Council did 965 966 967 968 969

Moscow Declaration on General Security, 1943, 9 Int.Leg. 82, 83. Security Council Resolution 82 (1950), 5 RDSC 4, id. (1950). Security Council Resolution 83 (1950), 5 RDSC 5, id. (1950). Security Council Resolution 84 (1950), 5 RDSC 5, 6 (1950). See D. W. Bowett, United Nations Forces 45–7 (1964).

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not exploit the maximal powers which it possesses under the Charter. But the critical factor is that, in Korea, a multinational force was fighting with the blessing of the United Nations Organization, flying its flag. 445. The force fighting under the banner of the United Nations managed to save South Korea from being crushed by the aggressor. However, the force did not contrive to achieve unadulterated victory, due to massive intervention by China (through so-called ‘volunteers’). Ultimately, in 1953, an Armistice Agreement was concluded in Panmunjom (see supra 117), providing for the termination of hostilities between the ‘United Nations Command’ and the North Korean/Chinese forces, along a line not radically swerving from the original 38th parallel (the springboard of the North Korean armed attack in 1950). This was a far cry from what had transpired in 1945. In lieu of unconditional surrender, the coexistence of the two Koreas (aggressor and victim alike) has been confirmed. In 1991, both North and South Korea were admitted as Members of the United Nations.970 Tensions between the two Koreas have flared up periodically, and serious incidents of violence (with more than a few casualties) have recurred up to the time of writing. 446. Will the Panmunjom formula serve as a satisfactory precedent if and when the Security Council activates, in a binding resolution, the full panoply of the collective security system under Article 42? As far as the text of the Charter goes, since the task assigned to the Council is that of maintaining or restoring international peace and security – rather than the punishment of aggressors – there cannot be any fault in a post-hostilities settlement which satisfies the Council. But considering the criminalization of aggression in international law, one may query whether a genuine United Nations force, charged with a mandatory enforcement mission, could limit itself to merely rebuffing an aggressor without scoring a total victory. 447. Several factors have to be put in balance here. On the one hand, the international functions of a veritable United Nations force (established by the Security Council with a view to carrying out enforcement action against an aggressor) roughly correspond to the role played by a domestic police force.971 If the analogy is pursued to its logical conclusion, always keeping in mind that an aggressor is a criminal, it ensues that the goal of the United Nations force must be the unconditional surrender of the opposing side. In other words, the international ‘police’ ought to impose law and order by suppressing the crime, and it must refrain from making a ‘live and let live’ type of a deal with the criminal. ‘The police do not negotiate with the law breaker but arrest him and subject him to judicial process’.972 970 971 972

See 45 Yearbook of the United Nations 96, id. (1991). See F. Seyersted, United Nations Forces in the Law of Peace and War 208 (1966). See Q. Wright, ‘Law and Politics in the World Community’, Law and Politics in the World Community 3, 9 (G. A. Lipsky ed., 1953).


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448. On the other hand, the analogy between a United Nations force and a modern police cannot be stretched to extreme lengths.973 As long as international relations are dominated by the fundamental concept of the sovereignty of States, there is an element of wishful thinking in ascribing to any international force the authority or the sheer power of the national police. The operation of an authentic police presupposes conditions of subjection to societal restraints that are alien to the international community as presently composed. 449. It is also useful to recall that even the domestic police is inclined to be indulgent when confronted with mass movements of lawbreakers. An aggressor State constitutes a single juristic entity, but in reality – owing to the vast numbers of people who are taking up arms when a State embarks upon war – aggression is more reminiscent of a hard-to-quell domestic disturbance of the peace than of an offence committed by an individual criminal. Besides, the internal police finds it occasionally necessary to make deals even with individual criminals (such as hostage-takers). 450. On the whole, whereas the settlement reached at the conclusion of hostilities in Korea leaves a lot to be desired, entertaining great expectations of heroic feats to be accomplished by robust forces under the aegis of the United Nations is likely to end up in an anticlimactic manner. The overriding problem with international ‘police’ forces is not that they fail in attaining their objectives, but that they are not established in the first place. Setting unrealistic goals for United Nations forces will not expedite the process of their creation.

III.

Equal application of the jus in bello

A.

Self-defence

(a) The theory 451. The most troubling problem, stemming from the drastic modification of the jus ad bellum, relates to the application of the jus in bello on an equal footing between both opponents (the aggressor State and the State exercising selfdefence). The fundamental postulate of equality between all the Belligerent Parties has always formed a major premise of the jus in bello.974 It was naturally unchallenged as long as States were at liberty to go to war against each other.975 However, once war of aggression became proscribed and criminalized, voices were raised in support of a policy of applying the jus in bello in a discriminatory fashion, adversely affecting the aggressor State. 973 975

See Seyersted, supra note 971, at 208–9. 974 See Dinstein, supra note 16, at 3–4. Obviously, the principle of equality was not easily reconcilable with the just war doctrine (discussed supra 176 et seq.). See G. I. A. D. Draper, ‘Wars of National Liberation and War Criminality’, Restraints on War, supra note 477, at 135, 136, 158.

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452. Two intersecting arguments are adduced against the construct of equality between the aggressor State and the victim of aggression in the operation of the jus in bello. The first line of approach was taken up by the prosecution in the Nuremberg trial.976 The contention rests on the reasoning that every war inevitably consists of a series of acts that are criminal in nature (murder, assault, deprivation of liberty, destruction of property, and the like).977 When a combatant kills an enemy soldier on the battlefield, he is immune from criminal prosecution for murder (viz. he benefits from a ‘justification’), because – and to the extent that – the war is lawful.978 ‘Stripped of the mantle of such legality, the act in question stands out starkly as an unjustifiable and inexcusable killing of a human being’.979 That is to say, when the war loses its legality, the umbrella protecting combatants from penal proceedings must be folded. Their immunity is removed, and no justification for premeditated homicide (or any other crime) is admissible as a defence.980 In a sense, the killing ceases to have the juridical character of an act of war.981 The act is indistinguishable from any other murder.982 453. The second train of thought is linked to the general principle ex injuria jus non oritur, whereby he who acts contrary to the law cannot acquire rights as a result of his transgression.983 The thesis advocated is that no new rights (i.e. rights beyond those available in peacetime) may be gained by a State waging an unlawful war.984 Hence, the aggressor State may not benefit from any rights bestowed by the jus in bello. Contrastingly, when a State is engaged in a lawful war (in response to aggression), it is entitled to the whole spectrum of belligerent rights.985 454. The two processes of thinking lead up to the assertion that, since – under contemporary international law – war is lawful in exercise of self-defence but is unlawful as an act of aggression, there is no place for equality in the treatment of soldiers committing acts of war. Soldiers participating in a lawful war should be accorded the status of prisoners of war (which guarantees their lives and a humane treatment in captivity). Yet, no such privilege ought to be accessible to soldiers taking part in an unlawful war. The latter ought to be prosecuted and severely punished for any death or other injury that they have caused in the course of the war.

976 977 978 979 980 981 983 984

See R. H. Jackson, ‘Opening Address’, 2 IMT 98, 146–7; F. De Menthon, ‘Opening Address’, 5 ibid., 368, 387; H. Shawcross, ‘Closing Address’, 19 ibid., 433, 458. See Jackson, ibid., 146. See S. Glueck, ‘The Nuernberg Trial and Aggressive War’, 59 Har.LR 396, 455 (1945–6). Ibid. See B. D. Meltzer, ‘A Note on Some Aspects of the Nuremberg Debate’, 14 UChi.LR 455, 461 (1946–7). See De Menthon, supra note 976, at 387. 982 See Shawcross, supra note 976, at 458. See H. Lauterpacht, ‘The Limits of the Operation of the Law of War’, 30 BYBIL 206, 212 (1953). See Wright, supra note 644, at 370–1. 985 See ibid., 371.


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455. From a practical perspective, it is evident that such a discriminatory handling of opposing combatants would have led to a complete collapse of the jus in bello. The proposition of equality between the Belligerent Parties is, first and foremost, a precept of common sense. The jus in bello has in the past succeeded in curbing excesses, notwithstanding the pervasive animosity towards the enemy that is characteristic of every war, only because it has germinated mutual advantages for both sides. No State – least of all a State which, through its aggression, has already perpetrated ‘the supreme international crime’ (see supra 337) – would abide by the strictures of the jus in bello if it knew that it was not going to derive reciprocal benefits from the application of the law.986 Moreover, no aggressor is ever willing to concede that it has indeed acted in breach of the jus ad bellum. The Security Council, vested by the United Nations Charter with the authority to determine in a binding way who the aggressor is, rarely issues such a verdict. The International Criminal Court, for its part, cannot – as yet – exercise jurisdiction over the crime of aggression (see supra 353). Each Belligerent Party, consequently, feels free to charge that its opponent is the aggressor. If every Belligerent Party were given a licence to deny the enemy the benefits of the jus in bello on the ground that it has perpetrated acts of aggression, there is reason for scepticism whether any country would ever pay heed to the law of armed conflict.987 Mankind might simply slide back to the barbaric cruelty of war in the style of Genghis Khan. 456. Even when the position is looked at from a theoretical standpoint, it is necessary to remember that the jus in bello confers rights (and imposes duties) not only on the Belligerent Parties (that is, the States) but also directly on human beings.988 A right afforded by international law to an individual, such as the right of a lawful combatant to be treated in a humane way when captured by the enemy, is not rescinded just because his State has acted in contravention of international law.989 The individual who does not himself violate the rules of warfare is entitled to benefit from the protection bestowed upon him in these rules, irrespective of the criminal conduct of the leaders of the country to which he belongs.990 457. When considered in abstracto, there may be some merit in subdividing the jus in bello into several legal layers. Such a stratification might enable a restrictive application of the principle of equality to norms creating human rights, excluding from its scope State rights accruing solely for Belligerent Parties. As early as 1939, the Harvard Research in International Law offered for

986 987 989 990

See R. R. Baxter, ‘The Role of Law in Modern War’, 47 PASIL 90, 96 (1953). See Lauterpacht, supra note 983, at 212–13. 988 See Dinstein, supra note 16, at 19–21. See Wright, supra note 644, at 373. See R. Giladi, ‘The Jus ad Bellum/Jus in Bello Distinction and the Law of Occupation’, 41 Is.LR 246, 259–60 (2008).

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consideration a differentiation between humanitarian rules governing the conduct of hostilities and other rules (especially those concerning titles to property).991 458. Similar proposals, with somewhat diverse emphases, have been put forward since then. For instance, Lauterpacht – in admitting that the principle of equality must continue to prevail in the actual conduct of hostilities – suggested de lege ferenda that the principle be inoperative, at least after the end of the war, as regards the acquisition of title over property (so that such an acquisition, albeit consistent with the jus in bello, would be invalidated in the case of an aggressor State).992 459. However, any attempt to restrict the range of application of the concept of equality in the jus in bello is highly controversial.993 A thorough study of the question, with all its knock-on effects, was conducted by the Institut de Droit International.994 The study culminated, in 1963, with the Institut declining to endorse specific recommendations by its Rapporteur (J. P. A. François) to deviate in a meaningful way from the standard of equality.995 The Institut accepted the basic postulate that ‘there cannot be complete equality’ in the operation of the rules of warfare when the competent organ of the United Nations determines that one of the Belligerent Parties has resorted to armed force unlawfully.996 All the same, it was resolved that rules restraining the horrors of war must be equally observed by all Belligerent Parties.997 The Institut did decide to explore the conditions under which ‘inequality must be accepted’.998 But, in the event, the sequel study was limited to United Nations forces (see infra 467). (b) The practice 460. The actual practice of States discloses no diminution in the validity of the principle of the equal application of the jus in bello to all Belligerent Parties. The four Geneva Conventions of 1949 for the Protection of War Victims – forged into shape after the Charter of the United Nations and the Nuremberg trial, that is, subsequent to the prohibition of the use of inter-State force and the 991 992 993 994

995 996 997

Harvard Research in International Law, Draft Convention on Rights and Duties of States in Case of Aggression (P. C. Jessup, Reporter), 33 AJIL, Sp. Supp., 819, 828, 830 (1939) (Articles 2–4, 14). Lauterpacht, supra note 983, at 224–32. See H. Meyrowitz, Le Principe de l’Egalité des Belligérants devant le Droit de la Guerre 106–40 (1970). Institut de Droit International, 45 (I) AIDI 555–8 (Aix-en-Provence, 1954); 47 (I) ibid., 323–606 (Amsterdam, 1957); 48 (II) ibid., 178–263, 389–90 (Neuchâtel, 1959); 50 (I) ibid., 5–127 (Bruxelles, 1963); 50 (II) ibid., 306–56, 376 (Bruxelles, 1963); 51 (I) ibid., 353–6 (Varsovie, 1965). J. P. A. François, ‘Rapport Définitif’, 50 (I) AIDI 111–27 (Bruxelles, 1963). Institut de Droit International, Resolution, ‘Equality of Application of the Rules of the Law of War to Parties to an Armed Conflict’, 50 (II) AIDI 376 (Bruxelles, 1963). Ibid. 998 Ibid.


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criminalization of aggressive war – apply (under common Article 2 quoted supra 22) in ‘all cases’ of war or any other international armed conflict. Nothing in the text may be construed as a permission to discriminate between the aggressor and its victim.999 Additional Protocol I of 1977 proclaims explicitly in its Preamble: the provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict.1000

461. The judgments delivered in the war crimes trials of the post-World War II period demonstrate that the equal reach of the jus in bello to all Belligerent Parties was not lessened by the aggression of Nazi Germany (branded as a crime against peace). There are a number of direct precedents for the rejection of an attempt to undermine the principle of equality. In the Justice trial of 1947 (part of the Subsequent Proceedings at Nuremberg), an American Military Tribunal responded to the argument that the criminality of the Nazi aggression taints as crimes all the acts of the defendants committed in the course of World War II: If we should adopt the view that by reason of the fact that the war was a criminal war of aggression every act which would have been legal in a defensive war was illegal in this one, we would be forced to the conclusion that every soldier who marched under orders into occupied territory or who fought in the homeland was a criminal and a murderer. The rules of land warfare . . . would not be the measure of conduct and the pronouncement of guilt in any case would become a mere formality.1001

The Tribunal refused to reach that conclusion.1002 In the Hostage trial of 1948 (in the same Proceedings), it was held: international law makes no distinction between a lawful and an unlawful occupant in dealing with the respective duties of occupant and population in occupied territories. There is no reciprocal connection between the manner of the military occupation of territory and the rights and duties of the occupant and population to each other after the relationship has in fact been established. Whether the invasion was lawful or criminal is not an important factor in the consideration of this subject.1003

Dutch courts followed the same path in several instances. Thus, in the Christiansen case, a Special Court enunciated in 1948:

999 1000 1001 1002

See F. Bugnion, ‘Just Wars, Wars of Aggression and International Humanitarian Law’, 84 IRRC 523, 541 (2002). Additional Protocol I, supra note 33, at 96. Justice trial (United States v. Altstoetter et al., Nuremberg, 1947), 3 NMT 954, 1027. Ibid. 1003 Hostage trial (United States v. List et al., Nuremberg, 1948), 11 NMT 1230, 1247.

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The rules of international law, in so far as they regulate the methods of warfare and the occupation of enemy territory, make no distinction between wars which have been started legally and those which have been started illegally.1004

In the Zuhlke case, the Court of Cassation, also in 1948, stated (in overruling a lower tribunal): it would be going too far to consider as war crimes all war-like acts, including those which were in accordance with the laws and customs of war, performed against Holland or against Dutch subjects by Germany’s military forces or other State organs on the sole ground of the illegality of her war of aggression.1005

(c) Some confusing judicial dicta 462. In light of all these weighty authorities, the principle of the equal application in war of the jus in bello – irrespective of the merits of the case under the jus ad bellum – has been treated by many scholars as ‘absolute dogma’.1006 Still, the issue has been reopened to some extent as a result of the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons, in which the Court pronounced by the barest of majorities (seven votes to seven, with the President’s casting vote): It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.1007

The last sentence implies a non-liquet, since the Court could not conclude definitively whether the action alluded to is lawful or unlawful.1008 Nevertheless, it is usually understood that if international law does not prohibit a certain conduct, that conduct is lawful.1009 It follows that, according to the majority of the Court, the use of nuclear weapons would be lawful when undertaken by a Party acting in extreme self-defence, provided that the very survival of the State is at stake. Patently, in the Court’s opinion, the adversary of that Party – the aggressor – 1004 1005 1006

1007 1008 1009

Re Christiansen (Holland, Special Court, Arnhem, 1948), [1948] AD 412, 413. In re Zuhlke (Holland, Special Court of Cassation, 1948), [1948] AD 415, 416. L. Doswald-Beck, ‘International Humanitarian Law and the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of NuclearWeapons’, 37 IRRC 35, 53 (1997). Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, supra note 37, at 266. See the Dissenting Opinion of Vice-President Schwebel, ibid., 322–3. See the Dissenting Opinion of Judge Shahabuddeen, ibid., 389–90.


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cannot employ nuclear weapons no matter what: not even if its survival is at stake.1010 463. The entire reference to a special case of ‘extreme circumstance of selfdefence, in which the very survival of a State would be at stake’ is enigmatic and vexing. Letting aside the pertinent question, ‘[w]ho is to judge if the very survival of a State is at stake’,1011 it is not clear from what legal angle the Court was addressing the anomalous factual circumstances. One conceivable interpretation of the passage is that the use of nuclear weapons is contrary to the jus in bello, but a breach of that law is excused in extremis while exercising selfdefence.1012 If this is the correct rendering of the Court’s view, one may ask why other breaches of the jus in bello by a State invoking self-defence are not equally glossed over in extremis, ‘in particular by a State whose survival hangs in the balance but which does not possess nuclear weapons?’.1013 The second (and more likely) construction of the text is that recourse to nuclear weapons is not incompatible with the jus in bello, but it is solely reserved to a State in perilous conditions of self-defence.1014 If so, ‘one is forced to wonder whether the Court, indeed, tangled up ius ad bellum and ius in bello’.1015 The Court’s ruling may be considered a dangerous departure from the concept that the jus in bello applies equally to all Belligerent Parties, irrespective of their status pursuant to the jus ad bellum. Granted, the purview of the departure is limited by the unique attributes of nuclear weapons. Yet, the precedent is alarming. 464. Unfortunately, the confusion between the jus ad bellum and the jus in bello may also be detected in the Court’s Judgment in the Oil Platforms case (between Iran and the United States), where it is stated: in order to establish that it was legally justified in attacking the Iranian platforms in exercise of the right of individual self-defence, the United States has to show . . . that its actions were necessary and proportional to the armed attack made on it, and that the platforms were a legitimate military target open to attack in the exercise of selfdefence.1016 1010 1011 1012

1013 1014

1015 1016

See R. Müllerson, ‘Missiles with Non-Conventional Warheads and International Law’, 27 IYHR 225, 241 (1997). S. Rosenne, ‘The Nuclear Weapons Advisory Opinions of 8 July 1996’, 27 IYHR 263, 296 (1997). Apparently, this is the way in which Dissenting Judge Higgins understood the Court’s pronouncement. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, supra note 37, at 590. L. Condorelli, ‘Nuclear Weapons: A Weighty Matter for the International Court of Justice: Jura Non Novit Curia?’, 37 IRRC 9, 19 (1997). See C. Greenwood, ‘Jus ad Bellum and Jus in Bello in the Nuclear Weapons Advisory Opinion’, International Law, the International Court of Justice and Nuclear Weapons 247, 264 (L. Boisson de Chazournes and P. Sands eds., 1999). W. Verwey, ‘The International Court of Justice and the Legality of Nuclear Weapons: Some Observations’, International Law: Theory and Practice, supra note 685, at 751, 760. Case Concerning Oil Platforms (Iran v. United States), [2003] ICJ Rep. 161, 186–7.

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As we shall see (infra 607), necessity and proportionality are indeed preconditions of the exercise of self-defence and, therefore, a jus ad bellum matter. On the other hand, the question whether an object of attack is a military objective that can be lawfully targeted is a classical jus in bello issue.1017 By setting ‘a requirement that a target must be of a military nature before it can be legitimately attacked in self-defence, the Court appears to have incorporated an element of the jus in bello (the law of warfare) into the norms of the jus ad bellum (governing the use of force)’.1018 If so, the Court misread the applicable law. A failure to meet the jus in bello requirement concerning lawful targeting cannot affect in any way the jus ad bellum evaluation of the action under the rubric of self-defence. B.

Collective security

465. The issue of the equal application of the jus in bello to all Belligerent Parties becomes more complex when one of the opposing sides is a United Nations force. United Nations forces consist of national contingents provided by Member States. The United Nations Organization as such is not a Contracting Party to the 1949 Geneva Conventions or to any other treaties governing the jus in bello. Given the present-day universal acceptance of the Geneva Conventions, it is certain that they are binding on all Member States participating in combat operation.1019 But it might be argued that the United Nations Organization itself is not bound by ‘these instruments per se or in toto’.1020 466. It is therefore noteworthy that in 1999, on the Jubilee of the Geneva Conventions, the United Nations Secretary-General promulgated a Bulletin setting forth that the fundamental principles and rules of international humanitarian law are applicable to United Nations forces when engaged as combatants in situations of armed conflict.1021 Of course, the mere use of force by United Nations peacekeepers (see infra 880 et seq.) – e.g., to quell a riot or impose law and order in accordance with their mandate – will not trigger the application of the jus in bello. But there is no denial that United Nations troops can (and, on occasion, have) become combatants within the compass of an international armed conflict.1022 1017 1018 1019 1020 1021 1022

See Dinstein, supra note 16, at 90. J. Green, ‘The Oil Platforms Case: An Error in Judgment?’, 9 JCSL 357, 380 (2004). See Y. Sandoz, ‘The Application of Humanitarian Law by the Armed Forces of the United Nations Organization’, 206 IRRC 274, 283 (1978). B. D. Tittemore, ‘Belligerents in Blue Helmets: Applying International Humanitarian Law to United Nations Peace Operations’, 33 Stan.JIL 61, 97 (1997). United Nations Secretary-General’s Bulletin on the Observance by United Nations Forces of International Humanitarian Law, 1999, 38 ILM 1656, id. (1999). See D. Shraga, ‘The Secretary-General’s Bulletin on the Observance by United Nations Forces of International Humanitarian Law – A Decade Later’, 39 IYHR 357, 358–60 (2009).


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467. The Secretary-General’s Bulletin only confirmed previous doctrinal views that United Nations forces must comply with the jus in bello.1023 It is true that some divergent positions were advocated prior to the promulgation of the Bulletin, particularly as regards the scenario of enforcement action mounted by the Security Council in a mandatory way.1024 However, the Institut de Droit International – after an examination of the topic on the basis of a report submitted by P. De Visscher1025 – arrived in 1971 at the conclusion that all the humanitarian rules of the law of armed conflict must be observed without fail by United Nations forces.1026 In 1975, the Institut addressed the issue of the application of other (non-humanitarian) rules of armed conflict to United Nations forces (the Rapporteur on this occasion was E. Hambro), and it was resolved that in general these rules, too, must be respected in hostilities in which United Nations forces are engaged.1027 468. That being acknowledged as a starting point, it must be underscored that much depends on any binding directives that may be issued to United Nations forces by the Security Council. As a result of such directives, ‘some deviation from well established international humanitarian law principles may be called for during United Nations (authorized) operations’.1028 Once binding decisions of the Security Council are in effect, the ensuing obligations of Member States under the Charter basically prevail over their obligations under the jus in bello.1029 This is the combined effect of Articles 25 and 103 of the Charter (quoted infra 778, 835), subject to the primacy of jus cogens (see infra 928 et seq.).

IV.

Impartial neutrality

469. Neutrality in the traditional meaning of the term – as a concept based on the principles of non-participation in the armed conflict and non-discrimination 1023 1024

1025 1026

1027

1028 1029

See D. Schindler, ‘United Nations Forces and International Humanitarian Law’, Studies and Essays on International Humanitarian Law and Red Cross Principles, supra note 303, at 521, 523. See, especially, Report of Committee on Study of Legal Problems of the United Nations, ‘Should the Laws of War Apply to United Nations Enforcement Action?’ (C. Eagleton, Chairman), 46 PASIL 216, 220 (1952). Institut de Droit International, 54 (I) AIDI 1–228 (Zagreb, 1971); 54 (II) ibid., 149–288, 465–70 (Zagreb, 1971). Institut de Droit International, Resolution, ‘Conditions of Application of Humanitarian Rules of Armed Conflict to Hostilities in which United Nations Forces May Be Engaged’, 54 (II) AIDI 465, 466 (Zagreb, 1971) (Article 2). Institut de Droit International, Resolution, ‘Conditions of Application of Rules, Other than Humanitarian Rules, of Armed Conflict to Hostilities in which United Nations Forces May Be Engaged’, 56 AIDI 541, 543 (Wiesbaden, 1975) (Article 2). See E. de Wet, The Chapter VII Powers of the United Nations Security Council 134–210 (2004). See Dinstein, supra note 16, at 29–30. But notice the potential problem of clash with jus cogens law, infra 928 et seq.

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among Belligerent Parties (see supra 67) – may be assimilated to the position of a spectator in a duel (see supra 437) who is enjoined from rendering assistance to one of the antagonists. But how can non-discrimination – namely, impartiality – be harmonized with the criminality of aggression? How can a third State retain its equanimity, and remain completely above the fray, when it is witnessing a crime being perpetrated?

A.

The survival of neutrality

470. The concept of neutrality is far from passé, even under the law of the United Nations Charter.1030 As the International Court of Justice held in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons: The Court finds that . . . international law leaves no doubt that the principle of neutrality, whatever its content, which is of a fundamental character similar to that of the humanitarian principles and rules, is applicable (subject to the relevant provisions of the United Nations Charter), to all international armed conflict.1031

471. The clear-cut survival of the concept of neutrality is nevertheless ‘subject to the relevant provisions of the United Nations Charter’. What are these relevant provisions? The most germane is Article 2(5) of the Charter: All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.1032

What this clause denotes is that, when enforcement measures are carried out under the aegis of the United Nations in conformity with the Charter, Member States must help one side (the United Nations force) and refrain from aiding and abetting the other side (the aggressor State). This, to say the least, is ‘not neutrality in the old established sense’.1033 In fact, the survival of the concept of neutrality in the post-Charter era requires a rigorous caveat. Although a United Nations Member is still entitled to remain neutral in a war raging between other States, this is true only as long as the Security Council has not adopted binding decisions, which impose upon it concrete obligations to take part in measures of collective security.1034 1030 1031 1032 1033 1034

See M. Torrelli, ‘La Neutralité en Question’, 96 RGDIP 5, 29 (1992). Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, supra note 37, at 261. Charter of the United Nations, supra note 248, at 332. C. G. Fenwick, ‘Is Neutrality Still a Term of Present Law?’, 63 AJIL 100, 101 (1969). See D. Schindler, ‘Aspects Contemporains de la Neutralité’, 121 RCADI 221, 248–9 (1967).


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472. The Institut de Droit International, in its Resolution of 1975, declared that (i) every State (i.e. not only a Member State) is entitled to assist a United Nations force when requested to do so; (ii) Member States may not depart from the rules of neutrality for the benefit of the Party opposing the United Nations force; (iii) Member States may not take advantage of the general rules of neutrality in order to evade their obligation to carry out a binding decision of the Security Council.1035 473. Article 2(5) of the Charter (quoted supra 471) deals only with action taken by the United Nations in circumstances of collective security (see Chapter 10), and it is not directly apposite to the case of individual or collective self-defence against an armed attack (see Chapters 7–9). Still, the rationale of Article 2(5) militates in favour of a similar solution in both situations, provided that the Security Council has determined who the aggressor is. As the perpetrator of a crime against international law, the duly identified aggressor should not be treated by United Nations Members on the basis of equality with whoever is opposing it. It is in fact reasonable to contend that, once the identity of the aggressor has authoritatively been established by the Security Council, all Member States must do whatever they can to foil the aggressor’s designs and to assist the Party resisting it.1036 B.

Non-members of the United Nations

474. There are those who believe that even a non-Member of the United Nations is disallowed to treat a United Nations force (discharging collective security duties) as if it were equal to the aggressor.1037 While it is uncertain whether non-Members are subject to any obligation in the matter (an obligation that can apply to them only on the basis of customary international law), it is a safe assumption that they have a right to discriminate between a United Nations force and an aggressor State. 475. During the first phase of the Gulf War, the Security Council – having determined in Resolution 660 (1990) that the Iraqi invasion of Kuwait constituted a breach of the peace (see infra 796)1038 – called upon all States, in Resolution 661, to act in accordance with the decision to impose economic sanctions on Iraq, and expressly addressed also non-Members of the United Nations.1039 Similar calls to non-Member States have been made by the Council upon the determination of a mere threat to the peace (rather than a breach of the 1035 1036 1037 1038 1039

Institut de Droit International, Resolution, supra note 1027, at 543 (Articles 3–4). See G. Scelle, ‘Quelques Réflexions sur l’Abolition de la Compétence de Guerre’, 58 RGDIP 5, 16 (1954). See H. J. Taubenfeld, ‘International Actions and Neutrality’, 47 AJIL 377, 395–6 (1953). Security Council Resolution 660 (1990), 45 RDSC 19, id. (1990). Security Council Resolution 661 (1990), 45 RDSC 19, 20 (1990).

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peace). This is exemplified in Resolution 748 (1992) relating to Libya,1040 Resolution 757 (1992) pertaining to Yugoslavia,1041 and Resolution 917 (1994) regarding Haiti1042 (the latter case being an intra-State affair). Although not strictly pertaining to the issue of neutrality, such resolutions display an expectation that non-Member States would follow the lead of the Council in all matters of peace and security. 476. In Resolution 678 (1990), which authorized the Coalition cooperating with Kuwait in the Gulf War to ‘use all necessary means’ (viz. resort to force) to secure full Iraqi compliance with its decisions (see infra 797), the Security Council requested all States to provide appropriate support for the actions undertaken.1043 Since the Council had earlier determined the existence of a breach of the peace, an old-fashioned posture of neutrality – failing to distinguish between Iraq and the Coalition – would have been riddled by formidable juridical difficulties. Even non-Member States discontinued the policy of impartial neutrality. Thus, Switzerland (not, at the time, a Member of the United Nations) fully participated in the economic sanctions against Iraq (as well as in subsequent trade and air embargoes imposed by the Security Council on Libya and Yugoslavia).1044 Moreover, in 1991, Switzerland overcame initial reluctance and allowed overflights by Coalition military transport aircraft (thereby facilitating logistical support for combat missions against Iraq),1045 despite the general rule prohibiting the entry of such aircraft into neutral airspace (see supra 69).

C.

Qualified neutrality

477. When the Security Council determines in an authoritative way who the aggressor is, it is easy for States to justify the abandonment of their neutrality. But, in the absence of such determination, is a neutral State – relying on its own judgement in the matter – entitled to forsake the time-honoured principle of impartiality? A precedent for such conduct may be discerned in the policy of the United States in the early stages of World War II (obviously, prior to the adoption of the United Nations Charter). 1040 1041 1042 1043 1044 1045

Security Council Resolution 748 (1992), 47 RDSC 52, 53 (1992). Security Council Resolution 757 (1992), 47 RDSC 13, 15 (1992). Security Council Resolution 917 (1994), 49 RDSC 47, 48 (1994). Security Council Resolution 678 (1990), 45 RDSC 27, 27–8 (1990). See G. P. Politakis, Modern Aspects of the Laws of Naval Warfare and Maritime Neutrality 392–4 (1998). United States Department of Defense Report to Congress on the Conduct of the Persian Gulf War, 1992, 31 ILM 612, 640 (1992). But see D. Schindler, ‘Transformations in the Law of Neutrality Since 1945’, Humanitarian Law of Armed Conflict: Challenges Ahead: Essays in Honour of Frits Kalshoven 367, 372–3 (A. J. M. Delissen and G. J. Tanja eds., 1991).


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478. Almost from the start of hostilities in Europe, the neutrality of the United States was more benevolent towards one Belligerent Party (Great Britain) than the other (Nazi Germany) (see supra 75–6). As the war progressed, the balance tilted increasingly in the same direction. In September 1940, the United States transferred to the United Kingdom fifty old destroyers in consideration for a lease of naval and air bases in British colonies.1046 In March 1941, Congress approved the ‘Lend-Lease’ Act, which made it possible to sell, lend or lease weapons, ammunition and supplies to a country the defence of which was deemed vital to the defence of the United States.1047 Following the new legislation, all barriers to the provision of military supplies to Britain were lifted. In May 1941, American naval forces even began to help in ensuring the delivery of the supplies to the British Isles, and, in September of that year, instructions were issued to the United States fleet to open fire at sight on any German or Italian submarine or surface vessel entering a sector of the high seas the protection of which was considered necessary for American defence.1048 In December, after Pearl Harbor and the Nazi declaration of war, the United States itself became a Belligerent Party. 479. The legal philosophy underlying the far-reaching measures taken by the United States before its entry into World War II was expounded by the then Attorney-General (later Associate Justice of the Supreme Court and Chief American Prosecutor at the Nuremberg trial), R. H. Jackson, in an address delivered in 1941.1049 According to Jackson, the classical doctrine of impartial neutrality was founded on the assumption of the legality of war, whereas discrimination among Belligerent Parties has become permissible as a result of the prohibition of war in the Kellogg-Briand Pact.1050 Jackson traced his thesis back to Grotius,1051 who had opined that a neutral State must not hinder the Party waging a just war or strengthen its adversary.1052 Lauterpacht, too, read into Grotius’s words a whole concept of ‘qualified neutrality’.1053 Support for this concept may be found in other scholarly contributions since Grotius, for example in the Budapest Articles of Interpretation of the Kellogg-Briand Pact, adopted in 1934 by the International Law Association.1054 480. It has been suggested that the idea of qualified neutrality should be explained in terms of reprisals (see infra 646) undertaken by third States; meaning

1046 1047 1048 1049 1051 1052 1053 1054

United Kingdom–United States, Exchange of Notes, 1940, 34 AJIL, Supp., 184–6 (1940). An Act to Promote the Defense of the United States, 1941, 35 AJIL, Supp., 76–9 (1941). See Oppenheim, supra note 8, at 640–1. R. H. Jackson, ‘Address’, 35 AJIL 348–59 (1941). 1050 Ibid., 349–50, 354. Grotius, supra note 44, at Book III, § XVII, III (II Classics of International Law edn, 786). Jackson, supra note 1049, at 351. H. Lauterpacht, ‘The Grotian Tradition in International Law’, 23 BYBIL 39–41 (1946). International Law Association, Report of the Thirty-Eighth Conference 66, 67 (Budapest, 1934) (Article 4).

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that a neutral State may invoke an act of aggression, directed against another country, as a valid ground for treating the law-breaker in a manner which would normally be illegal.1055 But this rationalization is not widely shared. 481. The concept of qualified neutrality not only augments the rights of the neutral State vis-à-vis an aggressor Belligerent Party. It also limits the rights of the aggressor Belligerent Party vis-à-vis the neutral State, e.g., where neutral shipping is concerned. Thus, it has been argued that ‘[u]nless the belligerent has the right to self-defence in the first place, it cannot validly act against the neutral through the exercise of its claimed belligerent rights’.1056 482. Qualified neutrality is so dissociated from orthodox neutrality that some scholars prefer using the term ‘non-belligerency’ to depict the status of a third State discriminating between the Belligerent Parties.1057 Under whatever name, the pitfall is that qualified neutrality is tantamount to a ‘“half-way house” between neutrality and belligerency’.1058 The Belligerent Party suffering from adverse treatment by a neutral State is not likely to bow to that State’s subjective determination as to who the aggressor is, and bilateral relations are liable to deteriorate until the two countries drift into open hostilities. Perhaps for that reason, ‘post-1945 State practice does not allow the conclusion that “nonbelligerency” has become part of customary international law’.1059

V.

Territorial changes

483. Can a State produce territorial changes by resorting to illegal force (or the threat of force)? The issue has already been partly raised, with respect to the legal effect of a treaty of peace ceding territory from one Party to another (supra 107). As indicated (supra 109), the validity of such a treaty depends on who the beneficiary is. If the cession is from the aggressor to the victim of aggression, there is nothing inherently wrong in the transaction; whereas if the reverse happens, the treaty is null and void. However, other principles are pertinent to the discussion. 1055 1056 1057

1058 1059

See M. Akehurst, ‘Reprisals by Third States’, 44 BYBIL 1, 6 (1970). A. Orakhelashvili, ‘Overlap and Convergence: The Interaction between Jus ad Bellum and Jus in Bello’, 12 JCSL 157, 192 (2007). See F. R. Coudert, ‘Non-Belligerency in International Law’, 29 Vir.LR 143, id. (1942–3). For a more recent presentation of the dichotomy between neutrality and so-called non-belligerency, see D. Schindler, ‘Neutral Powers in Naval War: Commentary’, The Law of Naval Warfare 211, 213 (N. Ronzitti ed., 1988). See T. Komarnicki, ‘The Problem of Neutrality under the United Nations Charter’, 38 TGS 77, 79 (1952). W. Heintschel von Heinegg, ‘“Benevolent” Third States in International Armed Conflicts: The Myth of the Irrelevance of the Law of Neutrality’, International Law and Armed Conflict: Exploring the Faultlines (Essays in Honour of Yoram Dinstein) 543, 553 (M. N. Schmitt and J. Pejic eds., 2007).


A.

181

Non-annexation

484. What is the legal effect of a territorial change brought about without recourse to treaty, in consequence of belligerent occupation and unilateral annexation? The rule that has emerged in international law (well before the prohibition of war and regardless of which State is the aggressor) is that belligerent occupation, by itself, cannot produce a transfer of title over territory to the occupying State.1060 An American Military Tribunal reiterated the rule, in 1948, in the RuSHA trial (part of the Subsequent Proceedings at Nuremberg): Any purported annexation of territories of a foreign nation, occurring during the time of war and while opposing armies were still in the field, we hold to be invalid and ineffective.1061

Article 4 of Protocol I, Additional to the Geneva Conventions, reaffirms the principle that the occupation of a territory does not affect its legal status.1062 No territory under belligerent occupation can be validly annexed by the Occupying Power acting unilaterally. 485. While the invalidity of a unilateral annexation following belligerent occupation is undisputed, the position is not so simple when the annexation takes place after a debellatio of the enemy State (see supra 133). Belligerent occupation posits the existence of the enemy as a State and the continuation of the war. Debellatio signifies the disintegration of the enemy State and the termination of the war. Under classical international law, if a process of debellatio occurred, the victorious State could annex unilaterally the occupied territory of the former enemy.1063 Nowadays, however, the legal position is impacted upon by other reconsiderations.

B.

Self-determination

486. Modern international law recognizes the right of self-determination vested in a people (or peoples) inhabiting the conquered territory. Selfdetermination is referred to in many recent international instruments.1064 Preeminently, common Article 1(1) of the twin 1966 Covenants on human rights prescribes: 1060 1061 1062 1064

See Dinstein, supra note 276, at 49–50. RuSHA trial (United States v. Greifelt et al., Nuremberg, 1948), 5 NMT 88, 154. Additional Protocol I, supra note 33, at 97. 1063 See Greenspan, supra note 146, at 600–1. The principle of self-determination is mentioned in the United Nations Charter in two places: Articles 1(2) and 55 (supra note 230, at 331, 348). The right derived from this principle is elucidated in the Friendly Relations Declaration, General Assembly Resolution 2625 (XXV), supra note 258, at 123.

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All peoples have the right of self-determination. By virtue of that right they freely determine their political status.1065

The International Court of Justice held, in the East Timor case of 1995, that the assertion that the right of peoples to self-determination has an erga omnes character (see supra 312) ‘is irreproachable’.1066 This was confirmed in the 2004 Advisory Opinion on the Wall.1067 487. If the local people is truly at liberty to determine its political status, a post-debellatio annexation by the victorious State must clearly be precluded. The obliteration of the sovereignty of the defeated State does not extinguish the right of self-determination conferred on the people living in the territory overrun by the victorious State. On the contrary, this is the most appropriate moment for that right to assert itself.

C.

Jus cogens

488. Even irrespective of the issue of self-determination, a post-debellatio annexation of the territory of the erstwhile enemy by the victorious State may not be easily reconcilable with basic contemporary tenets. As long as the annexation is accomplished by the victim of aggression, benefiting at the expense of the former aggressor State, the process is not without its legal logic: let the aggressor pay for its crime. But should the annexation expand the territory of the aggressor State, the upshot would be that might creates rights in defiance of the legal system in which these rights are embedded.1068 489. As noted (see supra 283), the prohibition of the use of inter-State force constitutes jus cogens. In light of the principle ex injuria jus non oritur, many scholars subscribe to the view that a unilateral State action, just like a treaty, can have no legal effect when it is in contravention of jus cogens.1069 However, the notion of nullity of unilateral acts inconsistent with jus cogens is problematic.1070 As Fitzmaurice put it, even if international law refuses to validate an act conflicting with jus cogens, it may be forced to recognize the situation brought about by that (illegal) act.1071

1065 1066 1067 1068 1069 1070 1071

International Covenant on Economic, Social and Cultural Rights, 1966, [1966] UNJY 170, 171; International Covenant on Civil and Political Rights, 1966, ibid., 178, 179. Case Concerning East Timor (Portugal v. Australia), [1995] ICJ Rep. 90, 102. Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra note 212, at 172. See Wright, supra note 644, at 366. See T. Meron, ‘On a Hierarchy of International Human Rights’, 80 AJIL 1, 19–21 (1986). See ibid., 21. G. Fitzmaurice, ‘The General Principles of International Law Considered from the Standpoint of the Rule of Law’, 92 RCADI 1, 120 (1957).


D.

183

Non-recognition

490. Article 5(3) of the General Assembly’s consensus Definition of Aggression, adopted in 1974, proclaims that no territorial acquisition resulting from aggression ‘is or shall be recognized as lawful’.1072 This clause echoes the text of the 1970 General Assembly Friendly Relations Declaration.1073 As mentioned (supra 309), the International Law Commission stipulated in Article 41 of its 2001 Draft Articles on State Responsibility that, when a serious breach of an obligation under peremptory norms of general international law takes place, no State shall ‘recognize as lawful’ a situation created by such a serious breach. The provision must be seen as coupled with that of Article 48 of the Draft Articles (see supra 312). There are also on record treaties in which the Contracting Parties undertook not to recognize territorial acquisition brought about by armed force, such as the 1933 Saavedra Lamas Anti-War Treaty (Non-Aggression and Conciliation),1074 and the 1948 Charter of the Organization of American States.1075 491. It is not entirely certain what non-recognition of territorial acquisition means in practice.1076 But probably the gist of non-recognition is that, despite a continuous and effective control over the annexed territory, no prescriptive rights1077 evolve in favour of the aggressor. In I. Brownlie’s words, ‘prescription cannot purge this type of illegality’.1078 492. The shortcoming of non-recognition is that it is ‘a device which works well for a limited time-span’.1079 If the de facto control of the territory annexed by the aggressor State continues uninterrupted for generations, the nonprescription rule may have to give way in the end. International law cannot be divorced from reality. When a post-debellatio annexation is solidly entrenched over many decades, there may be no escape from the conclusion that new rights (valid de jure) have crystallized, although they flow from a violation of international law in the remote past.1080 Even if the initial act of annexation was invalid, the prolonged (and undisturbed) exercise of sovereignty in the territory will finally create prescriptive rights, independently of the originally defective title. There comes a point at which the international legal system has ‘to 1072 1073 1074 1075 1076 1077 1078 1079 1080

General Assembly Resolution 3314 (XXIX), supra note 394, at 144. General Assembly Resolution 2625 (XXV), supra note 258, at 123. Rio de Janeiro Anti-War Treaty (Non-Aggression and Conciliation), supra note 585, at 405 (Article II). Bogotá Charter of the Organization of American States, 1948, 119 UNTS 48, 56 (Article 17). See H. M. Blix, ‘Contemporary Aspects of Recognition’, 130 RCADI 587, 662–5 (1970). On the concept of prescription, see Oppenheim’s, supra note 211, at 706. I. Brownlie, Principles of Public International Law 490 (6th edn, 2003). Tomuschat, supra note 685, at 259. See R. W. Tucker, ‘The Principle of Effectiveness in International Law’, Law and Politics in the World Community, supra note 972, at 31, 44.

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capitulate’ to facts: that stage is postponed as far as possible in the case of the extinction of States, but it cannot be completely avoided.1081 The most ardent supporters of the application of the principle ex injuria jus non oritur in international law concede that this maxim ‘often yields to the rival principle, ex factis jus oritur’.1082 There is really ‘little practical alternative . . . in the long run’.1083 493. These remarks are merely tentative and speculative, for they concern a theme that has not yet been earnestly debated in a concrete setting. The criminalization of aggressive war has been implanted in positive international law only since the Nuremberg Judgment. In the relatively short time that has elapsed, the international community has not been called upon to resolve, in a specific case of post-aggression annexation, a clash between the legal principles of non-prescription and self-determination, on the one hand, and the gravitational pull of the facts, on the other.1084 It is impossible to forecast, with any degree of confidence, what direction the future practice of States will take with respect to this subject-matter.

1081 1082 1084

K. Marek, Identity and Continuity of States in Public International Law 579 (2nd edn,1968). Lauterpacht, supra note 983, at 212. 1083 Oppenheim’s, supra note 211, at 186. The long-term effects of non-recognition of a situation created by an unlawful use of force are discussed in the Dissenting Opinion of Judge ad hoc Skubiszewski in the Case Concerning East Timor, supra note 1066, at 262–5. But the majority of the Court did not address the issue.

Part III

Exceptions to the prohibition of the use of inter-State force

7

The concept of self-defence

I.

The right of self-defence

A.

The meaning of self-defence

494. In its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice said: Furthermore, the Court cannot lose sight of the fundamental right of every State to survival, and thus its right to resort to self-defence, in accordance with Article 51 of the Charter, when its survival is at stake.1085

The implication is that the right of self-defence is engendered by, and embedded in, the fundamental right of States to survival. However, the Court itself acknowledged that ‘the very survival of a State would be at stake’ only ‘in an extreme circumstance of self-defence’ (see the full quotation, in its context, supra 462). Extreme circumstances of self-defence – when the very survival of a State is imperilled – do arise from time to time, but the exercise of self-defence is by no means confined to such catastrophic scenarios. The reality of selfdefence in inter-State relations is much more prosaic: it transcends life-or-death existential crises and impinges on a host of commonplace situations involving the use of counter-force. 495. The essence of self-defence is self-help: under certain conditions set by international law, a State acting unilaterally – perhaps in association with other countries – may respond with lawful force to unlawful force (or, according to some, to the imminent threat of unlawful force). The reliance on self-help, as a remedy available to States when their rights are violated, is and always has been one of the hallmarks of international law.1086 Self-help is a characteristic feature of all primitive legal systems, but in international law it has been honed to art form.1087 1085 1086 1087

Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, supra note 37, at 263. See Kelsen, supra note 378, at 339. See Y. Dinstein, ‘International Law as a Primitive Legal System’, 19 NYUJILP 1, 12 (1986–7).

187

188

Exceptions to prohibition of use of force

496. Self-help under international law may be displayed in a variety of ways. In the first place, an aggrieved State may resort to non-forcible measures, such as breaking off diplomatic relations with another State or expelling a foreign diplomat by declaring him persona non grata.1088 Additionally, lawful self-help in the relations between States may take the shape of forcible measures, in which case these measures must nowadays meet the requirements of selfdefence. Occasionally, international legal scholars regard the concepts of selfhelp and self-defence as related yet separate.1089 However, the correct approach is to view self-defence as a species subordinate to the genus of self-help. In other words, self-defence is a permissible form of ‘armed self-help’.1090 497. The legal notion of self-defence has its roots in interpersonal relations, and has been sanctified in domestic legal systems since time immemorial. From the dawn of international law, writers sought to apply this concept to inter-State relations, particularly in connection with the just war doctrine1091 (see supra 181). But when the freedom to wage war was countenanced without reservation (in the nineteenth and early twentieth centuries; see supra 207–8), concern with the issue of self-defence was largely a meta-juridical exercise. As long as recourse to war was considered free for all, against all, for any reason on earth – including territorial expansion or even motives of prestige and grandeur – States did not need a legal justification to commence hostilities. The plea of self-defence was relevant to the discussion of the legality of forcible measures ‘short of war’, such as extra-territorial law enforcement (see infra 711 et seq.).1092 Nevertheless, logically as well as legally, it had no role to play in the international arena as regards the cardinal issue of war.1093 Up to the point of the prohibition of war, to most intents and purposes, ‘self-defence was not a legal concept but merely a political excuse for the use of force’.1094 Only when the universal liberty to go to war was eliminated, could self-defence emerge as a right of signal importance in international law.1095 Indeed, on the eve of the renunciation of war (and, subsequently, upon the proscription of all forms of 1088 1089 1090 1091 1092

1093

1094 1095

See Denza, supra note 63, at 29 et seq., 392 et seq. See T. R. Krift, ‘Self-Defense and Self-Help: The Israeli Raid on Entebbe’, 4 Bn.JIL 43, 55–6 (1977–8). Report of the International Law Commission, 32nd Session, [1980] II (2) ILC Ybk 1, 54. See M. A. Weightman, ‘Self-Defense in International Law’, 37 Vir.LR 1095, 1099–1102 (1951). Owing to these historical roots, the customary law relating to self-defence is often viewed as ‘best expressed’ in D. Webster’s formula in the Caroline incident (examined infra 727–8). M. A. Rogoff and E. Collins, ‘The Caroline Incident and the Development of International Law’, 16 Bn.JIL 493, 506 (1990). See E. Giraud, ‘La Théorie de la Légitime Défense’, 49 RCADI 687, 715 (1934); J. L. Kunz, ‘Individual and Collective Self-Defense in Article 51 of the Charter of the United Nations’, 41 AJIL 872, 876 (1947). Jiménez de Aréchaga, supra note 220, at 96. See J. Verhoeven, ‘Les “Etirements” de la Légitime Défense’, 48 AFDI 49, 52 (2002).


189

inter-State force), the need for regulating the law of self-defence became manifest (see supra 229, 244). The evolution of the idea of self-defence in international law goes hand in hand with the prohibition of aggression.1096 498. The right of self-defence is enshrined in Article 51 of the Charter of the United Nations, which proclaims: Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.1097

The provision of Article 51 has to be read in conjunction with Article 2(4) of the Charter (quoted supra 233). Article 2(4) promulgates the general obligation to refrain from the use of inter-State force. Article 51 introduces an exception to this norm by allowing Member States to employ force in self-defence in the event of an armed attack. 499. Article 51 describes the right of self-defence as both ‘individual’ and ‘collective’ in nature. This dichotomy will be explored infra (734 et seq.). Interestingly enough, the legislative history shows that, at its inception, the whole clause governing self-defence was inserted in the Charter with a view to giving a seal of approval to regional security arrangements (notably, the interAmerican system).1098 In actuality, Article 51 has become the main pillar of the law of self-defence in all its forms, individual as well as collective. 500. This chapter will deal with common questions attached to self-defence of whatever category. The next two chapters will be devoted to discrete problems relating respectively to the two distinct types of individual and collective self-defence. B.

Self-defence as a right

501. Article 51 explicitly refers to a ‘right’ of self-defence. A State subjected to an armed attack is thus legally entitled to resort to force. The argument has been made that self-defence connotes only a de facto condition, rather than a veritable right.1099 But, since it is conceded that the State exercising self-defence is

1096 1097 1098 1099

Report of the International Law Commission, supra note 1090, at 52. Charter of the United Nations, supra note 248, at 346. Goodrich, Hambro and Simons, supra note 309, at 342–4. See R. Ago, ‘Addendum to Eighth Report on State Responsibility’, [1980] II (1) ILC Ybk l3, 53.

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‘exonerated’ from the duty to refrain from the use of force against the other side (the aggressor),1100 the difference between that and a de jure right is purely nominal. 502. The thesis of self-defence as a legal recourse to force by Utopia is inextricably linked to the antithesis of the employment of unlawful force by Arcadia (its opponent). Under no circumstances can the actual use of force by both Parties to a conflict be lawful simultaneously. If Utopia is properly exercising the right of self-defence, Arcadia must be in violation of the corresponding duty to abstain from an illegal resort to force. Should Arcadia be lawfully using force against Utopia – as an exercise of collective security decreed or authorized by the Security Council (see Chapter 10) – Utopia would not be able to invoke against Arcadia the right of self-defence.1101 By the same token, as an American Military Tribunal (following Wharton) held in the 1949 Ministries trial, ‘there can be no self-defense against self-defense’.1102 503. In practice, when inter-State force is employed, both Parties usually invoke the right of self-defence against an armed attack.1103 But such contradictory claims are mutually exclusive: only one of the antagonists can possibly be acting in an authentic exercise of the right of self-defence, whereas the other must be dissembling. When each persists in its posture, an authoritative determination is required to establish who is legally in the right (see infra 620). Even where no binding decision is made by a competent forum, it must be borne in mind that one of the Parties is using force under false pretences of legality. 504. Self-defence, in conformity with general international law, is a right and not a duty. Vattel, like many others before and after his time, propounded that ‘[s]elf-defence against an unjust attack is not only a right which every Nation has, but it is a duty, and one of its most sacred duties’.1104 Although the statement may reflect morality or theology, it does not comport with international law. As a rule, international law does not lay down any obligation to exercise self-defence.1105 A State subjected to an armed attack is vested with a right, hence an option, to resort to counter-force. A prudent State may decline to exercise this right, on the ground that a political compromise is preferable to a clash of arms. The indubitable military supremacy of the adversary may have a sobering effect on the target State, inhibiting it from steps that would transmute a theoretical right into a practical disaster. The idea that a State must sacrifice

1100 1102 1104 1105

Ibid. 1101 K. Nagy, Le Problème de la Légitime Défense en Droit International 55 (1992). Ministries trial, supra note 771, at 329. 1103 See Schachter, supra note 560, at 131. Vattel, The Law of Nations or the Principles of Natural Law, Book III, § III, 35 (3 Classics of International Law edn, C. G. Fenwick trans., 246 (1916)). See J. Zourek, ‘La Notion de Légitime Défense en Droit International’, 56 AIDI 1, 51 (Wiesbaden, 1975).


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realism at the altar of conceptualism, and risk defeat while prodded on by a ‘sacred duty’, is incongruous. 505. The status of self-defence as a right, and not a duty, is embedded in general international law. But there is no impediment to an undertaking by a State of a special obligation (through a bilateral or multilateral treaty) to exercise self-defence, should an armed attack occur.1106 The duty of individual selfdefence is usually incurred by a State when binding itself in a permanent neutrality regime1107 (see supra 55). The obligation of collective self-defence is formulated in several treaty forms, such as military alliances, to be discussed in detail infra (760 et seq.). 506. Self-defence as a duty may also be incorporated in national instructions to armed forces. Thus, the United States Standing Rules of Engagement establish a commander’s obligation to use force in self-defence.1108 This obligation must be understood in the context of ‘unit’ self-defence (see infra 641), and – keeping in mind the distinct possibility of escalation – it is a privilege that only the strong can afford. C.

Self-defence as an ‘inherent’ right

507. Article 51 of the United Nations Charter (quoted supra 498) pronounces self-defence to be an ‘inherent’ right. In the French text of the Article, the phrase ‘inherent right’ is rendered ‘droit naturel’.1109 The choice of words has overtones of jus naturale, which appears to be the fount of the right of selfdefence.1110 However, a reference to self-defence as a ‘natural right’ or a right generated by ‘natural law’ – although common in popular publications and even in some official pronouncements1111 – is unwarranted.1112 It may be conceived as an anachronistic residue from an era in which international law was dominated by ecclesiastical doctrines. At the present time, there is not much faith in transcendental truths professed to be derived from nature. A legal right is an interest protected by law, and it must be validated within the framework of a legal system. Self-defence, as an international legal right, must be proved to exist within the domain of positive international law.

1106 1107 1108 1109 1110 1111 1112

See ibid. See A. Verdross, ‘Austria’s Permanent Neutrality and the United Nations Organization’, 50 AJIL 61, 63 (1956). United States Army, Judge Advocate General’s Legal Center and School, Operational Law Handbook 85 (2007). Charter of the United Nations, supra note 248, at 346. See S. Rosenne, Essays on International Law and Practice 638–41 (2007). See S. Sims and K. Van der Borght, ‘The Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons’, 27 Ga.JICL 345, 367 (1998–9). See Kelsen, supra note 564, at 791–2.

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508. It may be contended that the right of self-defence is inherent not in jus naturale, but in the sovereignty of States. This construct finds support in a series of identical notes, sent in 1928 by the Government of the United States to a number of other Governments (inviting them to become Contracting Parties to the Kellogg-Briand Pact; see supra 226), where it was stated: There is nothing in the American draft of an antiwar treaty which restricts or impairs in any way the right of self-defense. That right is inherent in every sovereign state and is implicit in every treaty.1113

Yet, the principle of State sovereignty sheds no light on the theme of selfdefence.1114 State sovereignty has a variable content, which depends on the stage of development of the international legal order at any given moment.1115 The best index of the altered perception of sovereignty is that, in the nineteenth (and early twentieth) century, the liberty of every State to go to war as and when it pleased was also considered ‘a right inherent in sovereignty itself’ (see supra 208). Notwithstanding the abolition of this liberty in the last century, the sovereignty of States did not crumble. The contemporary right to employ inter-State force in self-defence is no more ‘inherent’ in sovereignty than the discredited right to resort to force at will. 509. It is advisable to take with a grain of salt the frequently made assertion that, in the language of the Judgment of the International Military Tribunal for the Far East (delivered at Tokyo in 1948): Any law, international or municipal, which prohibits recourse to force, is necessarily limited by the right of self-defence.1116

This proposition may have always been true in regard to domestic law, and it is currently accurate also in respect of international law. But it is safer to avoid axiomatic asseverations purporting to cover future eventualities for all time. Even if the right of self-defence will never be abolished in the relations between individual human beings, there is no guarantee of a similar immobility in international law. Self-defence exercised by States (legal entities) is not to be equated with self-defence carried out by physical persons (see infra 708). It is not beyond the realm of the plausible that a day may come when States will agree to dispense completely with the use of force in self-defence, exclusively relying thenceforth on some central authority wielding an effective international police force. The allegation that the prerogative of self-defence is inherent in the sovereignty of States to such an extent that no treaty can derogate from it,1117 1113 1114 1115 1117

Identic Notes of the United States, supra note 477, at 109. See G. Schwarzenberger, ‘The Fundamental Principles of International Law’, 87 RCADI 191, 339–40 (1955). See Virally, supra note 435, at 79. 1116 Tokyo trial, supra note 770, at 47. See Ago, supra note 1099, at 67 n. 263.


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cannot be accepted. It is by no means clear whether the right of self-defence may be classified as jus cogens1118 (thus curtailing the freedom of States to contract out of it), and, in any event, even jus cogens is susceptible of modification (see supra 290). Far be it from this writer to suggest that, at the present juncture, the right of self-defence is receding or that its significance is abating. On the contrary, if anything, self-defence is gaining ground in the general practice of States. All the same, what is – and was – is not necessarily what will always be. 510. In its Judgment in the Nicaragua case, the International Court of Justice gave a different spin to self-defence as an ‘inherent right’. The Court construed the expression as a reference to customary international law.1119 According to the Court, the framers of the Charter thereby acknowledged that self-defence was a pre-existing right of a customary nature, which they desired to preserve (at least in essence).1120 This is a sensible interpretation of Article 51, rationalizing the employment of the adjective ‘inherent’ without ascribing to it far-fetched (and insupportable) consequences. Still, pre-existing customary international law must be perceived to have endured for a relatively short period of time preceding the Charter; specifically, as from the renunciation of war in the Kellogg-Briand Pact of 1928 (see supra 497). 511. Article 51 addresses only the right of self-defence of Members of the United Nations. This must be understood in the context of the Charter where the right constitutes an exception to the duty to refrain from the use of force – set out in Article 2(4) (quoted supra 233) – which also devolves only on Members of the United Nations. However, as affirmed in the Nicaragua case, both the general prohibition of the use of inter-State force and the exception to it (the right of self-defence) are now part and parcel of customary international law as well as the law of the Charter.1121 Consequently, both the duty (refraining from the use of force) and the exceptional right (self-defence) devolve at the present time not only on Members of the United Nations but on all States. II.

Self-defence as a response to an armed attack

A.

Armed attack as a condition to self-defence

512. The text of Article 51 hinges on the expression ‘armed attack’. This is the threshold requirement: recourse to self-defence under the Article is not vindicated by any violation of international law which falls short of an armed attack. As the International Court of Justice observed in the 2005 Armed Activities case: 1118 1119

But see A. P. Rubin, ‘Book Review’, 81 AJIL 254, 255–8 (1987). Nicaragua case (Merits), supra note 14, at 94. 1120 Ibid. 1121 See ibid., 102–3.

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Article 51 of the Charter may justify a use of force in self-defence only within the strict confines there laid down. It does not allow the use of force by a State to protect perceived security interests beyond these parameters.1122

For its part, the Eritrea Ethiopia Claims Commission stated in its Partial Award on Jus ad Bellum: As the text of Article 51 of the Charter makes clear, the predicate for a valid claim of selfdefence under the Charter is that the party resorting to force has been subjected to an armed attack.1123

In the Oil Platforms case, the International Court of Justice held that ‘the burden of proof of the facts showing the existence’ of an armed attack rests on the State justifying its own use of force as self-defence.1124 513. The use of the expression ‘armed attack’ in Article 51 is particularly striking considering that Article 2(4) (quoted supra 233) adverts to ‘the threat or use of force’, and ‘any threat to the peace’ may lead to an enforcement action taken by the Security Council (see Article 39 quoted infra 810). By employing the language of ‘armed attack’ in Article 51, the framers of the United Nations Charter showed that mere threats are beyond its pale. B.

Armed attack and preemptive self-defence

(a) Anticipatory use of force 514. The United States has consistently asserted over the years that it is entitled to take ‘preemptive’ military action in exercise of the right of self-defence.1125 The terminology often employed has been that of ‘anticipatory’ self-defence.1126 The Standing Rules of Engagement of the United States posit the right to take action in self-defence not only in response to a ‘hostile act’ but even to a ‘hostile intent’, although they underscore that the latter applies to the ‘threat of imminent use of force’.1127 515. After the heinous terrorist attacks of 9/11, a well-known statement of policy on ‘preemptive’ action in self-defence was issued as part of the United States National Security Strategy.1128 The revised policy, often referred to as the 1122 1123 1124 1125 1126 1127 1128

Case Concerning Armed Activities on the Territory of the Congo, supra note 300, at 223–4. Eritrea Ethiopia Claims Commission, Partial Award, Jus ad Bellum, supra note 62, at 433. Case Concerning Oil Platforms, supra note 1016, at 189. See W. M. Reisman, ‘The Past and Future of the Claim of Preemptive Self-Defense’, 100 AJIL 525, 527–30 (2006). See Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, 73 ILS 263 (A. R. Thomas and J. C. Duncan eds., 1999). Operational Law Handbook, supra note 1108, at 86. Preemptive Action in Self-Defense: National Security Strategy, [2002] Digest of United States Practice in International Law 947 (S. J. Cummins and D. P. Stewart eds.).


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‘Bush Doctrine’ (after President G. W. Bush), was intended to ‘adapt the concept of imminent threat’ by allowing ‘anticipatory action’ to ‘forestall or prevent’ hostile acts.1129 The revised policy must not be seen as open-ended. Even ardent supporters generally concede that it is not enough for ominous dark clouds to be gathering overhead: the emphasis is put on the likelihood of an actual and specific threat.1130 516. The difference in terminology between ‘preemptive’, ‘anticipatory’ and ‘preventive’ – expressions employed long before 9/11 – is not always transparent (as for ‘imminent’, see infra 543 et seq.). The precise outlines of each term may vary, but their common denominator is that they are all conjectural.1131 The ‘Bush Doctrine’ was intended to push the envelope by claiming a right to counter threats – before they morph into concrete action – especially by terrorists and in particular when the potential use of WMD comes into the equation.1132 Admittedly, the practical effects of the revised policy are doubtful: contrary to what many commentators believe, it was not applied in Iraq in 2003 (see infra 861). 517. Three points must be conceded without affecting the substance of the discussion: (i) Historically, there are abundant illustrations (up to and including World War I) of anticipatory use of inter-State force. Still, none of these cases is relevant to the period subsequent to the adoption of the United Nations Charter. The crux of the issue is that anticipatory use of force today, in response to sheer threats rather than an armed attack, would not be in compliance with the text of Article 51 of the Charter.1133 (ii) Even supporters of anticipatory self-defence are forced to concede that it may be based on false expectations, thus triggering the use of force against putative armed attacks that might not have actually unfolded.1134 (iii) It is true that the actual exercise of self-defence – e.g., in the sphere of defensive armed reprisals (see infra 667) – ‘is often future-oriented, seeking to stop acts that are yet to occur’.1135 However, there is a nuance here that must not be missed. What the exercise of self-defence is intended to stop is not really the occurrence of an as yet undefined act, but either the 1129 1130 1131 1132 1133 1134 1135

Ibid., 951–2. See A. D. Sofaer, ‘On the Necessity of Pre-emption’, 14 EJIL 209, 221 (2003). See D. A. Sadoff, ‘A Question of Determinacy: The Legal Status of Anticipatory SelfDefense’, 40 Gn.JIL 523, 530–1 (2008–9). See, e.g., A. E. Wall, ‘International Law and the Bush Doctrine’, 34 IHYR 193, 196–7, 212 (2004). See D. Rezac, ‘President Bush’s Security Strategy and Its “Pre-Emptive Strikes Doctrine” – A Legal Basis for the War against Iraq?’, 7 ARIEL 223, 227 (2002). See M. C. Waxman, ‘The Use of Force against States that Might Have Weapons of Mass Destruction’, 31 Mich.JIL 1, 7 (2009). S. D. Murphy, ‘The Doctrine of Preemptive Self-Defense’, 50 Vill.LR 699, 733–4 (2005).

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completion or the recurrence of an armed attack that has already been launched. (b) Article 51 and customary international law 518. A question often posed is whether there exists – independently of the Charter – a broader customary international law right of anticipatory or preemptive self-defence. The International Court of Justice, in the Nicaragua case, based its decision on the norms of customary international law concerning selfdefence in response to an armed attack that has already occurred.1136 All the same, the Court stressed that this was due to the circumstances of the case, and it passed no judgment on the issue of response to an ‘imminent threat of armed attack’.1137 The same happened in the Armed Activities case of 2005.1138 There is no doubt that, notwithstanding convenient opportunities to address the issue of anticipatory or preemptive self-defence, the Court has so far ‘shied away’ from doing that.1139 519. On the other hand, Judge Schwebel – in his Dissenting Opinion in the Nicaragua case – did express his position on the subject in no uncertain terms. In conformity with a scholarly school of thought maintaining that Article 51 only highlights one form of self-defence (viz. response to an armed attack), without negating other patterns of permissible action in self-defence vouchsafed by customary international law,1140 Judge Schwebel rejected a reading of the text which would imply that the right of self-defence under Article 51 exists ‘if, and only if, an armed attack occurs’.1141 520. In the opinion of the present writer, precisely such a restrictive reading of Article 51 is called for. Any other interpretation of the Article would be counter-textual, counter-factual and counter-logical. Counter-textual because the use of the phrase ‘armed attack’ in Article 51 is not inadvertent. The expression should be juxtaposed with comparable locutions in other clauses of the Charter. It is particularly striking that the framers of the text preferred in Article 51 the coinage ‘armed attack’ to the term ‘aggression’, which appears in the Charter in several contexts: the Purposes of the United Nations (Article 1(1) quoted supra 242), collective security (Article 39 quoted infra 810) and regional arrangements (Article 53(1) quoted infra 889). Although the consensus Definition of Aggression does not cover the threat of force (see supra 274–5), it 1136 1138 1139 1140

1141

See Nicaragua case (Merits), supra note 14, at 102–6. 1137 Ibid., 103. Case Concerning Armed Activities on the Territory of the Congo, supra note 300, at 222. N. A. Shah, ‘Self-Defence, Anticipatory Self-Defence and Pre-emption: International Law’s Response to Terrorism’, 12 JCSL 95, 100 (2007). See D. W. Bowett, Self-Defence in International Law 187–92 (1958); M. S. McDougal and F. P. Feliciano, Law and Minimum World Public Order 232–41 (1961); Stone, supra note 501, at 44. Nicaragua case (Merits), supra note 14, at 347.


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cannot be denied that aggression in its generic meaning could potentially be stretched to include mere threats. For that reason, perhaps, the French equally authentic text of Article 51 sharpens its thrust by speaking of ‘une agression armée’.1142 The meaning is plain: the use of force in self-defence is permissible under Article 51 only in response to an aggression which is armed, as distinct from any other form (or subset) of aggression. 521. The idea that one can go beyond the text of Article 51 and find support for a broad concept of anticipatory or preemptive self-defence in customary international law (which, supposedly, Members of the United Nations did not ‘forfeit’1143) is counter-factual. When did such customary international law evolve and what evidence do we have for it in the general practice of States (as distinct from scholarly writings)? As mentioned (supra 497), the right of self-defence consolidated only upon the prohibition of the use of force between States. The renunciation of war matured in the Kellogg-Briand Pact of 1928 and was reiterated, in clearer and broader terms of prohibition of general use of interState force, in Article 2(4) of the Charter in 1945 (quoted supra 233). What preventive war of self-defence was unleashed between 1928 and 1945? Reference is sometimes made to the declaration of war by the Netherlands on Japan on 8 December 1941, prior to the Japanese attack on the Dutch East Indies.1144 However, the International Military Tribunal for the Far East at Tokyo expressly held that Japan had already issued orders for the execution of a war of aggression against the Netherlands as of 7 December, adding: The fact that the Netherlands, being fully apprised of the imminence of the attack, in selfdefence declared war against Japan on 8th December and thus officially recognised the existence of a state of war which had been begun by Japan cannot change that war from a war of aggression on the part of Japan into something other that.1145

This is a far cry from anticipatory or preemptive self-defence. 522. It is frequently argued that the concept of anticipatory self-defence goes back to the 1837 Caroline incident1146 (examined infra 726). But reliance on that incident in the context of anticipatory self-defence is misplaced.1147 There was nothing anticipatory about the British action against the Caroline steamboat on United States soil, inasmuch as the Caroline had already been regularly used for transporting men and materials across the Niagara River, in support of 1142 1143 1144 1145 1146 1147

Charter of the United Nations, supra note 248, at 346. See J. A. Cohan, ‘The Bush Doctrine and the Emerging Norm of Anticipatory Self-Defense in Customary International Law’, 15 PILR 283, 315 (2003). See D. W. Greig, International Law 894 (2nd edn, 1976). Tokyo trial, supra note 770, at 382. See, e.g., Franck, supra note 555, at 97. See A. G. Hamid, ‘The Legality of Anticipatory Self-Defence in the 21st Century World Order: A Re-appraisal’, 54 NILR 441, 464–5 (2007).

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an anti-British uprising in Canada.1148 No less significantly, the point in dispute at the time related exclusively to the use of force by Britain ‘short of war’. The question was not whether Britain had a right to go to war against the United States in the exercise of self-defence (after all, any State then had a right to go to war against another State for any reason). The question, rather, was whether Britain could use forcible measures of self-defence within American territory without plunging the two countries into war. 523. The reliance on an extra-Charter customary right of self-defence is also counter-logical. After all, the authors of Article 51 introduced critical limitations on the exercise of self-defence (which is subject to the overriding powers of the Security Council; see infra 622 et seq.). Does it make sense that the most obvious case of self-defence – conducted in response to an armed attack – is placed (in the words of the International Court of Justice) within ‘strict confines’ (supra 512), whereas self-defence putatively invoked in other circumstances (on an anticipatory or preemptive basis) is absolved of those constraints? What is the point in stating the obvious (i.e. that an armed attack gives rise to the right of self-defence), while omitting any reference whatever to the ambiguous circumstances of an allegedly permissible preventive war? Preventive war in self-defence (if lawful) would require regulation by lex scripta more acutely than a response to an armed attack, since the opportunities for abuse are incomparably greater. Surely, if preventive war in self-defence is justified (on the basis of ‘probable cause’ rather than an actual use of force), it ought to be exposed to no less – if possible, even closer – supervision by the Security Council. In all, is this not an appropriate case for the application of the maxim of interpretation expressio unius est exclusio alterius? 524. When pressed, the advocates of the legality of a broad anticipatory concept of self-defence are forced to frown upon the strict language of Article 51 as ‘an inept piece of draftsmanship’.1149 However, the draftsmanship appears to be quite satisfactory once it is recognized that the right of self-defence is deliberately circumscribed to counter-force stimulated by an armed attack. In 2004, a High-Level Panel on Threats, Challenges and Change (appointed by the United Nations Secretary-General) stated unequivocally: ‘We do not favour the rewriting or reinterpretation of Article 51’.1150 A restrictive interpretation of Article 51 is also in harmony with the views expressed by leading scholars.1151 1148

1149 1150 1151

See J. P. Paust, ‘Post-9/11 Overreaction and Fallacies Regarding War and Defense, Guantanamo, the Status of Persons, Treatment, Judicial Review of Detention, and Due Process in Military Commissions’, 79 NDLR 1335, 1345 (2003–4). McDougal and Feliciano, supra note 1140, at 234. Report of High-Level Panel on Threats, Challenges and Change Addressed to the Secretary General (2004, UN doc. A/59/565), para. 192. See Ago, supra note 1099, at 64–67; W. E. Beckett, The North Atlantic Treaty, the Brussels Treaty and the Charter of the United Nations 13 (1950); Kelsen, supra note 564, at 797–8; Kunz, supra note 1093, at 877–8; Oppenheim, supra note 8, at 156; K. Skubiszewski, ‘Use of Force by States. Collective Security. Law of War and Neutrality’, Manual of Public International Law 739, 767 (M. Sørensen ed., 1968); Wehberg, supra note 492, at 81.


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(c) The insufficiency of exceptional threats 525. Every factual set of affairs is governed by the proposition that United Nations Members are barred by the Charter from exercising self-defence in response to a mere threat of force. It is sometimes put forward that ‘[t]he destructive potential of nuclear weapons is so enormous as to call into question any and all received rules of international law regarding the trans-boundary use of force’.1152 But the inference that Article 51 is only operative under conditions of conventional warfare cannot be substantiated. 526. Hence, when the United States imposed a ‘quarantine’ on Cuba in 1962, subsequent to the installation of Soviet missiles on the island, this could not be reconciled with the provision of Article 51,1153 notwithstanding valiant attempts by some scholars to do so.1154 The installation of the missiles so close to American shores did pose a certain threat to the United States. Yet, in the absence of an armed attack, no recourse could be made to the exceptional right of self-defence, and the general interdiction of the use of inter-State force prevailed.1155 527. When Israeli aircraft raided an Iraqi nuclear reactor (under construction) in 1981, the legal justification of the act should have rested on the prolonged state of war which characterizes the relations between the two countries (see supra 132).1156 The same applies to a similar strike by Israel in 2007 against a Syrian nuclear installation under construction. It is a mistake1157 to analyze this attack in isolation, disregarding the fact that Israel and Syria are also embroiled in a state of war (see supra 159). Had Israel been at peace with either Iraq or Syria, the bombings of the nuclear facilities would have been prohibited, since (when examined in themselves and out of the context of ongoing wars) they did not qualify as admissible acts of self-defence comporting with Article 51. This is the position de lege lata, despite the understandable apprehension that nuclear devices, if produced by a hostile country, might ultimately be delivered against

1152 1153 1154 1155

1156

1157

A. D’Amato, ‘Israel’s Air Strike upon the Iraqi Nuclear Reactor’, 77 AJIL 584, 588 (1983). See Q. Wright, ‘The Cuban Quarantine’, 57 AJIL 546, 560–2 (1963). See M. S. McDougal, ‘The Soviet-Cuban Quarantine and Self-Defense’, 57 AJIL 597–604 (1963). This is still true today. Consequently, it is wrong to suggest that WMD can be seized from foreign-flagged ships on the high seas in the name of Article 51 and self-defence (see M. A. Fitzgerald, ‘Seizing Weapons of Mass Destruction from Foreign-Flagged Ships on the High Seas under Article 51 of the UN Charter’, 49 Vir.JIL 473–505 (2008–9)). Such action can lawfully take place only on the basis of consent of the flag State or a binding decision of the Security Council (see Chapter 10). Of course, the analysis here is restricted to the jus ad bellum; there being a separate issue (not within the framework of the present book) whether the strike was permissible under the jus in bello. See D. Kritsiotis, ‘Topographies of War’, International Law and Armed Conflict: Exploring the Faultlines, supra note 1059, at 29, 38. See, e.g., T. Ruys, ‘Armed Attack’ and Article 51 of the UN Charter 35, 363–4 (2010).

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Israeli targets.1158 Such apprehension is particularly acute at the time of writing in the face of Iran’s growing capabilities in nuclear weaponry and its provocative stance towards Israel (with which it is not at war).1159 528. Unconventional weapons are not the only exceptional threats that do not acquire by themselves the attributes of an armed attack (and, therefore, do not invite the exercise of the right of self-defence). Even declarations of war, if it is evident to all that they are pure rhetoric unaccompanied by deeds, are not enough.1160 The contention that mere mobilization or ‘bellicose utterances’ as such may justify self-defence within the framework of Article 51,1161 has no foundation. 529. At bottom, self-defence consonant with Article 51 implies resort to counter-force: it comes in reaction to the use of force by the other Party. When a country feels menaced by the threat of an armed attack, all that it is free to do – pursuant to the United Nations Charter – is make the necessary military preparations for repulsing the anticipated attack should it materialize, as well as bring the matter forthwith to the attention of the Security Council (hoping that the latter will take collective security measures on a preemptive basis; see infra 812, 822).1162 Either course of action may fail to inspire confidence in the successful resolution of the crisis. The military preparations can easily prove inadequate, whether as a deterrence or as a shock absorber. The Council, for its part, may proceed in a nonchalant manner.1163 Regardless of the shortcomings of the system, the option of a preventive use of force is excluded by Article 51. 530. Having said all that, it is the considered opinion of the present writer that the right to self-defence can be invoked in response to an armed attack at an incipient stage, as soon as it becomes evident to the victim State (on the basis of hard intelligence available at the time) that the attack is actually in the process of being mounted. There is no need to wait for the bombs to fall – or, for that matter, for fire to open – if it is certain that the armed attack is under way (even in a preliminary manner). The victim State can lawfully (under Article 51) intercept the armed attack, with a view to blunting its edge (see infra 538 et seq.). 1158 1159 1160

1161 1162 1163

Per contra, see T. L. H. McCormack, Self-Defense in International Law: The Israeli Raid on the Iraqi Nuclear Reactor 295–302 (1996). On concerns about Iran’s growing nuclear capabilities, see Waxman, supra note 1134, at 75. A declaration of war patently unaccompanied by deeds may be deemed ‘an overt threat of the use of force’. E. Myjer, ‘Book Review’ [of the first edition of this book], 2 LJIL 278, 283 (1989). But such a threat per se does not constitute an armed attack. See E. Miller, ‘Self-Defence, International Law, and the Six Day War’, 20 Is.LR 49, 58–60 (1985). See J. Zourek, L’Interdiction de L’Emploi de la Force en Droit International 106 (1974). For a case in point, see R. Lapidoth, ‘The Security Council in the May 1967 Crisis: A Study in Frustration’, 4 Is.LR 534–50 (1969).


C.

201

The beginning of an armed attack and interceptive self-defence

(a) The need to look beyond the ‘first shot’ 531. Since self-defence (under Article 51 quoted supra 498) is intertwined with an armed attack, it is important to pinpoint the exact moment at which an armed attack begins to take place: this is the crucial moment when recourse to forcible counter-measures becomes lawful as self-defence. Verification of the precise instant at which an armed attack commences is well-nigh equivalent to an identification of the aggressor and the Party fighting in self-defence respectively. 532. The issue acquires a very practical dimension as a result of the proclivity of both Parties, once hostilities break out, to charge each other with the initiation of an armed attack (see supra 503). When confronted with contradictory claims of armed attack and self-defence, the international community may be confounded by effusions of misinformation pouring forth from dubious sources. Given that there may be a meagre opportunity for impartial observers to investigate what really happened, the public tends to search for deceptively uncomplicated criteria designed to establish the starting point of the armed attack. The most simplistic touchstone is that of the ‘first shot’, namely, finding out which State (through its armed forces) was the first to open fire. 533. As noted (supra 370), Article 2 of the General Assembly’s consensus Definition of Aggression refers to the first use of force as only prima facie evidence of aggression. This is a judicious approach that relegates the opening of fire to the level of a presumption of an armed attack. An in-depth study of the background may be required before a decision is made concernng the classification of the first shot as an armed attack. While the burden of proof shifts to the State firing the first shot, that State is not estopped from demonstrating that the action came in response to earlier steps taken by the opponent, which were far and away more decisive as a turning point in the process leading from peace to war (or from quiescence to an international armed conflict ‘short of war’). 534. In many instances, the opening of fire is an unreliable test of responsibility for an armed attack. The most elementary example is germane to an invasion of one country by another. An invasion constitutes the foremost case of aggression enumerated in Article 3(a) of the General Assembly’s Definition and Article 8 bis of the Statute of the International Criminal Court (quoted supra 367). It may start when Arcadian armoured or infantry divisions storm, with blazing guns, a Utopian line of fortifications. But an invasion need not consist of an avalanche of Arcadian troops swarming into Utopian territory. It may also be effected when a smaller Numidian military force crosses the Ruritanian frontier and then halts, positioning itself in strategic outposts well within the Ruritanian territory (the movement of Pakistani troops into Indian Kashmir in 1999 is a

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good case in point1164). If the invasion takes place in a tract of land not easily accessible and lightly guarded, it is entirely plausible that some time would pass before the competent authorities of Ruritania grasp what has actually transpired. In these circumstances, it may very well follow that the armed forces of Ruritania would be instructed to dislodge from their positions the invading contingents belonging to Numidia, and that fire be opened first by Ruritanian military units against entrenched Numidian soldiers. Despite the first shots by Ruritania, Numidia cannot relieve itself of responsibility for an armed attack. When one State sends armed formations across an international frontier, without the consent of the local Government, it must be deemed to have triggered an armed attack even if no shots have been fired.1165 ‘When territory has been occupied illegally, the use of force to retake it will be a lawful exercise of the right of self-defence’.1166 Of course, such use of force has to occur within reasonable time (see the condition of immediacy, infra 615 et seq.), and not mask an excuse for trying to circumvent Article 2(4) of the United Nations Charter (see supra 247). 535. Another rudimentary illustration for the need to gaze beyond the firing of the first shot relates to a setting in which Atlantican military forces are stationed by permission, for a limited space of time, on Patagonian soil. When the agreed-upon period comes to an end, if Patagonia is unwilling to extend the stay within its territory of the Atlantican troops, Atlantica must pull them out. Should Atlantica fail to do so, its refusal to withdraw from Patagonia amounts to an act of aggression under Article 3(e) of the General Assembly’s Definition and Article 8 bis of the Statute of the International Criminal Court (quoted supra 367). The factual situation may be legally analyzed as a constructive armed attack.1167 When the armed forces of Patagonia open fire first, with a view to compelling the evacuation of Atlantican troops from Patagonian territory, they are exercising the right of self-defence against Atlantica’s (constructive) armed attack. 536. These are open-and-shut cases, inasmuch as the first shot fired by the Ruritanian or Patagonian armed forces is plainly preceded either by a Numidian invasion or by an unauthorized Atlantican military presence within Patagonian territory. But a State may resort to force in self-defence even before its territory is penetrated by foreign troops. Suppose that Carpathia launches ICBM against Apollonia on the other side of the planet. Suppose further that the Apollonian radar network immediately detects the launching. In the few minutes left prior to 1164 1165 1166 1167

For the Kashmir incident, see 45 Keesing’s Record of World Events 42997 (1999). See C. Gray, ‘The Eritrea/Ethiopia Claims Commission Oversteps Its Boundaries: A Partial Award?’, 17 EJIL 699, 717 (2006). A. Aust, Handbook of International Law 211 (2nd edn, 2010). See W. Wengler, ‘L’Interdiction de Recourir à la Force. Problèmes et Tendances’, [1971] RBDI 401, 408.


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impact (and before the missiles draw near the Apollonian frontier), Apollonia activates its armed forces and an Apollonian submarine torpedoes a Carpathian warship cruising at sea. Although a Carpathian target is the first to be struck, one can scarcely deny that Carpathia (having launched its missiles previously) should be regarded as the initiator of an armed attack, whereas Apollonia ought to be able to invoke self-defence. 537. It may be contended that what ultimately counts in the last scenario is the launching of the missiles, which resembles the firing of a gun: once a button is pressed, or a trigger is pulled, the act is complete (while impact is a mere technicality). However, in reality, the central point is that self-defence may lawfully be activated in an interceptive manner. (b) Interceptive self-defence 538. The adjective ‘interceptive’ in the context of self-defence is set in opposition to ‘preemptive’, ‘anticipatory’ or ‘preventive’ self-defence (see supra 514 et seq.).1168 The contrast is due to a conceptual distinction between action (which is ‘preemptive’, ‘anticipatory’ or ‘preventive’) in the face of a mere threat, on the one hand, and reaction to an event that has already begun to happen (even if it has not yet fully developed in its consequences), on the other. Thus, if the radar of a Carpathian military aircraft locks on to – or illuminates (i.e. aims laser beams at) – an Apollonian target, although no missile has been fired (and no bomb has been dropped), an armed attack may be deemed to be in progress and a timely response by Apollonia would constitute interceptive selfdefence. 539. The best way to trace what interceptive self-defence denotes is to hypothesize that the Japanese Carrier Striking Force, en route to the point from which it mounted the notorious attack on Pearl Harbor in December 1941, had been destroyed by American forces before a single Japanese naval aircraft got anywhere near Hawaii.1169 If that were to have happened, and the Americans would have succeeded in aborting an onslaught which in one fell swoop managed to change the balance of military power in the Pacific, it would have been preposterous to look upon the United States as answerable for inflicting an armed attack upon Japan. 540. The proper analysis of the case should be based on three discrete – imaginary – scripts (all linked to a counter-factual premise that the Americans knew exactly what the Japanese were up to): 1168

1169

Interceptive self-defence must, therefore, not be viewed as merely an ‘acceptable formulation’ of anticipatory self-defence. See I. Pogany, ‘Book Review’ [of the first edition of this book], 38 ICLQ 435, id. (1989). The Pearl Harbor example was adduced in debates in the United Nations. See M. M. Whiteman, V Digest of International Law 867–8 (1965).

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(i) The easiest scenario relates to the hypothetical shooting down by the Americans of the incoming Japanese aircraft – upon detection by radar or other means – in the relatively short timeframe between launch from the air carriers and the actual execution of the attack mission. Once the launch was completed, there can be no doubt that (although theoretically the mission could still be called off) the target State – the United States – had every right to regard the Japanese armed attack as having commenced, and to intercept it. (ii) The more difficult supposition pertains to the sinking of the Japanese fleet once poised in mid-ocean for the attack on Pearl Harbor but prior to the launch of the aircraft. In the opinion of the present writer, the turning point in the unfolding events was the sailing of the tasked Japanese fleet towards its fateful destination (again, notwithstanding the possibility of its being instructed to turn back). However, any American action at this stage would have had to be embedded not merely in conjecture but in the actual possession at the time of airtight information (e.g., through the breaking of Japanese naval codes) concerning the nature of the mission in which the Japanese Striking Force was engaged. If the evidence was there, and had the Americans located the whereabouts of the Japanese fleet, they need not have relinquished the opportunity to intercept. (iii) On the other hand, had the Americans sought to destroy the Japanese fleet before it sailed – while it was still training for its mission, war-gaming or otherwise making advance preparations – this would have been not an interceptive (hence, lawful) response to an armed attack but an (unlawful) preventive use of force in advance of the attack which had not yet commenced. As and of themselves, training, war-gaming and advance preparations do not cross the red line of an armed attack. 541. The crux of the issue, therefore, is not who fired the first shot but who embarked upon an apparently irreversible course of action, thereby crossing the legal Rubicon. The casting of the die, rather than the actual opening of fire, is what starts the armed attack. It would be absurd to require the defending State to sustain and absorb a devastating (perhaps a fatal) blow, only to prove an immaculate conception of self-defence. As Waldock phrased it: Where there is convincing evidence not merely of threats and potential danger but of an attack being actually mounted, then an armed attack may be said to have begun to occur, though it has not passed the frontier.1170

542. Interceptive self-defence is lawful, even under Article 51 of the Charter,1171 for it takes place after the other side has committed itself to an 1170 1171

Waldock, supra note 483, at 498. For support of this view, see, e.g., M. N. Shaw, International Law 1130 (6th edn, 2008).


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armed attack in an ostensibly irrevocable way. Whereas a preemptive (or preventive or anticipatory) strike is directed at an armed attack that is merely ‘foreseeable’ (or even just ‘conceivable’), an interceptive strike counters an armed attack which is already in progress, even if it is still incipient. (c) ‘Imminence’ 543. Perhaps the most widely adduced adjective about an armed attack is that it has to be ‘imminent’.1172 On the face of it, this adjective may span over the deep chasm between interceptive and anticipatory self-defence. However, imminence may mean different things to different people: either too little or too much. Hence, its usefulness is doubtful. 544. There is no authoritative definition of imminence in the context of an armed attack. Yet, it is noteworthy that, in its 1997 Gabčíkovo-Nagymaros Project Judgment, the International Court of Justice addressed the issue of imminence in the disparate setting of a dispute concerning the construction of a system of locks in the Danube River.1173 It has been suggested by several scholars that the Court’s dictum can be applied to anticipatory self-defence.1174 What the Court here said was: ‘Imminent’ is synonymous with ‘immediacy’ or ‘proximity’ and goes far beyond the concept of ‘possibility’.1175

The reference to immediacy as a synonym of imminence is somewhat misleading1176 (on immediacy as a condition to self-defence, see infra 615 et seq.). But the Court tempered its dictum with the following words: That does not exclude, in the view of the Court, that a ‘peril’ appearing in the long term might be held to be ‘imminent’ as soon as it is established, at the relevant point in time, that the realization of that peril, however far off it might be, is not thereby any less certain and inevitable.1177

Here the pendulum has swung in the other direction. Surely, a far-off peril cannot be deemed to be ‘imminent’. Still, if an act is ‘certain and inevitable’, there is no doubt that it qualifies. 545. In its Santiago Resolution of 2007, the Institut de Droit International – while declaring that ‘[t]here is no basis in international law for the doctrines 1172 1173 1174 1175 1176 1177

See, e.g., Report of High-Level Panel on Threats, Challenges and Change, supra note 1150, at para. 188. Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia), [1997] ICJ Rep. 7, 42. See, e.g., C. Antonopoulos, ‘Force by Armed Groups as Armed Attack and the Broadening of Self-Defence’, 55 NILR 159,177 (2008). Gabčíkovo-Nagymaros Project case, supra note 1173, at 42. See J. Yoo, ‘Using Force’, 71 UChi.LR 729, 752 (2004). Gabčíkovo-Nagymaros Project case, supra note 1173, at 42.

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[sic] of “preventive” self-defence’ – pronounced that ‘[t]he right of self-defence arises for the target State in case of an actual or manifestly imminent armed attack’.1178 In this text, the rub is in the adverb ‘manifestly’. In actuality, interceptive self-defence may be exercised even when the armed attack is still in an embryonic stage and, therefore, falling short of being ‘manifest’.1179 546. The central point is that self-defence cannot be launched merely on the ground of assumptions, expectations or fear of what is sometimes called a ‘latent’ threat.1180 The ‘early hatching of an aggressive plan’1181 is decidedly not enough. Self-defence, under Article 51, can be invoked ‘if an armed attack occurs’ (see supra 498). Advocates of anticipatory self-defence rightly argue that ‘if’ does not mean ‘after’,1182 disregarding the fact that it also does not mean ‘before’. The ‘if’ condition is met once an armed attack is under way, even if the attack is not yet fully matured. To alter the metaphor, there is nothing preventive about nipping an armed attack in the bud. But first there must be a bud. (d) A series of acts 547. Already in the Nicaragua case, the International Court of Justice addressed the question whether incursions ‘may be treated for legal purposes as amounting, singly or collectively, to an “armed attack”’:1183 notice the parenthesis ‘singly or collectively’. In the Oil Platforms Judgment, it is strongly implied that a series of acts may be weighed cumulatively and then categorized as an armed attack.1184 Another tacit reference to the possibility of regarding a series of events in their accumulation appears in a dictum by the Court in the Armed Activities case.1185 Despite reservations, ‘there is considerable support for the view that the “accumulation of events” does affect the possibility of exercising the right of self-defence’.1186 548. A good example of the need to assess jointly a series of events in analyzing the onset of an armed attack is the ‘Six-Day War’ of June 1967. While Israel was the first to open fire, a careful examination of the events 1178 1179 1180 1181 1182 1183 1184 1185 1186

Institut de Droit International, Resolution, ‘Self-Defence’, 72 AIDI 233, id. (Santiago, 2007) (Articles 3, 6). See comments by the present writer in the course of the deliberations of the Institut, ibid., 177, 204. See R. Bermejo-García, ‘Preventive Self-Defence against International Terrorism’, International Legal Dimension of Terrorism 177, 196 (P. A. Fernández-Sánchez ed., 2009). The phrase is used in this connection by D. B. Rivkin, Jr. and L. A. Casey, ‘Using Force Lawfully in the 21st Century’, 81 ILS 319, 328 (T. M. Sparks and G. M. Sulmasy eds., 2006). See L. Van den Hole, ‘Anticipatory Self-Defence under International Law’, 19 AUILR 69, 85 (2003–4). Nicaragua case (Merits), supra note 14, at 120. Case Concerning Oil Platforms, supra note 1016, at 191–2. Case Concerning Armed Activities on the Territory of the Congo, supra note 300, at 223. Ruys, supra note 1157, at 174.


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surrounding the outbreak of the hostilities (assuming that it was conducted, in good faith, at the time of action) would lead to the conclusion that the Israeli campaign amounted to an interceptive self-defence, in response to an incipient armed attack by Egypt (later joined by Jordan and Syria). True, no single Egyptian step, evaluated alone, may have qualified as an armed attack. But when all of the measures taken by Egypt (especially the closure of the Straits of Tiran; the peremptory ejection of the United Nations Emergency Force from the Sinai Peninsula and the Gaza Strip; the unprecedented build-up of Egyptian forces along Israel’s borders; and constant sabre-rattling statements about the impending fighting) were assessed in the aggregate, it seemed to be crystal-clear that an Egyptian armed attack was at an early stage, and the sole question was not whether full-scale hostilities would materialize but when.1187 549. That, at least, was the widely shared perception (not only in Israel) in June 1967, based on sound judgement of events. Hindsight knowledge, suggesting that – notwithstanding the well-founded contemporaneous appraisal of events – the situation may have been less desperate than it appeared, is immaterial.1188 The invocation of the right of self-defence must be weighed on the ground of the reliable information available (and reasonably interpreted) at the moment of action, without the benefit of post factum wisdom.1189 In the circumstances, as perceived in June 1967, Israel did not have to wait idly by for the expected shattering blow (in the military manner of the October 1973 ‘Yom Kippur’ offensive), but was entitled to resort to self-defence as soon as possible. D.

A small-scale armed attack

(a) The gap between Article 2(4) and Article 51 550. Article 2(4) of the United Nations Charter (quoted supra 233) forbids in general terms the ‘use of force’ in international relations. For its part, Article 51 (quoted supra 498) allows taking self-defence measures only in the specific case of an ‘armed attack’. In light of the divergent terminology, a gap is discernible between the two stipulations.1190 That is to say, one State may employ some 1187 1188

1189

1190

See Y. Dinstein, ‘The Legal Issues of “Para-War” and Peace in the Middle East’, 44 St.JLR 466, 469–70 (1970). ‘Hindsight can be 20/20; decisions at the time may be clouded with the fog of war.’ G. K. Walker, ‘Anticipatory Collective Self-Defense in the Charter Era: What the Treaties Have Said’, 72 ILS 365, 393 (M. N. Schmitt ed., 1998). Although the statement is made about anticipatory action (which is inadmissible in the opinion of the present writer), it is equally applicable to interceptive self-defence. This rule works both for and against the State invoking self-defence. Recourse to forcible measures cannot be based on information unavailable at the time of action and acquired only subsequently. See Nuremberg trial, supra note 582, at 207–8. See A. Randelzhofer, ‘Article 51’, I The Charter of the United Nations: A Commentary, supra note 485, at 788, 790.

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illegal force against another without thereby unleashing a full-blown armed attack. By way of illustration, agents of Arcadia – without inflicting any casualties or much damage – may break into a Utopian diplomatic bag or detain a Ruritanian ship in circumstances disallowed by international law. In both instances, a modicum of force may be posited, yet no armed attack can be alleged to have occurred. In the absence of an armed attack, self-defence is not an option available to the victim State, so that neither Utopia nor Ruritania can respond with self-defence. 551. Logically and pragmatically, the gap between Article 2(4) (‘use of force’) and Article 51 (‘armed attack’) ought to be no more than a hiatus, inasmuch as ‘there is very little effective protection against States violating the prohibition of the use of force, as long as they do not resort to an armed attack’.1191 If Utopia and Ruritania are barred from invoking the right of selfdefence against Arcadia, notwithstanding the use of some force against them, this is so merely because that use of force is not of ‘sufficient gravity’ (in the words of Article 2 of the consensus Definition of Aggression quoted supra 370), thus falling short of an armed attack. As stated in a Resolution on Self-Defence, adopted by the Institut de Droit International in Santiago in 2007: An armed attack triggering the right of self-defence must be of a certain degree of gravity. Acts involving the use of force of lesser intensity may give rise to countermeasures in conformity with international law.1192

Differently put, an armed attack presupposes a use of force producing (or liable to produce) serious consequences, epitomized by territorial intrusions, human casualties or considerable destruction of property. When no such results are caused by (or reasonably expected from) a recourse to force, Article 51 does not come into play. 552. In the Nicaragua case, the International Court of Justice alluded to ‘measures which do not constitute an armed attack but may nevertheless involve a use of force’,1193 and found it ‘necessary to distinguish the most grave forms of the use of force (those constituting an armed attack) from other less grave forms’1194 (a differentiation reiterated in the Oil Platforms case of 2003).1195 The Judgment in the Nicaragua case envisaged lawful counter-measures, ‘analogous’ to but less grave than self-defence, in response to use of force which is less grave than an armed attack.1196 What emerges is a quadruple structure of (i) selfdefence versus (ii) armed attack, and (iii) counter-measures analogous to but short 1191 1192 1193 1194 1195 1196

Ibid., 791. Institut de Droit International, Resolution, supra note 1178, at 233 (Article 5). Nicaragua case (Merits), supra note 14, at 110. Ibid., 101. Case Concerning Oil Platforms, supra note 1016, at 187. Nicaragua case (Merits), supra note 14, at 110.


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of self-defence versus (iv) forcible measures short of an armed attack. This construct is entirely satisfactory, provided that it is understood that the countermeasures coming within the framework of rubric (iii) cannot entail the use of force, because – however ‘analogous’ to self-defence – they cannot constitute self-defence in the absence of an armed attack. Unfortunately, the Court carefully refrained from ruling out the possibility that such counter-measures may involve the use of force by the victim State.1197 Indeed, it was ‘strongly suggested’ in the Judgment that these counter-measures may include acts of force.1198 This notion is strongly supported by the Separate Opinion of Judge Simma, in the Oil Platforms case, which rejects the possibility that the Nicaragua Judgment was alluding merely to ‘pacific’ counter-measures.1199 For more on Judge Simma’s position see infra 673. 553. While the Court in the Nicaragua case failed to paint a clear picture of the similarities and dissimilarities between the counter-measures which it found analogous, the Judgment did emphasize one striking difference. The Court held that when non-self-defence counter-measures are employed, there is no counterpart to collective self-defence, namely, the right of a third State to resort to force in response to the wrongful act (see Chapter 9).1200 As a result, the options of response to forcible measures short of an armed attack are substantially reduced.1201 All the same, since the Court did not brand as an armed attack the supply of weapons and logistical support by a third State (see infra 585), a ‘no-man’s-land’ unfolds between the type of military assistance that a third State can lawfully provide and the direct exercise of collective self-defence in response to an armed attack.1202 All this is quite baffling.1203 554. There is also a slippery slope here, as evidenced in the case law of the Eritrea Ethiopia Claims Commission. The Commission started by referring to border incidents (see infra 555), concluding that ‘these relatively minor incidents were not of a magnitude to constitute an armed attack by either State against the other within the meaning of Article 51 of the UN Charter’.1204 No details were offered as to how minor the ‘minor’ incidents had been, considering that they

1197 1198 1199 1200 1201 1202

1203 1204

Ibid. See J. L. Hargrove, ‘The Nicaragua Judgment and the Future of the Law of Force and SelfDefense’, 81 AJIL 135, 138 (1987). Case Concerning Oil Platforms, supra note 1016, at 331–2. Nicaragua case (Merits), supra note 14, at 110, 127. See T. M. Franck, ‘Some Observations on the ICJ’s Procedural and Substantive Innovations’, 81 AJIL 116, 120 (1987). See L. B. Sohn, ‘The International Court of Justice and the Scope of the Right of Self-Defense and the Duty of Non-Intervention’, International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne 869, 878 (Y. Dinstein ed., 1989). See the Dissenting Opinion of Judge Schwebel, Nicaragua case (Merits), supra note 14, at 349–50. Eritrea Ethiopia Claims Commission, Partial Award, Jus ad Bellum, supra note 62, at 433.

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entailed loss of life.1205 But then the Commission went further. On the one hand, it had this to say about an Eritrean attack in the Badme area (with a force ‘comprised of at least two brigades of regular soldiers, supported by tanks and artillery’): ‘What is clear is that, once the armed attack in the Badme area occurred and Ethiopia decided to act in self-defense, a war resulted that proved impossible to restrict to the areas where that initial attack was made’.1206 On the other hand, since the Commission had no proof that the Eritrean actions were ‘predetermined’ or ‘pre-planned’,1207 it did not find that Eritrea had waged an aggressive war (see quotation supra 305). It must be observed that the Commission did not deal with individual accountability for the crime of aggression, which – according to Article 8 bis, Paragraph 1, of the Statute of the International Criminal Court (quoted supra 360) – has to be predicated on the ‘character, gravity and scale’ of the acts committed. The Commission made its findings in the non-criminal context of State responsibility for aggression. It appears that, ‘in the opinion of the Commission, the concept of aggression does not apply to a situation in which armed attacks through a process of escalation result in a full-scale war’.1208 Thus, in addition to the gap between Article 2(4) and Article 51, a new gap is created between an armed attack and aggression. What quantum of force is deemed by the Commission to be necessary for an armed attack to qualify as aggression? The question is left unanswered by the Commission. (b) Frontier incidents: scale and effects 555. In the Nicaragua case, the International Court of Justice drew a distinction between an armed attack and ‘a mere frontier incident’, inasmuch as an armed attack must have some ‘scale and effects’.1209 The assumption that ‘a mere frontier incident’ can have no ‘scale and effects’ is quite bothersome. Obviously, if a rifle shot is fired by an Arcadian soldier across the border of Utopia and the bullet hits a tree or a cow, no armed attack has been perpetrated since the action is below the de minimis threshold (cf. supra 362). But it would be fallacious to dismiss automatically from consideration as an armed attack every frontier incident. As aptly put by Fitzmaurice, ‘[t]here are frontier incidents and frontier incidents. Some are trivial, some may be extremely grave’.1210 C. Gray believes that the Court’s concern was with collective self-defence, trying to set a high threshold that would limit Ruritanian involvement in frontier incidents 1205 1206 1207 1208 1209 1210

See J. R. Weeramantry, ‘International Law as to the Use of Force’, The 1998–2000 War between Eritrea and Ethiopia, supra note 668, at 227, 238. Eritrea Ethiopia Claims Commission, Partial Award, Jus ad Bellum, supra note 62, at 433–4. Ibid., 434. I. F. Dekker and W. G. Werner, ‘The Crime of Aggression and the Eritrea-Ethiopia Armed Conflict’, The 1998–2000 War between Eritrea and Ethiopia, supra note 668, at 243, 251–2. Nicaragua case (Merits), supra note 14, at 103. G. G. Fitzmaurice, ‘The Definition of Aggression’, 1 ICLQ 137, 139 (1952).


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between Arcadia and Utopia.1211 But there is no reason to deduce from the Judgment (or, for that matter, from Article 51) that there are different thresholds of armed attack applicable to individual and collective self-defence.1212 Besides, Ruritania need not be a far-away Party that comes into the fray by dint of legal obligations or political motivations. As we shall see (infra 792), Ruritanian troops may be stationed near the location where the incident takes place and may even be best-positioned to respond to force with counter-force. 556. Most regrettably, the Eritrea Ethiopia Claims Commission carried the fallacy even a step further in its Partial Award on Jus ad Bellum: ‘Localized border encounters between small infantry units, even those involving the loss of life, do not constitute an armed attack for purposes of the Charter’1213 (see also supra 554). The notion that loss of life does not count in appraising an armed attack only because it occurs along the border (and only infantry units are involved?) is flagrantly indefensible. When elements of the armed forces of Arcadia ambush a border patrol (or some other isolated unit) of Utopia, the assault must rank as an armed attack and some form of self-defence is bound to be warranted in response.1214 557. The criteria of ‘character, gravity and scale’ must be met if an act is to be branded as a crime of aggression (see supra 362). ‘Scale and effects’ are also of immense import when it comes to appraising what modality of self-defence would be lawful in response to an armed attack (see Chapter 8). But there is no reason to remove small-scale armed attacks (above a de minimis threshold) from the Article 51 spectrum of armed attacks. In the words of W. H. Taft, ‘[t]he gravity of an attack may affect the proper scope of the defensive use of force . . . but it is not relevant to determining whether there is a right of self-defense in the first instance’.1215 Article 51 ‘in no way limits itself to especially large, direct or important armed attacks’.1216 The position was summed up by Kunz: ‘If “armed attack” means illegal armed attack it means, on the other hand, any illegal armed attack, even a small border incident’.1217 558. The fact that an armed attack – laying the ground for self-defence as a response – need not take the shape of a massive military operation, was conceded by the Court in the Nicaragua case when it held that the sending of armed bands into the territory of another State may count as an armed attack1218 (see infra 585). 1211 1212

1213 1214 1215 1216 1217 1218

See Gray, supra note 720, at 181. See C. Ponti, ‘The Eritrea-Ethiopia Claims Commission on the Threat or Use of Force and Individual Self-Defence’, The 1998–2000 War between Eritrea and Ethiopia, supra note 668, at 243, 251–2. Eritrea Ethiopia Claims Commission, Partial Award, Jus ad Bellum, supra note 61, at 433. See G. M. Badr, ‘The Exculpatory Effect of Self-Defense in State Responsibility’, 10 Ga.JICL 1, 17 (1980). W. H. Taft IV, ‘Self-Defense and the Oil Platforms Decision’, 29 YJIL 295, 300 (2004). Hargrove, supra note 1198, at 139. Kunz, supra note 1093, at 878. Nicaragua case (Merits), supra note 14, at 103.

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If ‘low intensity’ fighting qualifies, the ‘scale and effects’ required as a condition for an armed attack are minimal. Interestingly enough, in the Oil Platforms case, the Court specifically stated that it ‘does not exclude the possibility that the mining of a single military vessel might be sufficient to bring into play the “inherent right of self-defence”’.1219 On what ground can such an armed attack (at sea) be differentiated from ‘a mere frontier incident’ (on land)? (c) Choice of weapons 559. An armed attack may be committed with any assortment of weapons. As highlighted by the International Court of Justice, in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, Article 51 does not refer to specific weapons: it applies to any armed attack, regardless of the weapon employed.1220 In other words, an armed attack can be carried out with conventional or unconventional, primitive or sophisticated, ordnance. At the onset of the third millennium, what looms on the horizon is an electronic CNA. The main consideration that counts in such an attack is the consequential effects.1221 If a CNA were to cause severe damage to property or even human fatalities (as a result, e.g., of the shutdown of computers controlling waterworks and dams, leading to the flooding of inhabited areas), it would qualify as an armed attack.1222 E.

The locale of an armed attack

560. Ordinarily, an armed attack – opening the road to self-defence – will be mounted from within the territory of one State (Arcadia), striking within the territory of another State (Utopia). The very crossing of the Utopian frontier may by itself constitute an armed attack (see infra 562). Alternatively, the crossing of the frontier may precede the attack, which is initiated only at a later stage (see infra 565). 561. These two variables, although most common, do not exhaust the field. It is sometimes asserted that a sine qua non condition of self-defence by Utopia is that it must be ‘the object of an armed attack on its territory’.1223 However, this restrictive view is erroneous. In actuality, an armed attack against Utopia may be launched by Arcadia either within its own (Arcadian) territory (see ibid.) or outside the territories of both Utopia and Arcadia (see infra 568, 571). 1219 1220 1221 1222 1223

Case Concerning Oil Platforms, supra note 1016, at 195. Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, supra note 37, at 244. See H. B. Robertson, ‘Self-Defense against Computer Network Attack under International Law’, 76 ILS , supra note 491, at 121, 140. See Dinstein, supra note 491, at 105. S. Bellier, ‘Unilateral and Multilateral Preventive Self-Defense’, 58 MaineLR 508, 513 (2006).


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(a) The unauthorized crossing of a frontier 562. Absent consent, the mere crossing of the Utopian frontier by Arcadian military formations constitutes per se an invasion and an armed attack (assuming that this is done deliberately and is of ‘sufficient gravity’), even if no fire is opened at the point in time of the border-crossing (see supra 534). However, a special issue arises as regards the unauthorized entry into Utopian waters by Arcadian vessels. 563. It is necessary to distinguish between self-defence and the exercise of ‘police’ force by Utopia – within waters over which it has jurisdiction to enforce its rights as a coastal State – against encroaching private Arcadian vessels.1224 Selfdefence will be exercised by Utopia, for example, when an Arcadian submerged submarine makes an unauthorized entry into Utopian internal waters or territorial sea. There have been a number of incidents in which naval forces of coastal countries (e.g., Sweden and Norway) dropped depth charges and detonated seabottom mines, in order to force to the surface a foreign submerged submarine intruding into their internal waters or territorial sea.1225 Both Article 14(6) of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone,1226 and Article 20 of the 1982 United Nations Convention on the Law of the Sea,1227 prescribe that submarines passing through the territorial sea ‘are required to navigate on the surface and to show their flag’. It is sometimes argued that, nevertheless, submerged passage does not give the coastal State a licence to resort to force against the foreign submarine.1228 But this assertion is unsustainable. When the practice of States is canvassed, the empirical evidence amply demonstrates that the use of force by the coastal State is not ruled out, if a submarine makes an unauthorized and submerged entry into the territorial sea or internal waters.1229 Such intrusion by the submerged submarine may be regarded as an incipient armed attack (see supra 530), and the coastal State is allowed, therefore, to employ forcible counter-measures by way of self-defence.1230

1224

1225 1226 1227 1228 1229 1230

See P. J. Kwast, ‘Maritime Law Enforcement and the Use of Force: Reflections on the Categorisation of Forcible Action at Sea in the Light of the Guyana/Suriname Award’, 13 JCSL 49, 56–7 (2008). For the facts, see F. D. Froman, ‘Uncharted Waters: Non-Innocent Passage of Warships in the Territorial Sea’, 21 SanDLR 625, 680–8 (1983–4). Geneva Convention on the Territorial Sea and the Contiguous Zone, 1958, 516 UNTS 205, 214. United Nations Convention on the Law of the Sea, supra note 90, at 27. See R. Sadurska, ‘Foreign Submarines in Swedish Waters: The Erosion of an International Norm’, 10 YJIL 34, 57 (1984–5). See D. P. O’Connell, I The International Law of the Sea 297 (1982). It has been suggested that the problem may be solved by excluding from the ‘proscribed categories of article 2(4)’ of the Charter the enforcement by a State of its territorial rights against an illegal incursion (Schachter, supra note 517, at 1626). But, in the present writer’s opinion, the span of the prohibition of the use of inter-State force, as articulated in Article 2(4), is subject to no exception other than self-defence and collective security (see supra 244). When one State uses force unilaterally against another, even within its own territory, this must be based on the exercise of self-defence against an armed attack.

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564. The status of surface warships engaged in non-innocent passage in the territorial sea of the coastal State is more problematic.1231 Article 19(2) of the Law of the Sea Convention enumerates a number of activities which are inconsistent with innocent passage.1232 But some of these activities (such as serious pollution or taking on board an aircraft), while at odds with innocent passage, cannot even remotely be considered an armed attack.1233 The proper response on the part of the coastal State would be to require the warship ‘to leave the territorial sea immediately’.1234 Only if the warship refuses to withdraw, can there be an issue of an incipient armed attack. (b) Armed attacks commencing subsequent to the crossing of a frontier 565. The crossing of the Utopian frontier by Arcadian troops may precede an armed attack. That is to say, the armed attack may commence – from within the Utopian territory – well after an authorized entry into it. An Arcadian warship admitted into a Utopian port, ostensibly for refuelling, may start shelling Utopian shore facilities. As mentioned (supra 535), Arcadian troops stationed by permission on Utopian soil may commit a constructive armed attack, if they refuse to withdraw upon expiry of the time allotted for their presence. Moreover, the armed attack need not be constructive. An Arcadian military unit stationed in Utopia, under the terms of an unexpired military alliance, may – in violation of these terms – open fire on Utopian personnel or installations. The use of force within a host country by foreign military units, in contravention of the conditions of the consent to their entry into the receiving State’s territory, is recognized as an act of aggression under Paragraph (e) of Article 3 of the General Assembly’s consensus Definition and its equivalent in Article 8 bis of the Statute of the International Criminal Court (quoted supra 367).1235 (c) Armed attacks within the territory of the aggressor State 566. An armed attack need not be mounted beyond the frontiers of the aggressor State. If force is used by Arcadia against Utopian installations (such as a military base or an embassy) lawfully situated within Arcadian territory, this may constitute an armed attack and Utopia would be entitled to exercise its right of self-defence against Arcadia.1236 1231 1232 1233 1234 1235

1236

See D. G. Stephens, ‘The Impact of the 1982 Law of the Sea Convention on the Conduct of Peacetime Naval/Military Operations’, 29 Cal.WILJ 283, 309 (1998–9). United Nations Convention on the Law of the Sea, supra note 90, at 27. See Ruys, supra note 1157, at 189. Article 30 of the Convention on the Law of the Sea, supra note 90, at 31. Of course, minor breaches of the conditions of an unexpired agreement, allowing the stationing of foreign forces on local soil, cannot be considered an armed attack. See Randelzhofer, supra note 1190, at 799. See O. Schachter, ‘International Law in the Hostage Crisis: Implications for Future Cases’, American Hostages in Iran 325, 328 (W. Christopher et al. eds., 1985).


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567. In the Tehran case of 1980, the International Court of Justice used the phrase ‘armed attack’ when discussing the takeover by Iranian militants of the United States Embassy in Tehran, and the seizure of the Embassy staff as hostages, in November 1979.1237 The reference to an ‘armed attack’ is particularly significant in light of the ill-fated American attempt, in April 1980, to bring about the rescue of the hostages by military means.1238 The legality of the rescue mission was not an issue before the Court.1239 Yet, the Judgment registered the American plea that the operation had been carried out in exercise of the right of self-defence, with a view to extricating the victims of an armed attack against the United States Embassy.1240 In his Dissenting Opinion in the Nicaragua case, Judge Schwebel called that plea ‘a sound legal evaluation of the rescue attempt’.1241 (d) Armed attacks within the territory of a third State 568. An armed attack by Arcadia against Utopia may involve (either in an active or in a passive way) the territory of Ruritania. For instance, Utopian targets may be bombed by Arcadian military aircraft operating from airfields located in Ruritania (a country allied with or occupied by Arcadia). Another possibility is that Arcadian troops assault Utopian personnel based by consent within the territory of Numidia. As well, the destruction of a Utopian Embassy in Carpathia – brought about by Arcadian agents – will be deemed an armed attack against Utopia (whose Embassy was destroyed), no less than Carpathia (in whose territory the act was perpetrated). Thus, the destructive bombings by non-State actors of the United States Embassies in Kenya and Tanzania in 1998 were definitely armed attacks laying the ground for the exercise of selfdefence1242 (on non-State actors, see infra 594 et seq.). 569. A question arises as regards Utopian ships attacked by Arcadia in Patagonian waters. In the Oil Platforms case, the International Court of Justice took the position that an Iranian missile fired from a distance at Kuwaiti waters cannot be categorized as an armed attack against the United States only because it accidentally struck American merchant vessels that happened to be there.1243 This view is contested by some commentators.1244 But, in any event, the Court’s ruling 1237 1238 1239 1240 1242 1243 1244

Case Concerning United States Diplomatic and Consular Staff in Tehran (United States v. Iran), [1980] ICJ Rep. 3, 29, 42. See T. L. Stein, ‘Contempt, Crisis, and the Court: The World Court and the Hostage Rescue Attempt’, 76 AJIL 499, 500 n. 8 (1982). Case Concerning United States Diplomatic and Consular Staff in Tehran, supra note 1237, at 43. Ibid., 18. 1241 Nicaragua case (Merits), supra note 14, at 292. See R. Wedgwood, ‘Responding to Terrorism: The Strikes against Bin Laden’, 24 YJIL 559, 564 (1999). Case Concerning Oil Platforms, supra note 1016, at 191. See G. E. Maggs, ‘The Campaign to Restrict the Right to Respond to Terrorist Attacks in SelfDefense under Article 51 of the U. N. Charter and What the United States Can Do about It’, 4 RJIL 149, 158 (2006).

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clearly does not apply to an intentional attack by Arcadia against a visiting Utopian warship anchored in a Patagonian port. 570. When war is raging between Arcadia and Utopia, Atlantica – as a neutral State – is not only entitled but is legally bound to prevent entry into its territory by belligerent land and air forces (see supra 70). Should Arcadian aircraft penetrate Atlantica’s territory in breach of its neutrality, their intrusion into the neutral airspace may also be viewed as an incipient armed attack. Atlantica’s military units are accordingly allowed to open fire on the Arcadian aircraft, in the exercise of both the right of self-defence and the duties of neutrality.1245 If long-range Arcadian missiles transit through Atlantica’s airspace – en route to striking Utopian targets – Arcadia is in breach of the neutrality of Atlantica.1246 All the same, assuming that Atlantica is militarily incapable of shooting down those missiles, Atlantica cannot be blamed for being in violation of its duty as a neutral.1247 Moreover, since the missiles are merely overflying its territory without inflicting any damage, Atlantica may not treat their illegal transit through its airspace as an armed attack and invoke the right of self-defence. (e) Armed attacks outside the territories of all States 571. At times, an armed attack occurs beyond the territories of all States. Undeniably, an Arcadian attack against a Utopian warship on the high seas is ‘assimilated to an attack on the State itself’, and Utopia may exercise the right of self-defence.1248 The position would be identical if missiles, fired by Numidian armed forces, destroy a military satellite put in orbit in outer space by Apollonia.1249 F.

The targets of an armed attack

(a) The wide range of possible targets 572. The foremost targets of an armed attack (setting the ground for responsive measures of self-defence) would be objects or persons of the target State, 1245

1246

1247 1248 1249

M. Bothe is of the opinion that the Patagonian measures are lawful independently of the issue of armed attack and self-defence. International Law Association, Report of the Committee on Neutrality and Naval Warfare 3 (Cairo, 1992; M. Bothe, Rapporteur). But the traditional laws of neutrality must be adapted to the law of the United Nations Charter, which permits a unilateral deviation from the general prohibition of inter-State use of force only in circumstances of self-defence against an armed attack. See N. Ronzitti, ‘Missile Warfare and Nuclear Warheads – An Appraisal in the Light of the 1996 ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons’, 27 IYHR 251, 256–7 (1997). See ibid., 257. A. V. Lowe, ‘Self-Defence at Sea’, The Non-Use of Force in International Law, supra note 547, at 185, 188. See A. Vermeer, ‘A Legal Exploration of Force Application in Outer Space’, 46 MLLWR 299, 317–8 (2007).


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usually located within the territory of that State: on land, on water or in the air. Still, as indicated (see supra 566–71), the objects or persons concerned may be located in the territory of a third State or even inside the attacking State itself, as well as outside the territory of any State (the high seas or outer space). 573. Unlike the jus in bello, the jus ad bellum does not recognize a difference between attacks against lawful targets (combatants or military objectives) and unlawful targets (civilians or civilian objects).1250 An Arcadian armed attack against Utopia validates self-defence as a response irrespective of the military or civilian nature of the objects or persons struck. 574. Does the use of force by Arcadia against a private vessel or aircraft, registered in Utopia but attacked beyond the national boundaries, qualify as an armed attack against Utopia? An attack on ‘marine and air fleets of another State’ – just like an attack on a State’s ‘sea or air forces’ – is brought within the scope of aggression in Paragraph (d) of Article 3 of the General Assembly Definition of Aggression and its equivalent in Article 8 bis of the Statute of the International Criminal Court (quoted supra 367). As implied in the Oil Platforms case, for an attack against a private vessel to be equated with an attack on the State, the vessel (regardless of ownership) must be flying the flag of that State.1251 But can an attack against a single merchant ship, travelling alone, qualify as an armed attack? While this is the view expressed by some scholars,1252 the framers of the text of the Definition of Aggression (replicated in Article 8 bis) limited its application to attacks against ‘fleets’. This was done advisedly, so as to exclude from the purview of aggression the use of force by Arcadia against a single or a few commercial Utopian vessels or aircraft, especially when they enter Arcadian jurisdiction.1253 A reasonable degree of force (in the form of visit and search followed perhaps by capture) may be lawful against foreign merchant ships even on the high seas.1254 Hence, the United States erred in 1975, when it treated the temporary seizure of the merchant ship Mayaguez by Cambodian naval units as an armed attack (invoking self-defence to justify the use of force in response).1255 (b) Attacks against nationals abroad 575. A cardinal question is whether recourse to force by Arcadia (within its own territory) against Utopian nationals – away from any Utopian territory, installation, vessel or aircraft – may also constitute an armed attack against 1250 1251 1252 1253 1254 1255

On the jus in bello distinction, see Dinstein, supra note 16, at 89 et seq. Case Concerning Oil Platforms, supra note 1016, at 191. See G. K. Walker, The Tanker War, 1980–88: Law and Policy 118, 120 (74 ILS, 2000). See Broms, supra note 814, at 351. See W. J. Fenrick, ‘Legal Limits on the Use of Force by Canadian Warships Engaged in Law Enforcement’, 18 CYIL 113, 125–45 (1980). See J. J. Paust, ‘The Seizure and Recovery of the Mayaguez’, 85 YLJ 774, 791, 800 (1975–6).

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Utopia (thus opening the door to forcible measures of self-defence). The answer is certainly affirmative if the Utopian victims are diplomatic envoys or visiting dignitaries.1256 A more intricate problem is how Utopia may respond to the use of force (within the boundaries of Arcadia) against ordinary Utopian nationals holding no official position. Is an attack against such nationals tantamount to an armed attack against Utopia itself, so that Utopia is entitled to resort to counter-force in self-defence? D. W. Bowett upheld the thesis that the protection of nationals abroad can be looked upon as protection of the State.1257 While many scholars have strongly disagreed,1258 others share Bowett’s view.1259 The present writer agrees in principle with Bowett, if the attack against the Utopian nationals is mounted primarily because of their link of nationality to Utopia. The allegation that an attack against nationals abroad can never be regarded as an attack against the State itself1260 swings away from reality: it carries the legal fiction of the State to extreme and illogical lengths.1261 576. The contemporary importance of the subject is animated by new challenges to law and order within the international community, in particular the remarkable increase in episodes involving the taking of hostages and incidents of transnational terrorism. Various attempts have therefore been made to offer de lege lata solutions, so as to secure the legality of the rescue of nationals abroad through the use of force.1262 The most curious attempt – which failed in the International Law Commission in 2000 – was made by its Special Rapporteur on Diplomatic Protection (J. Dugard), to bring into the fold of that topic the forcible rescue of nationals abroad (even though the proposed linkage was patently out of place).1263 577. Some commentators believe that a novel rule concerning the protection of nationals abroad is currently being moulded in the crucible of customary

1256 1257 1258

1259 1260 1261

1262 1263

Cf. G. Arangio-Ruiz, ‘The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations’, 137 RCADI 419, 535 (1972). Bowett, supra note 1140, at 91–4. See J. E. S. Fawcett, ‘Intervention in International Law. A Study of Some Recent Cases’, 103 RCADI 343, 404 (1961); T. Schweisfurth, ‘Operations to Rescue Nationals in Third States Involving the Use of Force in Relation to the Protection of Human Rights’, 23 GYIL 159, 162–5 (1980). See Fitzmaurice, supra note 1071, at 172–3. See R. Zedalis, ‘Protection of Nationals Abroad: Is Consent the Basis of Legal Obligation?’, 25 Tex.ILJ 209, 236–7 (1990). ‘[S]ince population is one of the attributes of statehood, an attack upon a state’s population would seem to be just as much an attack upon that state as would an attack upon its territory.’ C. Greenwood, ‘International Law and the United States’ Air Operation against Libya’, 89 WVLR 933, 941 (1986–7). See, e.g., T. Ruys, ‘The “Protection of Nationals” Doctrine Revisited’, 13 JCSL 233, 263 et seq. (2008). Report of the International Law Commission, 52nd Session, [2000] II (2) ILC Ybk 1, 74–6.


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international law.1264 If and when such a new rule becomes a part of customary international law, the protection of nationals abroad may join self-defence as another (and separate) exception to the general prohibition of the use of interState force. However, no such independent exception exists in the meantime.1265 At present, any forcible measures taken in a foreign territory in order to rescue nationals must be based on self-defence in response to an armed attack. We shall return to this theme infra (676 et seq.).

III.

De facto organs of a State

578. This section of the book will refer to ‘auxiliaries’, a coinage borrowed from the International Law Commission and covering all those who are recruited or instigated by one State (Arcadia) to act against a victim State (Utopia) ‘while remaining outside the official structure’ of Arcadia.1266 This is a portmanteau term, which must be understood to cover organized armed groups, irregulars, paramilitaries, contractors and the like. 579. The linkage between Arcadia and its auxiliaries, using force against Utopia, may be entangled and not easy to unravel. A prime example is that of the complex relationship between Lebanon and Hezbollah in 2006, when hostilities with Israel broke out: there were Hezbollah members in the Lebanese Cabinet, and Hezbollah controlled large areas in South Lebanon; yet, many Lebanese high-ranking officials opposed Hezbollah.1267 Can it be said that Hezbollah fighters acted against Israel as the auxiliaries of Lebanon? 1268 580. Whatever the assessment of this or that specific situation, it is clear that in principle there comes a point when attacks against Utopia may be deemed to be unleashed by ‘de facto organs’ of Arcadia.1269 ‘[T]he imputability to a State of a terrorist act is unquestionable if evidence is provided that the author of such act was a State organ acting in that capacity’.1270 By themselves, arms shipments to auxiliaries may not be equivalent to an armed attack (see infra 585).1271 But an armed attack is not extenuated by the subterfuge of indirect 1264 1265 1266 1267 1268 1269 1270 1271

See N. Ronzitti, Rescuing Nationals Abroad through Military Coercion and Intervention on Grounds of Humanity 65–8 (1985). See ibid., 64–5. Draft Articles on State Responsibility, supra note 611, at 104. See M. N. Schmitt, ‘“Change Direction” 2006: Israeli Operations in Lebanon and the International Law of Self-Defense’, 84 ILS 265, 274, 276 (M. D. Carsten ed., 2008). See A. Zimmermann, ‘The Second Lebanon War: Jus ad Bellum, Jus in Bello and the Issue of Proportionality’, 11 MPYUNL 99, 110 et seq. (2007). R. Ago, ‘Fourth Report on State Responsibility’, [1972] II ILC Ybk 71, 120. L. Condorelli, ‘The Imputability to States of Acts of International Terrorism’, 19 IYHR 233, 234 (1989). See J. P. Rowles, ‘“Secret Wars”, Self-Defense and the Charter – A Reply to Professor Moore’, 80 AJIL 568, 579 (1986).

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aggression or by reliance on a surrogate.1272 There is no real difference between the activation of Arcadia’s regular armed forces and a military operation carried out at one remove, when the Arcadian authorities are pulling the strings of auxiliaries not formally associated with the governmental apparatus. 581. There are two issues here. One relates to the consequences of the employment by Arcadia of auxiliaries against Utopia. The other is the degree of control that Arcadia must have over such auxiliaries for them to qualify as its de facto organs. A.

The employment by a State of ‘auxiliaries’

582. In the Nicaragua case, the International Court of Justice held 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 activities listed in Article 3(g) of the General Assembly’s Definition of Aggression (reproduced in Article 8 bis of the Statute of the International Criminal Court quoted supra 367).1273 The Nicaragua Judgment took Article 3(g) to reflect customary international law (supra 328), and, as mentioned (ibid.), the Court relied on this clause again in the 2005 Armed Activities case. 583. Under the Friendly Relations Declaration, adopted unanimously by the General Assembly in 1970, ‘every State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands . . . for incursion into the territory of another State’1274 (see also infra 599). The Draft Code of Offences against the Peace and Security of Mankind, formulated by the International Law Commission in 1954, listed among these offences the organization (or the encouragement of organization) by the authorities of a State of armed bands for incursions into the territory of another State, direct support of such incursions, and even the toleration of the use of the local territory as a base of operations by armed bands against another State.1275 584. Assaults by auxiliaries are typically conducted by small groups, employing hit-and-run pin-prick tactics. The question whether these assaults are of ‘sufficient gravity’ and reach a de minimis threshold of an armed attack is obviously apposite1276 (see supra 370). However, it is not required to scrutinize every single incident independently, trying (often in vain) to show that it meets 1272 1273 1274 1275 1276

See M. A. Harry, ‘The Right of Self-Defense and the Use of Armed Force against States Aiding Insurgency’, 11 So. IULJ 1289, 1299 (1986–7). Nicaragua case (Merits), supra note 14, at 103. General Assembly Resolution 2625 (XXV), supra note 258, at 123. Draft Code of Offences against the Peace and Security of Mankind, supra note 584, at 151 (Article 2(4)). See V. Cassin, W. Debevoise, H. Kailes and T. W. Thompson, ‘The Definition of Aggression’, 16 Har.ILJ 589, 607–8 (1975).


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the standard of ‘sufficient gravity’. A persuasive argument can be made that, should a distinctive pattern of behaviour emerge, a series of pin-prick assaults may be weighed in its totality and count as such as an armed attack1277 (see also supra 547). 585. The Judgment in the Nicaragua case pronounced that ‘while the concept of an armed attack includes the despatch by one State of armed bands into the territory of another State, the supply of arms and other support to such bands cannot be equated with armed attack’.1278 The Court did ‘not believe’ that ‘assistance to rebels in the form of the provision of weapons or logistical or other support’ rates as an armed attack.1279 These are sweeping statements that ought to be narrowed down.1280 In his Dissenting Opinion, Judge Jennings expressed the view that, whereas ‘the mere provision of arms cannot be said to amount to an armed attack’, it may qualify as such when coupled with ‘logistical or other support’.1281 In another dissent, Judge Schwebel stressed the words ‘substantial involvement therein’ (appearing in Article 3(g) of the Definition of Aggression, quoted supra 367), which are inconsistent with the language used by the majority.1282 B.

The criterion of effective control

586. In essence, as the International Court of Justice underscored (both in the 2005 Armed Activities case1283 and in the 2007 Genocide case1284), the acid test is whether the acts of auxiliaries can be attributed to the State supporting them. In the Nicaragua Judgment, it was held that – when the ‘degree of dependence on the one side and control on the other’ warrant it – the hostile acts of auxiliaries can be classified as acts of organs of the foreign State.1285 Still, the Court held that it is not enough to have ‘general control by the respondent State over a force with a high degree of dependency on it’, because that does not mean that the State concerned ‘directed or enforced the perpetration’ of breaches of international law.1286 ‘For this conduct to give rise to legal responsibility’ of the State in question, ‘it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed’.1287

1277 1278 1280 1281 1283 1284 1285

See Y. Z. Blum, ‘State Response to Acts of Terrorism’, 19 GYIL 223, 233 (1976). Nicaragua case (Merits), supra note 14, at 126–7. 1279 Ibid., 104. See Randelzhofer, supra note 1190, at 801. Nicaragua case (Merits), supra note 14, at 543. 1282 Ibid., 349. Case Concerning Armed Activities on the Territory of the Congo, supra note 300, at 223. Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, supra note 641, at 208–10. Nicaragua case (Merits), supra note 14, at 62. 1286 Ibid., 64. 1287 Ibid., 65.

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587. The insistence on ‘effective control’ by the foreign State over the auxiliaries can scarcely be challenged. However, the proposition that ‘general control’ does not amount to effective control – and that a close operational control is a condicio sine qua non – is less self-evident. In 1999, the Appeals Chamber of the ICTY, in the Tadić case, stridently assailed the Nicaragua prerequisite of close operational control – as an absolute condition of effective control – contesting it on the grounds of both logic and law.1288 The ICTY Appeals Chamber said: control by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training). This requirement, however, does not go so far as to include the issuing of specific orders by the State, or its direction of each individual operation. Under international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law. The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts.1289

The Tadić doctrine of subordination to overall control – countenancing the possibility that auxiliaries will act quite autonomously (without being issued specific instructions concerning the details of every individual operation) and still remain de facto organs of the foreign State – has been consistently upheld in successive ICTY judgments, both at the Trial and at the Appeal levels.1290 588. In the 2005 Armed Activities case, the International Court of Justice averred that what has to be considered is whether the conduct of auxiliaries was carried out ‘on the instructions of, or under the direction or control of’ a given State.1291 The wording in inverted commas is quoted from Article 8 of the International Law Commission’s 2001 Draft Articles on State Responsibility, which reads: The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.1292

589. Interestingly enough, in its commentary on Article 8 of the Draft Articles, the International Law Commission relied on the effective control test 1288 1289 1290 1291 1292

Prosecutor v. Tadić, supra note 23, at 1540–5. Ibid., 1545. Emphasis in the original. For details, see E. La Haye, War Crimes in Internal Armed Conflicts 19 (2008). Case Concerning Armed Activities on the Territory of the Congo, supra note 300, at 226. Draft Articles on State Responsibility, supra note 611, at 45.


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in the Nicaragua Judgment and linked the phrase ‘under the direction or control of’ to the Court’s interpretation of effective control.1293 We have here a reciprocal renvoi: (i) first, the International Law Commission borrowed the terminology of the International Court of Justice; and (ii) then, the Court buttressed its position by citing the Commission. 590. The International Law Commission was fully cognizant of the divergent standpoints of the International Court of Justice and the ICTY. The Commission seems to have fully endorsed the International Court of Justice’s line of approach by stating: ‘Such conduct will be attributable to the State only if it directed or controlled the specific operation’, as distinct from conduct ‘which escaped from the State’s direction or control’.1294 The reference to direction or control of a specific conduct, rather than the general or overall direction or control, is the telling point.1295 Nevertheless, the Commission attempted to bridge the gap between the two schools of thought. First, it remarked that the ICTY had spoken in connection with individual criminal responsibility for breaches of the jus in bello, whereas the International Court of Justice had dealt with a case relating to State responsibility.1296 Second, the Commission drew attention1297 to a dictum from the Tadić Judgment that ultimately everything depended on the ‘degree of control’, which may ‘vary according to the factual circumstances of each case’, so that the Nicaragua ‘high threshold for the test of control’ will not be required in every instance.1298 The Commission agreed: ‘Each case will depend on its own facts, in particular those concerning the relationship between the instructions given or the direction or control exercised and the specific conduct complained of’.1299 The Commission further explained: ‘In the text of article 8, the three terms “instructions”, “direction” and “control” are disjunctive; it is sufficient to establish any one of them’.1300 591. The International Court of Justice came back to the subject at some length in the Genocide case of 2007, where the previous (Nicaragua) position was endorsed and the Tadić criticism rejected.1301 The Court conceded that the overall control test of the ICTY may be ‘applicable and suitable’ when ‘employed to determine whether or not an armed conflict is international’

1293 1295

1296 1297 1298 1299 1300 1301

Ibid., 105. 1294 Ibid., 104. See A. J. J. de Hoogh, ‘Articles 4 and 8 of the 2001 ILC Articles on State Responsibility, the Tadić Case and Attribution of Acts of Bosnian Serb Authorities to the Federal Republic of Yugoslavia’, 72 BYBIL 255, 278 (2001). Draft Articles on State Responsibility, supra note 611, at 106–7. Ibid., 106. Prosecutor v. Tadić, supra note 23, at 1541. Draft Articles on State Responsibility, supra note 611, at 108. Ibid. Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, supra note 641, at 208–210.

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(which was the issue in Tadić).1302 But the Court was not persuaded that the overall control test can be presented ‘as equally applicable under the law of State responsibility for the purpose of determining . . . when a State is responsible for acts committed by paramilitary units, armed forces which are not among its official organs’.1303 The Court again cited Article 8 of the International Law Commission’s Draft Articles and presented it as declaratory of customary international law.1304 592. It follows from the Genocide Judgment that, in matters relating to the unlawful use of force and self-defence, it is still the Nicaragua – rather than the Tadić – interpretation of the degree of effective control that is required of auxiliaries.1305 Indeed, the Court in the Genocide case seems to have tightened the knot of effective control by insisting that, to be reckoned among de facto organs, the persons concerned must be in a relationship of ‘complete dependence’ on the State,1306 whereas in Nicaragua the Court spoke about the ‘degree of dependence’ (supra 586) without the constricting adjective ‘complete’. The new phrase has only drawn more fire from critics.1307 In any event, the Genocide Judgment has not lain to rest the dissonance between the International Court of Justice and the ICTY,1308 and the doctrinal debate continues with gusto. 593. Notwithstanding the clash as to whether a higher or lower bar of operational involvement of the State is required to meet the demands of effective control, it is of vital importance to note that both the International Court of Justice and the ICTY agree that – under certain circumstances (whatever their contours) – acts performed by auxiliaries can be attributed to a foreign State. IV.

An armed attack by non-State actors

A.

The language of the Charter

594. Whereas Article 2(4) of the Charter, in proscribing the use of force, refers solely to ‘Members . . . in their international relations’ (see supra 233) – i.e. State actors on both sides – Article 51 (quoted supra 498) mentions a State (a Member of the United Nations) only as the potential target of an armed attack. The perpetrator of that armed attack is not identified necessarily as a State.1309 1302 1305 1306 1307 1308 1309

Ibid., 210. 1303 Ibid. 1304 Ibid., 207–8. See Zimmermann, supra note 1268, at 114. Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, supra note 641, at 207. See J. Griebel and M. Plücken, ‘New Developments Regarding the Rules of Attribution? The International Court of Justice’s Decision in Bosnia v. Serbia’, 21 LJIL 601, 612–18 (2008). See A. Cassese, ‘The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia’, 18 EJIL 649–668 (2007). See S. D. Murphy, ‘Terrorism and the Concept of “Armed Attack” in Article 51 of the U. N. Charter’, 43 Har.ILJ 41, 50 (2002).


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By implication, an armed attack can therefore be carried out by non-State actors.1310 We shall deal with this topic in greater detail infra (601 et seq.). 595. It is true that, when non-State actors attack Utopia from within its own territory, this is likely to be a case of either a non-international armed conflict (see supra 8) or domestic terrorism. In neither instance does Article 51 come into play at all. However, it is necessary to examine whether the attack did not really originate from across the border (in the manner of the 9/11 events).1311 Article 51 does govern the situation if the non-State actors are controlled from the outside, either by Arcadia itself (see supra 582) or by an armed group or terrorist organization based in Arcadia (see infra 597).

B.

The origin of attacks by non-State actors

596. When violence is committed by non-State actors against State targets on the high seas (or any other area outside the jurisdiction of all States), it is necessary to distinguish between armed attacks and acts of piracy. Piracy (as defined in Article 15 of the 1958 Geneva Convention on the High Seas 1312 and in Article 101 of the 1982 United Nations Convention on the Law of the Sea1313) covers acts committed for private ends by the crew or the passengers of a private ship or a private aircraft and directed against another vessel or aircraft. 597. When an attack is launched against Utopia by non-State actors operating from outside its territory, the violent action will ordinarily originate in another State (Arcadia). That does not denote that the Arcadian Government is necessarily complicit in the attack. The non-State actors may establish within Arcadian territory their base of operations as a springboard for striking at Utopia, without qualifying as de facto organs of Arcadia (see supra 580). The usual pattern would consist of an organized armed group or terrorists locating themselves in Arcadia – without conniving with the Arcadian Government and indeed while possibly taking evasive action against its security forces – emerging, when the opportunity presents itself, for cross-border hit-and-run attacks against Utopia and then returning to Arcadia for shelter. Another possible scenario is that the terrorists or the organized armed group first use Ruritanian territory as a staging area for their attack against Utopia, but then shift their ground finding a haven in Arcadia for regrouping prior to launching their next attack.1314 1310 1311 1312 1313 1314

See D. Janse, ‘International Terrorism and Self-Defence’, 36 IYHR 149, 166 (2006). See S. D. Murphy, ‘Self-Defense and the Israeli Wall Advisory Opinion: An Ipse Dixit from the ICJ?’, 99 AJIL 62, 68 (2005). Geneva Convention on the High Seas, 1958, 450 UNTS 82, 90. United Nations Convention on the Law of the Sea, supra note 90, at 57. On the two variants, see C. Stahn, ‘Terrorist Acts as “Armed Attack”: The Right to SelfDefense, Article 51 (½) of the UN Charter, and International Terrorism’, 27 FFWA 35, 48 (2003).

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598. Arcadia may actually be a dysfunctional ‘failed State’, embroiled in a temporary situation of total collapse of the State apparatus.1315 Alternatively, Arcadia – incapacitated by political or military constraints – may passively tolerate the use of its soil by terrorists or an organized armed group operating against Utopia, without actively sponsoring their activities or even encouraging them.1316 In any event, if self-defence is to be exercised by Utopia against the terrorists or the organized armed group, any forcible measures will have to take place ‘in the territory of a state where the attackers are headquartered or have taken refuge’,1317 i.e. Arcadia. 599. In the Corfu Channel case of 1949, the International Court of Justice pronounced that every State is under an obligation ‘not to allow knowingly its territory to be used for acts contrary to the rights of other States’.1318 According to the 1970 General Assembly Friendly Relations Declaration: Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.1319

In the Armed Activities case of 2005, the International Court of Justice held that this provision is declaratory of customary international law.1320 As mentioned (supra 583), under the Draft Code of Offences against the Peace and Security of Mankind – formulated by the International Law Commission in 1954 – the toleration of the use of the local territory as a base of operations by armed bands against another State even constitutes a crime under international law. Still, the local State’s duty – as pointed out by the Court – is one of ‘vigilance’: absence of action against terrorists or organized armed groups (directing attacks against another country) does not necessarily imply such toleration if they have found shelter in remote, scarcely accessible, areas.1321 600. In its Judgment of 1980, in the Tehran case, the International Court of Justice ruled that, if the authorities of one State are required by international law to take appropriate acts in order to protect the interests of another State, and – while they have the means at their disposal to do so – completely fail to comply 1315 1316

1317

1318 1319 1320 1321

See C. Stahn, ‘International Law at a Crossroads? The Impact of September 11’, 62 ZAORV 183, 214–15, 222–3 (2002). On the difference between State terrorism, State-assisted or State-encouraged terrorism, and State-tolerated terrorism, see S. Sucharitkul, ‘Terrorism as an International Crime: Questions of Responsibility and Complicity’, 19 IYHR 247, 256–7 (1989). See J. Delbrück, ‘The Fight against Global Terrorism: Self-Defense or Collective Security as International Police Action? Some Comments on the International Legal Implications of the “War against Terrorism”’, 44 GYIL 9, 15 (2001). Corfu Channel case (Merits) (United Kingdom v. Albania), [1949] ICJ Rep. 4, 22. General Assembly Resolution 2625 (XXV), supra note 258, at 123. Case Concerning Armed Activities on the Territory of the Congo, supra note 300, at 226–7. Ibid., 268.


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with their obligations, the inactive State bears international responsibility towards the other State.1322 This is incontrovertible. A State which does not fulfil its international obligation of ‘vigilance’, and fails ‘in its specific duty not to tolerate the preparation in its territory of actions which are directed against a foreign Government or which might endanger the latter’s security’, must assume responsibility for this international wrongful act of omission.1323

C.

Attacks by non-State actors as armed attacks

601. The principal issue is whether acts of violence not attributable to Arcadia – unleashed from Arcadian territory against Utopia by an organized armed group or terrorists – may amount to an armed attack within the meaning of Article 51 of the United Nations Charter (quoted supra 498), thereby triggering the right of self-defence. The simple proposition that forcible action taken against a State may constitute an armed attack, even if the perpetrators are non-State actors operating from a foreign State – albeit not organs of the latter State – was categorically upheld in previous editions of the present book.1324 Yet, in the past, many commentators used to argue that the expression ‘armed attack’ in Article 51 does not apply to every armed attack, ‘regardless of the source’, but only to an armed attack carried out by another State.1325 602. Already in Resolutions 405 and 419 (1977), the Security Council referred to an ‘act of armed aggression’ perpetrated by mercenaries against the State of Benin, without any suggestion that any other State was involved.1326 More recently, Article 1 of the Abuja Non-Aggression and Common Defence Pact – adopted by the African Union in 2005 – refers (in its definition) to aggression committed by ‘non-State actor(s)’.1327 But the defining moment that should have dispelled all lingering doubts concerning the application of Article 51 to non-State actors was the concerted reaction of the international community in 2001 to the shocking events of 9/11.1328 Notwithstanding some rearguard doctrinal adherence to the traditionalist approach,1329 even those who regard as problematic the categorization of terrorist action qua an armed attack (within 1322 1323 1324 1325 1326 1327 1328 1329

Case Concerning United States Diplomatic and Consular Staff in Tehran, supra note 1237, at 32–3, 44. Ago, supra note 1269, at 120. See pages 213–15 of the third edition of this book (2001). See, e.g., O. Schachter, ‘The Lawful Use of Force by a State against Terrorists in Another Country’, 19 IYHR 209, 216 (1989). Security Council Resolutions 405 and 419 (1977), 32 RDSC 18–19 (1977). Abuja Non-Aggression and Common Defence Pact, supra note 587, at 2–3. See C. Kress, ‘Some Reflections on the International Legal Framework Governing Transnational Armed Conflicts’, 15 JCSL 245, 248 (2010). See, e.g., T. Ruys and S. Verhoeven, ‘Attacks by Private Actors and the Right of Self-Defence’, 10 JCSL 289, 311–12 (2005).

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the meaning of Article 51) are compelled to concede that the response of the international community to 9/11 has left its mark on customary law.1330 603. The attacks against the United States on 9/11 were mounted by the AlQaeda terrorist organization, masterminded from within Taliban-led Afghanistan yet not effectively controlled by that State (indeed, there were indications that the Taliban regime was to some extent controlled by Al-Qaeda1331). Absent effective control by the Taliban, the Al-Qaeda operatives cannot be regarded as de facto organs of Afghanistan (see supra 580).1332 604. The Al-Qaeda terrorists hijacked passenger airliners within the United States and used them as explosive devices, bringing about the destruction of the twin towers of the World Trade Center in New York and causing serious damage to the Pentagon, with thousands of human lives lost. The fact that these acts amounted to an armed attack – laying the foundation for the exercise of selfdefence pursuant to Article 51 – has been fully corroborated by a number of legal measures taken by international bodies: (i) Both in Resolution 1368 (2001)1333 – adopted a day after 9/11 – and in Resolution 1373 (2001),1334 the Security Council recognized and reaffirmed in this context ‘the inherent right of individual or collective selfdefence in accordance with the Charter’. Complaining that the Security Council refers to ‘horrifying terrorist attacks’ – without mentioning specifically the expression ‘armed attack’1335 – stands the argument on its head. If the right of self-defence can be actuated, this ineluctably implies that an armed attack is involved. The whole point about the contention that an armed attack did indeed take place on 9/11 is that this would warrant the exercise of the right of self-defence, a right recognized and reaffirmed by the Security Council in both resolutions. (ii) The day after the attack, the North Atlantic Council also met and ‘agreed that if it is determined that this attack was directed from abroad against the United States,1336 it shall be regarded as an action covered by Article 5 of 1330 1331

1332 1333 1334 1335 1336

See E. P. J. Myjer and N. D. White, ‘The Twin Towers Attack: An Unlimited Right to SelfDefence?’, 7 JCSL 5, 7–9 (2002). The situation seemed to ‘reverse the traditional formula of state-sponsored terrorism: Afghanistan was a terrorist-sponsored state’. M. J. Glennon, ‘The Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter’, 25 Har.JLPP 539, 544 n. 17 (2001–2). Per contra, see J. Kittrich, ‘Can Self-Defense Serve as an Appropriate Tool against International Terrorism?’, 61 MaineLR 133, 139 (2009). Security Council Resolution 1368 (2001), [2001–2] RDSC 290, 291. Security Council Resolution 1373 (2001), [2001–2] RDSC 291, id. See M. A. Drumbl, ‘Victimhood in our Neighborhood: Terrorist Crime, Taliban Guilt, and the Asymmetries of the International Legal Order’, 81 NCLR 1, 29 (2002–3). Such a factual determination was made subsequently on the basis of additional information. See J. M. Beard, ‘America’s New War on Terror: The Case for Self-Defense under International Law’, 25 Har.JLPP 559, 568 (2001–2).


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the Washington Treaty, which states that an armed attack against one or more of the Allies in Europe or North America shall be considered an attack against them all’.1337 Interestingly, this was the first time in the history of NATO that Article 5 of the 1949 (Washington) North Atlantic Treaty, was invoked. The Article, which uses the expression ‘armed attack’, does so explicitly in the context of Article 51 of the United Nations Charter and the right of self-defence.1338 (iii) In a September 2001 meeting of the Ministers of Foreign Affairs, acting as an Organ of Consultation, in accordance with the 1947 (Rio de Janeiro) Inter-American Treaty of Reciprocal Assistance, it was resolved that ‘these terrorist attacks against the United States of America are attacks against all American States’.1339 This must be understood in light of Article 3(1) of the Rio Treaty (quoted infra 759), which refers specifically to an armed attack and to the right of self-defence pursuant to Article 51. 605. It is true that, in its 2004 Advisory Opinion on Wall, the International Court of Justice enunciated: 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.1340

However, as correctly observed by Judge Higgins in her Separate Opinion: There is, with respect, nothing in the text of Article 51 that thus stipulates that selfdefence is available only when an armed attack is made by a State.1341

Similar criticism was expressed in the Separate Opinion of Judge Kooijmans1342 and in the Declaration of Judge Buergenthal.1343 The Court itself noted without demur Security Council Resolutions 1368 and 1373 (see supra 604), while drawing a distinction between the situation contemplated by them (cross-border terrorism) and occupied territories.1344 In all, the Court’s dictum ‘rings hollow’.1345 Hostilities raging within an occupied territory come within the scope of the law of belligerent occupation.1346 As such, the subjectmatter is covered by the jus in bello, meaning that the jus ad bellum issue of self1337 1338 1339 1340 1341 1342 1345 1346

North Atlantic Treaty Organization (NATO): Statement by the North Atlantic Council, 2001, 40 ILM 1267, id. (2001). North Atlantic Treaty, 1949, 34 UNTS 243, 246. Organization of American States (OAS): Resolution on Terrorist Threat to the Americas, 2001, 40 ILM 1273, id. (2001). Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra note 212, at 194. Ibid., 215. Emphasis in the original. Ibid., 230. 1343 Ibid., 242. 1344 Ibid., 194. R. D. Sloane, ‘The Cost of Conflation: Preserving the Dualism of Jus ad Bellum and Jus in Bello in the Contemporary Law of War’, 34 YJIL 47, 88 (2009). See Dinstein, supra note 276, at 99 et seq.

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defence should not have arisen in the proceedings in the first place.1347 The entitlement of the Occupying Power to use force ‘does not turn upon the casus belli of the underlying conflict’.1348 After all, the very reason that territories are occupied is that there exists an ongoing state of war and, as we shall see (infra 689), the exercise of the right of self-defence is not affected by events taking place in mid-war. 606. The fact that terrorist attacks qualify as armed attacks means that they are subject to the full application of Article 51: no more and no less. Thus, the present writer cannot accept the argument made by R. Müllerson that – whereas self-defence against an armed attack by a State must (as a minimum) be interceptive rather than anticipatory (see supra 538) – purely preventive measures are justified against terrorist attacks.1349

V.

Conditions precedent to the exercise of self-defence

607. In the Nicaragua case, the International Court of Justice pointed out that Article 51 ‘does not contain any specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law’.1350 In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the Court – citing these words – added that ‘[t]he submission of the exercise of the right of self-defence to the conditions of necessity and proportionality is a rule of customary international law’, but ‘[t]his dual condition applies equally to Article 51 of the Charter, whatever the means of force employed’.1351 The two conditions of necessity and proportionality were reaffirmed by the Court in its Judgments in the 2003 Oil Platforms case1352 and in the 2005 Armed Activities case.1353 The Institut de Droit International, in its Santiago Resolution of 2007, declared that ‘[n]ecessity and proportionality are essential components of the normative framework of self-defence’.1354 608. In fact, the two conditions of necessity and proportionality are accompanied by a third condition of immediacy. Immediacy has not been expressly 1347

1348 1349 1350 1351 1352 1353 1354

See M. Sassòli, ‘Ius ad Bellum and Ius in Bello – The Separation between the Legality of the Use of Force and Humanitarian Rules to Be Respected in Warfare: Crucial or Outdated?’, International Law and Armed Conflict: Exploring the Faultlines, supra note 1059, at 241, 251–2. R. Wedgwood, ‘The ICJ Advisory Opinion on the Israeli Security Fence and the Limits of SelfDefense’, 99 AJIL 52, 59 (2005). See R. Müllerson, ‘Jus ad Bellum and International Terrorism’, 32 IYHR 1, 41–2 (2002). Nicaragua case (Merits), supra note 14, at 94. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, supra note 37, at 245. Case Concerning Oil Platforms, supra note 1016, at 198. Case Concerning Armed Activities on the Territory of the Congo, supra note 300, at 223. Institut de Droit International, supra note 1178, at 233 (Article 2).


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recognized by the Court, but customary international law fully confirms its existence.1355 As will be shown infra (727–8), all three conditions are distilled from yardsticks set out by the American Secretary of State, D. Webster, some 170 years ago. 609. The three conditions of self-defence will be dissected in Chapter 8, in the respective contexts of the diverse modes of self-defence. Still, in broad outline, the essence of the three conditions may be summarized as follows. A.

Necessity

610. Necessity means that it is incumbent on the State invoking self-defence (Utopia) to establish in a definite manner that an armed attack was launched by a particular country against which it is forcibly responding (Arcadia), and by no other State (Ruritania). As shown in the Oil Platforms case, this is especially true if – during a war between Arcadia and Ruritania – damage is caused to a Utopian neutral vessel by an incoming missile or the explosion of a mine: conclusive evidence is required that the attack was carried out by Arcadia rather than Ruritania.1356 When a CNA qualifies as an armed attack (see supra 559), identifying the actual aggressor may create a major problem.1357 611. Utopia must also verify that the armed attack mounted by Arcadia was intentional.1358 In other words, the use of force by Arcadia must not be due to a mere accident1359 or mistake,1360 for which Arcadia may incur State responsibility without bearing the blame for an armed attack. In the Oil Platforms case, the Court took the position that the attack must be ‘aimed specifically’ at the target country.1361 If this specificity implies that Arcadia does not incur full responsibility for an indiscriminate attack (e.g., minelaying that blocks international shipping lanes) – without due regard for the possibility that Utopian vessels may turn out to be the eventual victims – then the Court went too far.1362 But, in all likelihood, the Court’s dictum ought to be construed narrowly against 1355

1356 1357 1358 1359 1360 1361 1362

See Akehurst’s Modern Introduction to International Law 316 (P. Malanczuk ed., 7th edn, 1997); K. C. Kenny, ‘Self-Defence’, II United Nations: Law, Policies and Practice, supra note 1747, at 1162, 1167. Case Concerning Oil Platforms, supra note 1016, at 188–90, 195. See M. Roscini, ‘World Wide Warfare – Jus ad Bellum and the Law of Cyber Force’, 14 MPYUNL 85, 119 (2010). See E. Wilmshurst, ‘The Chatham House Principles of International Law on the Use of Force in Self-Defence’, 55 ICLQ 963, 966 (2006). On accidents in this context, see United Kingdom Manual of the Law of Armed Conflict, supra note 100, at 29. On mistakes in this context, see R. Kolb, Ius Contra Bellum: Le Droit International Relatif au Maintien de la Paix 290 (2nd edn, 2009). Case Concerning Oil Platforms, supra note 1016, at 191–2. See Taft, supra note 1215, at 302–3. See also J. A. Green, ‘Self-Defence: A State of Mind for States?’, 55 NILR 181, 205 (2008).

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the factual background of the case (the Iran–Iraq War). The main thrust is that, if – in the course of war between Arcadia and Ruritania – a neutral Utopian ship (or aircraft) is struck by Arcadia, it is necessary to determine whether the attack was ‘aimed specifically’ at Utopia (as opposed to Ruritania) and that the Utopian objective did not fall prey to a mistaken identity.1363 612. Most significantly, Utopia must ascertain that there exists a necessity to rely on force – in response to the armed attack – because no practicable alternative means of redress is within reach.1364 In other words, ‘force should not be considered necessary until peaceful measures have been found wanting or when they clearly would be futile’.1365 Much depends on whether an interval of time is realistically available between the Arcadian use of force and the Utopian recourse to counter-force. Not always is a ‘time-out’ option at Utopia’s disposal (see, e.g., the discussion of on-the-spot reaction infra 641). If circumstances allow Utopia no pause, it may not find it feasible to consider any remedy as a substitute for the use of counter-force.1366 But, if a space of time exists, Utopia has to pursue avenues of amicable solution (unless such steps would be demonstrably futile), and counter-force should be employed against Arcadia only as a last resort.1367 Moreover, if efforts to resolve the problem amicably are made by Utopia, they should be carried out in good faith and not only as a matter of ‘ritual punctilio’.1368 B.

Proportionality

613. The second condition of proportionality is frequently depicted as ‘the essence of self-defence’.1369 However, as correctly remarked by Ago, the principle of proportionality must be applied with some degree of flexibility.1370 Obviously, proportionality is a relative term: it presupposes a comparison between A and B. What are these A and B? We shall see infra (697–8) that they are not the same in all instances. Different criteria of proportionality apply, depending on whether the setting is war or an incident ‘short of war’. It is perhaps best to look at the demand for proportionality in

1363 1365 1366

1367 1368 1369

See Gray, supra note 720, at 145. 1364 See Ago, supra note 1099, at 69. See Schachter, supra note 517, at 1635. The special exemption in case of lack of feasible options does not contradict the general proposition that Utopia must pursue alternative means of redress when they are within reach. This is in response to a critique by J. A. Green, ‘Docking the Caroline: Understanding the Relevance of the Formula in Contemporary Customary International Law Concerning SelfDefense’, 14 Car.JICL 429, 453 nn. 98–9 (2006). See C. Henderson, ‘The 2010 United States National Security Strategy and the Obama Doctrine of “Necessary Force”’, 15 JCSL 403, 418 (2010). N. Rostow, ‘Nicaragua and the Law of Self-Defense Revisited’, 11 YJIL 437, 455 (1985–6). Brownlie, supra note 61, at 279 n. 2. 1370 Ago, supra note 1099, at 69.


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the province of self-defence as a standard of reasonableness in the response to force by counter-force.1371 614. In any event, it must be perceived that proportionality in the context of self-defence – and in the sense of the jus ad bellum – has little in common with proportionality as applied and understood by the jus in bello.1372 Consequently, any attempt to transplant rules or caveats from one domain to the other is likely to cause confusion. C.

Immediacy

615. The third condition of immediacy does not mean, as argued by some commentators,1373 that self-defence must be exercised while the armed attack is still in progress. What immediacy does signify is that there must not be an undue time-lag between the armed attack and the exercise of self-defence in response. 616. Like proportionality (supra 613), ‘while immediacy serves as a core element of self-defense, it must be interpreted reasonably’.1374 Utopia must be allowed reasonable time to respond to the Arcadian armed attack. Lapse of time is almost unavoidable when – in a desire to fulfil, letter and spirit, the condition of necessity – a tedious process of information-gathering or diplomatic negotiations evolves. If a genuine albeit unproductive attempt is made by Utopia to resolve the conflict with Arcadia through amicable means, surely Utopia cannot be faulted for losing time unduly (through the vain pursuit of these alternative avenues) before it unleashes its armed forces against Arcadia. The first phase of the Gulf War is emblematic. The invasion of Kuwait by Iraq took place on 2 August 1990, yet the Security Council authorized the use of ‘all necessary means’ only as from 15 January 1991 (see infra 797), namely, after almost half a year. 617. In the Nicaragua Judgment, the International Court of Justice rejected on other grounds a claim of (collective) self-defence by the United States, and – as a result – no decision in respect of necessity and proportionality (or immediacy) was required stricto sensu.1375 All the same, the Court commented that the condition of necessity – coupled with the condition of immediacy – was not fulfilled, inasmuch as the United States had commenced its activities several months after the occurrence of the presumed armed attack and when the main danger could be eliminated in a different manner.1376 The condition of 1371 1372 1373 1374

1375

See K. W. Quigley, ‘A Framework for Evaluating the Legality of the United States Intervention in Nicaragua’, 17 NYUJILP 155, 180 (1984–5). See Dinstein, supra note 16, at 128 et seq. See T. Gazzini, The Changing Rules on the Use of Force in International Law 143 (2005). T. D. Gill, ‘The Temporal Dimension of Self-Defense: Anticipation, Pre-emption, Prevention and Immediacy’, International Law and Armed Conflict: Exploring the Faultlines, supra note 1059, at 113, 154. Nicaragua case (Merits), supra note 14, at 122. 1376 Ibid.

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proportionality was not met either, according to the Judgment, in view of the relative scale of the initial measures and counter-measures.1377 But it must be noted that Judge Schwebel strongly disagreed with these factual findings in his Dissenting Opinion.1378

VI.

The role of the Security Council

A.

The two phases rule

618. The excuse of self-defence has often been put forward by aggressors bent on scoring propaganda points (see supra 503). Brutal armed attacks – including even the Nazi invasion of Poland on 1 September 19391379 – have taken place while the attacking State sanctimoniously assured world public opinion that it was only responding with counter-force to the (mythical) use of force by the other side. If every State were the final arbiter of the legality of its own acts, if every State could mask an armed attack under the guise of selfdefence, the international legal endeavour to hold force in check would have been an exercise in futility. 619. From another perspective, the gist of self-defence is self-help (see supra 495). The facts of life at present are such that a State confronted with an armed attack cannot seriously expect an effective international police force to come to its aid and repel the aggressor. The State under attack has no choice but to defend itself as best it can. It must also act without undue loss of time, and, most certainly, it cannot afford the luxury of waiting for any juridical (let alone judicial) scrutiny of the situation to run its course. 620. The upshot is that the process of self-defence must consist of two separate stages.1380 ‘In practice it is for every state to judge for itself, in the first instance, whether a case of necessity in self-defence has arisen’.1381 At this initial timeframe, the option of recourse to self-defence is left to the unfettered discretion of the victim State (and any third State ready to oppose the aggressor). The acting State unilaterally determines whether the occasion calls for the use of forcible measures in self-defence, and, if so, what specific steps ought to be taken. But all this is preliminary. In the second and final phase, a competent international forum has to be empowered to review the whole flow of events and to gauge the legality of the employment of force on both sides. Above all, the 1377 1379

1380 1381

Ibid. 1378 Ibid., 362–9. The reference is to the bogus raid by ‘Polish’ troops on the Gleiwitz radio station, which the Nazis faked as a pretext for launching the massive campaign against Poland. See The Oxford Companion to World War II 489 (I. C. B. Dear ed., 1995). See Oppenheim, supra note 8, at 187–8. Oppenheim’s supra note 211, at 422.


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competent forum must be authorized to arrive at the conclusion that the banner of self-defence has been falsely brandished by an aggressor. 621. The Judgment of the International Military Tribunal at Nuremberg fully endorsed the two stages concept: It was further argued that Germany alone could decide, in accordance with the reservations made by many of the Signatory Powers at the time of the conclusion of the Kellogg-Briand Pact, whether preventive action was a necessity, and that in making her decision her judgment was conclusive. But whether action taken under the claim of selfdefense was in fact aggressive or defensive must ultimately be subject to investigation and adjudication if international law is ever to be enforced.1382

The International Military Tribunal for the Far East at Tokyo rephrased the same idea in its own words: The right of self-defence involves the right of the State threatened with impending attack to judge for itself in the first instance whether it is justified in resorting to force. Under the most liberal interpretation of the Kellogg-Briand Pact, the right of self-defence does not confer upon the State resorting to war the authority to make a final determination upon the justification for its action.1383

622. The decisive issue, of course, is whether a competent international forum has actually been assigned the task of investigating the legality of any forcible measures taken by a State in reliance on self-defence. One of the great achievements of the United Nations Charter is that Article 51 (quoted supra 498) enables the Security Council to undertake a review of self-defence claims made by Member States. Article 51 vests every State with a right to appraise for itself whether it is the victim of an armed attack (to which it responds with selfdefence). However, there comes a moment in which the competence to decide whether an armed attack has actually occurred – and by whom – passes to the Security Council. 623. The authority of the Security Council (under Article 51) to evaluate claims of self-defence arises only in the second phase. That is to say, a State invoking the right of self-defence – in response to an armed attack – acts unilaterally, at its own discretion. Contrary to what is sometimes alleged in the literature,1384 there is no requirement of seeking in advance a green light from the Security Council, in order to exercise self-defence. The Security Council comes into the picture not in the first instance, but only subsequently. 624. The Security Council is the sole international organ mentioned in Article 51. Nevertheless, as the 1986 Nicaragua Judgment elucidated, the legality of recourse to self-defence may also be probed – in appropriate circumstances – by the International Court of Justice. Already in 1984, the Court held that – because 1382 1384

Nuremberg trial, supra note 582, at 208. See Gazzini, supra note 1373, at 146.

1383

Tokyo trial, supra note 770, at 47.

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self-defence is a right – it has legal dimensions, and judicial proceedings are not foreclosed in consequence of the authority of the Council.1385 Naturally, this raises a problem (to be discussed infra 910 et seq.) relating to the potential concurrent jurisdictions of the Council and the Court. 625. In his Dissenting Opinion of 1986, Judge Schwebel completely quashed the argument (advanced by some writers) that ‘the use of force in self-defence is a political question which no court, including the International Court of Justice, should adjudge’.1386 He then grappled with a different (albeit related) view – pressed by the United States – that the capacity to determine the legality of the exercise of self-defence, especially in an ongoing armed conflict, is exclusively entrusted by Article 51 to the Security Council and withheld from the Court.1387 After some deliberation, Judge Schwebel denied the validity of this contention, and yet, in his opinion – owing to the special circumstances of the case – the issue of self-defence was not justiciable at the time the Judgment was rendered.1388 The majority of the Court refused to admit the claim of injusticiability in whole or in part.1389 626. Another issue connected with judicial proceedings is whether a State may resort to the use of force in self-defence after the dispute has been submitted to adjudication by the International Court of Justice. This is what the United States did, in 1980, in an unsuccessful attempt to release American hostages from Iranian captivity (see supra 567). The Judgment in the Tehran case included an obiter dictum to the effect that such an operation may ‘undermine respect for the judicial process in international relations’.1390 Judge Jennings admonished that ‘force, even lawful and justifiable force, should not be undertaken in respect of a matter which is sub judice; perhaps least of all by the party which itself initiated the Court proceedings’.1391 However, in some exceptional situations, a litigant State may have no practical choice but to rely on forcible counter-measures pendente lite (for instance, when hostilities are resumed by the other side).1392 B.

The options before the Security Council

627. Under Article 51 (quoted supra 498), a State using force in self-defence, in response to an armed attack, acts at its own discretion but also at its own risk. 1385 1386 1388 1390 1391 1392

Case Concerning Military and Paramilitary Activities in and against Nicaragua (Jurisdiction) (Nicaragua v. United States), [1984] ICJ Rep. 392, 436. Nicaragua case (Merits), supra note 14, at 285–7. 1387 Ibid., 287. Ibid., 288–96. 1389 Ibid., 26–8. Case Concerning United States Diplomatic and Consular Staff in Tehran, supra note 1237, at 43. R. Jennings, ‘International Force and the International Court of Justice’, The Current Legal Regulation of the Use of Force, supra note 92, at 323, 330. See Schachter, supra note 1236, at 341–2.


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Measures implementing the right of self-defence must immediately be reported to the Security Council (see infra 633). The report consists, as a minimum, of a plain notification of the invocation of the right of self-defence in response to an armed attack. There is nothing in Article 51 to substantiate a claim, occasionally made, that the report must provide clear evidence regarding the occurrence of the armed attack.1393 A study of all the relevant facts may be undertaken by the Council.1394 But the Council is not compelled to set in motion a thorough factfinding process.1395 With or without a careful examination of the background, the Council is entitled to take any action it deems fit in order to maintain or restore international peace and security. 628. The modes of action open to the Security Council are diverse. Inter alia, the Council may (i) give its retrospective seal of approval to the exercise of selfdefence by one of the Parties; (ii) impose a general cease-fire (see supra 149); (iii) demand withdrawal of forces to the original lines;1396 (iv) insist on the cessation of the unilateral action of the defending State, supplanting it with measures of collective security (see infra 810); or (v) decide that a State engaged in so-called self-defence is in reality the aggressor. Whatever the Council opts to do, any mandatory decision that it adopts in this matter is binding on United Nations Members (see infra 835). Once a Member State is ordained in an imperative manner to refrain from any further use of force, it must comply with the Council’s directive. 629. The Security Council is not a judicial body. It is, in the words of Judge Schwebel, ‘a political organ which acts for political reasons’.1397 As a political body, the Council may be inclined to sacrifice the interests of an individual State for the ‘greater good’, namely, for the sake of more general interests of international peace (as perceived by the Council).1398 The Council may even impose an arms embargo on a State purporting to exercise the right of self-defence.1399 The State concerned may resent such a decision and sincerely believe that the 1393 1394 1395

1396

1397 1398 1399

See Y. Arai-Takahashi, ‘Shifting Boundaries of the Right of Self-Defense – Appraising the Impact of the September 11 Attacks on Jus ad Bellum’, 36 Int.Law. 1081, 1095 (2002). See N. Q. Dinh, ‘La Légitime Défense d’après la Charte des Nations Unies’, 52 RGDIP 223, 239 (1948). On the difficulties immanent in this process, see R. B. Bilder, ‘The Fact/Law Distinction in International Adjudication’, Fact-Finding before International Tribunals 95–8 (R. B. Lillich ed., 1992). Such a step may be taken either separately or jointly with a cease-fire resolution. For a resolution demanding both a cease-fire and withdrawal of forces to internationally recognized boundaries, see, e.g., Security Council Resolution 598 (1987), supra note 311, at 6. For two separate (albeit consecutive) resolutions making similar calls, see, e.g., Security Council Resolutions 508 and 509 (1982), 37 RDSC 5–6 (1982). Nicaragua case (Merits), supra note 14, at 290. See Bowett, supra note 1140, at 197. See C. Gray, ‘Bosnia and Herzegovina: Civil War or Inter-State Conflict? Characterization and Consequences’, 67 BYBIL 155, 191–4 (1996).

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Council has been extremely unfair. But under the Charter, the State has no remedy. If it chooses to disobey the decision, the State may have to face enforcement measures activated by the Council (see infra 816 et seq.). 630. Unfortunately, in six-and-a-half decades of operation, the Security Council has displayed time and again a reluctance or inability to adopt a decision identifying the aggressor in a specific armed conflict. For most of the period, the inaction of the Council was deemed to be largely due to the profound rift between the blocs in the context of the ‘Cold War’. But the termination of this rivalry has not dramatically transformed the Council’s record. Even when confronted with an obvious case of an armed attack, political considerations may prevent the Council from taking a concerted stand. In the absence of an authoritative determination as to who actually attacked whom, both opposing Parties can pretend that they are acting in lawful self-defence, and the hostilities are likely to go on. To avert further carnage, the Council tends to bring about at least a cease-fire. 631. Article 51 sets forth that the right of self-defence may be exercised ‘until the Security Council has taken the measures necessary to maintain international peace and security’ (supra 498). Whenever the Council decrees in a binding fashion a withdrawal of forces or a cease-fire, the legal position is unequivocal: every Member State is obligated to act as the Council decrees and there is no further room to invoke self-defence. Should the Council be paralyzed and fail to take any measure necessary to maintain international peace and security, the legal position is equally obvious: a Member State exercising the right of selfdefence may persist in the use of force. But what is the legal status if the Council follows the middle of the road and abstains from issuing detailed instructions to the Parties, merely calling upon them, say, to conduct negotiations aimed at settling their dispute? Does such a resolution terminate the entitlement of a Member State to rely on self-help? 632. Notwithstanding contrary views,1400 it is plainly not enough (under Article 51) for the Security Council to adopt just any resolution, in order to divest Member States of the right to continue to resort to force in self-defence against an armed attack.1401 Even when the Council imposes mandatory economic sanctions on one of the antagonists (see infra 816), such measures by themselves cannot override the right of self-defence of the opposing side.1402 1400

1401 1402

See A. Chayes, ‘The Use of Force in the Persian Gulf’, Law and Force in the New International Order 3, 5–6 (L. F. Damrosch and D. J. Scheffer eds., 1991). Cf. K. S. Elliott, ‘The New World Order and the Right of Self-Defense in the United Nations Charter’, 15 Has.ICLR 55, 68–9 (1991–2). See O. Schachter, ‘United Nations Law in the Gulf Conflict’, 85 AJIL 453, 458 (1991). Cf. T. K. Plofchan, ‘Article 51: Limits on Self-Defense?’, 13 Mich.JIL 336, 372–3 (1991–2). See E. V. Rostow, ‘Until What? Enforcement Action or Collective Self-Defense?’, 85 AJIL 506, 512–13 (1991).


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The only Council resolution that will engender that result is a legally binding decision, whereby the cessation of the defensive action becomes compulsory.1403 Short of an explicit edict by the Council to desist from the use of force, the State acting in self-defence retains its right to go on doing so until the Council has taken measures which have actually ‘succeeded in restoring international peace and security’.1404 However, the defending State still acts at its own risk, perhaps more so than before. Continued hostilities may instigate a decision by the Council against a self-proclaimed victim of an armed attack.1405 C.

Failure to report to the Security Council

633. Article 51 promulgates that measures taken in exercise of the right of self-defence ‘shall be immediately reported to the Security Council’ (supra 498). A letter-perfect example is the American communication to the Council on 7 October 2001, reporting that the United States (together with some allies) had initiated action that day against Taliban-led Afghanistan in response to the armed attack of 9/11 (unleashed by Al-Qaeda terrorists but endorsed by the Taliban regime).1406 In the past, such a communication represented the exception rather than the rule.1407 Since the Nicaragua Judgment, it appears that the general practice of States has changed.1408 However, there are still occasions when States exercise self-defence without immediately reporting their action to the Security Council. There are numerous reasons for such an omission. In particular, Governments do not always couch their official statements in correct juridical terms. They are apt to conjure up wrong pleas justifying their action, instead of relying on self-defence.1409 634. The International Court of Justice, in the Nicaragua case, held that the reporting obligation to the Security Council pursuant to Article 51 does not constitute a part of customary international law (on which the Judgment was based).1410 Yet, the Court was of the opinion that, even ‘for the purpose of enquiry into the customary law position, the absence of a report may be one of the factors indicating whether the State in question was itself convinced that it

1403 1404 1405 1406 1407 1408 1409 1410

See Waldock, supra note 483, at 495–6. M. Halberstam, ‘The Right to Self-Defense Once the Security Council Takes Action’, 17 Mich. JIL 229, 248 (1996–7). See Bowett, supra note 1140, at 196. Letter from the Permanent Representative of the United States of America to the President of the Security Council, 7 October 2001, 40 ILM 1281 (2001). See S. D. Bailey and S. Daws, The Procedure of the UN Security Council 103 (3rd edn, 1998). See Gray, supra note 720, at 122–4. See J. Combacau, ‘The Exception of Self-Defence in U. N. Practice’, The Current Legal Regulation of the Use of Force, supra note 92, at 9, 14. Nicaragua case (Merits), supra note 14, at 121.

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was acting in self-defence’.1411 The Court implied that – when the use of force is governed by the law of the Charter – a State is precluded from invoking the right of self-defence if it fails to comply with the requirement of reporting to the Council.1412 Such an implication may similarly be drawn from the Court’s observations in the Armed Activities case,1413 as well as from the Partial Award of the Eritrea Ethiopia Claims Commission on Jus ad Bellum.1414 When put in this light, the duty of reporting becomes a substantive condition and a limitation on the exercise of self-defence.1415 635. Judge Schwebel disputed the majority’s position, maintaining that measures of self-defence may be either overt or covert (just as an armed attack may be overt or covert); covert actions – ex hypothesi – cannot be reported to the Security Council and thereby publicly espoused.1416 In the present writer’s view, the limitation of the reporting duty to overt operations is not congruent with the Charter. Article 51 imposes a blanket obligation of reporting to the Council whenever the right of self-defence is invoked, and the text does not even hint at the possibility of making an exception for covert operations. Indeed, a covert military operation (supposedly undertaken in self-defence) may subvert the authority of the Council by creating a smokescreen concealing the true state of affairs. 636. But Judge Schwebel did not stop there. Proceeding to scrutinize the purport of the duty under discussion, he arrived at the conclusion that the report to the Security Council is a procedural matter, and that, therefore, nonfeasance must not deprive a State of the substantive right of self-defence.1417 The nature of the reporting duty is the real issue. Should the report to the Council be regarded as a condicio sine qua non, going to the heart of the right of selfdefence, or is it a technical requirement?1418 637. Article 51 does not say that non-performance of the reporting obligation carries irrevocable adverse consequences for the exercise of the right of selfdefence. The sequence of events envisaged by the framers of the Charter is such that initially a State takes measures in self-defence, and only thereafter does it

1411 1413 1414 1415 1416 1418

Ibid., 105. 1412 Ibid., 121–2. Case Concerning Armed Activities on the Territory of the Congo, supra note 300, at 222. Eritrea Ethiopia Claims Commission, Partial Award, Jus ad Bellum, supra note 62, at 433. See P. S. Reichler and D. Wippman, ‘United States Armed Intervention in Nicaragua: A Rejoinder’, 11 YJIL 462, 471 (1985–6). Nicaragua case (Merits), supra note 14, at 374. 1417 Ibid., 376–7. D. W. Greig has argued that ‘it hardly seems possible to have a mandatory provision in the Charter, to which there is no counterpart in customary international law, relating to the exercise of a power available under both sources’. D. W. Greig, ‘Self-Defence and the Security Council: What Does Article 51 Require?’, 40 ICLQ 366, 380 (1991). But this position is unsound. As the Court explicitly pronounced in the context of self-defence: ‘The areas governed by the two sources of law thus do not overlap exactly, and the rules do not have the same content’ (Nicaragua case (Merits), supra note 14, at 94).


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have to transmit a report to the Security Council. The proposition that a failure to comport with the subsequent duty (to report) undermines the legality of the preceding measures (of self-defence) does not fit the scheme of Article 51.1419 638. It is submitted that the despatch of a report to the Security Council is only one of many factors bearing upon the legal validity of a State’s claim to self-defence. The instantaneous transmittal of a report is no guarantee that the Council will accept that claim. Conversely, the failure to file a report at an early stage should not prove an irremediable defect. When convinced that forcible measures were taken by a State in self-defence, the Council ought to issue a ruling to that effect, despite the absence of a report. It would be a gross misinterpretation of Article 51 for the Council to repudiate self-defence, thus condoning an armed attack, only because no report has been put on record. Certainly, if measures responsive to an armed attack are brought to the attention of the Council in an indirect manner (not earning the formal status of a report), the defending State must be absolved.1420 But even if the Council is not promptly informed at all of what is going on, due to lack of skill in reducing complex patterns of behaviour to Article 51 phraseology, that need not doom the entitlement to self-defence. A failure by a State resorting to force to formally report its recourse to self-defence should not be fatal, provided that the substantive conditions for the exercise of this right are met.1421 It makes no sense to allow an aggressor State to get away with an armed attack only by dint of mislabelling by the victim State of an otherwise lawful conduct.

1419 1420 1421

See M. Knisbacher, ‘The Entebbe Operation: A Legal Analysis of Israel’s Rescue Action’, 12 JILE 57, 79 (1977–8). See J. N. Moore, ‘The Secret War in Central America and the Future of World Order’, 80 AJIL 43, 90 n. 189 (1986). See L. C. Green, ‘Armed Conflict, War, and Self-Defence’, 6 Ar.V. 387, 434 (1956–7).

8

The modalities of individual self-defence

639. Having dealt in Chapter 7 with multiple problems pertaining to the interpretation of the expression ‘armed attack’, which constitutes the mainstay of the right of self-defence under Article 51 of the Charter of the United Nations (quoted supra 498), it is now necessary to sketch the optional modalities of selfdefence available to a State subjected to an armed attack. At the outset of the discussion it should be recalled (see supra 594 et seq.) that, for an armed attack to open the way for self-defence under Article 51, it need not be committed by another State. Ordinarily, the perpetrator of the armed attack is indeed a foreign State as such. Still, in exceptional circumstances, an armed attack – although mounted from the territory of a foreign State – is not launched by that (or any other) State, but by non-State actors. Whether an armed attack is initiated by or only from a foreign country, the target State is allowed to resort to self-defence by responding to unlawful force with lawful counter-force. Given, however, the different features of the two types of armed attack, they will be addressed separately. I.

Self-defence in response to an armed attack by a State

640. The expression ‘self-defence’, as used in Article 51 or in customary international law, is by no means self-explanatory. It is a tag attached to the lawful use of counter-force. Like its corollary (armed attack), self-defence may assume more than one concrete form. The principal division, here as elsewhere when the use of force by States is at issue, is between war and measures ‘short of war’. A.

Measures ‘short of war’

(a) On-the-spot reaction 641. The first category of self-defence relates to the case in which a smallscale armed attack elicits at once, and in situ, the employment of counter-force by those under attack or present nearby. In the parlance of United States Standing Rules of Engagement, this is known as ‘[u]nit self defense’, in 242

Individual self-defence

243

apparent segregation from ‘[n]ational self defense’.1422 The two subsets of ‘unit’ and ‘national’ self-defence are quite useful in laying out Rules of Engagement for the armed forces of a State, since they clearly pin the authority and the responsibility for specific action on diverse echelons. However, this bifurcated phraseology is apt to be misleading in the context of the international law of armed conflict. It must be grasped that, from the standpoint of international law, all self-defence is national self-defence.1423 There is a quantitative but no qualitative difference between a single unit responding to an armed attack and the entire military structure doing so.1424 Once counter-force of whatever scale is employed by military units of whatever size – in response to an armed attack by another State – this is a manifestation of national selfdefence, and the legality of the action is determined by Article 51 as well as by customary international law. Ultimately, self-defence is always exercised by the State. Just like the conduct of a senior general or admiral, the action of a lowranking unit commander (a junior or a non-commissioned officer) is attributed to the State that put him in charge. Consequently, the present writer believes that the phrase ‘on-the-spot reaction’, which underscores the most telling characteristic of such a manner of using counter-force, is more accurate than ‘unit’ selfdefence. 642. Two examples will illustrate on-the-spot reaction in practice. First, suppose that a Utopian patrol, moving along the common international frontier, is subjected to intense fire by troops from Arcadian outposts. The Utopian patrol (possibly aided by other units nearby) returns fire, in order to extricate itself from the ambush, or even assaults the Arcadian position whence the attack has been delivered. The clash consists of an armed attack by Arcadia and selfdefence by Utopia, despite dicta by the International Court of Justice and the Eritrea Ethiopia Claims Commission attempting to set an armed attack apart from ‘a mere frontier incident’ (see supra 555–6). 643. Second, suppose that a Numidian destroyer on the high seas drops depth charges on a Ruritanian submarine, and the submarine responds by firing torpedoes against the destroyer. Authorities agree that vessels on the high seas may use counter-force to repel an attack by other vessels or by aircraft.1425 The International Court of Justice, in the Corfu Channel case of 1949, seems to have taken it for granted that warships passing through international waterways 1422 1423

1424 1425

Operational Law Handbook, supra note 1108, at 85. See also J. E. Noyes, ‘Unit Self-Defense at Sea: Views from the United States and the International Court of Justice’, The Exercise of Jurisdiction over Vessels: New Developments in the Fields of Pollution, Fisheries, Crimes at Sea and Trafficking of Weapons of Mass Destruction 185, 188–9 (E. Franckx and P. Gautier eds., 2011). See T. Gazzini, ‘The Rules on the Use of Force at the Beginning of the XXI Century’, 11 JCSL 319, 329 (2006). See Brownlie, supra note 61, at 305.

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are entitled to ‘retaliate quickly if fired upon’ by coastal batteries.1426 These are surely measures of self-defence warranted by Article 51 and by customary international law. 644. For on-the-spot reaction to be permissible as self-defence, it must be in harmony with the three conditions of necessity, proportionality and immediacy (see supra 607 et seq.). Immediacy is immanent in the nature of on-the-spot reaction: the employment of counter-force must be temporally interwoven with the armed attack triggering it. The requirement of necessity should therefore be assessed from the vantage point of the local command. That is to say, alternative courses of action, not entailing the use of counter-force, may only be weighed as a matter of tactics rather than grand strategy. If the sequence of events includes ‘time-out’ for high-level consultations between the two Governments, in an effort to defuse the explosive situation, on-the-spot reaction is no longer a relevant mode of self-defence. As for proportionality, it means that (to use the words of the International Court of Justice quoted supra 555 in a different context) the ‘scale and effects’ of force and counter-force must be similar. Excessive counterforce is ruled out as a permissible on-the-spot reaction. 645. Genuine on-the-spot reaction closes the incident. This category of selfdefence does not cover operations by other units in distant zones, or even future actions taken by the same unit which bore the brunt of the original armed attack. Admittedly, one exchange of fire may lead to another in a chain effect, so that – through gradual escalation and spreading of the engaging units – large military contingents may be drawn into combat. Yet, if the fighting fades away soon, the closed episode may still be reckoned as on-the-spot reaction. By contrast, should the original small incident evolve into a full-scale invasion or a prolonged campaign, the rubric of on-the-spot reaction is no longer appropriate as a legal classification of what has transpired. (b)

Defensive armed reprisals

(i) The meaning of defensive armed reprisals 646. Generally speaking, reprisals constitute ‘counter-measures that would be illegal if not for the prior illegal act of the State against which they are directed’.1427 While most reprisals are non-forcible, we shall focus here on armed reprisals. Apart from unarmed reprisals, the term ought to be contrasted with ‘belligerent reprisals’, namely, reprisals resorted to by Belligerent Parties in the midst of hostilities, after an armed conflict has begun.1428 647. Armed reprisals are measures of counter-force, ‘short of war’, undertaken by one State against another in response to an earlier violation of 1426 1428

Corfu Channel case (Merits), supra note 1318, at 31. See F. Kalshoven, Belligerent Reprisals 33–6 (1971).

1427

Schachter, supra note 486, at 168.


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international law. Like all other instances of unilateral recourse to force by States, armed reprisals are prohibited unless they qualify as an exercise of selfdefence under Article 51 and customary international law. Only defensive armed reprisals – which come within the scope of permissible self-defence, in conformity with Article 511429 – are allowed. Defensive armed reprisals must consequently come in response to an armed attack, as opposed to other violations of international law, in circumstances satisfying all the requirements of valid self-defence. 648. A juxtaposition of defensive armed reprisals and on-the-spot reaction discloses points of convergence as well as divergence. In both instances, the use of counter-force is limited to measures ‘short of war’. But when activating defensive armed reprisals, the responding State strikes at a time and a place different from those of the original armed attack. In the two hypothetical examples adduced supra (642–3), the scenario must be altered as follows: (aa) a few days after the Utopian patrol is fired upon by Arcadian troops, an Arcadian patrol is shelled by Utopian artillery, or Utopian commandos raid a military base in Arcadia from which the original attack was sprung; (bb) subsequent to the depth-charging of the Ruritanian submarine by a Numidian destroyer on the high seas, a Ruritanian aircraft strafes a Numidian missile boat a thousand miles away. 649. The choice of the time and place for putting into operation defensive armed reprisals, like that of the objective against which they are to be directed, is made by the victim State (Utopia or Ruritania respectively). The decision obviously depends on considerations of where, when and how to deal a blow that would be most advantageous to the defensive interests of Utopia or Ruritania. The assertion that the target of any defensive measures must have directly contributed to the occurrence of the armed attack1430 is wrong. As indicated, the target may be entirely different and far away. The actions taken ‘need not mirror offensive measures of the aggressor’.1431 All the same, the rights of third States must be taken into account. This is particularly true if the defensive armed reprisals are likely to endanger international shipping at sea.1432 1429

1430 1431 1432

Some critiques of previous editions of this book have wrongly presented the position taken by the present author as based on a premise that defensive armed reprisals are permitted beyond the scope of Article 51 (see, e.g., D. Brown, ‘Use of Force against Terrorism after September 11th: State Responsibility, Self-Defense and Other Responses’, 11 Car.JICL 1, 34–5 (2003–4)). But, in fact, the whole point about defensive (as distinct from other) armed reprisals is that they are carried out within the framework of Article 51. See D. Kaye, ‘Adjudicating Self-Defense: Discretion, Perception, and the Resort to Force in International Law’, 44 Col.JTL 134, 162 (2005–6). Nicaragua case (Merits), supra note 14, at 379 (Dissenting Opinion of Judge Schwebel). See ibid., 379–80. See also ibid., 112 (Judgment of the Court); 536–7 (Dissenting Opinion of Judge Jennings).

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(ii) The interplay between defensive armed reprisals and belligerent reprisals 650. When States carry out defensive armed reprisals, their operations must be guided by the basic norms of the jus in bello. This is true of all uses of force, even ‘short of war’ (see supra 41–2), and defensive armed reprisals are no exception. However, the interaction between the jus ad bellum and the jus in bello is particularly complicated in the domain of reprisals owing to a number of treaty stipulations. 651. The four 1949 Geneva Conventions for the Protection of War Victims forbid certain acts of reprisals against protected persons (such as prisoners of war) and objects.1433 A parallel clause appears in Article 4(4) of the 1954 Hague Cultural Property Convention.1434 Protocol I of 1977, Additional to the Geneva Conventions, goes much further in banning a whole range of acts of reprisals.1435 Thus, ‘[a]ttacks against the civilian population or civilians by way of reprisals are prohibited’ under Article 51(6) of the Protocol.1436 Article 60(5) of the 1969 Vienna Convention on the Law of Treaties makes it clear that ‘provisions prohibiting any form of reprisals’ against protected persons, contained in treaties of a humanitarian character, are not subject to the application of the general rules enabling termination or suspension of a treaty as a consequence of its ‘material breach’ by another Party.1437 652. In essence, the measures of reprisals interdicted in the instruments cited amount to belligerent reprisals, i.e. jus in bello reprisals carried out in the course of hostilities (see supra 646). By their nature, the strictures of the Geneva Conventions (or the Hague Convention) are germane to defensive armed reprisals (as a form of conduct under the jus ad bellum) no more than they are to other situations in which inter-State force is employed. If prisoners of war are captured in the course of defensive armed reprisals, they must be protected (as in all other types of hostilities), and the protection encompasses an immunity from belligerent reprisals. But even if a prisoner of war is unlawfully exposed to belligerent reprisals during a military operation characterized as a defensive armed reprisal, the legality of the whole operation (as an act of counter-force in response to an armed attack) is not compromised by that breach. 653. A different outcome is apparently produced by the broader prohibitions of reprisals incorporated in Additional Protocol I. Although the injunctions of 1433

1434 1435 1436

Geneva Convention (I), supra note 31, at 60 (Article 46); Geneva Convention (II), ibid., 114 (Article 47); Geneva Convention (III), ibid., 146 (Article 13); Geneva Convention (IV), ibid., 310 (Article 33). Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, supra note 32, at 244. Additional Protocol I, supra note 33, at 103, 114–16 (Articles 20, 51(6), 52(1), 53(c), 54(4), 55(2) and 56(4)). Ibid., 114. 1437 Vienna Convention on the Law of Treaties, supra note 204, at 156.


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the Protocol were intended to cope with the problem of jus in bello belligerent reprisals,1438 it may be inferred from their language that the discretion of a State contemplating defensive armed reprisals (pursuant to the jus ad bellum) is also curtailed where the choice of objectives for counter-strikes is concerned. If the original armed attack by Atlantica was directed against the Patagonian civilian population, Patagonia might wish (as a quid pro quo) to requite the wrongful action with defensive armed reprisals aimed equally at civilians. Nonetheless, under Article 51(6) of the Protocol, should Atlantican civilians be the target of Patagonian armed reprisals, the whole retaliatory operation would be illegal.1439 654. Assuming that this is the correct reading of Additional Protocol I, a considerable change is introduced in the potential application of defensive armed reprisals. Yet, it must be appreciated that the Protocol’s provisions on the subject of reprisals are controversial.1440 While the Protocol is binding on most States – and it irrefutably constitutes ‘an authoritative text for extensive areas of international humanitarian law’1441 – due account must be taken of the fact that the United States issued a formal announcement in 1987 that it would not ratify the Protocol since that instrument is ‘fundamentally and irreconcilably flawed’.1442 The United States is not alone in objecting to sundry provisions of the Protocol. 655. A Trial Chamber of the ICTY held in 2000, in the Kupreškić case, that the prohibition of belligerent reprisals against civilians has emerged as customary international law subsequent to the adoption of the Protocol in 1977.1443 This is an extravagant claim endorsed neither by the general practice of States nor by most scholars.1444 In any event, in the Martić case of 2007, an ICTY Trial Chamber took it for granted that belligerent reprisals are permitted, provided that they meet certain strict conditions established in customary international law.1445 In 2008, the ICTY Appeals Chamber confirmed this line of approach.1446 (iii) The conditions of necessity, proportionality and immediacy 656. As in other circumstances in which self-defence is invoked, defensive armed reprisals must meet the conditions of necessity, proportionality and immediacy (see supra 607–8). Proportionality is the quintessential factor in 1438 1439 1440 1441 1442 1443 1444 1445 1446

See S. E. Nahlik, ‘Belligerent Reprisals as Seen in the Light of the Diplomatic Conference on Humanitarian Law, Geneva, 1974–1977’, 42(2) LCP 36–66 (1978). See F. J. Hampson, ‘Belligerent Reprisals and the 1977 Protocols to the Geneva Conventions of 1949’, 37 ICLQ 818, 837 (1988). See Dinstein, supra note 16, at 257–61. H. P. Gasser, ‘Book Review’ [of the first edition of this book], 29 IRRC 256, id. (1989). Message from the President of the United States to the Senate, 1987, 26 ILM 561, 562 (1987). Prosecutor v. Kupreškić et al. (ICTY, Trial Chamber, 2000). paras. 527–33. See Dinstein, supra note 16, at 260–1. Prosecutor v. Martić (ICTY, Trial Chamber, 2007), para. 465. Prosecutor v. Martić (ICTY, Appeals Chamber, 2008), paras. 263–7.

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appraising the legality of the counter-measures executed by the responding State. This was highlighted in the 1928 Arbitral Award, rendered in a dispute between Portugal and Germany, in the Naulilaa case.1447 The proceedings related to an incident that had taken place in 1914, shortly after the outbreak of World War I (at a time when Portugal was still a neutral State), on the border between the German colony of South-West Africa (present-day Namibia) and the Portuguese colony of Angola. In that incident, three German nationals (one civilian official and two army officers) were shot dead. In retaliation, the German forces attacked and destroyed a number of Portuguese installations in Angola over a period of several weeks. The Arbitrators held that these measures were excessively disproportionate.1448 657. It is unrealistic to expect defensive armed reprisals to conform strictly and literally to the tenet of ‘an eye for an eye’. A precise equation of casualties and damage, caused by both sides (in the course of the armed attack and the defensive armed reprisals), is neither a necessary nor a possible condition. All the more so, since in every military entanglement there is an element of chance, and defensive armed reprisals can unpredictably give rise to more casualties and damage than anticipated.1449 However, the responding State must adapt the magnitude of its counter-measures to the ‘scale and effects’ of the armed attack (see supra 555). A calculus of force, introducing some symmetry or approximation between the dimensions of the lawful counter-force and the original (unlawful) use of force, is imperative. 658. A good modern example may be provided by the Oil Platforms Judgment. Although the International Court of Justice dismissed an American contention of an exercise of self-defence ‘short of war’ (in effect, defensive armed reprisals) in response to an armed attack by Iran, it added: the Court cannot assess in isolation the proportionality of that action to the attack to which it was said to be a response; it cannot close its eyes to the scale of the whole operation, which involved, inter alia, the destruction of two Iranian frigates and a number of other naval vessels and aircraft. As a response to the mining . . . of a single United States warship, which was severely damaged but not sunk, and without loss of life, neither . . . [the operation] as a whole, nor even that part of it that destroyed the . . . platforms, can be regarded, in the circumstances of this case, as a proportionate use of force in self-defence.1450

It is plain that the legal position would have been utterly different had there been loss of life, and a fortiori if the American warship would have been sunk. No

1447 1449 1450

Naulilaa case (1928), 2 RIAA 1011, 1026. 1448 Ibid., 1028. Cf. J. H. H. Weiler, ‘Armed Intervention in a Dichotomized World: The Case of Grenada’, The Current Legal Regulation of the Use of Force, supra note 92, at 241, 250. Case Concerning Oil Platforms, supra note 1016, at 198–9.


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doubt, proportionality must be assessed on the basis of the damage actually inflicted by the other side, rather than what might have happened had things gone really wrong.1451 659. As for necessity, considering that defensive armed reprisals (unlike onthe-spot reaction; see supra 644) anyhow post-date the initial armed attack, reliance by the victim State on counter-force is contingent on its first seeking in vain an amicable solution to the dispute. This is another requisite condition pronounced by the Arbitrators in the Naulilaa case.1452 If the attacking State is ready to discharge its duty of making adequate reparation to the victim State – in conformity with the general rules of State responsibility (see supra 297) – defensive armed reprisals would be illicit. But the need to consider alternatives to the exercise of counter-force does not mean that the injured State must embroil itself in prolonged and frustrating negotiations. If no redress is offered within reasonable time, a State confronted with an armed attack is entitled to put in effect measures of defensive armed reprisals. 660. The right of the victim State to avoid dilatory stratagems is tied in with the rule that defensive armed reprisals must also meet the requirement of immediacy. It is unlawful to engage in these measures of counter-force in response to an event that occurred in the remote past. An inordinate procrastination is liable to erode the linkage between force and counter-force, which is the matrix of the legality of defensive armed reprisals. (iv) The legality of defensive armed reprisals 661. The view expressed here, whereby armed reprisals can be a permissible form of self-defence in response to an armed attack – in conformity with Article 51 – is supported by some scholars.1453 It must be conceded, however, that most writers deny that self-defence pursuant to Article 51 may ever embrace armed reprisals.1454 The International Law Commission, too, in the course of its work on the Draft Articles on State Responsibility, neatly separated the concepts of armed reprisals and self-defence.1455 In the final text (adopted in 2001), the separation is reflected in two different Articles dealing with self-defence

1451 1452 1453

1454

1455

See N. Ochoa-Ruiz and E. Salamanca-Aguado, ‘Exploring the Limits of International Law Relating to the Use of Force in Self-Defence’, 16 EJIL 499, 521 (2005). Nicaragua case (Merits), supra note 14, at 1026–7. See, e.g., Skubiszewski, supra note 1151, at 754: ‘armed reprisals that are taken in self-defence against an armed attack are permitted’. Cf. E S. Colbert, Retaliation in International Law 202–3 (1948). See especially Brownlie, supra note 61, at 281 (and authorities cited there). Cf. I. Brownlie, The Rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United Nations 205–6 (1998). Draft Articles on State Responsibility, Report of the International Law Commission, 32nd Session, [1980] II (2) ILC Ybk 1, 26, 53–4.

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(Article 21) and with counter-measures (Article 22).1456 The Commission explained that ‘[t]he term “countermeasures” covers that part of the subject of reprisals not associated with armed conflict’.1457 662. Counter-measures are the subject of a whole chapter in the Draft Articles (Articles 49–54).1458 Article 50(1) stipulates: Countermeasures shall not affect: (a) The obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations.1459

This is an unassailable statement of international law. If forcible countermeasures are taken in response to an ordinary breach of international law, not constituting an armed attack, they are unlawful.1460 Yet, the general prohibition of recourse to inter-State force is subject to the exception of self-defence when an armed attack occurs. If forcible counter-measures come within the bounds of permissible self-defence, they are no longer prohibited by the Charter.1461 663. Those denying the possibility of armed reprisals ever earning a seal of approval as self-defence do so on the ground that armed reprisals take place ‘after the event and when the harm has already been inflicted’, so that their purpose is always punitive rather than defensive.1462 In the present writer’s opinion, this is a narrow approach influenced, to some extent, by nomenclature. The legal analysis might benefit if the term ‘armed reprisals’ were simply abandoned. Thus, O. Schachter came to the conclusion that, whereas punitive armed reprisals are forbidden, ‘defensive retaliation’ is justified when its prime motive is protective.1463 But the dilemma has to be addressed head-on without striving to recast it in a new linguistic clothing. 664. In the final analysis, defensive armed reprisals are post-attack measures of self-defence ‘short of war’. The availability of such a weapon in its arsenal provides the victim State with a singularly important option. If this option were to have been eliminated from the gamut of permissible self-defence, the State upon which an armed attack is inflicted would have been able to respond only with either on-the-spot reaction or war. On-the-spot reaction is dissatisfactory because it is predicated on employing counter-force on the spur of the moment, meaning that hostilities (aa) erupt without any (or, at least, any serious) involvement of the political branch of the Government; and (bb) take place at a time as well as a place chosen by the attacking State, usually at a disadvantage for the target State. War, for its part, requires a momentous decision that may alter 1456 1457 1460 1461 1462 1463

Draft Articles on State Responsibility, supra note 611, at 48. Ibid., 325. 1458 Ibid., 56–8. 1459 Ibid., 57. See H. Mosler, The International Society as a Legal Community 280 (1980). Cf. G. Arangio-Ruiz, ‘Third Report on State Responsibility’, [1991] II (1) ILC Ybk 1, 30. See D. Bowett, ‘Reprisals Involving Recourse to Armed Force’, 66 AJIL 1, 3 (1972). O. Schachter, supra note 517, at 1638.


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irreversibly the course of history. Defensive armed reprisals enable the victim State to fine-tune its response to an armed attack by relying on an intermediate means of self-defence, avoiding war but adding temporal and spatial nuances to on-the-spot reaction. 665. It would be incomprehensible for war to be acknowledged – as it is – as an admissible form of self-defence in response to an isolated armed attack, if defensive armed reprisals were inadmissible. Taking into account that Article 51 allows maximal use of counter-force (war) in self-defence, there is every reason for a more calibrated form of counter-force (defensive armed reprisals) to be lawful as well. 666. Armed reprisals do not qualify as lawful self-defence if they are impelled by purely punitive, non-defensive, motives.1464 But the motives driving States to action are usually multifaceted, and a tinge of retribution can probably be traced in every instance of resort to counter-force. The question is whether armed reprisals in a concrete situation go beyond retribution. To be defensive, and therefore lawful, armed reprisals must be future-oriented, and not limited to a desire to punish past transgressions. 667. At bottom, the issue is whether the unlawful use of force by the other side is likely to repeat itself. The goal of defensive armed reprisals is to ‘induce a delinquent state to abide by the law in the future’.1465 Defensive armed reprisals have a deterrent function in seeking to forestall recurrence1466 of the unlawful use of force giving rise to them. They provide a signal that playing with fire constitutes a dangerous game. At times, armed reprisals have immediate defensive implications. To borrow an example from W. Wengler, if Arcadian troops invade the territory of Utopia, it would be ‘no less self-defence’ for the Utopian armed forces to occupy an area belonging to Arcadia (in order to divert the military attention of the aggressor) than to resist the invading troops.1467 668. There is no reason why the built-in time lag between the original armed attack and the response of the victim State, which is an inevitable feature in all armed reprisals, should divest the counter-measures of their self-defence nature.1468 The allegation that lapse of time by itself turns armed reprisals 1464

1465 1466

1467 1468

It has been suggested that ‘[i]n considering whether an armed reprisal is consistent with article 51, the retributive or other motivation of the state is irrelevant’. L. C. Green, ‘Book Review’ [of the first edition of this book], 27 Col.JTL 483, 503 (1988–9). However, unmodulated retribution cannot be squared with self-defence. R. W. Tucker, ‘Reprisals and Self-Defense: The Customary Law’, 66 AJIL 586, 591 (1972). The emphasis is on recurrence. Gill (supra note 1374, at 152 n. 82) contends that, since defensive armed reprisals are directed towards the prevention of further action by the other Party, they have a common denominator with anticipatory self-defence (see supra 514). But there is all the difference in the world between prevention of the recurrence of an act and prevention of its first (conjectured) occurrence. See supra 517. W. Wengler, ‘Public International Law. Paradoxes of a Legal Order’, 158 RCADI 9, 22 (1977). See D. W. Bowett, ‘Book Review’ [of the first edition of this book], 59 BYBIL 263, 265 (1988).

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into punitive – as distinct from defensive – action,1469 is unfounded. The passage of time between the incidence of unlawful force and the activation of lawful counter-force is not unique to defensive armed reprisals. It is an attribute that defensive armed reprisals have in common with a war of self-defence undertaken in response to an armed attack ‘short of war’ (see infra 708). Such a war, too, commences after due deliberation by policy-makers in the victim State. By the time that a decision is taken to employ counter-force, it is possible that the attacking military formations have already accomplished the mission assigned to them (say, the occupation of a strategic mountain ridge or the destruction of a line of fortifications) and they are at a standstill or have withdrawn. Even in circumstances of on-the-spot reaction, the initial strike (for instance, an artillery barrage) may come to an end before the target units set in motion measures of counter-force. The present writer cannot accept the argument, made by N. Ronzitti, that the use of counter-force can qualify as selfdefence only as long as it is necessary to repel an ongoing armed attack, and it loses that label once the attack has ended.1470 This thesis would merely encourage an aggressor to eschew a single sustained campaign and to adopt a series of Blitz attacks, each ending before effective counter-force can be deployed. 669. Evidently, international law is created in the practice of States and not in scholarly writings. Even if clarity existed on the doctrinal level that a State ‘is not entitled to exercise a right of reprisal in modern international law’, this would merely serve ‘to discredit doctrinal approaches to legal analysis’.1471 Since the entry into force of the United Nations Charter, the record is replete with measures of defensive armed reprisals implemented by many countries (including all the Permanent Members of the Security Council), although statesmen frequently shy away from the expression ‘reprisals’. Thus, in 1986, American air strikes were launched against several targets in Libya, in exercise of the right of self-defence, in response to Libyan State-sponsored terrorist attacks (especially, a bomb explosion in Berlin killing two American servicemen and wounding many others).1472 In substance, these were acts of defensive armed reprisals. 670. It is true that, on more than one occasion, the Security Council has condemned armed reprisals ‘as incompatible with the purposes and principles of the United Nations’.1473 However, a careful examination of its decisions and

1469 1470 1471 1472 1473

See L. A. Sicilianos, Les Réactions Décentralisées à l’Illicite: Des Contre-Mesures à la Légitime Défense 412 (1990). N. Ronzitti, ‘The Expanding Law of Self-Defence’, 11 JCSL 343, 355 (2006). R. A. Falk, ‘The Beirut Raid and the International Law of Retaliation’, 63 AJIL 415, 430 (1969). See W. V. O’Brien, ‘Reprisals, Deterrence and Self-Defense in Counterterror Operations’, 30 Vir.JIL 421, 463–7 (1989–90). Security Council Resolution 188 (1964), 19 RDSC 9, 10 (1964). Cf. Security Council Resolution 270 (1969), 24 ibid., 4, id. (1969).


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deliberations seems to indicate that the Council has been ‘moving towards a partial acceptance of “reasonable” reprisals’.1474 This development ‘finds some support in theory and in practice’.1475 671. The 1970 General Assembly Friendly Relations Declaration proclaims that ‘States have a duty to refrain from acts of reprisal involving the use of force’.1476 In like manner, President Singh, in his Separate Opinion in the Nicaragua case of 1986, stated that recourse to armed reprisals is illegal.1477 But it is interesting to note that the Judgment of the Court, in evaluating certain American actions in Nicaragua (such as the laying of mines in or close to Nicaraguan ports) which were clearly in the nature of armed reprisals – while rejecting their justification as acts of collective self-defence1478 – refrained from ruling that all armed reprisals are automatically unlawful. 672. In its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice declared: Certain States asserted that the use of nuclear weapons in the conduct of reprisals would be lawful. The Court does not have to examine, in this context, the question of armed reprisals in time of peace, which are considered to be unlawful. Nor does it have to pronounce on the question of belligerent reprisals save to observe that in any case any right of recourse to such reprisals would, like self-defence, be governed inter alia by the principle of proportionality.1479

The Court’s dictum is completely malapropos. The only question that the Court should have addressed – assuming that recourse to nuclear weapons is unlawful in the circumstances – was their legality as a form of belligerent reprisals. However, that jus in bello question arises only when war is already in progress.1480 The notion of ‘first use’ of nuclear weapons as an armed reprisal ‘in time of peace’ is unsound for the simple reason that, once these weapons are discharged, the situation between the Parties can no longer be categorized as peacetime. Granted, it is not always easy to determine whether resort to force in a particular situation amounts to war or is merely ‘short of war’ (see supra 25). Still, one would be hard put to find a better example than the detonation of nuclear weapons for an act leading ipso facto to an outbreak of war. It would be incongruous for Arcadia to target Utopia with nuclear weapons and then to contend that peace 1474 1476 1477 1479 1480

See Bowett, supra note 1462, at 21. 1475 Greig, supra note 1144, at 889. General Assembly Resolution 2625 (XXV), supra note 258, at 122. Nicaragua case (Merits), supra note 14, at 151. 1478 Ibid., 48, 146–7. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, supra note 37, at 246. In his Dissenting Opinion, Vice-President Schwebel put the issue in the proper context: ‘Furthermore, had Iraq employed chemical or biological weapons – prohibited weapons of mass destruction – against coalition forces [during the Gulf War], that would have been a wrong in international law giving rise to the right of belligerent reprisal. Even if, arguendo, the use of nuclear weapons were to be treated as also prohibited, their proportionate use by way of belligerent reprisal in order to deter further use of chemical or biological weapons would have been lawful.’ Ibid., 328.

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continues to characterize the relations between the two States, since the strike allegedly constituted only an armed reprisal. Nuclear weapons must be completely divorced from the issue of armed reprisals (defensive or otherwise). 673. In his Separate Opinion in the Oil Platforms case, Judge Simma referred to the Nicaragua quadruple structure of measures and counter-measures, both above and below the thresholds of armed attack and self-defence (see supra 552), and asserted: In my view, the permissibility of strictly defensive military action taken against attacks . . . cannot be denied. What we see in such instances is an unlawful use of force ‘short of’ an armed attack (‘agression armée’) within the meaning of Article 51, as indeed ‘the most grave form of the use of force’. Against such smaller-scale use of force, defensive action – by force also ‘short of’ Article 51 – is to be regarded as lawful. In other words, I would suggest a distinction between (full-scale) self-defence within the meaning of Article 51 against an ‘armed attack’ within the meaning of the same Charter provision on the one hand and, on the other, the case of hostile action, for instance against individual ships, below the level of Article 51, justifying proportionate defensive measures on the part of the victim, equally short of the quality and quantity of action in self-defence expressly reserved in the United Nations Charter.1481

It seems that Judge Simma found a new niche for defensive armed reprisals. As for the substance, the present writer fully agrees that ‘proportionate defensive measures on the part of the victim’ of the use of unlawful force would be legally justified in appropriate circumstances. However, it cannot be accepted that such measures have slipped through the net of Article 51. Defensive armed reprisals are lawful not because they are ‘below the level of Article 51’, but because (and to the extent that) they conform to the requirements of self-defence in response to an armed attack. 674. No country in the world seems to have adhered more consistently to a policy of defensive armed reprisals than the State of Israel. For those who negate the entire concept of defensive armed reprisals under the Charter, all acts labelled as such are lumped together in one mass of illegality. More correctly, each measure of counter-force ought to be put to the test as to whether it amounts to lawful self-defence (in response to an armed attack), satisfying the requirements of necessity, proportionality and immediacy. When this is done, some of the Israeli armed reprisals appear to pass muster, whereas others do not. The decisive consideration in almost every instance is proportionality. The general problem is compounded in Israel’s case by its predilection for a response in one extensive military operation to a cluster of pin-prick assaults taking place over a long stretch of time.1482 1481 1482

Case Concerning Oil Platforms, supra note 1016, at 331–2. See B. Levenfeld, ‘Israel Counter-Fedayeen Tactics in Lebanon: Self-Defense and Reprisal under Modern International Law’, 21 Col.JTL 1, 40 (1982–3).


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675. The issue of pin-prick assaults has already been mentioned (supra 584) in the different context of adding up small incidents, with a view to establishing the existence of an armed attack. Here the assumption is that each of the assaults constitutes indeed an armed attack (and, consequently, that the right to exercise self-defence is not in doubt), yet the question is whether the criterion of proportionality has been satisfied. The intensity of defensive armed reprisals is frequently tailored to the cumulative effect of a series of attacks. This may expose the forcible response to charges of disproportionality.1483 Yet, in the circumstances of the case, a cogent argument can be made for appraising pinprick assaults in their totality1484 (see supra 547). It is well worth observing that Ago, while disavowing the legality of all armed reprisals, enunciated the following rule (in the context of self-defence) in a report to the International Law Commission: If . . . a State suffers a series of successive and different acts of armed attack from another State, the requirement of proportionality will certainly not mean that the victim State is not free to undertake a single armed action on a much larger scale in order to put an end to this escalating succession of attacks.1485

A proper application of what might be regarded as a book-keeping ledger to an aggregation of pin-prick attacks would only emphasize the element of elasticity, which is anyhow characteristic of the concept of proportionality. (c) The protection of nationals abroad 676. As indicated (supra 575 et seq.), the use of force by Arcadia within its own territory, against Utopian nationals, is considered by many – including the present writer – to constitute an armed attack against Utopia, at least when the attack is directed against the victims chiefly because of their Utopian nationality. The position is analogous if Arcadia callously disregards the fate of Utopian nationals who are under attack by terrorists (or other non-State actors) within Arcadian territory. Once it is posited that Arcadian action or inaction – in the circumstances prevailing at the time – amounts to an armed attack against Utopia, it follows that Utopia may employ forcible counter-measures by way of self-defence (provided that the usual conditions of necessity, proportionality and immediacy are complied with; see supra 607–8).1486 Waldock reiterated these conditions in somewhat different wording (and order), fitting more closely the specific context of the protection of nationals abroad: ‘There must be (1) an imminent threat of injury to nationals, (2) a failure or inability on the part of the 1483 1484 1485

See Bowett, supra note 1462, at 7. See N. M. Feder, ‘Reading the U.N. Charter Connotatively: Toward a New Definition of Armed Attack’, 19 NYUJILP 395, 415–16 (1986–7). Ago, supra note 1099, at 69–70. 1486 See Greenwood, supra note 1261, at 941.

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territorial sovereign to protect them and (3) measures of protection strictly confined to the object of protecting them against injury’.1487 677. Contemporary international practice abounds with incidents in which one country uses force within the territory of another, in order to protect or rescue nationals, while invoking self-defence.1488 Obviously, if the rescue missions – usually directed at terrorists holding foreign nationals as hostages – are carried out with the consent of the Government of the local State, they cannot be counted as genuine precedents for the application of the inter-State law of self-defence1489 (on external use of force with local consent, see supra 317 et seq.). However, from time to time, either there is a complete breakdown of law and order in the local State or its Government aids and abets those who put the foreign nationals in jeopardy. It is the stated position of many Governments that, in the words of the 2004 United Kingdom Manual of the Law of Armed Conflict, ‘[s]elf-defence may include the rescue of nationals where the territorial state is unable or unwilling to do so’.1490 678. As an illustration of this mode of self-defence, one may cite the joint Belgian-American action to rescue nationals of the two countries in Congo in 1964.1491 A more questionable case was the landing of American troops in the Dominican Republic in 1965.1492 A particularly dubious instance was the military action taken by the United States in Grenada, in 1983, the central justification of which was the protection of approximately a thousand United States citizens (mainly medical students) stranded in a chaotic situation on the island.1493 It is not easy to reconcile the operation with the three conditions enumerated by Waldock (supra 676).1494 The most telling point against the American expedition is that Grenada remained occupied for months, long after the evacuation of the American nationals had been wound up.1495 The principle of proportionality

1487 1488 1489 1490 1491 1492 1493 1495

Waldock, supra note 483, at 467. See Lillich on the Forcible Protection of Nationals Abroad, 77 ILS 41–108 (T. C. Wingfield and J. E. Meyen eds., 2002). See I. Brownlie, ‘The Principle of Non-Use of Force in Contemporary International Law’, The Non-Use of Force in International Law, supra note 547, at 17, 23. United Kingdom Manual of the Law of Armed Conflict, supra note 100, at 2. See A. Gerard, ‘L’Opération Stanleyville-Paulis devant le Parlement Belge et les Nations Unies’, [1967] RBDI 242, 254–6. See V. P. Nanda, ‘The United States’ Action in the 1965 Dominican Crisis: Impact on World Order – Part I’, 43 Den.LJ 439, 444–72 (1966). See W. C. Gilmore, The Grenada Intervention 31, 56 (1984). 1494 See ibid., 61–4. See V. P. Nanda, ‘The United States Armed Intervention in Grenada – Impact on World Order’, 14 Cal.WILJ 395, 410–11 (1984). An intriguing question has been raised ‘why, in a case such as Grenada, a post hoc request by the local constitutional authorities for the U.S. forces to remain until order was restored could not be valid’. J. N. McNeill, ‘Book Review’ [of the first edition of this book], 84 AJIL 305, 306 (1990). But a post hoc request to stay in the local territory cannot escape suspicions concerning the genuine motives and objectives of the intervening State.


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requires that any incursion of this nature be terminated as soon as possible, with a minimal encroachment on the sovereignty of the local State.1496 679. Forcible measures taken against a foreign State (sometimes entailing serious fighting with that State’s armed forces) – grounded, at least in part, in self-defence as a response to an armed attack against the acting State’s nationals – have caused a raft of controversies. Two illustrations should suffice: (i) The United States invasion and occupation of Panama in 1989 was predicated in some degree on a rather contrived need to safeguard the lives of American citizens in that country.1497 However, the use of forcible measures of self-defence to secure the protection of nationals abroad must not become a device for overthrowing the Government of another State, as happened in this instance (see supra 321).1498 (ii) In 2008, Russia relied on the protection of its nationals in using large-scale force against Georgia.1499 It is important to note that ‘western States did not oppose this doctrine as matter of principle. Instead they challenged Russia’s motives and the proportionality of its action’, inasmuch as it appeared to be ‘designed to lead to the dismemberment of Georgia and the independence of South Ossetia and Abkhazia’.1500 680. The ‘clearest example’ of a State fulfilling the three conditions, as listed by Waldock (supra 676), was the Israeli rescue mission in Entebbe airport in 1976.1501 The action brought about the release of Israeli (and other Jewish) passengers of an Air France plane, hijacked by terrorists and held as hostages with the connivance of the Ugandan Government of the day headed by Idi Amin.1502 Even if the use of force on behalf of nationals abroad cannot be given open-ended approval as an exercise of self-defence, there are several exceptional features serving to legalize the Entebbe raid. 681. The foremost element in the Entebbe incident that must be taken into account is that – although the terrorists did not use Uganda as their regular base of operations – the Ugandan Government was directly implicated in keeping the hostages under detention. It is necessary to distinguish between cases of civil disturbances (or riots) in Arcadia, in which Utopian nationals are attacked without any complicity on the part of the Arcadian Government, and actions against 1496 1497

1498 1499 1500 1502

See A. Abramovsky and P. L. Greene, ‘Unilateral Intervention on Behalf of Hijacked American Nationals Held Abroad’, [1979] Ut.LR 231, 246. See V. P. Nanda, ‘The Validity of United States Intervention in Panama under International Law’, 84 AJIL 494, 496–7 (1990). Cf. R. Wedgwood, ‘The Use of Armed Force in International Affairs: Self-Defense and the Panama Invasion’, 29 Col.JTL 609, 621–2 (1991). See K. E. Eichensehr, ‘Defending Nationals Abroad: Assessing the Lawfulness of Forcible Hostage Rescues’, 48 Vir.JIL 477 (2008). See C. Gray, ‘The Use of Force and the International Legal Order’, International Law, supra note 942, at 615, 627. Ibid., 627–8. 1501 Schachter, supra note 517, at 1630. For the facts, see L. C. Green, ‘Rescue at Entebbe – Legal Aspects’, 6 IYHR 312, 313–15 (1976).

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Utopian nationals committed with the blessing of the Arcadian Government. A rescue mission of the Entebbe type – aimed at releasing hostages held by terrorists in another country – is justifiable as self-defence when the local powersthat-be collaborate with the terrorists; whereas, in the absence of official wrongdoing, the prior consent of the local Government would usually be required before any forcible action is mobilized from the outside.1503 682. The second distinctive quality of the Entebbe rescue mission is that ‘the hostages were seized and held as part of a political action against the state of their nationality. The attack on the individuals was clearly meant as an attack on their government’.1504 This is an immensely important factor at a time when international terrorists display a growing tendency to strike at innocent bystanders in Arcadia only because of their link of nationality to Utopia. If the victims are preselected as targets owing to their Utopian nationality, the equation between the use of force against them and an armed attack against Utopia (an equation which is the key to the exercise of the right of self-defence by Utopia) becomes unmistakable. 683. The third characteristic is that the Israeli nationals did not go to Uganda volitionally: they were brought there against their will, in violation of international law.1505 The exceptional circumstances of their entry into the territory of the local State affect the exceptional remedy (of recourse to force) placed by international law at the disposal of the State of nationality. 684. The fourth attribute of the Entebbe raid is that it was the epitome of a ‘surgical’ military sortie. It compares well with the massive intervention in some other instances, e.g., Grenada (see supra 678), because it was ‘an in-out operation’.1506 Nobody could claim that Israel took the action as a pretext to remain in Uganda.1507 685. For all these reasons, Israel was entitled under Article 51 of the United Nations Charter and customary international law to use counter-force in selfdefence, responding to an armed attack by securing the release of its captive nationals in Uganda. Since the Entebbe raid was not in breach of the Charter, its legality is not affected by Article 14 of the 1979 International Convention against the Taking of Hostages,1508 which reads:

1503 1504 1505 1506 1507 1508

See F. C. Pedersen, ‘Controlling International Terrorism: An Analysis of Unilateral Force and Proposals for Multilateral Cooperation’, 8 UTol.LR 209, 222 (1976–7). Schachter, supra note 560, at 139 n. 107. See M. Akehurst, ‘The Use of Force to Protect Nationals Abroad’, 5 Int.Rel. 3, 21 (1977). L. C. Green, ‘The Rule of Law and the Use of Force – The Falklands and Grenada’, 24 Ar.V. 173, 189 (1986). See Schachter, supra note 1236, at 325, 331. See J. L. Lambert, Terrorism and Hostages in International Law – A Commentary on the Hostages Convention 1979 322–3 (1990).


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Nothing in this Convention shall be construed as justifying the violation of the territorial integrity or political independence of a State in contravention of the Charter of the United Nations.1509

686. The fact that some non-Israeli hostages were also saved in the Entebbe rescue cannot diminish from the legality of the operation.1510 But it must be noted that the deliverance of the non-Israeli hostages was merely a by-product of the successful release of Israeli nationals. As an exercise of the right of selfdefence, the protection of nationals abroad must not be confused with ‘humanitarian intervention’ (see supra 195 et seq.).1511 The rationale of self-defence, exercised in response to an armed attack against individuals abroad, is founded on the nexus of nationality; it is inapplicable when the human rights of nonnationals are deprived.1512 B.

War

687. War as an act of self-defence denotes comprehensive use of counterforce in response to an armed attack. It is sometimes hard to perceive that war can be a lawful measure. But there is no doubt that, in some situations, ‘[t]he right of self-defense is . . . a right to resort to war’.1513 As the Eritrea Ethiopia Claims Commission expressly recognized in 2005, when an armed attack occurred in a particular area and the target State decided to act in self-defence, ‘a war resulted that proved impossible to restrict to the areas where that initial attack was made’ (see full quotation supra 554). 688. To reduce the common psychological resistance to the acceptance of the term ‘war’ in this context, Kelsen suggested using the coinage ‘counterwar’ (a sanction) in response to war (a delict), saying: ‘War and counterwar are in the same reciprocal relation as murder and capital punishment’.1514 While this distinction may be helpful in many scenarios, it is not infallible. Utopia (the target State) does not always respond with counterwar to war. Actually, Utopia may be the one initiating war, in response to an Arcadian armed attack ‘short of 1509 1510 1511

1512 1513 1514

International Convention against the Taking of Hostages, 1979, [1979] UNJY 124, 127. See D. W. Bowett, ‘The Use of Force for the Protection of Nationals Abroad’, The Current Legal Regulation of the Use of Force, supra note 92, at 39, 44. The present writer cannot accept the proposition (advocated, e.g., by L. Henkin, ‘The Invasion of Panama under International Law: A Gross Violation’, 29 Col.JTL 293, 296–7 (1991)) that a so-called Entebbe principle – as a lawful form of humanitarian intervention – constitutes an exception to the general prohibition of the use of inter-State force pursuant to Article 2(4) of the Charter, irrespective of the provision of Article 51. See A. Jeffery, ‘The American Hostages in Tehran: The I.C.J. and the Legality of Rescue Missions’, 30 ICLQ 717, 725 (1981). Kunz, supra note 1093, at 877. Cf. R. R. Baxter, ‘The Legal Consequences of the Unlawful Use of Force under the Charter’, [1968] PASIL 68, 74. Kelsen, supra note 377, at 28.

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war’. In such a case, what we are facing is not war (started by Arcadia) and counterwar (waged by Utopia), but an isolated armed attack (commenced by Arcadia) and war (breaking out owing to the response by Utopia). 689. It must be recalled (see supra 170, 387) that, once war is properly impressed with the legal stamp of self-defence, this legal characterization is indelible regardless of the vicissitudes of the hostilities. In the words of M. Bothe: Where an international armed conflict between two States exists, the point of reference is the beginning of the armed conflict. Once that conflict exists, the only question to be asked under the rules of the ius ad bellum, the prohibition of the use of force, is: who started the whole conflict?1515

In other words, if Utopia is fighting a war of self-defence against Arcadia, it does not matter whether Utopia is conducting its military operations in an offensive or in a defensive mode. The entire Utopian war is painted in the colour of self-defence, and, in a corresponding manner, Arcadia cannot shed the odium of being the aggressor (even when it has lost the momentum). 690. This is important to keep in mind when successive rounds of fighting are punctuated by cease-fires (which, in suspending hostilities, do not terminate the ongoing war; see supra 156). It is wrong to appraise each round of combat as if it were a separate armed conflict (with a separate armed attack and a separate response by way of self-defence; see supra 170, 387). The commission of the original armed attack fixes the legal bearings. Any acts taken thereafter by the victim of the armed attack must be seen as falling within the general scope of the exercise of self-defence. ‘The exception of self-defence . . . if accepted as valid, would legalize once and for all the initiatives taken to repulse the adversary by the State making it’.1516 691. A good illustration is the Gulf War (see infra 866). The decisive moment from the self-defence angle was August 1990, when Iraq invaded Kuwait. At that point, the status of the Belligerent Parties was settled for the duration of the Gulf War: Iraq was the aggressor, whereas the Coalition that came to the aid of Kuwait was fighting in collective self-defence. This status was not altered by the lengthy cease-fire period that followed the suspension of hostilities in 1991, and it continued to characterize the relations between the Parties in the final phase of the Gulf War in 2003. Hence, it is wrong to condition the military action of the Coalition in 2003 – as an act of self-defence – on a new armed attack by Iraq.1517 692. A Utopian war of self-defence against Arcadia may come in response to an armed attack originally carried out by non-State actors but subsequently 1515 1516 1517

M. Bothe, ‘Terrorism and the Legality of Pre-emptive Force’, 14 EJIL 227, 234 (2003). See Combacau, supra note 1409, at 21. Such a condition is put in place, e.g., by F. Nguyen-Rouault, ‘L’Intervention Armée en Irak et son Occupation au regard du Droit International’, 107 RGDIP 835, 850 (2003).


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endorsed by Arcadia. This is where a ‘war against terrorism’ turns from a mere metaphor (see supra 1) to a real (inter-State) war. The most graphic example is the war conducted by the United States (supported by allies) against the Talibanled sovereign State of Afghanistan in the wake of the atrocities of 9/11. The war, which commenced on 7 October 2001 (see supra 82), was waged against Afghanistan because the latter had given shelter to the Al-Qaeda terrorists – headed by O. Bin Laden – and refused to surrender them to justice (in defiance of binding Security Council resolutions predating 9/11).1518 693. The case of Taliban-led Afghanistan bears some resemblance to what happened in Iran at the time of the takeover of the United States Embassy and the seizure of the Embassy staff as hostages in 1979. As the International Court of Justice held, in the 1980 Tehran case,1519 militants acting on their own initiative took over the Embassy at the outset, but later the Iranian Government gave its endorsement to the act by completely failing to take the means at its disposal to comply with its obligations under international law. At that point, Iran became responsible for the acts of the militants (see supra 600). By the same token, Taliban-led Afghanistan assumed responsibility for the Al-Qaeda terrorist acts. The original outrage of 9/11 could not be imputed to Afghanistan ex post facto.1520 But, even though the Taliban were not accomplices to the 9/11 events before and during the act, they became accessoriesafter-the-fact. By brazenly refusing to take any measures against Al-Qaeda and Bin Laden – and continuing to offer them shelter within its territory – Afghanistan endorsed the armed attack against the United States.1521 In consequence, from that moment on, the United States was entitled to invoke the right of individual self-defence against Afghanistan and take direct action against it (as happened on 7 October). Any other State in the world (like the United Kingdom) could assist the United States, invoking the right of collective self-defence (see infra 740). The military operations in Afghanistan were a classical State versus State exercise of self-defence. 694. The salient questions arising in the context of a war of self-defence – as in the exercise of self-defence ‘short of war’ – relate to the operation of the three customary conditions of necessity, proportionality and immediacy (see supra 607–8).

1518 1519 1520

1521

See especially Security Council Resolution 1267 (1999), 54 RDSC 148, 148–9 (1999). Case Concerning United States Diplomatic and Consular Staff in Tehran, supra note 1237, at 31–44. Some commentators who are critical of the war against Afghanistan wrongly assume that such an ex post facto imputation is the issue. See, e.g., O. Corten and F. Dubuisson, ‘Operation “Liberté Immuable”: Une Extension Abusive du Concept de Légitime Défense’, 106 RGDIP 51, 68 (2002). See M. Byers, ‘Terrorism, the Use of Force and International Law after 11 September’, 51 ICLQ 401, 408–9 (2002).

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(a) Necessity 695. When a war of self-defence is triggered by an all-out invasion, the issue of necessity usually becomes moot. A full-scale invasion is the most blatant example of an armed attack (see supra 369). The target State is by no means expected ‘to allow an invasion to proceed without resistance on the ground that peaceful settlement should be sought first’.1522 Necessity comes to the fore when war is begun following an isolated armed attack. Before the defending State opens the floodgates to full-scale hostilities, it is obligated to verify that a reasonable settlement of the conflict in an amicable way is not attainable. 696. Once war of self-defence is lawfully initiated, there is no further requirement for the defending State to pursue non-forcible options. The condition of necessity does not inhibit waging the war of self-defence until the enemy is utterly crushed and no longer poses an effective military menace.1523 (b) Proportionality 697. The condition of proportionality has a particularistic meaning in the context of a war of self-defence. When on-the-spot reaction or defensive armed reprisals are involved, proportionality points at a symmetry or an approximation in ‘scale and effects’ between the unlawful force and the lawful counter-force (see supra 644, 657). To gauge proportionality in those settings, a comparison must be made between the quantum of force and counter-force used, as well as the casualties and damage sustained.1524 Such a comparison can only be drawn a posteriori, making a rough calculation of the acts of force and counter-force in their totality (from the first to the last moment of fighting). Proportionality in this sense, albeit appropriate for the purposes of on-the-spot reaction and defensive armed reprisals, is unsuited for an investigation of the legality of a war of self-defence. There is no support in the practice of States for the notion that proportionality remains relevant – and has to be constantly assessed – throughout the hostilities in the course of war.1525 Once war is raging, the exercise of self-defence may bring about ‘the destruction of the enemy’s army’, regardless of the condition of proportionality.1526 698. The absence of congruence between the original injury and the ensuing conflagration is conspicuous when war is waged in response to an isolated 1522 1523 1524 1525 1526

Schachter, supra note 517, at 1635. See N. G. Printer, Jr., ‘The Use of Force against Non-State Actors under International Law: An Analysis of the U.S. Predator Strike in Yemen’, 8 UCLAJILFA 331, 343 (2003). See Schachter, supra note 517, at 1637. This notion is advocated by J. G. Gardam, ‘Proportionality and Force in International Law’, 87 AJIL 391, 404 (1993). D. Alland, ‘International Responsibility and Sanctions: Self-Defence and Countermeasures in the ILC Codification of Rules Governing International Responsibility’, United Nations Codification of State Responsibility 143, 183 (M. Spinedi and B. Simma eds., 1987).


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armed attack. By its nature, war (as a comprehensive use of force) is virtually bound to be disproportionate to any measure ‘short of war’ that triggered it. The scale of counter-force used by the victim State in a war of self-defence will usually be far in excess of the magnitude of the original force employed in an armed attack ‘short of war’, and the devastation caused by the war is likely to far surpass the destructive effects of the initial use of unlawful force. An approximation of the overall force employed (or damage caused) by the two opposing sides simply cannot be the yardstick for determining the legality of a war of selfdefence caused by an isolated armed attack. 699. At the same time, it would be irrational to permit an all-out war whenever a State absorbs an isolated armed attack, however marginal. A war of self-defence is the most radical and lethal course of action open to a State, and it must not be allowed to happen on a flimsy excuse. Some sort of proportionality has to be a major consideration in pondering the legality of a defensive war. Still, the criteria for application of the prerequisite of proportionality ought to be different from what they are in settings ‘short of war’. Where war is concerned, the comparative evaluation of force and counter-force has to take place not at the termination of the exercise of self-defence but at its inception. The decision has to be predicated on the gravity of the isolated armed attack and the degree to which it affects the victim State. 700. War as a measure of self-defence is permissible, in response to an armed attack ‘short of war’, only if vindicated by the critical character of the attack. There is no similarity between a minor skirmish and an artillery barrage in which hundreds of cannons are thundering. It is possible to say that, in certain situations, quantity turns into quality. Only when it is established that the original armed attack was critical enough, is the victim State free to launch war in self-defence. 701. A better understanding of the atypical application of the principle of proportionality to a war of self-defence may be facilitated by a legal analysis of the ‘first use’ of nuclear weapons. In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice pronounced (by eleven votes to three): There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such.1527

All the same, the Court dealt with the question whether recourse to nuclear weapons is illegal in light of the requirements of the jus in bello.1528 In view of the ‘unique characteristics’ of nuclear weapons, the Court felt that their use is 1527 1528

Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, supra note 37, at 266. See also, ibid., 256. Ibid., 257.

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‘scarcely reconcilable with respect for such requirements’.1529 Nevertheless, the Court refused to conclude with certainty that such use ‘would necessarily be at variance with the principles and rules of law applicable in armed conflict in any circumstances’.1530 The majority (seven to seven, with the President’s casting vote) did not reject the possibility of resort to nuclear weapons ‘in an extreme circumstance of self-defence, in which the very survival of a State would be at stake’ (see the full quotation supra 462). The use of this particular language has already been critiqued disapprovingly (supra 463). But, when it comes to proportionality, what counts is that the majority confirmed that the defending State may activate nuclear weapons (in certain circumstances) against the aggressor, although the latter has resorted only to conventional weapons. The nuclear weapons may be unleashed despite their disproportionally greater deadly effects, compared to the damage that may be wreaked by the aggressor’s conventional ordnance. The Court specifically held: The proportionality principle may thus not in itself exclude the use of nuclear weapons in self-defence in all circumstances.1531

702. An aggressor State may lose its appetite for continuing the hostilities, but the victim State need not be accommodating. It is occasionally maintained that, ‘where the aggressor State indicates a willingness to end hostilities . . . or where the manifestations of aggression disappear, there is, in principle, a duty to end defensive measures’.1532 That is not so. After the outbreak of a war of selfdefence, ‘no moral or legal duty exists for a belligerent to stop the war when his opponent is ready to concede the object for which war was made’.1533 In the Iran–Iraq war, once the Iraqi invasion (launched in 1980) failed to crush Iran and degenerated into a military stalemate, Iraq was more than willing to call off the fighting while Iran insisted on proceeding with the war to the point of decisively defeating the enemy.1534 Iran was fully empowered to take that stand, as long as it did not defy a legally binding Security Council resolution decreeing a cease-fire (see infra 831). After several resolutions of a recommendatory nature, the Council issued a mandatory demand for a cease-fire in 1987.1535 This was Resolution 598 (cited supra 150), actually complied with by Iran only in 1988.1536

1529 1532 1533 1534 1535 1536

Ibid., 262. 1530 Ibid., 263. 1531 Ibid., 245. K. H. Kaikobad, ‘Self-Defence, Enforcement Action and the Gulf Wars, 1980–88 and 1990–91’, 63 BYBIL 299, 337 (1992). Oppenheim, supra note 8, at 225. See S. H. Amin, ‘The Iran–Iraq Conflict: Legal Implications’, 31 ICLQ 167, 186 (1982). See M. J. Ferretti, ‘The Iran–Iraq War: United Nations Resolution of Armed Conflict’, 35 Vill. LR 197, 204–28 (1990). See Kaikobad, supra note 1532, at 341.


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703. Unless the Security Council adopts a binding cease-fire resolution, a war of self-defence – once lawfully started – can be fought to the finish (see supra 696). As Ago commented, in a report to the International Law Commission: It would be mistaken . . . to think that there must be proportionality between the conduct constituting the armed attack and the opposing conduct. The action needed to halt and repulse the attack may well have to assume dimensions disproportionate to those of the attack suffered. What matters in this respect is the result to be achieved by the ‘defensive’ action, and not the forms, substance and strength of the action itself.1537

Thus, notwithstanding the condition of proportionality, a war of self-defence may be carried out until it brings about the complete collapse of the enemy Belligerent Party. 704. Military operations by a State fighting a war of self-defence can lawfully take place anywhere within the region of war (see supra 50–1), and there is no need to adjust to artificial geographic limitations conveniencing the aggressor. Once a war of self-defence is justified by the merits of the case, only the Security Council can contain the hostilities. An allegation often made is that recourse to counter-force in self-defence has to be confined to the space where the armed attack was launched and should not be extended to remote areas.1538 The reductio ad absurdum of this position is epitomized in the following question posed in connection with the terrorist events of 9/11: ‘Does an attack against a small part of the United States, albeit one with devastating consequences for the people in the area hit, justify an armed response against a whole country, with the aim not only to root out the terrorists but to destroy and remove the effective, though unrecognized, government?’.1539 The mere phrasing of the question is inconsistent with either law or history. Is it necessary to recall that the Japanese attack against Pearl Harbor in December 1941 – affecting an even smaller part of the United States – engendered the Pacific War with the United States, in which the whole Empire of Japan was embroiled and in the end dismembered, entire Japanese cities were pulverized, and the Japanese autocratic system of government was eradicated? Patently, when an armed attack brings about a war of self-defence, the attacker must realize that the stakes are mortal. 705. Indeed, the general experience of World War II shows that the liberation of the immediate victim of an armed attack is not necessarily enough, and a war of self-defence may aim much higher. Although Great Britain declared war on Nazi Germany in response to the German armed attack against Poland on 1537

1538 1539

Ago, supra note 1099, at 69. For a different interpretation of this passage, see A. Gioia, ‘The End of the Conflict and Post-Conflict Peace-Building’, Redefining Sovereignty: The Use of Force after the Cold War 161, 169 n. 23 (M. Bothe, M. E. O’Connell and N. Ronzitti eds., 2005). See C. Greenwood, ‘Self-Defence and the Conduct of International Armed Conflict’, International Law at a Time of Perplexity, supra note 1202, at 273, 277. Myjer and White, supra note 1330, at 8.

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1 September 1939, the liberation of Poland was not viewed by Great Britain as sufficient in itself to end the war in Europe. Jointly with its Allies, Great Britain insisted – and rightly so – on the unconditional surrender of the enemy. As noted (supra 442), insistence on the unconditional surrender of the Axis countries was the declared policy of the United Nations (the official name of the Allies) in World War II. The text of the United Nations Charter (including Article 51) – signed in San Francisco, in June 1945, shortly after the victory in Europe but before the end of the hostilities with Japan and while that country was still an active enemy – was surely not intended to alter that. Article 107 of the Charter trenchantly states: Nothing in the present Charter shall invalidate or preclude action, in relation to any state which during the Second World War has been an enemy of any signatory to the present Charter, taken or authorized as a result of that war by the Governments having responsibility for such action.1540

706. In general, post-Charter State practice shows that ‘self-defence, individual and collective, may carry the combat to the source of the aggression’.1541 War of self-defence, if warranted as a response to an armed attack, need not be terminated when and because the aggressor is driven back: rather, it may be carried on by the defending State until final victory.1542 Particularly when engaged in a successful response to a large-scale invasion, the defending State – far from being bound to stop at the frontier – may pursue the retreating enemy forces, hammering at them up to the time of their total defeat.1543 707. In the Gulf War, the Coalition that stood up against Iraq in a war of collective self-defence fought the enemy until its total disintegration in 2003 (see infra 851, 867). Granting that the Gulf War was triggered by Iraq’s armed attack against Kuwait in 1990, the liberation of Kuwait was never looked at as the maximum goal by the Coalition. The cease-fire that Iraq was compelled to agree to in 1991, pursuant to Security Council Resolution 687, imposed on Iraq far-reaching obligations (especially in the field of disarmament) that went far beyond acceptance of the territorial integrity of Kuwait (see supra 151). Later, in 1991–2, ‘no-fly’ zones – severely limiting Iraqi sovereignty – were introduced by the Coalition (see infra 858). Ultimately, in 2003, in view of Iraqi ‘material breach’ of the cease-fire terms (see infra 862 et seq.), hostilities were resumed: Iraq was occupied and the Saddam Hussein regime was overthrown. The Coalition in Iraq, just like the Grand Alliance in World War II, was fully entitled to carry out the war to its final conclusion. Indeed, the Saddam Hussein regime amply demonstrated the need not to look upon the liberation of the 1540 1541 1542 1543

Charter of the United Nations, supra note 248, at 362–3. Nicaragua case (Merits), supra note 14, at 371 (Dissenting Opinion of Judge Schwebel). See Kunz, supra note 1093, at 876. See Zourek, supra note 1105, at 49–50.


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immediate victim of the armed attack (Kuwait) as the sole issue. Iraqi continued defiance of the world community served to underscore the danger that – unless the aggressor is utterly defeated – it is liable to revert to its policy of aggression as soon as circumstances permit. (c) Immediacy 708. War may not be undertaken in self-defence long after an isolated armed attack. Yet, there are two notable provisos. First, a war of self-defence does not have to commence within a few minutes, or even a few days, from the original armed attack. The State under attack must be allowed a reasonable ‘window of time’ to respond:1544 it cannot be expected to shift gear from peace to war instantaneously. A description of a human being under attack as having ‘no moment for deliberation’ would be accurate. But when such an expression is applied to a State (see infra 726), this is a hyperbolic statement where war is concerned. Front-line officers in the victim country must report to, and receive instructions from, headquarters. The high command is not inclined to embark upon full-scale hostilities, in response to an isolated armed attack, without some deliberation. When there is no military junta in power, the civilian Government will have to give a green light to the armed forces. In all, moving forward to a war of self-defence is a time-consuming process, especially in a democracy where the wheels of government grind slowly. Jessup remarked that ‘[t]elegraphic or radio communication between the officer and his superiors can be taken as a counterpart of the impulses in the nervous system of the individual whose brain instructs his arm to strike’.1545 That is true only in a metaphorical sense. Despite the means of modern communication available in the electronic age, States respond to pressure more tardily than individuals. 709. Second, even when the interval between an armed attack and recourse to war of self-defence is longer than usual, the war may still be lawful if the delay is exculpated by circumstances. Suppose that Numidian troops forcibly occupy a part of the territory of Ruritania. Instead of promptly employing counter-force, Ruritania elects to give amicable negotiations a try (thus meeting the aforementioned condition of necessity; see supra 695). If the negotiations fail, and Ruritania then resorts to war, the action ought to be regarded as self-defence notwithstanding the lapse of time.1546 The first phase of the Gulf War shows that the use of counter-force in self-defence can begin almost half a year after 1544

1545 1546

M. B. Occelli, ‘“Sinking” the Caroline: Why the Caroline Doctrine’s Restrictions on SelfDefense Should Not Be Regarded as Customary International Law’, 4 SanDILJ 467, 482 (2003). Yet, contrary to the view expressed in this comment, the fact that the condition of immediacy has to be construed more liberally does not ‘sink’ the Caroline. P. C. Jessup, A Modern Law of Nations 164 (1948). J. Barboza, ‘Necessity (Revisited) in International Law’, Essays in International Law in Honour of Judge M. Lachs 27, 41 (J. Makarczyk ed., 1984).

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the armed attack (see infra 798). The condition of immediacy was not transgressed, inasmuch as persistent attempts to resolve the conflict without taking up arms were foiled by Iraqi obduracy. Claims that the option of self-defence existed in early August 1990 but expired a few months later1547 are simply fallacious. 710. A justifiable delay in the response of Ruritania may also occur when a region forcibly occupied by Numidia is distant from the centre of Government, and lengthy preparations are required before the Ruritanian military machinery can function smoothly. The Falkland Islands War of 1982 concretizes this state of affairs.1548 II.

Self-defence in response to an armed attack from a State

A.

Extra-territorial law enforcement

711. A major irritant in international relations is the activities of organized armed groups or terrorists, based in Arcadia but operating against Utopia. The assumption is that there is no complicity between these non-State actors and the Arcadian Government, and that they may not be deemed de facto organs of Arcadia (see supra 580). Incontestably, Utopia is entitled to bring force to bear upon such organized armed groups or terrorists if they are present within its own territory. But when they launch their attacks against Utopia in a cross-border (hitand-run) fashion, acting from within the territory of Arcadia, the only effective way to cope with the problem may be to root out their bases in Arcadia. Utopia may seek and obtain Arcadian consent to forcibly act against such bases, for instance through the use of air or missile strikes against remote areas1549 (on the use of force by consent of a foreign State, see supra 317 et seq.). But, should Arcadia withhold its consent, the question arises whether Utopia may take such action nevertheless, and in particular whether it may send military forces into Arcadian territory – in order to eliminate the hostile bases – despite the absence of consent. This will no doubt infringe on Arcadian territorial integrity, contrary to the general prohibition of the use of inter-State force appearing in Article 2(4) of the United Nations Charter (quoted supra 233).1550 Still, will the action come within the exception of self-defence under Article 51 (quoted supra 498)? 1547 1548 1549

1550

See T. Yoxall, ‘Iraq and Article 51: A Correct Use of Limited Authority’, 25 Int.Law. 967, 985 (1991). See A. Cassese, ‘Article 51’, I La Charte des Nations Unies, supra note 507, at 1329, 1334. For examples from State practice, see M. N. Schmitt, ‘Responding to Transnational Terrorism under the Jus ad Bellum: A Normative Framework’, International Law and Armed Conflict: Exploring the Faultlines, supra note 1059, at 157, 182–3. Shearer takes the position that extra-territorial law enforcement can take place within the ambit of Article 2(4). I. Shearer, ‘A Revival of the Just War Theory?’, International Law and Armed Conflict: Exploring the Faultlines, supra note 1059, at 1, 15. However, this is another attempt to limit the scope of Article 2(4) (see supra 245 et seq.), which the present writer cannot accept.


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712. It must be perceived that the conduct of Arcadia vis-à-vis Utopia may be unlawful under international law, without constituting an armed attack on its part against Utopia.1551 For that matter, not always is Arcadia in any breach of international law. When an organized armed group or terrorists turn a portion of Arcadian territory into a staging area for raids against Utopia, the Arcadian Government may not be aware of what is happening (especially when the antiUtopian non-State actors secure a foothold in a remote and sparsely populated area). As long as Arcadia does not ‘knowingly’ allow its territory to be used contrary to the rights of Utopia, Arcadia incurs no international responsibility towards Utopia under the Corfu Channel ruling (see quotation supra 599). 713. Even when the Government of Arcadia is fully aware of the presence within its territory of an organized armed group or terrorists hostile to Utopia, it may be incapable of putting an end to their activities. A Government does not always succeed in suppressing organized armed groups or terrorists, even when their activities are directed against itself. A fortiori, the Government of Arcadia may be unable to stop the use of its territory as a springboard for attacks by an organized armed group or terrorists against Utopia. Still, it is incumbent on Arcadia, under international law, to exercise ‘vigilance’ (see ibid.) or due diligence – that is, to take all reasonable measures called for by the situation – so as to prevent the armed group or terrorists from mounting attacks against Utopia, or to apprehend and punish them after an attack has been perpetrated.1552 714. If the Government of Arcadia does not condone the operations of an organized armed group or terrorists emanating from within its territory against Utopia, but is too weak (militarily, politically or otherwise) to prevent these operations, Arcadian responsibility vis-à-vis Utopia (if engaged at all) may be nominal. Nevertheless, it does not follow that Utopia must patiently endure painful blows, only because no sovereign State is to blame for the turn of events. All the more so, if Arcadia is in breach of international law towards Utopia (a breach not qualifying as an inter-State armed attack). The organized armed group or terrorists in Arcadia are not cloaked with a mantle of protection from Utopia. ‘If a host country permits the use of its territory as a staging area for terrorist attacks when it could shut those operations down, and refuses requests to take action, the host government cannot expect to insulate its territory against measures of self-defense’.1553 Arcadia must consequently be prepared to bear certain unpleasant consequences. Just as Utopia is entitled to exercise selfdefence against an armed attack by Arcadia, it is equally empowered to defend

1551 1552 1553

See P. L. Zanardi, ‘Indirect Military Aggression’, The Current Legal Regulation of the Use of Force, supra note 92, at 113. See R. B. Lillich and J. M. Paxman, ‘State Responsibility for Injuries to Aliens Occasioned by Terrorist Activities’, 26 Amer.ULR 217, 268–9, 275 (1976–7). Wedgwood, supra note 1242, at 565.

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itself against an organized armed group or terrorists operating from within the Arcadian territory.1554 715. This is an extraordinary case demanding, and getting, an extraordinary solution in international law. Article 51 permits Utopia to resort to self-defence in response to an armed attack. As noted (supra 601 et seq.), an armed attack may be unleashed by non-State actors. Utopia is, therefore, entitled to invoke the right of self-defence using counter-force against the bases of the organized armed group or terrorists in Arcadian territory. This can be done through air or missile strikes against those bases, but aircraft or missiles alone may fail to accomplish their goal (and may even hit the wrong target).1555 The more orthodox mode of action is that of the despatch of military units into Arcadian territory, with a view to destroying the infrastructure of the armed group or terrorists. The Utopian cross-border operation constitutes lawful self-defence – in response to an armed attack – provided that the destruction of the terrorist bases in Arcadia is the ‘sole object’ of the expedition.1556 716. Although acting beyond the limits of Arcadian consent, Utopia – in taking these exceptional measures – does what Arcadia itself should have done, ‘had it possessed the means and disposition to perform its duty’.1557 The fundamental point to keep in mind is that the non-State actors confronted by Utopia cannot be regarded as Arcadian organs. Hence, in the relations between Utopia and Arcadia there is no armed conflict. To the extent that an incident between these two States will be spawned by the uninvited forcible intervention, it must be deemed ‘short of war’. 717. Like on-the-spot reaction (see supra 641), this category of self-defence has no generally accepted appellation. Now and then, there are references to ‘hot pursuit’, but the phrase – borrowed from the law of the sea – is rooted in ‘a wholly untenable analogy’.1558 The right of maritime hot pursuit forms an exception to the freedom of the high seas.1559 It is governed by Article 23 of the 1958 Geneva Convention on the High Seas1560 and Article 111 of the 1982 United Nations Convention on the Law of the Sea.1561 In conformity with both provisions, the right of hot pursuit relates to a foreign ship that has violated the laws and regulations of the coastal State. Hot pursuit has to be uninterrupted, 1554 1555 1556 1557 1558 1559 1560 1561

See C. G. Fenwick, International Law 274 (4th edn, 1965). For an illustration from State practice, see W. K. Lietzau, ‘Old Laws, New Wars: Jus ad Bellum in an Age of Terrorism’, 8 MPYUNL 383, 418–19 (2004). Fawcett, supra note 1258, at 363. C. C. Hyde, I International Law Chiefly as Interpreted and Applied by the United States 240 (2nd edn, 1945). M. R. Garcia-Mora, International Responsibility for Hostile Acts of Private Persons against Foreign States 123 (1962). See N. M. Poulantzas, The Right of Hot Pursuit in International Law 39 (1969). Geneva Convention on the High Seas, supra note 1312, at 94–5. United Nations Convention on the Law of the Sea, supra note 90, at 60–1.


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and it must be commenced when the offending ship (or one of its boats) is within the internal waters, the territorial sea or the contiguous zone of the coastal State (under the 1958 Convention), as well as the archipelagic waters (under the 1982 Convention, which also extends the right of hot pursuit mutatis mutandis to violations occurring in the exclusive economic zone or the continental shelf). Most significantly, the right of hot pursuit ceases as soon as the vessel being chased enters the territorial sea of its own country or of a third State. On land, the operation undertaken against a hostile organized armed group or terrorists need not begin while they are still within the territory of the acting State; it does not have to be uninterrupted; and, far from coming to a halt at the border of a foreign State, its very essence is an incursion into the territory of that State. 718. More often, the exercise of self-defence in the factual setting under discussion used to be called ‘necessity’.1562 This labelling may prove confusing, since necessity – as shown by the International Law Commission – has many diverse connotations in international law.1563 Within the very framework of self-defence, necessity has already been encountered (together with proportionality and immediacy) as a condition for the admissibility of counter-force when an armed attack occurs (see supra 607). If that is not enough, the International Law Commission – on the initiative of its Special Rapporteur on State Responsibility (Ago)1564 – while accepting the existence of a state of affairs characterized as ‘state of necessity’, regrettably chose to disconnect it in its work from the concept of self-defence.1565 Thus, ‘self-defence’ and ‘necessity’ are the subjects of two separate provisions (Articles 21 and 25) in the Commission’s Draft Articles on State Responsibility of 2001.1566 As a result of the notional disjunction between necessity and self-defence, the Commission did not really find an adequate solution to the problem of a State exposed to an armed attack from (rather than by) another State.1567 719. The distinction drawn by the International Law Commission between self-defence and necessity – although supported by some scholars1568 – is artificial and erroneous. The Commission went as far as classifying the Caroline incident (to be examined infra 726) outside the scope of selfdefence.1569 While the Commission was right in noting that at the time of the 1562 1563 1564 1565 1566 1567

1568 1569

See Oppenheim, supra note 8, at I, 298–9 (8th edn, 1955). See Draft Articles on State Responsibility, supra note 611, at 34–52. Ago, supra note 1099, at 39–40, 61–2. Draft Articles on State Responsibility, supra note 1455, at 34, 57. Draft Articles on State Responsibility, supra note 611, at 48–9. Cf. P. Malanczuk, ‘Countermeasures and Self-Defence as Circumstances Precluding Wrongfulness in the International Law Commission’s Draft Articles on State Responsibility’, 43 ZAORV 705, 779–85 (1983). See O. Schachter, ‘The Lawful Use of Force by a State against Terrorists in Another Country’, 19 IYHR 209, 228–9 (1989). See Draft Articles on State Responsibility, supra note 611, at 196–7.

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occurrence of the incident the law concerning the use of force had been completely different from what it is today,1570 the incontrovertible fact is that ‘[a]ll of Webster’s discussions of necessity were linked to self-defense’,1571 and it was his language of self-defence that left the footprints of the Caroline incident on the future law. There is no way to cut retrospectively the historical umbilical cord of the Caroline incident to self-defence. 720. This book uses the idiom ‘extra-territorial law enforcement’ to describe the phenomenon of recourse in self-defence to cross-border counter-force against terrorists and armed bands.1572 The present writer believes that the idiom properly telescopes the notion of measures enforcing international law, taken by one State within the territory of another without the latter’s consent. Extra-territorial law enforcement is a form of self-defence, and it is undertaken by Utopia solely against an organized armed group or terrorists inside Arcadian territory, in response to an armed attack unleashed by them from that territory. Utopia is entitled to enforce international law extra-territorially if and when Arcadia is unable or unwilling to prevent repetition of that armed attack. 721. In the Armed Activities case, although the majority of the International Court of Justice glossed over the issue, two Judges in their Separate Opinions – Judge Kooijmans and Judge Simma – cited the present author’s position on extra-territorial law enforcement.1573 In doing so, Judge Kooijmans said: It would be unreasonable to deny the attacked State the right to self-defence merely because there is no attacker state, and the Charter does not so require.1574

And Judge Simma concurred.1575 B.

The practice of States

722. Extra-territorial law enforcement as a mode of self-defence has been displayed, in recent years, in repeated incursions by Turkish troops into Northern Iraq, in response to attacks by a renegade Kurdish organized armed group (PKK), attempting to deny the group a sanctuary in mountainous border areas within Iraq (absent effective action by Iraqi or Coalition forces against 1570 1571 1572

1573 1574

Ibid., 196. J. E. Noyes, ‘The Caroline: International Law Limits on Resort to Force’, International Law Stories 263, 276 (J. E. Noyes, L. A. Dickinson and M. W. Janis eds., 2007). It has been suggested that the neologism ‘extra-territorial law enforcement’ is offered ‘instead of self-defense’ (S. A. Barbour and Z. A. Salzman, ‘“The Tangled Web”: The Right of SelfDefense against Non-State Actors in the Armed Activities Case’, 40 NYUJILP 53, 68 n. 55 (2007–8)). But ‘extra-territorial law enforcement’ is merely a species of the overall taxonomic grouping of acts of self-defence. Case Concerning Armed Activities on the Territory of the Congo, supra note 300, at 358, 370, 377. Ibid., 358. 1575 Ibid., 370.


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these groups).1576 Other contemporary manifestations of extra-territorial law enforcement are exemplified by a Colombian military raid in 2008, striking a camp of an insurgent organized armed group (FARC) located in Ecuador.1577 The 2011 operation in Pakistan, in which A1-Qaeda’s leader Bin Laden was killed in his hiding place by United States Navy Seals – without soliciting the consent of the Pakistani Government – may also be pegged as extra-territorial law enforcement. 723. A singular illustration of extra-territorial law enforcement was provided by the Israeli incursion into Lebanon, in 1982, designed to destroy a vast complex of Palestinian bases from which multiple armed attacks across the international frontier had originated.1578 The Government of Lebanon was incapable of putting an end to the formidable Palestinian military presence within its territory, and Israel felt compelled to cope with the problem by sending a sizeable expeditionary force into Southern Lebanon. Israeli and Lebanese forces did not exchange fire at any point in 1982, and the Israeli operation did not amount to a war with Lebanon. Still, Israeli and Syrian armed forces (then stationed in Lebanon) did clash vigorously. These hostilities formed another round in an ongoing war between Israel and Syria that has been in progress (interspersed by lengthy cease-fires) since 1967 (see supra 159). 724. The 2006 forcible response by Israel to an armed attack by the Lebanesebased Hezbollah armed group roughly ran along similar patterns, yet went beyond the strict confines of an extra-territorial law enforcement. The main reason is that although Hezbollah was (and continues to be) a non-State organization, running enclaves in Southern Lebanon – and in Beirut itself – not subject to the actual control of the central Government, it was represented in the cabinet (see supra 579). Not surprisingly, perhaps, the casualties in the fighting included Lebanese soldiers (as well as many civilians).1579 The hostilities were dubbed in Israel ‘the Second Lebanon War’, and indeed have at least certain dimensions of an inter-State armed conflict. 725. A more striking example of extra-territorial law enforcement was the American military expedition of 1916 into Mexico, provoked by attacks across the Rio Grande by Mexican armed bands headed by Francisco Villa, at a time when the central Government in Mexico City had little control over the outlying areas.1580 President Wilson justified the despatch of a substantial force, pursuing the bandits deep into Mexican territory, as necessary to protect the American border from hostile attacks, since the Mexican authorities were powerless and there was no other remedy.1581 1576 1577 1578 1579 1580 1581

On the Turkish incursions in 2007–8, see T. Ruys, ‘Quo Vadis Jus ad Bellum?: A Legal Analysis of Turkey’s Military Operations against the PKK in Northern Iraq’, 9 Mel.JIL 334–64 (2008). See Ruys, supra note 1157, at 462. For the facts, see B. A. Feinstein, ‘The Legality of the Use of Armed Force by Israel in Lebanon – June 1982’, 20 Is.LR 362, 365–70 (1985). See Ruys, supra note 1157, at 450. For the facts, see G. A. Finch, ‘Mexico and the United States’, 11 AJIL 399–406 (1917). Quoted by Hyde, supra note 1557, at 244 n. 21.

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726. There are other historical precedents for extra-territorial law enforcement in self-defence.1582 The most famous among them is the Caroline incident.1583 In 1837, during the Mackenzie Rebellion against the British rule in Upper Canada, the insurgents took over an island on the Canadian side of the Niagara River. The American population along the border largely sympathized with the cause of the rebellion, and the steamboat Caroline was used for transporting men and materials from the American bank of the Niagara River to the insurgents-held island. When British protests failed to stop the line of supplies, a British unit crossed the border in the dark of night, boarded the vessel, set it on fire, and sent it drifting to eventual destruction upon the awesome Falls. In the course of the incident, several American citizens were killed or injured. The United States lodged a protest with the British Government for violating American sovereignty, but the British invoked self-defence. In his correspondence about the incident with British envoys (in 1841–2), Secretary of State Webster took the position that – for the claim of self-defence to be admitted – Britain is required to ‘show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation’.1584 The action taken must also involve ‘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’.1585 The British reply finally conciliated the United States, and the case was closed.1586 C.

Webster’s formula

727. The language employed in Webster’s correspondence on the Caroline incident made history. It came to be looked upon as transcending the specific legal contours of extra-territorial law enforcement, and has markedly influenced the general materia of self-defence. This has happened despite the lack of evidence that Webster had in mind any means of self-defence other than extra-territorial law enforcement, and notwithstanding the timeframe of the episode, which preceded the prohibition of the use of inter-State force.1587 R. Y. Jennings called the Caroline incident the ‘locus classicus’ of the law of self-defence.1588 More than a century after the episode, the International Military Tribunal at Nuremberg quoted Webster’s formulation as a standard for evaluating (and rejecting) the German allegation that the invasion of 1582 1583 1584 1586 1587 1588

See, e.g., ibid., 240 n. 7 (the case of the US incursion into West Florida in 1818). For the facts, see R. Y. Jennings, ‘The Caroline and McLeod Cases’, 32 AJIL 82, 82–9 (1938). 29 BFSP 1129, 1138 (Webster to Fox) (1840–1). 1585 Ibid. 30 BFSP 195, 196–8 (Lord Ashburton to Webster); 201, id. (Webster to Lord Ashburton) (1841–2). See T. Kearley, ‘Raising the Caroline’, 17 Wis.ILJ 325, 330 (1999). Jennings, supra note 1583, at 92.


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Norway in 1940 – which had amounted to war and not to extra-territorial law enforcement – constituted a lawful exercise of self-defence.1589 It is sometimes asserted that the rule emerging from the Caroline incident is no longer valid under the United Nations Charter,1590 and that a statement made in the 1840s cannot be relevant today in light of developments in the intervening period.1591 But nothing in the Charter runs counter to the three conditions of necessity, proportionality and immediacy (see supra 607–8) – distilled from Webster’s original language – and the importance of that language lies not in its original use but in its frequent reuse as a precedent. 728. Even though Webster’s prose was inclined to overstatement, the three conditions of necessity, proportionality and immediacy can easily be detected in it. These conditions are now regarded as pertinent to all categories of self-defence (see ibid.). We have seen in what different ways they are to be applied to on-thespot reaction (supra 644), defensive armed reprisals (supra 656 et seq.), the protection of nationals abroad (see supra 676) and war (see supra 694 et seq.). 729. When Utopia resorts to extra-territorial law enforcement within the territory of Arcadia, the necessity to infringe upon Arcadian sovereignty has to be palpable in several ways: (i) The forcible measures employed by Utopia must be reactive to an armed attack already committed by a hostile organized armed group or terrorists, and not only anticipated as a future threat (see supra 514 et seq.). (ii) A repetition of the attack has to be expected, so that the extra-territorial law enforcement can qualify as defensive and not purely punitive. (iii) Utopia must verify that Arcadia is either unable or unwilling to take the necessary action within its territory to remove the likelihood of such further attacks. (iv) Absent Arcadian own action, and unless such a move is futile on the face of it, Utopia must first seek Arcadian consent to conducting military operations against the hostile armed group or terrorists within Arcadian territory. (v) It must be clearly demonstrated1592 by Utopia that the attacks by the organized armed group or terrorists cannot be defeated through recourse to alternative measures that are less intrusive in their effects on the territorial sovereignty of Arcadia.1593

1589 1591 1592

1593

Nuremberg trial, supra note 582, at 207. 1590 See Garcia-Mora, supra note 1558, at 119. See J. Kammerhofer, ‘The Armed Activities Case and Non-State Actors in Self-Defence Law’, 20 LJIL 89, 99 (2007). In previous editions of this book, it was suggested that this ought to be demonstrated ‘beyond reasonable doubt’ (4th edn, p. 250). But it has rightly been pointed out that this standard is too high: K. Chainoglou, ‘Reconceptualising Self-Defence in International Law’, 18 KCLJ 61, 88 (2007). See T. M. Franck, ‘On Proportionality of Countermeasures in International Law’, 102 AJIL 715, 722 (2008). The author categorizes this precaution as one of proportionality, but it really comes under the heading of necessity.

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730. The condition of immediacy requires that the incursion by Utopia into Arcadian territory will take place soon after the assault by the organized armed group or terrorists, so that the cause (armed attack) and effect (self-defence) are plain for all to see. As accentuated by Webster, there has to be a perception of urgency impelling extra-territorial law enforcement before the organized armed group or terrorists strike again. On the other hand, as rightly pointed out by Müllerson, since ‘the source of [terrorist] attacks may not be immediately obvious’, the process of gathering intelligence data and pinning the blame on a particular non-State group – operating from within the territory of Arcadia – may ineluctably stretch the interval between the armed attack and the forcible response.1594 If the organized armed group or terrorists in Arcadia conduct multiple attacks against Utopia, these may be regarded as a continuous attack and the need to act in a timely fashion will relate to the entire cycle of violence and not just to a single past act.1595 731. As for proportionality, when Utopia sends an expeditionary force into Arcadia, the operation is to be directed exclusively against the organized armed group or terrorists, and it must not be confused with defensive armed reprisals (see supra 647).1596 Such confusion is apparent in the Judgment of the International Court of Justice in the Armed Activities case, where the Judgment refers to a response to ‘large-scale attacks by irregular forces’, ruling that ‘the preconditions for the exercise of self-defence do not exist in the circumstances of the present case’.1597 Although the Court did not go into the subject of extra-territorial law enforcement (by whatever term), it added: The Court cannot fail to observe, however, that the taking of airports and towns many hundreds of kilometers from Uganda’s border would not seem proportionate to the series of transborder attacks it claimed had given rise to the right of self-defence, nor to be necessary to that event.1598

This would have been a most appropriate comment in the context of defensive armed reprisals against unlawful use of force by organs of a foreign State. But when cross-border attacks by an organized armed group or terrorists are concerned, the expeditionary force sent to eliminate their bases has to act where it finds them. Remoteness from the border is often what the organized armed groups or terrorists prefer for their own protection.

1594 1595 1596 1597 1598

R. Müllerson , ‘Jus ad Bellum: Plus Ça Change (le Monde) plus C’est la Même Chose (le Droit)?’, 7 JCSL 149, 179 (2002). See Schmitt, supra note 1549, at 175. At least one writer uses the term ‘enforcement’ in adverting to what is actually a defensive armed reprisal (directed at a Government). See D’Amato, supra note 500, at 29. Case Concerning Armed Activities on the Territory of the Congo, supra note 300, at 223. Ibid.


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732. Surely, when extra-territorial law enforcement is carried out by Utopia, no forcible action may be taken against the Arcadian civilian population.1599 But, furthermore, Arcadian armed forces and military installations ought not to be harmed either. If the Utopian expeditionary force – on its way to or from the target (viz. the bases of the organized armed group or terrorists) – encounters Arcadian military units, it is disallowed to open fire on them. Correspondingly, international law imposes on Arcadia a duty of ‘acquiescence’, or noninterference, with the Utopian operation;1600 for there is no self-defence against self-defence (see supra 503). 733. If the Arcadian Government is too weak to suppress the activities of an organized armed group or terrorists from within its territory against Utopia, Arcadia must not display unwonted prowess against the Utopian expeditionary force (which is only doing what Arcadia ought to have done in the first place). Should there be any military confrontation between the foreign expeditionary force and the local military units, the jus in bello will obviously apply. More significantly, should Arcadian troops open fire on a Utopian advancing column, they are likely to become accessories-after-the-fact to the armed attack committed by the non-State actors against Utopia. Although Utopian troops are operating within Arcadian territory, they will be acting in self-defence if attacked by Arcadia.

1599 1600

See J. L. Taulbee, ‘Retaliation and Irregular Warfare in Contemporary International Law’, 7 Int. Law. 195, 203 (1973). Bowett, supra note 1140, at 60.

9

Collective self-defence

I.

The meaning of collective self-defence

A.

The four categories of collective self-defence

734. The phrase ‘individual or collective self-defence’, as used in Article 51 of the Charter of the United Nations (quoted supra 498), is not easily comprehensible. A close examination of the text, in light of the practice of States, shows that more than a simple dichotomy is involved. It seems necessary to distinguish between no less than four categories of self-defence: (i) individual self-defence individually exercised; (ii) individual self-defence collectively exercised; (iii) collective self-defence individually exercised; and (iv) collective selfdefence collectively exercised. (a) Individual self-defence individually exercised 735. The first category represents the most straightforward implementation of the right of self-defence, and it has been dealt with in Chapter 8: Arcadia perpetrates an armed attack against Utopia, and in response Utopia invokes self-defence. This is a one-on-one forcible encounter, and the right of individual self-defence is exercised individually. (b) Individual self-defence collectively exercised 736. The second category relates to the situation where an armed attack is launched by the same aggressor (Arcadia), either simultaneously or consecutively, against several States (Utopia, Ruritania, etc.). Both Utopia and Ruritania are entitled to resort to measures of individual self-defence against Arcadia. These measures may still be taken individually, each victim State declining any suggestion of close cooperation with the other. Utopia and Ruritania, while resisting armed attacks by the same aggressor (Arcadia), are not obliged to consolidate a united front. When recent relations between Utopia and Ruritania have been characterized by a deeply felt animosity, let alone a longstanding antagonism with historical roots, either country is apt to be 278


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opposed to the idea of recasting the political landscape, and it may elect to act on its own. 737. However, particularly when a large-scale invasion is in progress, States trying to resist aggression are disposed towards overlooking past grievances and forging a coalition, proceeding on the basis of the principle that ‘the enemy of my enemy is my friend’. The essence of a coalition is that its members marshal their combined resources and act jointly in effecting their respective rights of self-defence. It is sometimes argued that such a situation was envisaged by the authors of the Charter when they referred to ‘collective’ self-defence.1601 In actuality, rather than collective self-defence, what we have here is ‘nothing more than a plurality of acts of “individual” self-defence committed collectively’.1602 738. A coalition in self-defence, dictated by expediency, emerged in the course of World War II, following the Nazi invasion of the Soviet Union in June 1941. By July of that year, an Agreement was made by Great Britain and the USSR (Powers that had not been on the best of terms prior to the date of the invasion) Providing for Joint Action between the Two Countries in the War against Germany.1603 In May 1942, the same two States concluded a follow-up Treaty for an Alliance in the War against Hitlerite Germany and Her Associates in Europe, and Providing also for Collaboration and Mutual Assistance Thereafter.1604 739. The 1942 Anglo-Soviet Alliance illuminates two interesting points. First, the Contracting Parties sought to extend the operation of the instrument into the post-War period. Future events did not bear out the optimism engendered by the constellation of World War II. In general, a military alliance, if welded in the course of war by otherwise polarized countries, is not likely to outlast the advent of peace. For that reason, many wartime alliances are confined to the immediate needs of combating a common foe. Second, the SovietBritish treaty proved that an alliance concluded in the midst of hostilities need not embrace all the Belligerent Parties aligned on the same side, nor does it have to be directed against all the enemies of the allies. Thus, (i) the United States (and other countries waging war at the time against Nazi Germany) did not accede to the treaty; and (ii) the stated goal of the treaty was to fight together against Germany and its associates in Europe, thereby excluding Japan with which Britain – but not the USSR – was then at war.

1601 1603 1604

See ibid., 216. 1602 Ago, supra note 1099, at 68. Great Britain–USSR, Moscow Agreement Providing for Joint Action between the Two Countries in the War against Germany, 1941, 204 LNTS 277. Great Britain–USSR, London Treaty for an Alliance in the War against Hitlerite Germany and Her Associates in Europe, and Providing also for Collaboration and Mutual Assistance Thereafter, 1942, 204 LNTS 353.

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(c) Collective self-defence individually exercised 740. Collective self-defence has a different meaning. The scenario is that Arcadia initiates an armed attack against Utopia (and only against Utopia), but Atlantica – although beyond the range of the attack – decides to come to the assistance of Utopia. There is no doubt that, in principle, Article 51 permits any United Nations Member to help another if the latter has fallen prey to an armed attack.1605 That is to say, Greece may respond to an armed attack against Peru.1606 When Greece avails itself of the option, this is a case of collective self-defence, exercised individually, as per the third category listed above. (d) Collective self-defence collectively exercised 741. The fourth category is that of collective self-defence carried out collectively. It becomes apposite when two or more States (Atlantica, Patagonia and so forth) act cohesively in supporting the victim country (Utopia). B.

Collective self-defence as the defence of self

742. The question is whether, from an analytical standpoint, the aid furnished to Utopia by Atlantica (acting alone or in conjunction with other countries) may properly be considered self-defence. Occasionally, the concept is repudiated.1607 But there is no good reason to deny the existence of a ‘collective’ self of groupings of States.1608 If Utopian ‘safety and independence are deemed vital to the safety and independence’ of Atlantica, any assistance offered by Atlantica to Utopia in repelling an armed attack by Arcadia can be viewed as a measure of Atlantican self-defence.1609 The security of various States is frequently interlocked, so that when Atlantica helps Utopia, it is truly defending itself.1610 743. The actual stake that Atlantica may have in the security of Utopia is a matter of perception. Insofar as legal theory is concerned, it may be advisable to recall the statement of the International Court of Justice – in the Barcelona Traction case of 1970 (see supra 311) – that the outlawing of aggression has created obligations applicable erga omnes, since all States have valid interests in the protection of the rights involved. Of course, in pragmatic terms, ‘it is 1605 1606 1607 1608 1609 1610

See H. Kelsen, ‘Collective Security and Collective Self-Defense under the Charter of the United Nations’, 42 AJIL 783, 792 (1948). The query whether Greece can exercise collective self-defence in response to an armed attack against Peru is raised by Akehurst’s, supra note 1355, at 317. See D. W. Bowett, ‘The Interrelation of Theories of Intervention and Self-Defense’, Law and Civil War in the Modern World, supra note 719, at 38, 46–7. McDougal and Feliciano, supra note 1140, at 248–50. Oppenheim, supra note 8, at 155. See the Dissenting Opinion of Judge Jennings in the Nicaragua case (Merits), supra note 14, at 545.


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highly unlikely’ that Atlantica will immerse itself in an armed conflict with Arcadia, unless there is a clear and present danger to Atlantican security.1611 Nevertheless, there are many utilitarian considerations that may galvanize Atlantica into action against Arcadia when Utopia is attacked. 744. To begin with, if Atlantica is a super-Power, it is apt to think of the whole world as its bailiwick. In that case, an armed attack initiated anywhere, no matter where and against whom it is unleashed, may be interpreted by Atlantica as a direct challenge to its vital interests. 745. Additionally, from the vantage point of minor Powers (particularly, although by no means exclusively, within a prescribed geographic region), their overall security is detrimentally affected when one of them is invaded by a potent aggressor. The repeated lesson of history (most vividly in World War II) has been that, once an aggressor starts out on the path of territorial expansion, attaining a rapid and facile success, it develops an appetite for further conquests. When multiple States – none of which is strong enough to withstand alone the steamroller of an armed attack – face the danger of overwhelming force, the only chance of averting ‘piecemeal annihilation’ lies in closing ranks together while there is still time.1612 Believing as they do that, in the long run, all of them are anyhow destined to become victims of aggression, each may opt to join the fray as soon as one of the others is subjected to an armed attack. In truth, it is the selfish interest of the State expecting to be next in line for an armed attack that compels it not to be indifferent to what is happening across its borders. 746. It may be said that an armed attack is like an infectious disease in the body politic of the family of nations. Every State has a demonstrable selfinterest in the maintenance of international peace, for once the disease starts to spread there is no telling if and where it will stop. This is the fundamental concept underlying the Charter of the United Nations. As long as the system of collective security within the United Nations Organization is ineffective (see Chapter 10), collective self-defence constitutes the sole insurance policy against an armed attack. C.

Is there a need for a treaty?

747. Collective self-defence may be exercised either spontaneously (as an unplanned response to an armed attack after it has become a reality) or premeditatedly (on the footing of a prior agreement contemplating a potential armed attack). There are those who deny one possibility or the other. It has been contended that support of a State in the grip of an armed attack is contingent on the existence of a collective self-defence treaty.1613 Conversely, it has been 1611 1613

Schachter, supra note 517, at 1639. 1612 Oppenheim, supra note 8, at 156. See A. Martin, Collective Security 170 (1952).

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maintained that Article 51 precludes Member States (acting outside the pale of the United Nations) from elaborating strategic plans, or coordinating their military forces under an integrated high command, before an armed attack takes place.1614 In reality, there is no sustenance in the text for either interpretation. The latter position has been rightly termed ‘astonishing’,1615 and so is the former. States are entitled to invoke the right of collective self-defence either on the spur of the moment or after thorough preparation for a rainy day. The military action taken by the American-led Coalition against Iraq in support of Kuwait, with the blessing of the Security Council (see infra 799), shows that ‘any state may come to the aid of a state that has been illegally attacked’.1616 D.

Customary international law

748. In the Nicaragua case, the International Court of Justice held that the right of collective self-defence is well established not only in Article 51 of the United Nations Charter but also in customary international law.1617 Judge Oda, in his Dissenting Opinion, criticized the majority for not sufficiently probing the concept that the right of collective (as opposed to individual) self-defence is ‘inherent’ in pre-Charter customary law.1618 There is indeed some authority for the proposition that, in opening the gate to collective self-defence by any State, Article 51 expanded the right of self-defence as previously construed.1619 However, whether or not the right of collective self-defence can be traced back to pre-Charter customary norms, there is hardly any doubt that it constitutes an integral part of customary international law as it stands today. Consequently, States that are non-Members of the United Nations have an equal right to exercise, and to benefit from, collective self-defence.1620

II.

Regional arrangements under the Charter of the United Nations

749. Article 52(1) of the United Nations Charter sets forth: Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international

1614 1615 1616 1617 1618 1619 1620

See F. B. Schick, ‘The North Atlantic Treaty and the Problem of Peace’, 62 Jur.R. 26, 49 (1950). A. L. Goodhart, ‘The North Atlantic Treaty of 1949’, 79 RCADI 183, 229 (1951). See Schachter, supra note 1401, at 457. Nicaragua case (Merits), supra note 14, at 102–4. Ibid., 256–8. See Oppenheim, supra note 8, at 155. But cf. supra 229 regarding the Preamble of the KelloggBriand Pact. See S. A. Alexandrov, Self-Defence against the Use of Force in International Law 103 (1996).


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peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations.1621

A region in the sense of Article 52(1) should not be construed narrowly, along lines of ‘geographical propinquity’, and it may comprise any limited community of States ‘joined together by ties of interests’.1622 Every group of like-minded States, having a common interest in activities relating to the maintenance of international peace and security, is entitled to set up an arrangement or agency.1623 Since the size of the group is not delineated in Article 52, a regional arrangement or agency may apparently be limited to two States.1624 The conflation of ‘arrangements’ and ‘agencies’ seems to connote that the group may either be constituted ad hoc (an arrangement) or be an institutionalized organization based on a long-term agreement (an agency).1625 750. As for the nature of regional arrangements or agencies under Article 52(1), while they may have manifold purposes, surely one of the most important is to pave the road for collective self-defence. It has been contended that a joint defence of a region against an external danger of an armed attack, originating from another region, exceeds the limits of a regional grouping within the meaning of Article 52(1).1626 But this restrictive interpretation of Article 52(1) is specious.

III.

Collective self-defence treaties

751. In anticipation of a future armed attack, States can conclude several forms of treaties. The three main categories are: (i) mutual assistance; (ii) military alliance; and (iii) guarantee. Only a State placed under a permanent neutrality regime (see supra 55) is barred from engaging in a mutual assistance treaty or a military alliance – and, whereas it may benefit from a guarantee, it must never become a guarantor – for permanent neutrality is incompatible with any obligations liable to implicate the State concerned in war.1627

1621 1622 1623 1624 1625 1626 1627

Charter of the United Nations, supra note 248, at 346–7. A. V. W. Thomas and A. J. Thomas, Non-Intervention: The Law and Its Import in the Americas 178 (1956). Kelsen, supra note 564, at 920. See M. Akehurst, ‘Enforcement Action by Regional Agencies, with Special Reference to the Organization of American States’, 42 BYBIL 175, 177 (1967). See J. Delbrück, ‘The Role of Regional Organizations in Maintaining Peace and Security’, Redefining Sovereignty, supra note 1537, at 145, 146–8. See Stone, supra note 27, at 249. See Verdross, supra note 1107, at 64.

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A.

Mutual assistance treaties

752. A mutual assistance treaty is an instrument whereby the Contracting Parties proclaim that an armed attack against one of them will be regarded as an armed attack against all, pledging to help out each other in such circumstances. A treaty of mutual assistance may be either bilateral or multilateral in scope. An agreement made by the United States and South Korea in 1953 may serve as a telling example for a bilateral treaty of this nature.1628 753. The downside of a bilateral mutual assistance treaty is that, as a rule, a State is ready to employ force in aid of another country only if such conduct is consonant with its vital interests as perceived at the time of action, rather than in the past (when the treaty was signed). Hence, when an armed attack occurs, Atlantica may rush to Utopia’s rescue despite the absence of a mutual assistance treaty between them, yet fail to succour Numidia notwithstanding the existence of such a treaty. 754. If Atlantica is disinclined to abide by its obligations under a mutual assistance treaty, it will not have to contrive to find an ingenious escape clause in the text. Even if the treaty is formulated in an unequivocal manner, and does not have legal loopholes enabling a Contracting Party to refuse to take action altogether, a sufficient margin of discretion is always left to a reluctant Party. It is simply impossible to resolve beforehand, except in crude outlines, pragmatic issues that in the reality of an armed attack assume crucial significance, like the precise scale of the military support to be afforded, its pace, and the concrete shape that it will take.1629 There are no objective comparative benchmarks by which these matters can be assessed. Decisions have to be taken against the background of the armed attack, once it unfolds in fact, and there is no way to settle differences of opinion in advance through airtight juridical clauses. 755. It may be deduced that a bilateral mutual assistance treaty per se cannot provide assurance that meaningful aid will actually be obtained when called for. The main benefit derived from such a treaty lies in the political sphere, for publication of the text serves notice on friends and foes alike as to the cords of affiliation uniting the Contracting Parties. This may deter potential enemies and encourage States that are favourably disposed. Nonetheless, a mutuality of political interests must not be confused with a binding commitment for reciprocal military support.

1628 1629

United States–Republic of Korea, Washington Treaty, 1953, 48 AJIL, Supp., 147 (1954). Military supplies can be transported at once by airlift, but they can also be shipped slowly and arrive after the fighting is over. Should an expeditionary force be despatched, its size might range from a token detachment to several army corps. The type of military units sent over (air squadrons, armoured units, paratroopers, regular infantry, etc.), their combat readiness and mastery of state-of-the-art equipment would all make a tremendous difference.


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756. Naturally, Contracting Parties do not always seek ways to evade carrying out the stipulations of a bilateral treaty of mutual assistance. The most momentous illustration of compliance with such a treaty is that of the 1939 British-Polish Agreement of Mutual Assistance,1630 the implementation of which turned the Nazi invasion of Poland into World War II. But we must be mindful of the relevant dates: the formal agreement was signed on 25 August, the Nazi invasion of Poland began on 1 September, and the British Declaration of War was issued on 3 September. Thus, it all happened within the span of ten days. The longer the lapse of time following the conclusion of a mutual assistance treaty, the fewer the chances of its being respected in practice. 757. A treaty of mutual assistance may be multilateral (often regional in the geographic sense) instead of bilateral. Here the obligation to help a Contracting Party, upon the outbreak of an armed attack, is imposed not on a single State but on a cluster of States. In principle, collective self-defence ought to be exercised collectively by the entire group. If any member of the group is averse to the idea of participating in an armed conflict when the need arises, it may still shirk its duty in practice. However, the assumption is that, among a whole host of Parties, there will be at least one ready to honour its commitment. 758. A multilateral treaty of mutual assistance may require a group decision as to its activation. The treaty – and the process of arriving at such a decision – can then be frustrated by opposition on the part of one or more countries, or at least delayed by protracted debates. The question is whether a single Contracting Party in a multilateral mutual assistance treaty is permitted to act on its own, offering assistance to the victim State, without waiting for an authoritative decision on behalf of the group. The answer is that a multilateral mutual assistance treaty, in creating a collective duty of collective self-defence, does not diminish from the individual right of collective self-defence under the Charter.1631 In other words, although the duty to act is contingent on meeting all the conditions laid down in the mutual assistance treaty, every State (including a Contracting Party to the treaty) is vested by the Charter with the independent right to respond to an armed attack. This right may be exercised without waiting for an authoritative group decision in pursuit of the mutual assistance treaty, and no State is therefore compelled to wait inertly while the victim of an armed attack is gradually strangulated. 759. The template multilateral treaty of mutual aid is the 1947 Rio de Janeiro Inter-American Treaty of Reciprocal Assistance (see supra 276). The basic principle is spelt out in Article 3(1): The High Contracting Parties agree that an armed attack by any State against an American State shall be considered as an attack against all the American States and, 1630 1631

Great Britain–Poland, London Agreement of Mutual Assistance, 1939, 199 LNTS 57. See Moore, supra note 1420, at 104–5.

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consequently, each one of the said Contracting Parties undertakes to assist in meeting the attack in the exercise of the inherent right of individual or collective self-defense recognized by Article 51 of the Charter of the United Nations.1632

When an armed attack occurs, Article 3(2) permits response on two levels: (i) at the request of the attacked State, each Contracting Party may take immediate measures individually; (ii) a central Organ of Consultation of the American States may put in motion measures of a collective character.1633 The distinction between collective self-defence exercised individually (as a first stage) and collective self-defence exercised collectively (as a second stage) is plainly discernible.1634 On both levels of response, actual recourse to collective selfdefence depends on the free will of each Contracting Party. Under Article 17, resolutions of the Organ of Consultation are to be adopted by a two-thirds majority.1635 But the minority cannot be dragged into hostilities against its wishes. Article 20 clarifies that no Contracting Party is ‘required to use armed force without its consent’.1636 The obligation of mutual assistance is in effect. Yet, assistance in the only form that really counts is not automatic. B.

Military alliances

760. An acute practical problem in the field of mutual assistance is that, in the absence of prior coordination, it is immensely difficult for separate armed forces of sovereign States (with divergent command structures, military equipment, doctrine, training and usually languages) to act in unison against an aggressor, even if the political decision to resort to collective self-defence has been taken. This is why a peacetime military alliance becomes a natural extension of a mutual assistance arrangement. Such an alliance is motivated by the concept that ‘if you want peace, prepare for war (si vis pacem, para bellum)’. A treaty of alliance goes beyond an abstract commitment for mutual assistance in the event of an armed attack. Induced by the apprehension of a future armed attack, the Parties undertake to start preparing their common defence right away. 761. The hallmarks of a military alliance are the integration of the military high command, the amalgamation of staff planning, the unification of ordnance, the establishment of military bases on foreign soil, the organization of joint manoeuvres, and the exchange of intelligence data. The political decision whether or not to use force (and especially to go to war), in support of a State 1632 1633 1634 1635 1636

Rio de Janeiro Inter-American Treaty of Reciprocal Assistance, supra note 586, at 95. Ibid., 95–7. See J. L. Kunz, ‘The Inter-American Treaty of Reciprocal Assistance’, 42 AJIL 111, 120 (1948). Rio de Janeiro Inter-American Treaty of Reciprocal Assistance, supra note 586, at 101. Ibid., 103.


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subjected to an armed attack, is retained by each of the allied Governments.1637 But an integrated high command reduces considerably the freedom of action of the individual States, and the sense of solidarity is reinforced by the presence of military units belonging to other members of the alliance within the territory of a country directly threatened by an armed attack.1638 The forces of the allied nations may be so inextricably intertwined that it becomes impossible to disentangle them once hostilities begin. When armed units of Atlantica are stationed on Utopian soil, they can become hostages to fate. Should the Atlantican troops sustain severe casualties as a result of an Arcadian armed attack against Utopia, the theoretical discretionary power of Atlantica to avoid discharging its duty towards Utopia would be eliminated in practice. In this fashion, an armed attack against one allied State may sweep the entire group into the flow of hostilities, preempting any genuine opportunity for the exercise of individual choice in the matter. 762. It is not always easy to tell on the face of the text of a given document whether it is only a treaty of mutual assistance or the constituent instrument of a military alliance. Nor is the nature of the undertaking invariably determined by the language of the seminal treaty. The initial instrument may be limited to enunciating the guiding principle of mutual assistance and setting up central organs, while the details of military cooperation can be worked out in supplementary agreements or even empirically. This is the case with the 1949 North Atlantic Treaty, Article 5 of which – laying down the principle of mutual assistance in response to an armed attack1639 – is couched in terms similar to those used in Article 3(1) of the Rio Inter-American Treaty (quoted supra 759). There is no ‘automatism’ in this provision: decision-making as to actual recourse to counter-force in specific instances is left to each Contracting Party.1640 Article 3 of the North Atlantic Treaty further sets forth that the Parties ‘will maintain and develop their individual and collective capacity to resist armed attack’.1641 Article 9 provides for the creation of some central organs.1642 These innocuous clauses have brought into being the North Atlantic Treaty Organization (NATO), which has evolved over the years (particularly in the aftermath of the Korean War) into a sophisticated military alliance with a vast structure.1643 After the end of the ‘Cold War’, far from being regarded as an anachronism, NATO has enlarged its membership (most 1637 1638 1639 1640 1641 1642 1643

See Beckett, supra note 1151, at 28. See Virally, supra note 435, at 298. North Atlantic Treaty, supra note 1338, at 246. N. Schrijver, ‘Responding to International Terrorism: Moving the Frontiers of International Law for “Enduring Freedom”?’, 48 NILR 271, 282 (2001). North Atlantic Treaty, supra note 1338, at 246. Ibid., 248. See D. W. Bowett, The Law of International Institutions 180–5 (4th edn, 1982).

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recently, in 2009). NATO has even undertaken new missions exceeding the bounds of collective self-defence (see infra 894). 763. Since most States succumb to a touch of paranoia, perennially suspecting the intentions of other countries, a single State may concurrently assume assorted reciprocal commitments to support potential victims of aggression. The drawback is that the agendas and concerns of diverse associations of States do not always mesh. When small States – in an elusive quest for added security – reinsure themselves in a number of ways, a chain effect may be generated. A case in point is the trilateral Treaty of Alliance, Political Co-operation and Mutual Assistance, concluded in Bled in 1954 (at the peak of the ‘Cold War’) between Greece, Turkey and Yugoslavia.1644 The first two Parties were members of NATO, whereas the third was not. Pressures on Yugoslavia could have produced a suction process, drawing in non-Contracting Parties belonging to NATO (through the pipeline of Greece and Turkey). This is also true of a super-Power straddling several political groupings. Thus, the United States is a Contracting Party to a wide array of military alliances and mutual assistance treaties. It may well be asked whether the involvement of the United States in collective selfdefence in Europe (under the North Atlantic Treaty) may not trigger the obligations incurred by other American countries in accordance with the Rio Treaty.1645 764. On the other hand, the fact that two countries are associated in the same multilateral military alliance provides no assurance of steady, friendly bilateral relations between them. Thus, there are open fissures between Greece and Turkey because of the Cyprus issue (see infra 775), and periodically they behave in a manner that ill-behooves allies. 765. Often, military alliances and mutual assistance treaties are aligned in fact, albeit not necessarily on paper, against each other. Accordingly, opposite NATO, there stood for many years (during the ‘Cold War’) the Warsaw Pact alliance.1646 Although the machinery constructed in the Warsaw Pact was the political and military antithesis of NATO, there was no legal contradiction immanent in their coexistence. The rationale was that, under either treaty of alliance, Contracting Parties undertook to render military assistance to one another only in response to an armed attack, were it to occur (presumably on the initiative of members of the opposite group).1647 Both treaties expressly subordinated themselves to the Charter of the United Nations.1648 1644 1645 1646 1647 1648

Greece–Turkey–Yugoslavia, Bled Treaty of Alliance, Political Co-operation and Mutual Assistance, supra note 593, at 237. Cf. C. G. Fenwick, ‘The Atlantic Pact’, 43 AJIL 312, 314–16 (1949). Warsaw Treaty of Friendship, Co-operation and Mutual Assistance, 1955, 219 UNTS 3, 24. North Atlantic Treaty, supra note 1338, at 246 (Article 5); Warsaw Treaty, supra note 1646, at 28 (Article 4). North Atlantic Treaty, supra note 1338, at 246, 248 (Articles 5, 7); Warsaw Treaty, supra note 1646, at 28 (Article 4).


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766. The duty of collective self-defence, under a military alliance or a mutual assistance treaty, may be restricted to the occurrence of a specifically defined armed attack (instead of being linked to any armed attack against a Contracting Party, wherever and whenever it takes place). The condition activating the duty of a Contracting Party to lend support to the victim of aggression is called casus foederis.1649 The obligation of affording military aid may be reduced to the eventuality of an armed attack mounted by a certain State (and no other) or in a given region (and no other). For example, in 1925 two treaties were concluded in Locarno between France (on one side), Poland and Czechoslovakia (respectively, on the other), whereby the Contracting Parties undertook to assist each other in case of an attack by Germany (and none but Germany).1650 In conformity with Article 5 of the North Atlantic Treaty (see supra 604), an armed attack against one of the Contracting Parties is deemed an armed attack against all only if it takes place in Europe or North America, in contradistinction to other regions of the world.1651 767. A military alliance may rely primarily on a super-Power (like the United States within NATO) whose might constitutes the backbone of the association. An alliance may also be based on the combined strengths of many a small State. Either way, a military alliance hinges on the principle of reciprocity. A superPower (like the United States) not only spreads a nuclear umbrella over its allies, but also benefits from their contribution to the alliance, actively (through contingents of armed forces, equipment and supplies) as well as passively (permission to station troops and build military installations on their soil). C.

Treaties of guarantee

768. A completely different legal technique for ensuring military assistance to a State dreading an armed attack is the issuance of a guarantee. The term ‘guarantee’ demands an explanation. When Carpathia undertakes to carry out its part of an agreement with Apollonia, it may be said that Carpathia guarantees performance. As well, a certain territory or other property belonging to a State may be considered a guarantee. Thus, Article 428 of the 1919 Versailles Treaty of Peace set forth that the German territory situated west of the Rhine (the Rhineland) would be occupied by Allied and Associated troops, for a period of fifteen years, as a guarantee for the execution of the Treaty by Germany.1652 However, a ‘guarantee’ in the sense commanding our attention in the context of collective self-defence is of a different nature. 1649 1650 1651 1652

See Oppenheim’s, supra note 211, at 1322. France–Poland, Locarno Treaty of Mutual Guarantee, 1925, 54 LNTS 353, 355 (Article l); France–Czechoslovakia, Locarno Treaty of Mutual Guarantee, 1925, ibid., 359, 361 (Article 1). North Atlantic Treaty, supra note 1338, at 246. Versailles Treaty of Peace, supra note 226, at 1524.

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769. A guarantee for our purposes is ‘essentially a trilateral transaction’.1653 Just as Atlantica may guarantee to Utopia that Arcadia will honour a financial debt (so that Atlantica will secure payment if Arcadia defaults),1654 Atlantica may promise Utopia to respond in a certain way to prescribed conduct by Arcadia (which is not necessarily a Party to the transaction). In a genuine guarantee, Atlantica does not merely ‘endorse’ – or undertake to ‘respect’ – arrangements of a political-military character made by Utopia and Arcadia.1655 It promises to take real action, if necessary. 770. The thrust of a guarantee in the context of collective self-defence is that, should Utopia become a victim of an Arcadian armed attack, Atlantica undertakes to come to its aid. A guarantee may be given erga omnes (encompassing any potential aggressor in the world) or it may be linked to a well-defined danger faced by Utopia from a specific source (Arcadia). The guarantee is generally granted by a major Power (militarily capable of offering credible assistance) – or by a group of States – to a small country (which is in need of it) as part of a territorial arrangement, a political settlement, a regime of permanent neutrality (see supra 55), and the like. 771. Although a guarantee may be issued as a binding unilateral declaration by the guarantor, or a mandatory decision of the Security Council, it is chiefly incorporated in a treaty between the guarantor and the State benefiting from the guarantee. A treaty of guarantee is similar in form to a mutual assistance treaty (see supra 760), but the two instruments are dissimilar in substance. In a mutual assistance treaty, all the Contracting Parties are mutually obligated to come to each other’s help in the event of an armed attack. What stands in stark contrast in a treaty of guarantee is that it is unidirectional in nature. Should an armed attack occur, only the guarantor would be required to support the guaranteed State, and there is no reciprocity. A disparity in the relative positions and undertakings of the Contracting Parties is an intrinsic trait of a treaty of guarantee. 772. When added to a treaty, the epithet ‘guarantee’ is liable to be used loosely. Thus, in 1988, the United States and the USSR signed a Declaration on International Guarantees, in which they undertook to refrain from any form of interference or intervention in the internal affairs of Afghanistan and Pakistan, as well as to respect commitments contained in a bilateral agreement between the two latter countries.1656 In the bilateral agreement, Afghanistan 1653 1654 1655

1656

McNair, supra note 202, at 240. See Verzijl, supra note 72, at VI, 457. Hence, the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina, negotiated in Dayton, Ohio, and signed in Paris (35 ILM 75, 90 (1996)), does not truly qualify as a treaty of guarantee on the part of the former Yugoslavia and Croatia. Per contra, see P. Gaeta, ‘The Dayton Agreements and International Law’, 7 EJIL 147, 153 (1996). United States–USSR, Declaration on International Guarantees, 1988, 27 ILM 584, id. (1988).


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and Pakistan renounced the threat or use of force against each other in any form (such as fomenting rebellion or secessionist activities).1657 While, on the face of it, the United States and the USSR were pledged to respect conduct by other States, in reality they primarily engaged themselves: the Soviet Union to withdraw its armed forces from Afghanistan, and the United States to cease covert assistance to Afghan resistance fighters.1658 The so-called guarantee was merely a semantic device to produce interlocked treaties, which constituted component parts of a single settlement.1659 This was practically acknowledged in an Agreement on the Interrelationships for the Settlement of the Situation Relating to Afghanistan, concluded simultaneously by all four Parties (and referring to a phased withdrawal of the Soviet troops).1660 773. At times, a complex treaty is formulated embodying mixed components of guarantee and mutual assistance. A case in point is the 1925 Locarno Treaty of Mutual Guarantee between Germany, Belgium, France, Great Britain and Italy.1661 In Article 1, the Contracting Parties ‘collectively and severally’ guaranteed the German–French and the German–Belgian frontiers.1662 From the angle of France and Belgium (each being both a guarantor, as far as the other’s frontiers with Germany were concerned, and a guaranteed State), this was in effect a mutual assistance treaty. Insofar as Britain and Italy were concerned, it was an authentic treaty of guarantee. The phrase ‘mutual guarantee’, appearing in the titles of the various Locarno Treaties (see also the other accords mentioned supra 766), actually merges two separate concepts of mutual assistance and guarantee. 774. Whenever a guarantee is collective, it is debatable whether the obligation arises for each guarantor independently or is only enforceable in respect of all the guarantors together.1663 If the duty devolving on the guarantors is activated jointly or not at all, a single Party refusing to budge can effectively frustrate the guarantee. A multilateral treaty of guarantee may expressly permit action to be taken either jointly or severally (as was done in Article 1 of the Locarno Treaty), and anyhow the right of collective self-defence remains unimpaired. Nevertheless, individual action will be a right rather than a duty: no guarantor in a collective guarantee is legally compelled to act alone.1664 775. When a multilateral treaty of guarantee reserves the right of each guarantor to take the necessary measures on its own, this may ultimately 1657 1658 1659 1660 1661 1662 1663 1664

Afghanistan–Pakistan, Agreement on the Principles of Mutual Relations, in Particular on NonInterference and Non-Intervention, supra note 595, at 582. See C. Chinkin, Third Parties in International Law 47 (1993). See ibid. Agreement on the Interrelationships for the Settlement of the Situation Relating to Afghanistan, 1988, 27 ILM 587, 590 (1988). Locarno Treaty of Mutual Guarantee, supra note 449, at 289. Ibid., 293. See McNair, supra note 202, at 240–1. See J. F. Williams, ‘Sanctions under the Covenant’, 17 BYBIL 130, 135 (1936).

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prove counterproductive from the perspective of the guaranteed State. A poignant illustration is the 1960 Nicosia Treaty of Guarantee.1665 Here – in Article II – Greece, Turkey and the United Kingdom guaranteed the independence, territorial integrity and security of Cyprus, as well as the ‘state of affairs’ established by its Constitution.1666 In Article IV, each of the guarantors reserved the right to take action where necessary to reestablish the ‘state of affairs’ created by the Treaty.1667 Turkey relied on Article IV when it carried out, in 1974, an armed intervention on behalf of the Turkish minority in the island (leading to the nascence of the so-called Turkish Republic of Northern Cyprus).1668 The circumstances of the case were admittedly exceptional, bearing in mind not only the broad language of Article IV but also another agreement signed in 1960: the tripartite Nicosia Treaty of Alliance authorizing Greece and Turkey to keep military contingents in Cyprus.1669 776. All the same, to the extent that Article IV purports to enable a guarantor to use force other than in the lawful exercise of collective self-defence, it is incompatible with the United Nations Charter.1670 Pursuant to the Charter, a ‘humanitarian intervention’ on behalf of a persecuted minority can only take place at the behest of the Security Council (see supra 197, 251). 777. As a legal institution, a guarantee suffers from all the shortcomings of a mutual assistance treaty (not linked to a military alliance), for there is no certainty that actual military aid will materialize when the moment of truth arrives. In light of the guarantee’s asymmetrical nature, and the fact that it lays a burden on the guarantor without spawning any direct benefit for it (unless the treaty is exploited as a lever of intervention à la Cyprus), the chances of implementation of a guarantee in reality are perceptibly lower than those of a mutual assistance treaty.

IV.

The legal limitations of collective self-defence

A.

The primacy of the Charter of the United Nations

778. In the past, States used to conclude treaties of mutual assistance and military alliances of an offensive-defensive nature.1671 Arcadia and Patagonia 1665 1666 1668 1669 1670 1671

Nicosia Treaty of Guarantee, 1960, 382 UNTS 3. Ibid., 4. 1667 Ibid., 6. See Z. M. Necatigil, The Cyprus Question and the Turkish Position in International Law 129– 32 (2nd edn, 1993). On the juridical evolution of the Turkish enclave, see ibid., 67–8. Greece–Turkey–Cyprus, Nicosia Treaty of Alliance, 1960, 397 UNTS 287, 289, 291 (Articles III–IV and Additional Protocol I). See R. St. J. Macdonald, ‘International Law and the Conflict in Cyprus’, 19 CYIL 3, 12–17, 25–6 (1981). See Verzijl, supra note 72, at VI, 444–5.


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would undertake to render aid to one another, whenever war was waged against Utopia, regardless of the identity of the side that started the war. At the present time, an agreement projecting complicity in aggression will be in violation of the United Nations Charter. Article 103 of the Charter promulgates: In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.1672

The precise juridical consequences of Article 103 are controversial.1673 Some commentators believe that any treaty conflicting with the Charter (even if concluded with a non-Member State) is abrogated.1674 Others take the position that such a treaty is legally valid, but a Member is required to breach it and, if necessary, compensation will be paid to the non-Member Contracting Party.1675 Whatever the correct interpretation of Article 103 may be, there can be no doubt about the nullity of treaties countenancing aggression. This outcome stems from the peremptory nature of the prohibition of the use of inter-State force as jus cogens (see supra 285). 779. The general practice of States with respect to mutual assistance treaties or military alliances is to subordinate them expressly to the provisions of the United Nations Charter. The North Atlantic Treaty and the now defunct Warsaw Pact both exemplify this trend (see supra 765). Under Article 30(2) of the 1969 Vienna Convention on the Law of Treaties, ‘[w]hen a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail’.1676 Therefore, even irrespective of Article 103, the Charter must govern the exercise of collective self-defence by Contracting Parties to the North Atlantic Treaty (and formerly the Warsaw Pact). B.

The requirement of an armed attack

(a) Armed attack as a condition to collective self-defence 780. As the International Court of Justice, in the Nicaragua case, underscored: for one State to use force against another, on the ground that that State has committed a wrongful act of force against a third State, is regarded as lawful, by way of exception, only when the wrongful act provoking the response was an armed attack.1677 1672 1673

1674 1675 1676 1677

Charter of the United Nations, supra note 248, at 361. See R. St. J. Macdonald, ‘Reflections on the Charter of the United Nations’, Des Menschen Recht zwischen Freiheit und Verantwortung: Festschrift für Karl Josef Partsch 29, 37–42 (J. Jekewitz et al. eds., 1989). See H. Lauterpacht, ‘[First] Report on Law of Treaties’, [1953] II ILC Ybk 90, 157. See Fitzmaurice, supra note 614, at 43. Vienna Convention on the Law of Treaties, supra note 204, at 148. Nicaragua case (Merits), supra note 14, at 110.

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And the corollary: In the view of the Court, under international law in force today – whether customary international law or that of the United Nations system – States do not have a right of ‘collective’ armed response to acts which do not constitute an ‘armed attack’.1678

If Atlantica resorts to force against Arcadia, invoking collective self-defence, it must consequently show that an armed attack has been initiated by Arcadia against Utopia. 781. The insistence on an armed attack as a condition of collective selfdefence sounds like a truism. But even a truism may be lost sight of in intricate situations. For instance, if Utopia conducts a lawful operation of extra-territorial law enforcement against terrorists or an organized armed group ensconced within the territory of Arcadia, this is an act of self-defence in which Arcadia has to acquiesce (see supra 732). Since Utopia does not commit an armed attack against Arcadia, Pacifica cannot mount counter-force against Utopia in reliance on collective self-defence. To be regarded as a defending State, Pacifica must first demonstrate that Utopia is an aggressor State. This ties in with the principle that there is no self-defence against self-defence (see ibid. and supra 503). (b) Is a request for assistance necessary? 782. In the Nicaragua case, the Court ruled that a State may not exercise the right of collective self-defence merely ‘on the basis of its own assessment of the situation’.1679 The direct victim of an armed attack must first ‘form and declare the view’ that it has been subjected to such an attack.1680 Moreover, a request for help has to be made by the victim State: in the absence of such a request, collective self-defence by a third State is excluded.1681 In 2003, in the Oil Platforms case, the Court reiterated this requirement of a request made to the third State by the direct victim of an armed attack.1682 In the 2005 Armed Activities case, the Court noted that ‘a State may invite another State to assist it in using force in self-defence’.1683 The Institut de Droit International, in its Santiago Resolution of 2007, followed suit, stating that ‘[c]ollective self-defence may be exercised only at the request of the target State’.1684 783. In his Dissenting Opinion in the Nicaragua case, Judge Jennings doubted whether the prerequisite of ‘some sort of formal declaration and request’ by the victim State (a declaration that it is under an armed attack and 1678 1682 1683 1684

Ibid. 1679 Ibid., 104. 1680 Ibid. 1681 Ibid., 105. Case Concerning Oil Platforms, supra note 1016, at 186. Case Concerning Armed Activities on the Territory of the Congo, supra note 300, at 218. Institut de Droit International, Resolution, supra note 1178, at 234 (Article 8). This was a lastminute revision (see ibid., 226), not related to earlier texts debated at length.


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a request for assistance) is realistic in all instances.1685 Indisputably, military aid (especially the despatch of troops to the combat zone) may not be forced by Ruritania on Utopia against the latter’s will. As Judge Jennings remarked, ‘[o]bviously the notion of collective self-defence is open to abuse and it is necessary to ensure that it is not employable as a mere cover for aggression disguised as protection’.1686 However, the majority appears to have missed the kernel of collective self-defence. The Judgment referred to ‘the use of collective self-defence by the third State for the benefit of the attacked State’.1687 In fact, collective self-defence is above all the defence of self (see supra 742), and, when Ruritania responds to an armed attack by Arcadia against Utopia, it is not a ‘third State’ in the strict sense. Judge Jennings rightly commented that the Court’s way of looking at collective self-defence ‘seems to be based almost upon an idea of vicarious defence by champions’, whereas, legally speaking, Ruritania (at least in some measure) should be defending itself.1688 784. The issue has important practical dimensions. In certain situations, in the mode of the notorious Anschluss of Austria by the German Reich in March 1938, the direct victim of an armed attack (Utopia) does not resist the aggressor. In general, as already observed (supra 504), self-defence is a right and not a duty. Utopia is not obligated, therefore, to attempt to repel an invasion or any other form of an armed attack by Arcadia (unless a pledge to exercise individual self-defence is incorporated in a treaty in force, such as a permanent neutrality arrangement; see supra 55). Ruritania cannot coerce Utopia to accept help against its will (again, unless both Parties are bound by a specific treaty regulating collective self-defence, e.g., a military alliance1689). Yet, there is a palpable distinction between a case in which Ruritania proceeds to send its troops into the territory of Utopia (in order to fight there against the invading armed forces of Arcadia) and a setting in which Ruritania announces that, exercising its right of collective self-defence in response to an Arcadian armed attack (of which Utopia is the direct victim), it will use forcible measures against Arcadia outside Utopian territory. 785. In the absence of a special treaty conferring on Ruritania the right to despatch an expeditionary force to Utopia, the unsolicited arrival of Ruritanian troops on Utopian soil – notwithstanding the avowed desire of Utopia to be left alone – amounts to an invasion (no different from the previous invasion by

1685 1686 1689

Nicaragua case (Merits), supra note 14, at 544–5. Ibid., 544. 1687 Ibid., 104. 1688 Ibid., 545. The requirement of a request by the victim of an armed attack, as a condition for external assistance, is apparently not reconcilable with many existing treaties. See F. L. Morrison, ‘Legal Issues in the Nicaragua Opinion’, 81 AJIL 160, 163 (1987). Cf. D. K. Linnan, ‘SelfDefense, Necessity and U. N. Collective Security: United States and Other Views’, 1 DukeJCIL 57, 103 (1991).

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Arcadia), namely, an armed attack. Before its troops enter Utopian territory, Ruritania must await a call for help from the country that it purportedly seeks to assist (Utopia). 786. The legal position is completely different when the Ruritanian response to the Arcadian armed attack takes place outside the territorial boundaries of Utopia. In this factual situation, why should there be any need of a declaration or a request emanating from Utopia? Ruritania’s right of collective self-defence exists independently of Utopia’s right of individual self-defence. Ruritania’s right corresponds to the duty binding all States (and applicable erga omnes) to refrain from an armed attack. When Arcadia commences an armed attack (the direct victim of which is Utopia), and Ruritania perceives that its own security is jeopardized, Ruritania is entitled under Article 51 of the Charter to resort to counter-force. There is no allusion in the Article to prior approval by Utopia as a condition to the exercise of the right of collective self-defence by Ruritania (see quotation supra 498). 787. If Utopia categorically denies that it has been the target of an armed attack by Arcadia, any collective self-defence measures directed by Ruritania against Arcadia – even beyond the frontiers of Utopia – would be suspect. But this is merely one factor among many to be weighed by the Security Council when it reviews the entire series of events at a later stage (see supra 622–3). During the first phase, Ruritania must be allowed to gauge the Arcadian action by itself, irrespective of any protestations by Utopia. C.

Other conditions for the exercise of collective self-defence

788. As stressed by the International Court of Justice, in the Nicaragua case, the conditions of necessity and proportionality are applicable to collective – no less than to individual – self-defence (see supra 607).1690 This is equally true of the condition of immediacy (see supra 608). 789. Article 51 imposes on a State exercising the right of self-defence a duty of immediately reporting to the Security Council (see supra 498, 633). In establishing the reporting duty, the Article does not differentiate between individual and collective self-defence. It emerges from the Nicaragua Judgment (where the obligation was looked upon as a material rather than a technical condition; see supra 634) that each State resorting to measures of selfdefence has to submit such a report.1691 If so, it is not enough for Utopia (the direct victim) to communicate a message to the Security Council about the Arcadian armed attack and the forcible counter-measures taken in individual

1690

Nicaragua case (Merits), supra note 14, at 122–3.

1691

Ibid., 105, 121–2.


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self-defence. When Ruritania invokes the right of collective self-defence, it must file a separate report. Such a report by Ruritania is particularly called for if (as explained supra 786–7) it acts alone against Arcadia, whereas Utopia declines to exercise its right of individual self-defence. 790. In addition, Article 54 of the Charter stipulates that when activities for the maintenance of international peace and security are undertaken (or even contemplated) by regional agencies under regional arrangements (see supra 749), the Security Council must be kept fully informed.1692

V.

The modalities of collective self-defence

791. The modalities of individual self-defence (see Chapter 8) are not available in their full range to a State invoking collective self-defence. Thus, the protection of nationals abroad (when it qualifies as lawful self-defence; see supra 676) is a proper remedy only for the State directly affected. This mode of response to an armed attack is based, by definition, on a nexus of nationality. Hence, it may not be subrogated by another country in the name of collective self-defence. Otherwise, the limited right for the protection of nationals abroad (as a measure of self-defence) will spin off a general freedom of ‘humanitarian intervention’ (see supra 195 et seq.). 792. On-the-spot reaction (see supra 641), too, is not usually amenable to the exercise of the right of collective self-defence. This is due to the limited scope of the clash of arms and the fact that the incident is closed rapidly. It is conceivable that Patagonian troops, stationed on Utopian soil as a result of a military alliance, will be attacked by Arcadian armed forces and return fire (thereby closing the incident). But the exchange of fire (amounting to an armed attack and on-the-spot reaction) would represent a run-of-the-mill case of individual self-defence – exercised by Patagonia against an Arcadian armed attack – without any tincture of collective self-defence. The only extraordinary aspect of the clash is that both the Arcadian armed attack and the Patagonian response occur within the territory of a third State (Utopia) (see supra 568). On-the-spot reaction as a manifestation of collective self-defence takes place only if the Arcadian attack is directed at a Utopian patrol, yet a Numidian military unit deployed nearby (either within Utopia or in Numidia itself, assuming that these are allied and neighbouring countries) rushes immediately to the assistance of the Utopian patrol,1693 and the incident is presently closed.

1692 1693

Charter of the United Nations, supra note 248, at 348. On such a form of ‘extended’ self-defence in NATO operations, see J. F. R. Boddens Hosang, ‘Self-Defence in Military Operations: The Interaction between the Legal Bases for Military Self-Defence and Rules of Engagement’, 47 MLLWR 25, 43 (2008).

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793. There are no clear-cut precedents for extra-territorial law enforcement measures (see supra 711 et seq.) taken by Apollonia within Arcadian territory against an organized armed group or terrorists striking at Utopian targets from bases in Arcadia (without the backing of the Arcadian Government). On the one hand, since the despatch of armed forces into a foreign territory (with a view to performing the neglected functions of the local State) is an exceptional course of action, it may be argued that extra-territorial law enforcement should be left to the bilateral relations between Utopia and Arcadia. On the other hand, given the growing realization that terrorism is a global bane threatening to spread far and wide, Apollonia may be energized to take forcible action within the territory of Arcadia – against the terrorists who have attacked Utopia – when Utopia is incapable of fending for itself. 794. The position is perhaps less ambiguous when defensive armed reprisals (see supra 647) are at issue. It has been argued that these may be carried out by allied States within the framework of collective self-defence.1694 To a degree, the practice of States corroborates the argument. The United States employed armed reprisals against Nicaragua in 1984, invoking the right of collective selfdefence.1695 The International Court of Justice rejected the American claim to collective self-defence, determining that the measures taken had not come in response to an armed attack.1696 At the same time, the Court passed no judgment on the specific issue of the legality of armed reprisals, either in individual or in collective self-defence (see supra 671). 795. The archetypical case of the implementation of the right of collective self-defence is war. Multipartite recourse to war, in response to an armed attack, is the primary goal of collective self-defence treaties (see supra 751). But, regardless of treaty obligations, when Carpathia exercises in actuality the right of collective sell-defence against Arcadia – in response to an Arcadian armed attack against Utopia – it will normally do so by embarking upon war (although it may avoid using this term). In all likelihood, the Carpathian action will be in the form of a counterwar (as opposed to war in response to an isolated armed attack ‘short of war’). To reiterate what has already been noted (see supra 743), there is little prospect of Carpathia plunging into war against Arcadia when Utopia is attacked, unless what is at stake is perceived as critical to Carpathia’s own security. Ordinarily, nothing short of a full-scale invasion of Utopia will induce Carpathia to get involved in a war of collective self-defence with Arcadia, considering that Carpathia itself is not the direct victim of the Arcadian armed attack.

1694 1695

See J.-C. Venezia, ‘La Notion de Représailles en Droit International Public’, 64 RGDIP 465, 490 (1960). Nicaragua case (Merits), supra note 14, at 22. 1696 Ibid., 103–6.


VI.

299

The Gulf War and collective self-defence

796. The invasion of Kuwait by Iraq on 2 August 1990 triggered within a few hours Security Council Resolution 660 (cited supra 475), which determined the existence of ‘a breach of international peace and security’, and demanded immediate and unconditional withdrawal of the Iraqi forces. Afterwards, the Council imposed on Iraq economic sanctions (Resolution 661 cited ibid.) and even a blockade (Resolution 665 cited infra 852). When Iraq did not relent, the Council reached a crossroads. A vital decision had to be made whether to proceed to military enforcement measures by the United Nations Organization itself – in the exercise of collective security (see Chapter 10) – or to recommend, and rely on, collective self-defence. Surmounting some apparent hesitation, the Council opted for the latter path. 797. In Resolution 678 of 29 November 1990 (cited supra 476), the Security Council authorized the ‘Member States co-operating with the Government [in exile] of Kuwait’ – should Iraq not fully comply with previous Council resolutions by 15 January 1991 – ‘to use all necessary means’ in order to uphold and implement these resolutions. Although Resolution 678 did not speak in a lapidary manner about the employment of force by the countries cooperating with Kuwait, nobody could fail to grasp the purport of the authorization ‘to use all necessary means’ in order to secure full compliance with the Council’s decisions. Resolution 678 ‘has to be read against the background of the earlier resolutions on Kuwait’, taking into account that Iraq had impudently (and imprudently) disdained recourse to other means falling short of comprehensive force.1697 Indeed, in the following two decades, the phrase ‘all necessary means’ has become the common euphemism for employing force. 798. Pursuant to Resolution 678, and upon the expiry of the ultimatum, the armed forces of a large American-led Coalition struck at Iraq on the night of 16/17 January 1991. At the outset, the military operations were confined to air and missile warfare. On 24 February, a massive land offensive was launched: Kuwait was liberated (and about 15 per cent of Iraq’s territory was occupied) within 100 hours. At this point, on 28 February, President G. Bush announced the suspension of hostilities. Preliminary conditions of a cease-fire were proclaimed by the Council on 2 March, in Resolution 686.1698 Definitive cease-fire terms were dictated to Iraq only on 3 April, in Resolution 687 (cited supra 151). All these conditions and terms were reluctantly accepted by Iraq. 799. The role that the Security Council played in the first phase of the Gulf War deserves an intense scrutiny. Did the armed forces of the Coalition

1697 1698

C. Greenwood, ‘New World Order or Old? The Invasion of Kuwait and the Rule of Law’, 55 Mod.LR 153, 166 (1992). Security Council Resolution 686 (1991), 46 RDSC 8–9 (1991).

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constitute a United Nations force predicated on genuine collective security (see Chapter 10)? The answer is emphatically negative. At no time did the Council establish a United Nations force for combat purposes against Iraq.1699 All that happened was that the Council determined conclusively (in Resolution 660) that there had been an Iraqi invasion – i.e. an armed attack – against Kuwait, and then (primarily in Resolution 678) authorized recourse to force against Iraq by the Coalition cooperating with Kuwait. The use of force by the Coalition against Iraq was approved by the Council within the purview of collective self-defence (Article 51), as opposed to collective security.1700 800. Resolution 678 has animated spirited comments in the legal literature. One can put aside extravagant (and incongruous) allegations that the resolution ‘was contrary to the United Nations Charter’.1701 Closer attention must be paid to the assertion that ‘[t]he use of force to liberate Kuwait . . . involved not selfdefense but, rather, the interpretation and application of a Security Council resolution’.1702 Yet, an interpretation of a Council’s resolution and collective self-defence, far from being mutually exclusive, are interlinked in this instance. In the words of N. Rostow, ‘[A]rticle 51 rights can be exercised in the context of Security Council approval’.1703 801. A specific affirmation of ‘the inherent right of individual or collective self-defence, in response to the armed attack by Iraq against Kuwait, in accordance with Article 51 of the Charter’, was incorporated already in Resolution 661 (cited supra 475). At the time, this reference to Article 51 puzzled some commentators.1704 Later events proved that it was not accidental.1705 Resolution 678 denotes that, while the Security Council abstained from deploying a veritable United Nations force as an instrument of collective security, it gave its blessing in advance to the voluntary exercise of collective self-defence by the members of the Coalition (following an interval of several weeks designed for the exhaustion of the political process). The core of the resolution was the approval of prospective action in self-defence.1706 In an ordinary constellation of events, States first employ force in individual or collective 1699

1700 1701 1702 1703 1704 1705 1706

See K. Boustany, ‘La Guerre du Golfe et le Système d’Intervention Armée de l’ONU’, 28 CYIL 379, 391–2 (1990). It may be added that, following the cease-fire, the United Nations IraqKuwait Observation Mission (UNIKOM) – a non-combat force – was established to monitor a demilitarized zone. See infra 882. See Schachter, supra note 1401, at 459–60. Y. Le Bouthillier and M. Morin, ‘Réflexions sur la Validité des Opérations Entreprises contre l’Iraq en regard de la Charte des Nations Unies et du Droit Canadien’, 29 CYIL 142, 220 (1991). B. M. Carnahan, ‘Protecting Nuclear Facilities from Military Attack: Prospects after the Gulf War’, 86 AJIL 524, 527 (1992). N. Rostow, ‘The International Use of Force after the Cold War’, 32 Har.ILJ 411, 420 (1991). See, e.g., L. C. Green, ‘Iraq, the U. N. and the Law’, 29 Alta.LR 560, 565–6 (1991). Even the phrase ‘Member States co-operating with the Government of Kuwait’ suggests that these are ‘nations engaged in collective [self-]defense with Kuwait’ (Moore, supra note 272, at 151). See A. Pyrich, ‘United Nations: Authorizations of Use of Force’, 32 Har.ILJ 265, 268 (1991).


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self-defence and only then report to the Council about the measures that they have taken, so that the Council investigates the nature of the hostilities retrospectively. As mentioned (supra 637), this is the chronological sequence envisaged by the framers of the Charter. In the particular case of Iraq, the Coalition sought and obtained from the Council a green light for the exercise of collective self-defence against the perpetrator of an armed attack (Iraq) well before the projected military clash. Thereafter, the Coalition did not have to worry about what the Council might do, inasmuch as its reaction had predated their action (actual combat). 802. The principal beneficiaries of the collective self-defence orientation of the operations against Iraq were the Americans, who led the Coalition. They, rather than the United Nations, were in command. Consequently, theirs – and almost theirs alone – was the decision when and in what form to strike subsequent to 15 January 1991; at what juncture (if at all) to mount a ground offensive; and under what circumstances to halt the advance. It is useful to recall that, as a Permanent Member of the Security Council, the United States could also veto any posterior resolution that might have obstructed the military moves of the Coalition. 803. Considering that the military operations of the Coalition in 1991 were a manifestation of collective self-defence – rather than collective security – there was technically no need for the specific mandate of Resolution 678 to legally validate the launching of the strikes against Iraq.1707 Article 51 per se ought to have sufficed in authorizing the Coalition to resort to force in response to the Iraqi armed attack, and arguably Resolution 678 only tied the hands of the countries cooperating with Kuwait in that they had to hold their fire until 15 January.1708 Of course, in political and psychological terms, Resolution 678 had an incalculable effect: internationally (cementing the solidarity of the Coalition and swelling its ranks) as well as domestically (mobilizing public opinion to political support of the action against Iraq). 804. There is a resemblance between the Gulf War and the Korean War, although they are four decades apart temporally and light years apart psychologically. In both instances, the Security Council determined the existence of a breach of the peace, yet refrained from taking legally binding decisions activating genuine collective security. In both cases, an international Coalition led by the United States came to the aid of the victim of an armed attack, heeding the Council’s recommendation.1709 Still, there are some unmistakable 1707 1708 1709

See Greenwood, supra note 1697, at 163. Cf. D. R. Penna, ‘The Right to Self-Defense in the Post-Cold War Era: The Role of the United Nations’, 20 Den.JILP 41, 49–50 (1991–2). See C. Dominicé, ‘La Sécurité Collective et la Crise du Golfe’, 2 EJIL 85, 104 (1991). The difference between authorization and recommendation (stressed by J. Frowein and N. Krisch, ‘Article 42’, I The Charter of the United Nations: A Commentary, supra note 485, at 749, 756–758) is more verbal than real. See infra 887.

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dissimilarities.1710 First, whereas in Korea an American forcible riposte to the invasion of South Korea was instantaneous, in the Gulf – since Kuwait had been completely overrun by the Iraqi forces – there was a long lull between the original armed attack and the Coalition’s counteraction. Second, in contrast to the near-unanimity that characterized relations between the Permanent Members during the Gulf War,1711 the resolutions in the Korean War (adopted in the heyday of the ‘Cold War’) were made possible only by a fortuitous – albeit fleeting – Soviet boycott of the Council’s sessions.1712 Third, and conversely, in Korea the military contingents confronting the aggressor were allowed to fly the United Nations flag (see supra 443), whereas the Coalition that came to the rescue of Kuwait had no similar privilege. But here as there the command was American and the financing of the operation formed no part of the United Nations budget. Legally speaking, in both wars the American-led expeditionary force fought in exercise of collective self-defence (approved by the Council) as distinct from collective security. 805. The reopening of full-scale hostilities against Iraq in 2003, in the final phase of the Gulf War (see infra 859 et seq.), represented a renewal of the exercise of the right of collective self-defence after twelve years of (occasionally interrupted) cease-fire. A cease-fire, as an instrument which merely suspends hostilities without terminating the war (see supra 156), does not extinguish the right of collective self-defence that remains legally intact for the duration of the war (see supra 170, 387).1713 Moreover, the criteria for the lawful exercise of this right remain anchored to the circumstances of the outbreak of the war (in this case, in 1990). The disintegration of a cease-fire by dint of its violation by one Belligerent Party – and the forcible response of the adversary – is not to be confused with the initiation of a new armed attack or a new war (see supra 690–1).

1710 1711 1712 1713

See S. M. De Luca, ‘The Gulf Crisis and Collective Security under the United Nations Charter’, 3 PYIL 267, 295–6 (1991). China alone abstained in the vote on Resolution 678 (1990). It voted in favour of all the preceding resolutions against Iraq. See Bailey and Daws, supra note 1407, at 57. See A. E. Wall, ‘The Legal Case for Invading Iraq and Toppling Hussein’, 32 IYHR 165, 188 (2002).

10

Collective security

I.

The meaning of collective security

A.

Definition

806. Collective security postulates the institutionalization of the lawful use of force in the international community.1714 What is required is a multilateral treaty, whereby Contracting Parties create an international agency vested with the power to employ force against aggressors (and perhaps other law-breakers). Such an instrument is basically ‘introverted’ in character (designed against a potential future aggressor from among the Contracting Parties), unlike a collective self-defence treaty (see supra 751) which is ‘extroverted’ (envisaging aggression from outside the system).1715 Collective security shares with collective self-defence the fundamental premise that recourse to force against aggression can (and perhaps must) be made by those who are not the immediate victims. But self-defence, either individual or collective, is exercised at the discretion of a single State acting unilaterally or a group of States. Collective security operates on the strength of an authoritative decision made by a central organ of the international community. B.

The Covenant of the League of Nations

807. The system of collective security has its roots in the League of Nations. Article 10 of the League’s Covenant (cited supra 220) empowered the Council to advise Member States on the means to be taken in case of aggression or threat of aggression. Article 11 (cited supra 221) declared that any war or threat of war, whether or not immediately affecting any Member, was a matter of concern to the whole League, which had to take action as required to safeguard peace among nations. Article 16 stipulated that, if any Member resorted to war in violation of its obligations under Articles 12, 13 or 15 of the Covenant (see 1714 1715

See Schwarzenberger and Brown, supra note 50, at 153. H. Rumpf, ‘The Concepts of Peace and War in International Law’, 27 GYIL 429, 440 (1984).

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supra 221–3), it was ipso facto deemed to have committed an act of war against all other Members.1716 All trade or financial relations with the transgressor, including commerce between nationals, had to be severed. The Article went on to instruct the Council to recommend to the Governments concerned what effective military, naval or air contribution they should make to the armed forces which were to be used for the protection of the Covenant’s obligations. Expulsion of a Member from the League for violation of any of the Covenant’s obligations was also authorized. Accordingly, in December 1939, the Council decided to expel the Soviet Union from the League because of its attack on Finland.1717 Article 17 (cited supra 224) applied the provisions of Article 16 in the event that a non-Member State embarked upon war against a Member. 808. Article 16 of the Covenant drew a line of distinction between economic sanctions and military action. Member States were duty-bound to apply commercial and financial measures against an aggressor, but – insofar as military action was concerned – the League’s Council was only entitled to make (non-binding) recommendations.1718 Economic sanctions (partial, temporary and ineffective in nature) were indeed imposed on Italy, instigated by the latter’s aggression against Ethiopia in 1935–6.1719 Yet, even mandatory economic sanctions are not likely to stop war by themselves. As long as an international organization cannot obligate Member States to impose military sanctions against an armed attack, one cannot speak of a veritable collective security system. C.

The Charter of the United Nations

809. The main objective of the framers of the Charter of the United Nations was to introduce into international relations a genuine mechanism of collective security. The United Nations organ entrusted with the task of activating and supervising the mechanism is the Security Council. In Article 24(1), Member States ‘confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf’.1720 In exercising its ‘primary responsibility’, the Council is empowered by Article 24(1) to take ‘prompt and effective’ action where and when this is deemed necessary.Thus, responsibility is associated with power.1721 1716 1717 1718 1719 1720 1721

Covenant of the League of Nations, supra note 173, at 11. See B. Broms, The United Nations 9 (1990). But see L. Gross, ‘Was the Soviet Union Expelled from the League of Nations?’, 39 AJIL 35–44 (1945). See Williams, supra note 454, at 156–7. See J. H. Spencer, ‘The Italian-Ethiopian Dispute and the League of Nations’, 31 AJIL 614, 624–41 (1937). Charter of the United Nations, supra note 248, at 339. See Goodrich, Hambro and Simons, supra note 309, at 203.

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810. The Charter’s collective security system is constructed in Chapter VII (Articles 39–51).1722 Article 39, opening Chapter VII, reads: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.1723

The core of Article 39 is the triple phrase ‘threat to the peace, breach of the peace, or act of aggression’. 811. The inter-relationship between the different components of this linguistic triad is not entirely clear. From the wording of Article 1(1) of the Charter quoted supra 242 (‘acts of aggression or other breaches of the peace’) it follows that aggression is linked to breach of the peace, rather than to threat to the peace. There is a view that the order of the three terms in Article 39 is progressive, and thus aggression is the most egregious act.1724 But, if so, it is not easy to explain the difference in the French (equally authentic) text between ‘agression’ in Article 39 and ‘agression armée’ in Article 51 (see supra 520). Despite occasional doctrinal attempts to demarcate an unblurred line between the categories of a breach of the peace and aggression,1725 the practice of the Security Council does not provide any signposts for distinguishing between the two expressions. As already suggested (supra 364), since the powers conferred on the Council by Article 39 are identical – regardless of whether they are triggered by aggression, breach of the peace or threat to the peace – it is of little weight, in pragmatic terms, whether one stamp or the other is affixed to the action that the Council opts to take. No matter what the exact classification of activities examined by the Council is – as long as they are categorized as either an act of aggression, a breach of the peace or a threat to the peace – the Council is authorized to set in motion exactly the same measures. 812. The last words used in Article 39 (supra 810) put in a nutshell the Security Council’s mandate: it is to maintain or restore international peace and security.1726 The notion of maintaining international peace and security has a preemptive thrust. The purpose is to ensure, before it is too late, that no breach of the peace will in fact occur. Measures taken by the Council to forestall a breach of the peace have deterrence and prevention as their goals. Once a breach of international peace and security occurs (notwithstanding any prophylactic 1722 1723 1725 1726

Charter of the United Nations, supra note 248, at 343–6. Of course, the last clause in Chapter VII (Article 51) deals with self-defence, rather than collective security. Ibid., 343. 1724 See Kolb, supra note 1360, at 90. See P. D’Argent, J. d’Aspremont Lynden, F. Dopagne and R. van Steenberghe, ‘Article 39’, I La Charte des Nations Unies, supra note 507, at 1131, 1150–1. On the meaning of the term ‘security’, as used in Article 39 in combination with ‘international peace’, see H. Vetschera, ‘International Law and International Security: The Case of Force Control’, 24 GYIL 144, 145–6 (1981).

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measures that may have been taken), the situation metamorphoses: at this point, the Council’s mission is to restore the peace. It has to take steps calculated to reestablish international law and order. 813. The Charter endows the Security Council with a whole array of powers, enabling it to maintain or restore international peace and security. The fulcrum of Article 39 is a determination by the Council as regards the existence of a threat to the peace, a breach of the peace or an act of aggression. Once that determination has been made, ‘the door is automatically opened to enforcement measures of a non-military or military kind’.1727 The determination as such is binding on Member States, even if the Council subsequently proceeds to adopt a mere recommendation for action (as distinct from a binding decision). 814. Naturally, recommendations – even when issued by the Security Council – are not binding,1728 and they can only urge Member States to action. Recommendations can address the country held responsible for a threat to the peace, a breach of the peace or an act of aggression. They can also be directed at other States, calling upon them to take certain action with a view to maintaining or restoring international peace and security. Either way, Member States can make up their own minds whether to abide by or ignore non-compulsory calls for action issued by the Council. But it must be borne in mind that (i) if a recommendation is overlooked, the Council may be impelled to adopt a binding decision; (ii) if Member States choose to heed a Council’s recommendation authorizing them to take measures predicated on a binding determination concerning the existence of a threat to the peace etc., these measures must be considered lawful notwithstanding their permissive character (see infra 838). In other words, acts that otherwise (if carried out unilaterally) would have been unlawful become lawful. 815. Interestingly, the Council has more leeway under Article 39 when it resorts to recommendations. As the punctuation of the text (quoted supra 810) clearly indicates, the reference to Articles 41 and 42 appears in conjunction with decisions rather than recommendations. The upshot is that, when the Council is making mere recommendations under Article 39, it is not restricted to the compass of Articles 41 and 42: ‘[t]he Council may adopt every measure it deems appropriate for the restoration of international peace and security’.1729 816. Article 41 of the Charter prescribes: The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the 1727 1728 1729

I. Osterdahl, Threat to the Peace: The Interpretation by the Security Council of Article 39 of the UN Charter 28 (1998). See G. Schwarzenberger, International Constitutional Law (III International Law as Applied by International Courts and Tribunals) 204–5 (1976). A. Orakhelashvili, ‘The Legal Basis of the United Nations Peace-Keeping Operations’, 43 Vir. JIL 485, 492–3 (2002–3).

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United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.1730

The list of measures enumerated in Article 41 is not exhaustive, but none of the steps taken under this provision of the Charter involves the use of force.1731 817. Article 50 of the Charter adds that, if a State (whether or not a United Nations Member) is confronted with special economic problems arising from the carrying out by the Security Council of preventive or enforcement measures against another State, it may consult the Council as regards the solution of these problems.1732 The text is devised to cope with the plight of a country that – owing to geographic proximity to, or special trade with, the State against which steps are taken – suffers unduly from the imposition of the economic sanctions, and requires special assistance.1733 A telling example is that of the Kingdom of Jordan in the first phase of the Gulf War. This country was exceptionally affected by the economic sanctions imposed on Iraq, and it invoked Article 50 in September 1990.1734 In response to Jordanian and other1735 requests for special assistance, the Security Council adopted Resolution 669, which established a procedure examining requests under Article 50 with a view to appropriate action.1736 In the event, Jordan chose the course of continuing to trade with Iraq in breach of Resolution 661 (cited supra 475).1737 A few years later, the Council had to deal with a stream of additional Article 50 applications in the context of the sanctions regime against the former Yugoslavia.1738 818. Conceptually, Article 41 of the Charter may be viewed as an outgrowth of the Covenant of the League of Nations (see supra 807–8). However, the framers of the Charter were not content with non-forcible sanctions. A farreaching leap forward was made in Article 42: Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace or security. Such 1730 1731 1732 1733 1734 1735

1736 1737 1738

Charter of the United Nations, supra note 248, at 343. See Broms, supra note 1717, at 313. Charter of the United Nations, supra note 248, at 346. See Goodrich, Hambro and Simons, supra note 309, at 341. See V. P. Nanda, ‘The Iraqi Invasion of Kuwait: The U.N. Response’, 15 So.IULJ 431, 443 (1990–1). Ultimately, no less than twenty other States from all over the world applied for assistance under Article 50. See P. Conlon, ‘Lessons from Iraq: The Functions of the Iraq Sanctions Committee as a Source of Sanctions Implementation Authority and Practice’, 35 Vir.JIL 633, 654 n. 94 (1994–5). Security Council Resolution 669 (1990), 45 RDSC 24, id. (1990). United States Department of Defense Report to Congress on the Conduct of the Persian Gulf War, 1992, 31 ILM 612, 638–9 (1992). See J. Carver and J. Hulsmann, ‘The Role of Article 50 of the UN Charter in the Search for International Peace and Security’, 49 ICLQ 528, 560–9 (2000).

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action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.1739

In brief, under Article 42, the Council may exert force: either on a limited or on a comprehensive scale. 819. Article 40 of the Charter warrants recourse by the Security Council to provisional measures, without prejudice to the positions of the Parties, before final decisions or recommendations are adopted.1740 The original object of this clause was to ensure that a threat to the peace does not become an actual breach.1741 In the practice of the Council, Article 40 is chiefly utilized – after hostilities have broken out – to bring about a cease-fire (see supra 154), to mandate a withdrawal of troops from a disputed area, etc.1742 D.

The broad powers of the Security Council

(a) The general discretion of the Security Council 820. The scope of the discretion granted to the Security Council, in discharging its duties within the ambit of the Charter of the United Nations, is exceedingly wide. A comparison between Article 39 and Article 51 of the Charter highlights the Council’s freedom of action. As per Article 51 (quoted supra 498), individual or collective self-defence is allowed only in response to an armed attack. Conversely, in keeping with Article 39 (quoted supra 810), collective security can be brought into action whenever the Security Council determines that there exists a threat to the peace, a breach of the peace or an act of aggression. An unequivocal bifurcation ensues in respect of lawful use of inter-State force consonant with the Charter. On the one hand, every State or group of States is entitled to resort unilaterally to force in international relations, although only in the exceptional circumstances of self-defence in response to an armed attack and subject to ultimate review by the Council (see Chapters 7–9). On the other hand, the Council is empowered to employ force in the name of collective security, and the degree of latitude bestowed upon it by the Charter is well-nigh unlimited. The Council may wield force to counter any type of breach of the peace or aggression, not necessarily amounting to an armed attack,1743 and it may even respond to a mere threat to the peace. 1739 1741 1742 1743

Charter of the United Nations, supra note 248, at 343–4. 1740 Ibid., 343. See Goodrich, Hambro and Simons, supra note 309, at 303–4. See J. A. Frowein and N. Krisch, ‘Article 40’, I The Charter of the United Nations: A Commentary, supra note 485, at 729, 733. It has been argued, in the context of the consensus Definition of Aggression, that ‘it would presumably be absurd to suggest that any act that (according to the definition) the Security Council might properly find to qualify as an “aggression” might not give rise at least to the right of self-defense’. Hargrove, supra note 1198, at 139 n. 15. But there is no absurdity in an act of aggression failing to qualify as an armed attack.

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821. Some scholars are inclined to concoct all sorts of supposedly mandatory criteria which are intended to limit the broad-spectrum discretion of the Security Council when acting under Article 39.1744 Thus, it has been suggested that the conditions of necessity and proportionality – which (together with immediacy) underlie the exercise of the right of self-defence (see supra 607–8) – ought to apply as well to enforcement action taken by the Council.1745 Somehow, the suggestion de lege ferenda has segued into a claim that these criteria actually determine de lege lata the discharge of the Council’s powers under Chapter VII.1746 But the conflation of unilateral self-defence and collective security has no leg to stand on, either in theory or in practice. 822. Since the Charter seems to give the Security Council a carte blanche in exercising its authority in pursuit of collective security, the Council is not just free to decide whether and how to use force, but it is at liberty to determine when to do so and against whom. Patently (see supra 812), the Council may initiate a preventive war in anticipation of a future breach of the peace – figuring only as a threat to the peace at the time of action – a privilege that the Charter withholds from any individual State or group of States acting alone (see supra 529). The Council’s entitlement to act preventively is derived not only from Chapter VII of the Charter but also from Article 1(1) (quoted supra 242) , which – in listing the Purposes of the United Nations – refers explicitly to the taking of ‘effective collective measures for the prevention and removal of threats to the peace’. The word ‘effective’ – missing from Article 39, although appearing in Article 24(1) (see supra 811) – is emphasized by commentators.1747 (b)

Threat to the peace

(i) The elasticity of the expression 823. Nowhere is the Security Council under less strictures than in its determination that a threat to the peace exists. A ‘threat to the peace’ (adverted to in Article 39 quoted supra 810) is not to be confused with a ‘threat . . . of force’, mentioned in Article 2(4) (quoted supra 233).1748 Evidently, a threat of force by one State against another may be reckoned by the Council to constitute a threat to the peace. But the expression ‘threat to the peace’ is elastic enough to stretch

1744 1745 1746 1747 1748

See, e.g., A. Orakhelashvili, ‘The Power of the UN Security Council to Determine the Existence of a Threat to the Peace’, 1 Ir.YIL 61, 74–5 (2006). See J. G. Gardam, ‘Legal Restraints on Security Council Military Enforcement Action’, 17 Mich.JIL 285, 305–12 (1995–6). See W. Weiss, ‘Security Council Powers and the Exigencies of Justice after War’, 12 MPYUNL 45, 91 (2008). See A. Randelzhofer, ‘Purposes and Principles of the United Nations’, II United Nations: Law, Policies and Practice 994, 998 (R. Wolfrum ed., 1995). See Kelsen, supra note 564, at 727.

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away from a contemplated use of force and beyond inter-State relations.1749 In the practice of the Council, the concept encapsulated in this expression ‘is gradually being redefined experientially and situationally’.1750 A determination of a threat to the peace is no longer contingent on any (past, present or future) use of force. Nor is it linked even to any breach of international law.1751 Au fond, ‘it is completely within the discretion of the Security Council to decide what constitutes a “threat to the peace”’.1752 It has been asserted incorrectly that the Council ‘is obliged to act on real and imminent threats’.1753 But, in fact, the Council is free to deal with ‘remote threats’:1754 it can go as far ‘upstream’ as it desires in identifying a threat to the peace. Indeed, a threat to the peace is not necessarily a state of facts: it can be merely a state of mind; and the mind that counts is that of the Council. It may opt to stigmatize as a threat to the peace a situation that does not appear to anyone else as disturbing the equilibrium of international security. In other words, ‘a threat to the peace in the sense of Article 39 seems to be whatever the Security Council says is a threat to the peace’.1755 824. There is no denying that some scholars adhere to the view that the discretion of the Council to determine the existence of a threat to the peace is not unlimited.1756 Moreover, in the Tadić case of 1995, the Appeals Chamber of the ICTYopined that ‘the determination that there exists such a threat is not a totally unfettered discretion, as it has to remain, at the very least, within the limits of the Purposes and Principles of the Charter’.1757 This dictum is not particularly helpful. One can, of course, disagree on the facts with a Council determination of the existence of a threat to the peace. Yet, it is virtually impossible to conjure up circumstances in which that determination per se can be regarded as invalid on the ground of a head-on collision with the Purposes and Principles of the Charter. Even those wishing to limit the Council’s wide discretion usually concede that the Purposes and Principles of the Charter can play a restrictive role only as regards concrete measures taken by the Council subsequent to such a determination.1758 825. It is important to remember that the Security Council is a political and not a judicial organ (see supra 629). It is composed of Member States, and its 1749 1750 1752 1753 1754 1755 1757 1758

See B. Conforti and C. Focarelli, The Law and Practice of the United Nations 216–17 (4th edn, 2010). See Franck, supra note 555, at 44. 1751 See Kolb, supra note 1360, at 97. See Kelsen, supra note 564, at 727. See E. López-Jacoiste, ‘The UN Collective Security System and Its Relationship with Economic Sanctions and Human Rights’, 14 MPYUNL 273, 280–1 (2010). A. Garwood-Gowers, ‘Pre-Emptive Self-Defence: A Necessary Development or the Road to International Anarchy?’, 23 AYBIL 51, 63 (2004). Akehurst’s, supra note 1355, at 426. 1756 See de Wet, supra note 1028, at 134–44. Prosecutor v. Tadić (Jurisdiction) (ICTY, Appeals Chamber, 1995), 35 ILM 35, 43 (1996). See de Wet, supra note 1028, at 191–215.

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decisions are (and have every right to be) linked to political motivations that are not necessarily congruent with legal considerations. As a non-judicial body, the Council is not required to set out reasons for its decisions.1759 Still, a determination by the Council that a threat to the peace exists is conclusive. All Member States must accept the Council’s verdict, despite any misgivings that they may entertain concerning the merits of the case. 826. Just as the Security Council may take action against a threat to the peace that is imperceptible to the public eye, it may equally decline to acknowledge the existence of a manifest threat to the peace. Indeed, by the time that the Council formally discerns a threat to the peace, the state of affairs may have deteriorated past the mark of mere threats. This is what happened in May 2000, when – following a resumption of hostilities that had been raging between Eritrea and Ethiopia – the Council, in Resolution 1298, formally determined that the situation constituted ‘a threat to regional peace and security’.1760 By the same token, in mid-July 1948, two months after an inter-State war had been in progress in the area, the Council determined that the situation in Palestine constituted ‘a threat to the peace within the meaning of Article 39’.1761 Factually, the resolution seemed unsynchronized with what was happening in the conflict region.1762 Legally, the Council was fully competent to make the specific determination as and when it deemed appropriate. 827. Once the Security Council has determined that a threat to the peace exists, that determination remains valid irrespective of the passage of time or even radical changes in the prevailing circumstances: the threat to the peace continues to exist until the Council expressly decides otherwise.1763 (ii) Threat to the peace, international terrorism and self-defence 828. In Resolution 1368 (cited supra 604), the Security Council unequivocally condemned the horrifying terrorist attacks of the previous day (9/11). In Resolution 1373 (cited ibid.), the Council reaffirmed that ‘such acts, like any act of international terrorism, constitute a threat to international peace and security’. Resolution 1377, adopted by a special meeting of the Council on a Ministerial level in November, declared that ‘acts of international terrorism 1759 1760

1761 1762 1763

See J. E. S. Fawcett, ‘Security Council Resolutions on Rhodesia’, 41 BYBIL 103, 116–17 (1965–6). Security Council Resolution 1298 (2000), 55 RDSC 146, 147 (2000). This Resolution cited Chapter VII of the Charter. Already in February 1999, the Council – without citing Chapter VII – ‘stressed’ (but did not formally determine) that the situation constituted ‘a threat to peace and security’. Security Council Resolution 1227 (1999), 54 RDSC 65, 66 (1999). Security Council Resolution 54 (1948), supra note 293, at 22. For the ‘discrepancy between the nature of events in Palestine and the response of the Security Council’, see I. S. Pogany, The Security Council and the Arab-Israeli Conflict 27–44 (1984). See K. Wellens, ‘The UN Security Council and New Threats to the Peace: Back to the Future’, 8 JCSL 15, 27 (2003).

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constitute one of the most serious threats to international peace and security in the twenty-first century’.1764 This general proposition has subsequently been reiterated in the context of various terrorist attacks, for instance, in Bali (Resolution 1438 (2002)).1765 829. Resolutions 1368 and 1373 also recognized the right of self-defence, which presupposes an armed attack (see supra 512). Obviously, a threat to the peace is a much broader concept than an armed attack, inasmuch as the former is not conditioned on any actual use of force. Yet, it must be perceived that ‘the categories of threat to the peace and armed attack are not mutually exclusive’.1766 When the same situation can be classified both as an armed attack and as a threat to the peace, the difference between the two types of activities relates to the consequences ensuing therefrom. Whereas any State or group of States can unilaterally respond to an armed attack by invoking the right of individual or collective self-defence, only the Security Council can put in motion measures of collective security that (in the Council’s judgment) are called for in the face of a threat to the peace. 830. These two disparate lines of response may be followed simultaneously. Thus, irrespective of measures of self-defence exercised by the United States (and its allies) in response to the armed attack of 9/11 (see supra 692), the Security Council – in Resolution 1373 – decided in a binding fashion on a series of steps that States must take to prevent the financing of terrorist acts, suppress recruitment to terrorist groups, eliminate supply of weapons to terrorists, etc. The Council was fully aware of the fact that all the latter measures, ‘useful as they might be’, would not suffice ‘to deal decisively with the threat to international peace and security posed by Al-Qaeda and its Taliban defenders’.1767 Only the use of counter-force, in the exercise of individual and collective selfdefence, could root out Al-Qaeda from Afghanistan. After the fall of Kabul, in Resolution 1386 (2001), the Council authorized the establishment of an International Security Assistance Force (ISAF) to assist in the maintenance of security, and the Member States participating in the Force were explicitly authorized ‘to take all necessary measures to fulfil its mandate’.1768 ISAF, since 2003 led by NATO, has ‘evolved from a peace-keeping force to one clearly involved in enforcing the peace against rejuvenated Taliban and Al Qaeda forces’.1769

1764 1765 1766 1767 1768 1769

Security Council Resolution 1377 (2001), [2001–2] RDSC 294, id. Security Council Resolution 1438 (2002), [2002–3] RDSC 69, id. Greenwood, supra note 15, at 307. T. M. Franck, ‘Terrorism and the Right of Self-Defense’, 95 AJIL 839, 841 (2001). Security Council Resolution 1386 (2001), [2001–2] RDSC 272, 273. J. F. Murphy, ‘Afghanistan: Hard Choices and the Future of International Law’, 85 ILS 79, 92 (M. N. Schmitt ed., 2009).

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831. The Security Council is free to deem any collective security measures that it has decided to take in a given situation as adequate under the circumstances. In that case, it can always insist (in a binding decision) on the cessation of hostilities carried out by States in self-defence. But, as long as no binding cease-fire resolution is adopted by the Council, the two sets of counter-measures (self-defence and collective security) may proceed independently of each other (see also supra 632). (iii) Threat to the peace in domestic situations 832. A threat to the peace is not necessarily linked to the use of inter-State force (see supra 823). The Security Council may deem a non-international armed conflict (see supra 8) a threat to the peace, and it ‘is free to take measures against any entity which it considers to be an obstructive factor in the restoration of peace’.1770 Thus, in Resolution 1127 (1997), the Council – having determined that the situation in Angola constituted ‘a threat to international peace and security in the region’, and acting under Chapter VII – imposed sanctions on UNITA (Union for the Total Independence of Angola), a non-State entity.1771 Indeed, the Council has since shown that it is prepared to consider any domestic humanitarian crisis (caused by internal strife) as a threat to international peace and security.1772 Of late, the Council – which, as noted (supra 828), regards ‘any act of international terrorism’ as a threat to the peace – increasingly concerns itself with acts of domestic terrorism as potential threats to international peace.1773 833. A threat to the peace may be determined by the Security Council even in the face of mere violations of human rights not entailing the use of force.1774 It is a debatable – but moot – point whether the Council is acting in that fashion because it is animated by concern about trans-boundary spill-over effects on neighbouring countries, for instance through the flow of refugees.1775 The incontrovertible fact is that the Council is sometimes willing to determine the existence of a threat to the peace, and take action accordingly, when confronted with domestic events that do not cause bloodshed. 834. The paradigmatic case is the overthrow by a military junta of the Government of Haiti in 1993. In Resolution 841 (1993) the Security Council 1770 1771 1772 1773

1774 1775

P. H. Kooijmans, ‘The Security Council and Non-State Entities as Parties to Conflicts’, International Law: Theory and Practice, supra note 685, at 333, 339. Security Council Resolution 1127 (1997), 52 RDSC 50, 50–1 (1997). See F. L. Kirgis, Jr., ‘The Security Council’s First Fifty Years’, 89 AJIL 506, 513–14 (1995). See V. Santori, ‘The UN Security Council’s (Broad) Interpretation of the Notion of the Threat to Peace in Counter-Terrorism’, International Cooperation in Counter-Terrorism: The United Nations and Regional Organizations in the Fight against Terrorism 89, 97 (G. Nesi ed., 2005). T. D. Gill, ‘Legal and Some Political Limitations on the Power of the UN Security Council to Exercise Its Enforcement Powers under Chapter VII of the Charter’, 26 NYIL 33, 42–3 (1995). See M. Toufayan, ‘Deployment of Troops to Prevent Impending Genocide: A Contemporary Assessment of the UN Security Council’s Powers’, 40 CYIL 195, 229–41 (2002).

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determined that, in these ‘unique and exceptional circumstances’, the continuation of the situation ‘threatens international peace and security in the region’.1776 In Resolution 940 (1994), the Council authorized Member States to form a multinational force under unified command and control, using ‘all necessary means’ to bring about the removal of the military junta and the restoration of the constitutional Government in Haiti.1777 A multinational force, led by the United States, soon accomplished this task without resistance.1778 The resolution was ‘unprecedented in authorizing force to remove one regime and install another (however democratically elected) within a Member State’.1779 It is noteworthy that Article 2(7) of the Charter, in precluding intervention by the United Nations ‘in matters which are essentially within the domestic jurisdiction of any state’, expressly adds a reservation that ‘this principle shall not prejudice the application of enforcement measures under Chapter VII’.1780 Thus, the broad powers conferred on the Council in the province of collective security override, where necessary, the sovereignty of any Member of the United Nations. II.

The decision-making process

A.

The duties incumbent on United Nations Member States

835. It is the function of the Security Council, in conformity with Article 39 of the Charter (quoted supra 810), to decide or recommend what measures are to be taken in order to maintain or restore international peace and security. Security Council decisions, unlike recommendations, are binding on all Member States. Under Article 25 of the Charter: The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.1781

It is not altogether free of doubt which Security Council decisions are covered by Article 25. In its 1971 Advisory Opinion on Namibia, the International Court of Justice held that Article 25 does not apply solely to Security Council decisions under Chapter VII.1782 However, there was no question about the mandatory nature of the Council’s decisions pursuant to Chapter VII. The Court 1776 1777 1778 1779 1780 1781 1782

Security Council Resolution 841 (1993), 48 RDSC 119, id. (1993). Security Council Resolution 940 (1994), 49 RDSC 51, id. (1994). See 48 Yearbook of the United Nations 427 (1994). D. Malone, Decision-Making in the UN Security Council: The Case of Haiti, 1990–1997 110 (1998). Charter of the United Nations, supra note 248, at 332. Charter of the United Nations, supra note 248, at 339. Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), [1971] ICJ Rep. 16, 52–3.

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pronounced that the binding effect of such decisions is vouchsafed not only by the general stipulation of Article 25, but also by the specific terms of Articles 48 and 49.1783 836. Article 48 of the Charter sets forth: 1. The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine. 2. Such decisions shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members.1784

Article 49 enjoins all Member States to afford mutual assistance in carrying out the measures decided upon by the Council.1785 837. The importance of Article 48 of the Charter lies first in its specific context: it relates to decisions adopted by the Security Council under Chapter VII for the maintenance of international peace and security. Second, Article 48 clarifies that the Council may lay the burden of implementing its decisions on only a few of the Member States (presumably, those better equipped to do so), or it may apportion different assignments to all Members. Third, Article 48 allows the Council’s decisions to be carried out through regional organizations. However, it must be underscored that Article 48 deals only with decisions of the Council which ordain States to take action: it does not apply to ‘permissive action’ not prescribed in a mandatory fashion by the Council.1786 838. Permissive action, generated by a mere recommendation adopted by the Security Council, is anchored in Article 39 and not in Article 48. No Member State is required to take part in any enforcement operation in the absence of a binding decision to that effect by the Council. Nevertheless, should Member States (acting jointly or severally) voluntarily carry out enforcement action in response to a non-obligatory call issued by the Council, these measures would be fully validated by the Council’s binding determination that there exists a threat to the peace, a breach of the peace or an act of aggression (see supra 825). B.

The responsibility of the Security Council

839. Chapter VII obligations devolve not only on Member States of the United Nations, but also on the Security Council itself. After all, the Council is charged by the Charter with the primary responsibility for the maintenance of 1783 1786

Ibid., 53. 1784 Charter of the United Nations, supra note 248, at 345–6. 1785 Ibid., 346. See O. Schachter, ‘Legal Aspects of the Gulf War of 1991 and Its Aftermath’, Law, Policy, and International Justice (Essays in Honour of Maxwell Cohen) 5, 20 (W. Kaplan and D. McRae eds., 1993).

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international peace and security (see supra 809). Article 39 employs the mandatory expression ‘shall’ to describe the Council’s task in the field of collective security: the Council ‘shall’ determine the existence of a threat to the peace, a breach of the peace or an act of aggression, and ‘shall’ either make recommendations or decide what is to be done in order to maintain or restore international peace and security (supra 810). 840. Any action taken is contingent on the adoption by the Security Council of an enabling resolution. Under Article 27 of the Charter, as amended, resolutions of the Council can only be carried by an affirmative vote of at least nine of its fifteen Members.1787 Moreover, a resolution must obtain the concurring votes of the five Permanent Members of the Council. This is the celebrated veto power. Even if fourteen of the fifteen Members of the Council support a draft resolution, a lone dissenter – as long as it is one of the Permanent Members (China, France, Russia,1788 the United Kingdom and the United States) – would prevent adoption of the proposed text by casting a negative vote. 841. Article 27 has consistently been construed in the Security Council’s proceedings in such a way that only a negative vote by a Permanent Member signifies that it does not concur with a resolution, thus constituting a veto (which defeats the motion), whereas an abstention (or non-participation in a vote) does not count.1789 When this interpretation of Article 27 was challenged, in the Namibia proceedings, the International Court of Justice endorsed the uniform practice of the Council.1790 Abstention (or non-participation in a vote) by one or more Permanent Members is a common phenomenon, registered in approximately one-quarter of the resolutions adopted by the Council.1791 842. Article 27 lays down that, in certain matters, a Party to a dispute must abstain from voting in the Security Council. But the non-voting obligation does not apply to decisions under Chapter VII. Hence, a Permanent Member may cast the veto, in a vote on the application of Chapter VII measures, notwithstanding the fact that it is a Party to the dispute. That is to say, a Permanent 1787

1788

1789

1790 1791

Charter of the United Nations, supra note 248, at 340. The numbers involved were amended as of 1965. Protocol of Entry into Force of the Amendments to Articles 23, 27 and 61 of the Charter of the United Nations, [1965] UNJY 159, 160. The five Permanent Members are listed in Article 23(1) of the Charter of the United Nations (supra note 248, at 338), which refers to the Union of Soviet Socialist Republics. Following the collapse of the USSR, its permanent membership in the Security Council – and its membership in other organs of the United Nations – has been continued by the Russian Federation. On the manner in which this change was brought about, see B. Fassbender, UN Security Council Reform and the Right of Veto: A Constitutional Perspective 183–9 (1998). See C. A. Stavropoulos, ‘The Practice of Voluntary Abstentions by Permanent Members of the Security Council under Article 27, Paragraph 3, of the Charter of the United Nations’, 61 AJIL 737, 742–4 (1967). Advisory Opinion on Namibia, supra note 1782, at 22. For a list of 319 such instances – out of 1322 resolutions – see Franck, supra note 555, at 8 n. 16.

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Member may always bar the adoption of any resolution putting into effect the scheme of Chapter VII, if the action decided upon (or recommended) is pointed at itself or at a State with which it is closely associated. In realistic terms, there is more than an element of truth in the cynical observation that the collective security system of the Charter is only geared to handle ‘minor disturbers of the peace’.1792 Armed conflicts (whether international or internal) – in which Permanent Members are directly or indirectly involved – are, to most intents and purposes, practically excluded from the reach of the Charter’s system of collective security.1793

III.

An overview of the Security Council’s record

A.

The ‘Cold War’ era

843. The record of the Security Council over a period of forty-five years, from the inception of the United Nations to the outbreak of the Gulf War, is disappointing in the extreme. When hostilities broke out, response was often lethargic: the Council was usually deadlocked – due to the political cleavages splitting the five Permanent Members – and unable to take a common stand. The Council was primarily hamstrung by the use and abuse of the veto power, for which there were abundant illustrations.1794 844. During the entire timespan of the ‘Cold War’, the Security Council expressly determined that a breach of the peace existed on just three occasions: the Korean War (Resolution 82 (1950)),1795 the Falkland Islands War (Resolution 502 (1982)),1796 and the Iran–Iraq War (Resolution 598 (1987) cited supra 150). Relatively speaking, the Council took the strongest action in the Korean War (in the temporary absence of the Soviet delegation owing to a badly timed boycott). Even there, as observed (supra 443), the Council merely recommended to Member States to render assistance to the Republic of Korea in order to repel the North Korean armed attack, and permitted the use of the United Nations flag by the Coalition that volunteered to do so under American command. In the Falkland Islands War (Resolution 502), the Council did not specify 1792 1793 1794

1795 1796

I. L. Claude, ‘The United Nations and the Use of Force’, 532 Int.Con. 323, 330 (1961). This may be looked upon as a ‘gap’ in the United Nations Charter, comparable to the ‘gaps’ in the Covenant of the League of Nations (discussed supra 224). See Jessup, supra note 1545, at 203. By 2004, the veto was cast in the Security Council on more than 250 occasions (in some instances, 2 or more Permanent Members wielded their power to prevent the adoption of a resolution). The veto was used much more frequently prior to the Gulf War. See Bailey and Daws, supra note 1407, at 230–7. The figures do not tell the whole story for two countervailing reasons: (a) in many instances, the veto has had nothing to do with collective security; however, (b) in a host of cases affecting peace and security, the mere threat of a veto has had a chilling effect, so that the Council did not proceed to a formal vote. Security Council Resolution 82, supra note 966, at 4. Security Council Resolution 502 (1982), 37 RDSC 15, id. (1982).

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who had committed the armed attack: the resolution only determined that ‘there exists a breach of the peace in the region of the Falkland Islands (Islas Malvinas)’, and confined itself to anodyne demands for immediate cessation of hostilities and withdrawal of Argentine forces from the Islands. In the political atmosphere prevalent at the time, enforcement measures involving military action could not be seriously contemplated by the Council.1797 In the Iran– Iraq War, after seven years of hostilities, the Council (in Resolution 598) determined that ‘there exists a breach of the peace as regards the conflict between Iran and Iraq’ and (acting under Articles 39 and 40) demanded an immediate cease-fire. 845. The Council never made a formal finding that aggression in the sense of Article 39 has occurred. The phrase ‘acts of aggression’ appeared descriptively in several Council resolutions, in connection with South African incursions into Angola in the 1980s, e.g., Resolution 546 (1984).1798 Indeed, in that resolution, the Council also condemned armed attacks by South Africa against Angola, reaffirmed Angola’s right to defend itself under Article 51, and requested Member States to extend assistance to the victim country. Had the resolution become the catalyst for another international coalition, the ensuing use of force would have amounted to collective self-defence exercised with the imprimatur of the Council. In actuality, the resolution remained virtually unheeded. Quite confusingly, at a later stage came Resolution 602 (1987), in which the Council stated that ‘the pursuance of these acts of aggression against Angola constitutes a serious threat to international peace and security’.1799 846. In three situations, the Security Council formally determined the existence of a threat to the peace: during Israel’s War of Independence, citing both Articles 39 and 40 (Resolution 54 (1948) referred to supra 149); as regards the situation in Southern Rhodesia (Resolution 232 (1966)); 1800 and with respect to the acquisition of arms by South Africa (Resolution 418 (1977)).1801 847. On several additional occasions, the Security Council employed the phrase ‘threat to the peace’ in an informal manner. For example, in Resolution 353 (1974) concerning Cyprus, the Council enunciated that it was ‘[g]ravely concerned about the situation which has led to a serious threat to international peace’.1802 Similar language had been used in Resolution 161 (1961) pertaining to the situation in Congo.1803 Elsewhere, the Council – in Resolution 405 1797 1798 1799 1800 1801 1802 1803

See A. C. Arend, ‘The Falklands War and the Failure of the International Legal Order’, The Falklands War 52, 54–5 (A. R. Coll and A. C. Arend eds., 1985). See, e.g., Security Council Resolution 546 (1984), 39 RDSC 1, id. (1984). Security Council Resolution 602 (1987), 42 RDSC 12, id. (1987). Security Council Resolution 232 (1966), 21 RDSC 7, id. (1966). Security Council Resolution 418 (1977), 32 RDSC 5, id. (1977). Security Council Resolution 353 (1974), 29 RDSC 7, id. (1974). Security Council Resolution 161 (1961), 16 RDSC 2, 2–3 (1961).

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(1977) (cited supra 602) – strongly condemned ‘as an act of armed aggression’ mercenary attacks from outside Benin against the airport and city of Cotonou.1804 However, absent a formal determination under Chapter VII of the existence of a threat to the peace or an act of aggression, any allusion by the Council to such an event can be dismissed as a non-binding locution. 848. In two cases, the Security Council also imposed mandatory sanctions: a trade embargo on Southern Rhodesia, referring to Articles 39 and 41 (Resolution 232 (1966) cited supra 846); and an arms embargo on South Africa, acting under Chapter VII in general (Resolution 418 (1977) cited ibid.).

B.

The Gulf War

849. The Gulf War started in 1990 and came to an end almost two decades later. It is a mistake to regard the major hostilities against Iraq that recommenced in 2003 as an armed conflict independent of the invasion of Kuwait in 1990. Yet, the different phases of the single Gulf War deserve a discrete analysis. (a) The invasion and liberation of Kuwait (1990–1) 850. The invasion of Kuwait by Iraq in August 1990 was a turning point in the history of the Security Council, since it signified the end of the ‘Cold War’ (even prior to the collapse of the Soviet Union). Unanimity among the five Permanent Members in 1990–1 (or, at certain points, at least a readiness to allow the majority to proceed with appropriate measures) enabled the adoption of a whole string of resolutions under Chapter VII for effective action against Iraq. Several of these resolutions call for an examination in detail, as they vividly show how the Council gradually flexed its muscles while recoiling from the application of Article 42. 851. First came Resolution 660 of 2 August 1990 (cited supra 475), adopted on the very day of the invasion of Kuwait, in which the Security Council determined the existence of ‘a breach of international peace and security’. Acting specifically under Articles 39 and 40 of the Charter, the Council condemned the invasion, demanding immediate and unconditional withdrawal of the Iraqi forces. A few days later, the Council adopted Resolution 661 (cited ibid.), which – relying on Chapter VII – imposed on Iraq mandatory economic sanctions: the Council decided in particular that all States must prevent any imports or exports from or to Iraq or occupied Kuwait (except for medications and, in humanitarian circumstances, foodstuffs), as well as any other type of trade, supply or transfer of funds. 1804

Responsibility for the act of recruiting and unleashing the mercenaries was not pinned on any foreign State.

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852. In Resolution 665, the Security Council recorded that Resolution 661 had imposed ‘economic sanctions under Chapter VII of the Charter of the United Nations’.1805 It called upon the ‘Member States co-operating with the Government [in exile] of Kuwait’ (which were deploying maritime forces in the area) to use such measures ‘as may be necessary under the authority of the Security Council to halt for inspection purposes all inward and outward maritime shipping’, in order ‘to ensure strict implementation’ of Resolution 661. In practical terms, Iraq was subjected in consequence to a blockade, although Resolution 665 avoided that expression.1806 853. While the mandatory economic sanctions imposed on Iraq in Resolution 661 were plainly predicated on Article 41, the blockade went beyond the scope of that clause. As noted (supra 818), the expression ‘blockade’ appears in the Charter in Article 42 (military sanctions) rather than in Article 41 (economic sanctions). Did the Security Council introduce and apply ‘Article 41 and a half’?1807 The maritime operations intercepting imports and exports to and from Iraq were conducted by the United States, the United Kingdom and other naval Powers cooperating with Kuwait on the basis of the right of collective selfdefence pursuant to Article 51 (see infra 855).1808 854. The Security Council acted again under Chapter VII in Resolution 670, deciding that – irrespective of any rights or obligations conferred or imposed by any international agreement,1809 contract or licence – all States must deny permission to any aircraft to take off from or overfly their territories when destined to land in Iraq or occupied Kuwait (unless authorized by a Sanctions Committee). The Council further called upon all States to detain any ships of Iraqi registry which entered their ports in violation of Resolution 661, and threatened to consider measures in case of evasion of either resolution. 855. Chapter VII was invoked by the Security Council in Resolution 678 (cited supra 476), authorizing the ‘Member States co-operating with the Government of Kuwait’ – after a prescribed space of time, offered as a ‘final opportunity’ for Iraq to comply with previous resolutions – ‘to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area’. As indicated (supra 799–801), this landmark resolution constituted a

1805 1806 1807

1808 1809

Security Council Resolution 665 (1990), 45 RDSC 21, 21–2 (1990). On the similarities and dissimilarities to blockade, see H. B. Robertson, ‘Specific Means and Methods of Application of Force’, 1 DukeJCIL 1, 11 (1991). The phrase was coined, in the general context of the Council’s activities in the Gulf War, by P. Weckel, ‘Le Chapitre VII de la Charte et son Application par le Conseil de Sécurité’, 37 AFDI 165, 202 (1991). See Greenwood, supra note 1697, at 161. The Council expressly recalled in this context the provision of Article 103 of the Charter (quoted supra 778). Security Council Resolution 670 (1990), 45 RDSC 24, 25 (1990).

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specific mandate for the exercise of collective self-defence under Article 51 by a coalition of the willing. Claims that the resolution was based on Article 421810 are totally unwarranted.1811 856. Both before and after the Iraqi military defeat at the hands of the Coalition, the Security Council also alluded to Chapter VII in multiple additional texts, the most important of which is Resolution 687 (cited supra 151), dictating the definitive terms of a cease-fire that Iraq reluctantly accepted. As pointed out (ibid.), this text – albeit unprecedented in many respects1812 – was merely a scheme for a cease-fire. It has to be appreciated that, although the conditions of the cease-fire were delineated by Resolution 687, the ensuing cease-fire constituted an agreement between the Coalition – rather than the United Nations (which remained above the fray) – and Iraq. (b) The cease-fire period (1991–2003) 857. The cease-fire in Iraq went on for a dozen years, but it failed to spawn peace. Instead of moving towards a peaceful settlement, the Coalition and Iraq were constantly at loggerheads, inasmuch as Iraq – from the very onset of the cease-fire – was unwilling to comply with its agreed terms, especially as regards disarmament. Quite frequently between 1991 and 2003 (in particular, in 1998–9), the Coalition launched air strikes against Iraqi targets, striving unsuccessfully to compel Iraq to abide by the cease-fire conditions and especially to cooperate with United Nations disarmament inspectors.1813 Each of the sundry attacks by the Coalition must be construed as a resumption of combat operations in the face of Iraqi violations of the cease-fire terms.1814 858. Already under Resolution 688, adopted within a few days of the entry into force of the cease-fire, the Security Council (without naming Chapter VII) held that the Iraqi repressions of the civilian population (preeminently, the Kurds) ‘threaten international peace and security in the region’, and insisted that Iraq ‘allow immediate access by international humanitarian organizations to all those in need of assistance in all parts of Iraq and to make available all necessary facilities for their operation’.1815 As a result, with the military help of armed forces of the United States and other Coalition countries, ‘access’ to humanitarian aid was achieved through the creation of an air exclusion 1810 1811 1812

1813 1814 1815

See C. Warbrick, ‘The Invasion of Kuwait by Iraq – Part II’, 40 ICLQ 965, 966 (1991). See P.-M. Dupuy, ‘Après la Guerre du Golfe’, 95 RGDIP 621, 624–5 (1991). On the meaning and significance of the resolution, see S. Sur, ‘La Résolution 687 (3 Avril 1991) du Conseil de Sécurité dans l’Affaire du Golfe: Problèmes de Rétablissement et de Garantie de la Paix’, 37 AFDI 25–97 (1991). For an overview of the sporadic hostilities between the Coalition and Iraq, from 1992 to 2002, see Wall, supra note 1713, at 183–7. See R. Wedgwood, ‘The Enforcement of Security Council Resolution 687: The Threat of Force against Iraq’s Weapons of Mass Destruction’, 92 AJIL 724, 726 (1998). Security Council Resolution 688 (1991), 46 RDSC 31, 32 (1991).

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(‘no-fly’) zone securing a Kurdish enclave in the north of Iraq. In 1992, another ‘no-fly’ zone was established over Shiite areas in the south of the country. In the next decade, many air strikes were executed by Coalition warplanes against Iraq in response to Iraqi defiance of the ‘no-fly’ zones.1816 (c) The occupation of Iraq (2003) 859. The state of war between Iraq and the Coalition continued notwithstanding the suspension of general hostilities in 1991. The Coalition of 2003 (still led by the United States) was of a different composition compared to the original anti-Iraq array of 1990–1, but this is largely immaterial. Wartime coalitions are not engraved in stone: the Grand Alliance which defeated Germany and Japan in World War II underwent even greater permutations within a shorter period of time. 860. When the friction between Iraq and the Coalition culminated in the resumption of general hostilities in 2003, there was some loose talk of bringing about ‘regime change’ in Iraq. In the event, the overthrow of the Baathist regime of Saddam Hussein became an indispensable means of securing military victory (just like the overthrow of the Taliban regime in Afghanistan in 2001; see supra 11). However, ‘regime change’ per se could not be the ‘war aim’ of the Coalition. Only the Security Council, acting under Chapter VII, may decide in a binding fashion that a particular regime poses a threat to the peace and must therefore be removed (see the example of Haiti supra 834). The Coalition could not arrogate to itself these (or any other) powers of the Security Council. 861. Numerous commentators have chosen to examine the Coalition’s military action in Iraq in 2003 against the backdrop of a doctrine of ‘preemption’ set out by President G. W. Bush1817 (see supra 515). But references to preemption by the Bush Administration were only part of the United States argument for resort to force, and they can be looked at as not much more than ‘rhetorical flourish’.1818 As conceded by the Legal Adviser of the Department of State: Was Operation Iraqi Freedom an example of preemptive use of force? Viewed as the final episode in a conflict initiated more than a dozen years earlier by Iraq’s invasion of Kuwait, it may not seem so.1819

There is absolutely nothing preemptive about the resumption of hostilities when a cease-fire disintegrates. The leading partner of the United States in the Coalition against Iraq – the United Kingdom – formally took the position that the legal basis 1816 1817 1818 1819

See Wall, supra note 1713, at 184–7. See C. Henderson, ‘The Bush Doctrine: From Theory to Practice’, 9 JCSL 3, 8–13 (2004). D. Kritsiotis, ‘Arguments of Mass Confusion’, 15 EJIL 233, 249 (2004). W. H. Taft IV and T. F. Buchwald, ‘Preemption, Iraq, and International Law’, 97 AJIL 557, 563 (2003).

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of the 2003 hostilities was a revival of the Coalition’s right to use force against Iraq consequent upon the Iraqi ‘material breach’ of the cease-fire.1820 862. Of the manifold obligations imposed on Iraq in the cease-fire of 1991, those that it found most onerous were the requirements to disarm itself of WMD. Huge quantities of chemical weapons agents, and a variety of biological weapons production equipment and materials, were subsequently destroyed under the supervision of United Nations inspectors.1821 But reports about continuous violations by Iraq of its disarmament obligations persisted and it can hardly be denied that, on the eve of the resumption of hostilities in 2003, Iraq was in ‘material breach’ of several of its undertakings in this regard.1822 Some commentators stress the fact that no WMD were eventually found in Iraq.1823 But this point is practically irrelevant. First, the ‘material breach’ committed by Iraq was not confined to the issue of actually dismantling WMD: Iraq’s obligation was to cooperate fully with the United Nations weapons inspectors, and ‘[t]hat it patently failed to do’.1824 Second, the weapons inspectors repeatedly informed the Security Council that Iraqi statements fell short of expectations and left open issues.1825 Third, ‘the legality or illegality of military action has to be assessed at the time that action is undertaken and cannot retrospectively be altered by what is found subsequently’.1826 863. Many critics maintain that – subsequent to Resolution 1441 (2002) (cited supra 168) – the Coalition could not take military action against Iraq without obtaining a specific go-ahead signal from the Security Council to resort to force.1827 The fact that the Coalition failed to persuade the Security Council to adopt a further resolution expressly authorizing ‘all necessary means’ (i.e. the use of force) against Iraq – in the vein of Resolution 678 – was regrettable from a political standpoint. But, legally speaking, such an additional resolution was not required. Even those contending that Resolution 1441 ‘does not contain any “automaticity” as concerns the potential use of force’ have to concede that the text lends itself to a different interpretation.1828 It assuredly does not prescribe – 1820 1821 1822 1823 1824 1825 1826 1827

1828

Foreign and Commonwealth Office Paper, ‘Iraq: The Legal Basis for the Use of Force’, 52 ICLQ 812–14 (2003). See S. D. Murphy, ‘Missile Attacks against Iraq’, 93 AJIL 471, 472 (1999). See R. Wedgwood, ‘The Military Action in Iraq and International Law’, International Law and Armed Conflict: Exploring the Faultlines, supra note 1059, at 229, 231. See M. Sapiro, ‘Preempting Prevention: Lessons Learned’, 37 NYUJILP 357, 364–5 (2004–5). C. Greenwood , ‘The Legality of the Use of Force: Iraq in 2003’, Redefining Sovereignty, supra note 1537, at 387, 414. See J. Yoo, ‘International Law and the War in Iraq’, 97 AJIL 563, 566 (2003). Greenwood, supra note 1824, at 413. See, e.g., R. Wolfrum, ‘The Attack of September 11, 2001, the Wars against the Taliban and Iraq: Is There a Need to Reconsider International Law on the Recourse to Force and the Rules in Armed Conflict?’, 7 MPYUNL 1, 15–18 (2003). R. Hofman, ‘International Law and the Use of Military Force against Iraq’, 45GYIL 9, 25–8 (2002).

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or even necessarily imply – that, prior to recourse to force, the Coalition must return to the Council for a second (confirmatory) resolution.1829 864. The clear inference from the determination by the Security Council as regards the Iraqi ‘material breach’ was that the other side to the cease-fire agreement was released from its obligation to continue to respect the ceasefire (see supra 166 et seq.).1830 A salient point, often missed by commentators on this topic,1831 is that the other side to the cease-fire agreement in the ongoing state of war with Iraq was not the United Nations Organization as such but a coalition of the willing. Resumption of the hostilities, therefore, did not require an explicit seal of approval from the Security Council: it was for the members of the Coalition to determine whether or not to resort to force in response to the ‘material breach’ of the cease-fire.1832 865. In reality, even the determination of the existence of an Iraqi ‘material breach’ need not have been made by the Security Council.1833 By right, this determination could have been made by the Coalition itself. Differently put, there was no legal (as distinct from a political) need for the Coalition to have turned to the Security Council in the first place (just as in 1990–1 the Coalition did not have to go to the Security Council for Resolution 678 or, for that matter, Resolution 687). Yet, since the Coalition elected to bring the matter before the Security Council in 2002 – and since the Council did set up an enhanced inspection regime, giving Iraq in Resolution 1441 a ‘final opportunity’ to comply with the disarmament obligation – the Coalition was obliged to give that inspection regime a chance of success. Like Resolution 678, which equally offered Iraq a ‘final opportunity’ (see supra 855) and tied the hands of the Coalition by introducing a temporal interval when it had to hold its fire (see supra 803), Resolution 1441 did not leave the Coalition the option of recommencing hostilities immediately. Despite the determination of the existence of a ‘material breach’ of the cease-fire terms, the Coalition had to await new United Nations inspectors’ reports. Still, when a number of reports were in, it plainly emerged that some unresolved issues lingered on and that Iraq had failed to meet all the demands (made by the United Nations inspectors) with a view to putting an end to its ‘material breach’.1834 Whereupon the freedom of action of the Coalition was regained.

1829 1830 1831 1832 1833 1834

See Taft and Buchwald, supra note 1819, at 560–2. See M. Byers, ‘Preemptive Self-Defense: Hegemony, Equality and Strategies of Legal Change’, 11 JPP 171, 183 (2003). See, e.g., P. Weckel, ‘L’Usage Déraisonnable de la Force’, 107 RGDIP 378, 386 (2003). See M. N. Schmitt, ‘The Legality of Operation Iraqi Freedom under International Law’, 81 ILS, supra note 1181, at 367, 381–2. See Taft and Buchwald, supra note 1819, at 560. See C. Greenwood, ‘International Law and the Pre-emptive Use of Force: Afghanistan, AlQaida, and Iraq’, 4 SanDILJ 7, 31–2 (2003).

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866. It is wrong to argue (as was done by the United Kingdom) that the legality of the Coalition’s right to use force against Iraq in 2003 hinged on a revival of Security Council Resolution 678.1835 Resolution 678 gave the blessing of the Security Council to the military action taken in 1991, and evidently it had nothing to do with operations conducted a dozen years later under totally different circumstances.1836 However, there was no need for a revival of Resolution 678 in 2003, just as there was no strict need for its original adoption in 1990. Both in 1991 and in 2003, the Coalition acted on the basis of the right of collective self-defence with which it was directly vested by Article 51 of the Charter and by customary international law. The exercise of that right could not be terminated by a cease-fire (see supra 170). 867. Following a final ultimatum, the Coalition resumed general hostilities against Iraq on 20 March 2003. Baghdad fell on 9 April, and in a few days major combat operations were over. All the same, irregular fighting persisted long after the occupation of Iraq with an upsurge in the violence in 2004. Already in May 2003, the Security Council determined in Resolution 1483 that the situation in Iraq, although improved, continued to constitute ‘a threat to international peace and security’.1837 In October 2003, in Resolution 1511, the Council expressly authorized ‘a multinational force under unified command’ (structured around the Coalition military units) ‘to take all necessary measures to contribute to the maintenance of security and stability in Iraq’.1838 In June 2004, in accordance with Security Council Resolution 1546, the formal occupation of Iraq by the Coalition ended, and an Interim Government reasserted full responsibility and authority; but the multinational (Coalition) force remained in the country – at the request of the Interim Government – and its authority ‘to take all necessary measures’ was reaffirmed by the Council.1839 Serious fighting for control of Iraq continued for a number of years. The official end of American combat operations in Iraq was announced only in 2010. C.

The post-‘Cold War’ era (other than the Gulf War)

868. In the years since the outbreak of the Gulf War, the Security Council has become inured to citing Chapter VII, and has frequently adverted to it in diverse

1835 1836

1837 1838 1839

Foreign and Commonwealth Office Paper, supra note 1820, at 812–14. In a ‘Book Review’ [of the fourth edition of this book], 18 EJIL 778, 790 (2007), M. Kionacioglu takes the present author to task for allegedly suggesting that force in 2003 could be used by the Coalition on the basis of Resolution 678. This is precisely what the present author is not suggesting. Security Council Resolution 1483 (2003), [2002–3] RDSC 139, 140. Security Council Resolution 1511 (2003), 43 ILM 254, id., 256 (2004). Security Council Resolution 1546 (2004), 43 ILM 1459, 1460–2 (2004).

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contexts.1840 In its recent practice, the signal given by the Security Council for the binding character of a decision has usually been a Preambular paragraph in the text stating unambiguously that the Council is acting under Chapter VII of the Charter. 869. The Security Council has not determined since August 1990 the existence of a breach of the peace. By contrast, it has formally determined the existence of a threat to the peace (either globally or at least in a particular region) in dozens of resolutions.1841 Such determinations were made with respect to: (i) Specific inter-State situations, for example, Resolution 1267 (1999) relating to the Taliban authorities providing a safe haven in Afghanistan to the terrorist Bin Laden.1842 (ii) Specific domestic situations – for instance, Resolution 1556 (2004) concerning Darfur – which not only cause grave humanitarian concern but also impact on ‘stability in the region’.1843 (iii) More generic threats, illustrated by ‘any act of international terrorism’ (see Resolution 1373 (2001) cited supra 604) or the proliferation of WMD and their means of delivery, which is the subject of Resolution 1540 (2004).1844 These are determinations relating to ‘general phenomena’ (rather than concrete occurrences) constituting threats to the peace.1845 They also encompass future (and hypothetical) events, without any time limitation.1846 What stands out is that the Security Council has interpreted its mandate to determine the existence of a threat to the peace in the broadest possible manner (see supra 822), acting in ‘a proactive (and not just a reactive or remedial) manner’.1847 870. In the majority – although by no means all – of the cases in which a threat to the peace has been determined to exist, the Security Council decided to impose mandatory sanctions.1848 There are many types of sanctions resorted to by the Council.1849 The most typical sanction consists of an arms embargo,

1840 1841 1842 1843 1844 1845 1846 1847 1848 1849

Between 1990 and 1996, the Council adopted no less than 107 resolutions under Chapter VII. Bailey and Daws, supra note 1407, at 273. Since then, the number has grown at a brisk pace. A list of twenty-five cases (unrelated to Iraq and not counting reiterations) appears in the fourth edition of this book (2005), pp. 301–2. The number has continued to increase after 2005. Security Council Resolution 1267, supra note 1518, at 148. Security Council Resolution 1556 (2004), 43 ILM 1244, 1245 (2004). Security Council Resolution 1540 (2004), 43 ILM 1237, id. (2004). Santori, supra note 1773, at 96. See R. Giles-Carnero, ‘Terrorist Acts as Threats to International Peace and Security’, International Legal Dimension of Terrorism, supra note 1180, at 55, 62–3. See S. Talmon, ‘The Security Council as World Legislature’, 99 AJIL 175, 181 (2005). A list of eighteen cases (unrelated to Iraq and not counting reiterations) appears in the fourth edition of this book (2005), pp. 302–3. Again, the number has gone upwards since 2005. See López-Jacoiste, supra note 1753, at 286–7.

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often coupled with a monitoring mechanism.1850 An arms embargo may be imposed by the Council on: (i) A particular State, such as Libya (Resolution 1970 (2011)).1851 (ii) Both sides to an inter-State armed conflict, e.g., Eritrea and Ethiopia (Resolution 1298 (2000)) (cited supra 826). (iii) Even non-governmental entities and individuals, like those operating in Darfur (Resolution 1556 (2004)) (cited supra 869). Of course, there are multiple other forms of mandatory sanctions to which the Council resorts, exemplified by Resolution 1267 (1999) (see supra 869)), which imposed an air embargo on Taliban-operated aircraft and froze funds controlled by the Taliban. 871. These are all economic sanctions in the sense of Article 41 of the Charter (quoted supra 816). But in a select number of cases, the Security Council has authorized Member States to use ‘all necessary means’ (or ‘measures’), a phrase which – since the Gulf War (see supra 855) – is the common euphemism for the use of force.1852 That is what happened, for instance, in the case of BosniaHerzegovina (Resolution 816 (1993)1853). The mandate to resort to force may have a relatively limited goal. Thus, in the case of Libya in 2011, the use of ‘all necessary measures’ was authorized by the Council to protect civilians from violence unleashed by the regime and to enforce compliance with a ‘no-fly zone’ (Resolution 1973 (2011)1854). The use of all necessary means may also be oriented to restore the constitutional Government of a country (as in Haiti, per Resolution 940 (1994); see supra 834). 872. The spate of wide-ranging resolutions adopted by the Security Council under Chapter VII – since the end of the ‘Cold War’ – demonstrates that the Council currently interprets the mandate bestowed upon it by the Charter in the most liberal manner. That being said, it is remarkable that – despite the litany of references to Chapter VII – the Council has never attempted to activate the key clause in the collective security system, to wit, Article 42 of the Charter (quoted supra 818). In 1992, the then Secretary-General, B. Boutros-Ghali, was invited by the Council (following a special and unprecedented meeting at the level of Heads of States and Governments) to submit recommendations for strengthening the effectiveness of the collective security system of the Charter.1855 1850

1851 1852 1853 1854 1855

See Z. W. Yihdego, ‘The Role of Security Council Arms Embargoes in Stemming Destabilizing Transfers of Small Arms and Light Weapons (SALW): Recent Developments and Challenges’, 54 NILR 115, 124–31 (2007). Security Council Resolution 1970 (2011), S/RES/1970 at 3 (2011). A list of nine cases (unrelated to Iraq and not counting reiterations) appears in the fourth edition of this book (2005), pp. 303–4. Once more, the number has risen in the last few years. Security Council Resolution 816 (1993), 48 RDSC 4, id. (1993). Security Council Resolution 1973 (2011), S/RES/1973 at 3 (2011). ‘The Responsibility of the Security Council in the Maintenance of International Peace and Security’, 47 RDSC 65, 66 (1992).

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Boutros-Ghali addressed the issue in a report entitled ‘An Agenda for Peace’.1856 He noted that the Council had not made use of Article 42, and suggested that such a move ‘is essential to the credibility of the United Nations as a guarantor of international security’.1857 Since a precondition is the conclusion of the special agreements required by Article 43 (see infra 873), the Secretary-General thought that negotiations should be initiated.1858 However, the Council was disinclined to pursue this path.1859

IV.

Article 42 and alternative mechanisms

A.

The absence of special agreements under Article 43

873. The United Nations Charter does not envisage the establishment of a permanent international force with troops recruited directly by the Organization as such.1860 Instead, Article 42 refers to the carrying out of military operations (as decided by the Security Council) through the forces of Member States (supra 818). How will these forces be accessible to the Council? Under Article 43, United Nations Members are obligated to make available to the Council the necessary armed forces, but the duty is subject to the condition that this will be done ‘in accordance with a special agreement or agreements’ (governing the numbers and types of forces, their degree of readiness and general location).1861 The rationale underlying the scheme of the special agreements is plain. The Council cannot accomplish the mission assigned to it by the Charter unless it acts swiftly once a crisis breaks out. Since no permanent international force exists, advance preparations have to be made for the rapid deployment of forces belonging to Member States. In particular, Member States must identify combat-ready units that can be drawn upon by the Council at a moment’s notice. 874. It stands to reason that the Security Council is not obligated to conclude special agreements with all United Nations Members, not even all Permanent Members of the Council.1862 But the question is whether a Member State is bound to place armed forces for enforcement action at the disposal of the 1856 1857 1859 1860

1861 1862

Report of the Secretary-General, ‘An Agenda for Peace’, 31 ILM 956 (1992). Ibid., 966. 1858 Ibid. For the Council’s response to the Report of the Secretary-General, see ‘An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-Keeping’, 47 RDSC 101–4 (1992). It is consequently doubtful whether the Council is authorized by the Charter to require States (without their consent) to allow the enlistment of individual volunteers against an aggressor. Such a view is expressed by L. C. Green, The Contemporary Law of Armed Conflict 272 (2nd edn, 2000). Charter of the United Nations, supra note 248, at 344. See L. M. Goodrich and A. P. Simons, The United Nations and the Maintenance of International Peace and Security 395–6 (1955).

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Council when no special agreement has been signed. There are two conflicting interpretations of the Charter on this issue. One approach is that the Council may insist on Member States deploying military units at its behest, despite the non-conclusion of special agreements (or in excess of the forces pledged in the agreements).1863 The other opinion is that the duty of Member States under the Charter – to do their share in a collective security operation mounted by the Council – is purely abstract, and, unless it is concretized in special agreements, the Members may evade their undertaking.1864 It is the latter (by far more common) view that has prevailed in the practice of the Council. 875. Article 43 prescribes that the special agreements ‘shall be negotiated as soon as possible on the initiative of the Security Council’. Nevertheless, more than half a century later, no special agreements have been reached. Article 106 lays down that, pending the coming into force of the special agreements referred to in Article 43, the five Permanent Members shall consult with a view to taking ‘such joint action on behalf of the Organization as may be necessary for the purpose of maintaining international peace and security’.1865 Since no special agreement pursuant to Article 43 has ever been concluded, the transition period envisaged in Article 106 ‘has not yet ended’; however, ‘[s]o far, Art. 106 has not attained any practical significance’.1866 876. Article 44 stipulates that, before being called upon to provide armed forces, a United Nations Member State not represented in the Security Council will be invited to participate in any decisions concerning the employment of these forces.1867 The case is exceptional, for the State concerned (although not a Member of the Council) is entitled not just to have its voice heard in the deliberations, but actually to take part in the decision-making process by voting on any proposal submitted to the Council (albeit only in regard to the use made of the State’s own armed forces).1868 Admittedly, the value of this privilege must not be exaggerated: the State casts a single vote, and it does not trump the majority in the Council. 877. To enable carrying out a combined United Nations enforcement action in urgent cases, Member States are instructed by Article 45 to keep air force contingents immediately available.1869 This clause, too, is conditional on the existence of the special agreements projected in Article 43.

1863 1864 1865 1866 1867 1868 1869

See Kelsen, supra note 564, at 756. See C. Chaumont, ‘Nations Unies et Neutralité’, 89 RCADI 1, 39–40 (1956). Charter of the United Nations, supra note 248, at 362. R. Geiger, ‘Article 106’, II The Charter of the United Nations: A Commentary, supra note 485, at 1327, 1328–9. Charter of the United Nations, supra note 248, at 344. See Goodrich, Hambro and Simons, supra note 309, at 327. Charter of the United Nations, supra note 248, at 344–5.

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878. Articles 46 and 47 establish a Military Staff Committee, consisting of the Chiefs of Staff of the five Permanent Members of the Security Council or their representatives, its mission being to advise and assist the Council on all military matters.1870 The Committee was stalemated already in the early days of the United Nations, and, while continuing to meet periodically, proposals to activate it have so far met with little enthusiasm.1871 Interestingly enough, in Resolution 665 (1990) (cited supra 852), the Security Council requested the States ‘co-operating with the Government of Kuwait’ – while carrying out a blockade of Iraq – to coordinate their actions using the mechanism of the Military Staff Committee. Yet, the American-led Coalition preferred to leave the Committee dormant.1872 879. By dint of the failure to conclude special agreements, as perceived in Article 43, no advance preparations have been made for prompt action in the event of a breach of the peace, and no standing military units are ready to do as the Security Council bids. Still, in the words of the International Court of Justice in its Advisory Opinion on Certain Expenses of the United Nations: It cannot be said that the Charter has left the Security Council impotent in the face of an emergency situation when agreements under Article 43 have not been concluded.1873

Over the years, two mechanisms have evolved: (i) peacekeeping; and (ii) nonArticle 42 enforcement actions. B.

Peacekeeping forces

880. Since the 1950s, scores of United Nations forces have been set up (principally by the Security Council but exceptionally – at the outset – also by the General Assembly) for ‘peacekeeping’ purposes.1874 The common denominator of all United Nations peacekeeping forces is that they have come into being ad hoc, as and when required in specific emergencies, and their dependence on voluntary cooperation by Member States (willing to contribute the military contingents of which the forces are composed) has been absolute.1875 The original idea of peacekeeping was primarily that of creating a cordon sanitaire, setting opponents apart and preventing bloodshed.1876 But, especially 1870 1872 1873 1874

1875 1876

Ibid., 345. 1871 Bailey and Daws, supra note 1407, at 280. See G. K. Walker, ‘The Crisis over Kuwait, August 1990 – February 1991’, 1 DukeJCIL 25, 49 (1991). Advisory Opinion on Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), [1962] ICJ Rep. 151, 167. For an updated survey of all United Nations peacekeeping operations until mid-2001, see M. Bothe, ‘Peace-Keeping’, I The Charter of the United Nations: A Commentary, supra note 485, at 648–700. See R. Sommereyns, ‘United Nations Forces’, IV EPIL 1106, 1109. See Jiménez de Aréchaga, supra note 220, at 130.

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since the end of the ‘Cold War’, peacekeeping operations have gradually become more multi-dimensional.1877 An extreme example is that of UNAMSIL (United Nations Mission in Sierra Leone), whose mandate was revised in 2000 to provide security at key locations and installations, as well as to facilitate the free flow of people, goods and humanitarian assistance, and to assist local law-enforcement authorities (affording protection to civilians under imminent threat of violence).1878 881. A peacekeeping operation is supposed to be completely different from an enforcement action. The two special attributes of a peacekeeping force are that (i) it is established and maintained with the consent of all the States concerned; and (ii) it is not authorized to take military action against any State.1879 These special features are generally conceded in theory, even though they are flexibly interpreted in practice. 882. The concept of consent has stirred up a number of thorny problems in its application,1880 although it is still accepted in principle as a condition precedent for the stationing of a peacekeeping force.1881 It has to be recognized that consent may be induced by the Security Council in circumstances where the host State has little or no real choice. Thus, the United Nations Iraq-Kuwait Observation Mission (UNIKOM) was set up in Resolution 687 (cited supra 151), with Iraq’s reluctant consent, after that country’s military defeat in the first phase of the Gulf War. While, as a rule, a withdrawal of prior consent by a hostState would terminate a peacekeeping operation,1882 Resolution 689 (1991) proclaimed categorically that the deployment of UNIKOM ‘can only be terminated by a decision of the Council’.1883 The special regime must be understood against the background of the far-reaching cease-fire imposed on Iraq (see ibid.). 883. In essence, peacekeeping forces are not designed (or even equipped) for combat, although it has always been understood that they can use force in self-defence.1884 This specific right of self-defence, applicable to peacekeeping forces, should not be confused with the much broader right of selfdefence vested in States (see Chapters 7–9). A peacekeeping force’s exercise of 1877 1878 1879 1880 1881 1882 1883 1884

See W. J. Durch, ‘Keeping the Peace: Politics and Lessons of the 1990s’, UN Peacekeeping, American Politics, and the Uncivil Wars of the 1990s 1, 3–4 (W. J. Durch ed., 1996). Security Council Resolution 1289 (2000), 55 RDSC 96, 97–8 (2000). See Advisory Opinion on Certain Expenses of the United Nations, supra note 1873, at 170, 177. See J. I. Garvey, ‘United Nations Peacekeeping and Host State Consent’, 64 AJIL 241–69 (1970). See Gray, supra note 720, at 298–9. See D. Wippman, ‘Military Intervention, Regional Organizations, and Host-State Consent’, 7 DukeJCIL 209, 234 (1996–7). Security Council Resolution 689 (1991), 46 RDSC 15 (1991). See M. Eisele, ‘Peacekeeping Forces’, A Concise Encyclopedia of the United Nations, supra note 490, at 531, 537.

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self-defence is more akin to a military unit’s self-defence1885 in the context of on-the-spot reaction (see supra 641). It is noteworthy that the Security Council occasionally refers to ‘armed attacks’ against United Nations personnel.1886 884. The Security Council has granted some peacekeeping forces permission to use force in circumstances going beyond self-defence. Already in BosniaHerzegovina, UNPROFOR (United Nations Protection Force) was authorized in Resolution 836 (1993), ‘acting in self-defence, to take the necessary means, including the use of force, in reply to bombardments against the safe areas’ established by the Council, as well as to protect freedom of movement and humanitarian convoys.1887 In Resolution 1101 (1997), the multinational protection force in Albania was authorized ‘to ensure the security and freedom of movement’ of its personnel.1888 Most significantly, ONUB (United Nations Operation in Burundi) was authorized by the Council, in Resolution 1545 (2004), ‘to use all necessary means’ to carry out its extensive mandate.1889 Clearly, this is a new robust concept of ‘peacekeeping with teeth’, which is viewed by some as ‘a mutation between traditional peace-keeping and peaceenforcement operations’.1890 885. Whatever the scope of their mission may be, ‘[a]ll UN peace-keeping forces have so far been made up of national contingents, supplied by member states’.1891 The component units are neither fully integrated nor released from national discipline. In the words of Lord Pearce in the Nissan case (which arose before the United Kingdom House of Lords in 1969, and related to the United Nations Force in Cyprus): the commander of the United Nations force is head in the chain of command and is answerable to the United Nations. The functions of the force as a whole are international. But its individual component forces have their own national duty and discipline and remain in their own national service.1892

886. When an international force is put together consensually for limited (as distinct from robust) peacekeeping purposes, it need not be set up by the Security Council (or, for that matter, by any other organ of the United Nations). Under a Protocol annexed to the Egyptian–Israeli Treaty of Peace of 1885 1886 1887 1888 1889 1890 1891 1892

See N. D. White, Keeping the Peace: The United Nations and the Maintenance of International Peace and Security 240 (2nd edn, 1997). See, e.g., Security Council Resolution 837 (1993), 48 RDSC 83, id. (1993). Security Council Resolution 836 (1993), 48 RDSC 13, 14 (1993). Security Council Resolution 1101 (1997), 52 RDSC 58, id. (1997). Security Council Resolution 1545 (2004), 43 ILM 1453, 1455 (2004). See D. Kritsiotis, ‘Security Council Resolution 1101 (1997) and the Multinational Protection Force of Operation Alba in Albania’, 12 LJIL 511, 538 (1999). R. C. R. Siekmann, National Contingents in United Nations Peace-Keeping Operations 9 (1991). Attorney-General v. Nissan (1969), [1970] AC 179, 223.

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1979, the Parties requested the United Nations to provide forces and observers for supervising the implementation of the terms agreed upon between them.1893 When it turned out that the Security Council was unable to accede to that request, Egypt and Israel (with the active assistance of the United States) concluded in 1981 another Protocol Establishing the Sinai Multinational Force and Observers.1894 This Force operates successfully in lieu of the United Nations force originally visualized, without being linked to the United Nations Organization.1895

C.

Enforcement action beyond the purview of Article 42

(a) The use of force by authorization of the Security Council 887. In the 1990s, the Security Council found a pragmatic way to circumvent Article 42 (quoted supra 818) in flagrant cases of need for enforcement action. In the absence of special agreements required by Article 43 (see supra 873), the Council refrains from imposing on Member States the obligation to take military measures. Instead, the Council now resorts to the strategy of authorizing Member States – acting either individually or within the framework of regional organizations – to use force in strictly defined circumstances on a voluntary basis. Some scholars adhere to the view that, whereas a mere ‘recommendation’ would not suffice to activate Article 42, an ‘authorization’ of military action by Member States comes within the ambit of the Article.1896 This construct is untenable. In the final analysis, there is no genuine distinction between an authorization and a recommendation to use force. Authorization is no less permissive than recommendation.1897 Both authorization and recommendation share a non-mandatory nature and, therefore, neither action comes under the rubric of Article 42. Enforcement measures in keeping with Article 42 must be based on a mandatory decision by the Security Council, and nothing short of such a decision will do. Permissive enforcement action, predicated either on a recommendation or on an authorization issued by the Council, acquires its intrinsic legal validity not from Article 42 but from Article 39 (quoted supra 810). 888. The most intriguing aspect of the policy of authorization of the use of force by the Security Council – i.e. voluntary enforcement action – is the

1893 1894 1895 1896 1897

Egypt–Israel, Treaty of Peace, supra note 186, at 372 (Annex I, Article VI). Egypt–Israel, Protocol Establishing the Sinai Multinational Force and Observers, 1981, 20 ILM 1190 (1981). See M. Tabory, The Multinational Force and Observers in the Sinai: Organization, Structure and Function passim (1986). See Frowein and Krisch, supra note 1709, at 756–8. See Rostow, supra note 1402, at 509.

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element of ‘subcontracting’ the use of force to regional organizations.1898 This modus operandi is envisaged in Chapter VIII of the Charter (Articles 52–4).1899 Article 52(1) (quoted supra 749) specifically permits the existence of ‘regional arrangements or agencies’ for dealing with matters that relate to the maintenance of international peace and security (and are appropriate for regional action), provided that such arrangements or agencies (and their activities) are consistent with the Purposes and Principles of the United Nations. 889. Article 53(1) of the Charter promulgates: The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council.1900

Already in Resolution 199 (1964), the Security Council expressed its conviction that the Organization of African Unity should be able – in the context of Article 52 of the Charter – to help find a peaceful solution to the problem of Congo.1901 Similarly, in Resolution 217 (1965) concerning Southern Rhodesia, the Council called upon the Organization of African Unity to assist in the implementation of the resolution, in conformity with Chapter VIII of the Charter.1902 890. The most conspicuous authorization by the Security Council of the use of force by a regional organization occurred in Bosnia-Herzegovina. In Resolution 816 (1993) (cited supra 871), the Council – invoking Chapter VII – decided that Member States, ‘acting nationally or through regional organizations or arrangements’ could, ‘under the authority of the Security Council’, take ‘all necessary measures’ in the airspace of Bosnia-Herzegovina. In Resolution 836 (1993) (cited supra 884), the same call was made with a view to supporting UNPROFOR in the performance of its mandate (including the protection of safe areas). Accordingly, in 1994–5, NATO aircraft repeatedly carried out air strikes in the area, in close coordination with the United Nations.1903 891. The language in which Article 53(1) is couched might lead to the conclusion that it can only be invoked when the State ‘in which action is intended to take place’ is a member of the regional organization invited by the Security Council to intervene.1904 But that is not the way in which the Council 1898 1899 1901 1902 1903 1904

N. D. White, ‘The UN Charter and Peacekeeping Forces: Constitutional Issues’, The UN, Peace and Force 43, 58 (M. Pugh ed., 1997). Charter of the United Nations, supra note 248, at 346–8. 1900 Ibid., 347. Security Council Resolution 199 (1964), 19 RDSC 18, 19 (1964). Security Council Resolution 217 (1965), 20 RDSC 8, 9 (1965). See S. M. Hill and S. P. Malik, Peacekeeping and the United Nations 181–4 (1996). G. Gaja, ‘Use of Force Made or Authorized by the United Nations’, The United Nations at Age Fifty: A Legal Perspective 39, 44 (C. Tomuschat ed., 1995).

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has construed the Charter in practice. As shown already in the Southern Rhodesia case – and overtly repeated in the authorization of NATO to act in Bosnia-Herzegovina – the Council is prepared to utilize a regional organization for enforcement action beyond the confines of its membership, simply because the organization in question is willing and able to serve as an instrument for performing the task assigned to it. 892. The functioning of a regional organization does not modify the fundamental rules governing the use of force. The position of a regional group of States is not appreciably different from that of an individual State.1905 Chapter VIII of the Charter interlocks with Chapter VII to retain the monopoly of the Council in the field of collective security. The wording of Article 53(1) is unequivocal: the legality of regional enforcement action is entirely contingent on Security Council authorization.1906 An authorization resolution ‘produces a permissive effect by making lawful a conduct otherwise prohibited by article 2(4) of the charter’.1907 But the authorization must be explicit and not just implied.1908 Unless a clear-cut go-ahead signal is issued by the Council to perform enforcement functions, a regional organization (like any single State) can resort to lawful force only within the ambit of collective self-defence (see Chapter 9). 893. Addressing the same subject from a complementary angle, one can say that, when an armed attack occurs, any State or cluster of States derives directly from the Charter a right to use force in collective self-defence. There is no need in such an instance to procure a prior authorization of the Council (although any exercise of self-defence is ultimately subject to review by the Council; see supra 623). The Council may choose to give its seal of approval – in advance – to the initiation of collective self-defence measures against an armed attack (as it did in the first phase of the Gulf War; see supra 799). But this must not be confused with a Council authorization of action not otherwise permissible by the Charter.1909 Absent such authorization, a regional organization (like any individual State) is disentitled under the Charter to have any recourse to force unless an armed attack is mounted. The only exception would be regional forcible action carried out by invitation of the State concerned, namely, with its consent (on consent, see supra 317 et seq.).1910

1905 1906 1907 1908 1909 1910

See D. Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of Its Chapter VII Powers 248–9 (1999). See C. Walter, ‘Security Council Control over Regional Action’, 1 MPYUNL 129, 154 (1997). T. Gazzini, ‘NATO’s Role in the Collective Security System’, 8 JCSL 231, 255 (2003). See J. H. Currie, Public International Law 493–6 (2nd edn, 2008). For an example of such confusion, see L.-A. Sicilianos, ‘L’Autorisation par le Conseil de Sécurité de Recourir à la Force: Une Tentative d’Evaluation’, 106 RGDIP 5, 23–4 (2002). See M. Zwanenburg, ‘Regional Organisations and the Maintenance of International Peace and Security: Three Recent Regional African Peace Operations’, 11 JCSL 483, 503–6 (2006).

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(b) The role of NATO 894. Since its military operation in Bosnia-Herzegovina (see supra 890), the role of NATO in the grand design of Security Council authorization of the use of force has become prominent. Resolutions 816 and 836 (cited supra 871, 884) treat NATO as a regional organization in the meaning of Article 53(1) – even though Bosnia-Herzegovina lay beyond the pale of NATO’s membership – thus opening the way for NATO’s forcible action (with Security Council authorization) against any State or non-State actors anywhere around the globe (see supra 891). The fact that NATO was originally envisioned merely as a collective self-defence organization pursuant to Article 51 of the Charter (see supra 762) does not diminish from its standing as a regional arrangement for the purposes of Article 53(1). Any attempt to erect a barrier between collective selfdefence organizations and regional arrangements set up for enforcement ends is artificial.1911 For sure, there is a stark difference between the exercise of collective self-defence and an enforcement undertaking stemming from Article 53(1). But that difference relates only to the organization’s interface with the Security Council. When exercising collective self-defence, NATO does not require the prior authorization of the Council; contrarily, when functioning as a regional organization pursuant to Article 53(1), it is imperative for NATO to seek first the authorization of the Council. Once that authorization was obtained with respect to Bosnia-Herzegovina, NATO’s air raids constituted a lawful enforcement action compatible with the United Nations Charter. 895. The role played by NATO in Bosnia-Herzegovina gained a new dimension when it was agreed in Article I(1)(a) of Annex IA (Military Aspects of the Peace Settlement) of the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina (negotiated in Dayton, Ohio, and signed in Paris): The United Nations Security Council is invited to adopt a resolution by which it will authorize Member States or regional organizations and arrangements to establish a multinational military Implementation Force (hereinafter ‘IFOR’). The Parties understand and agree that this Implementation Force may be composed of ground, air and maritime units from NATO and non-NATO nations, deployed to Bosnia and Herzegovina to help ensure compliance with the provisions of this Agreement.1912

The transfer of authority from UNPROFOR to IFOR was accomplished by the Security Council in Resolution 1035 (1995).1913 Under Resolution 1088 (1996), IFOR was succeeded by SFOR (Stabilization Force),1914 run by NATO. In 2004, NATO transferred its responsibilities to the European 1911 1912 1913 1914

Cf. E. P. J. Myjer, ‘Some Reflections on Collective Security and the Use of Force: A Critical Review of Dinstein’s War, Aggression and Self-Defence’, 44 NILR 89, 96–100 (1997). General Framework Agreement for Peace in Bosnia and Herzegovina, supra note 1655, at 92. Security Council Resolution 1035 (1995), 50 RDSC 23, id. (1995). Security Council Resolution 1088 (1996), 51 RDSC 42, 44–5 (1996).

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Union. In Resolution 1575 (2004), the Council recognized EUFOR as the legal successor to SFOR.1915 896. Unlike its operation in Bosnia, NATO did not act within the confines of the United Nations Charter in 1999, when it launched the Kosovo Air Campaign to compel Serbia/Montenegro – without prior authorization by the Council – to stop a policy of ethnic cleansing. NATO relied on the fact that the Security Council (acting under Chapter VII) had twice determined that the situation in Kosovo constituted ‘a threat to peace and security in the region’:1916 in Resolutions 1199 (1998)1917 and 1203 (1998).1918 But, as long as there was no express authorization by the Council to take enforcement action, no State or group of States was entitled to resort to forcible measures in response to a mere threat to the peace.1919 It is the exclusive prerogative of the Security Council to decide or recommend when and how to respond to a threat to the peace. And, as indicated (supra 892), when authorization of enforcement action is issued by the Security Council, the mandate allowing States or regional organizations to take action must be clear and not merely implicit.1920 897. Of course, had the Security Council decided that there was a breach of the peace (and tacitly an armed attack) in Kosovo, the legal state of affairs would have been entirely different, inasmuch as NATO could then have exercised the right of collective self-defence. But there was no claim of an armed attack on the part of Serbia/Montenegro in Kosovo (which, at the time, was an integral part of that State and not a foreign country), so self-defence was not an issue.1921 898. It is true that the Security Council did not condemn NATO’s Kosovo Air Campaign.1922 But inaction by the Council does not amount to authorization of enforcement measures, even by a regional organization.1923 As for Resolution 1244 (1999),1924 adopted by the Council following an agreement between the Parties which ended the NATO attacks, it was not phrased in language implying

1915 1916 1917 1918 1919 1920 1921

1922 1923 1924

Security Council Resolution 1575 (2004), doc. S/RES/1575 at 4 (2004). See President Clinton’s Report to Congress, [1991–9] (2) Digest of United States Practice in International Law 2144, id. (S. J. Cummins and D. P. Stewart eds.). Security Council Resolution 1199 (1998), 53 RDSC 13, 14 (1998). Security Council Resolution 1203 (1998), 53 RDSC 15, 16 (1998). See N. Krisch, ‘Unilateral Enforcement of the Collective Will: Kosovo, Iraq, and the Security Council’, 3 MPYUNL 59, 86–9 (1999). See N. Ronzitti, ‘The Current Status of Legal Principles Prohibiting the Use of Force and Legal Justifications of the Use of Force’, Redefining Sovereignty, supra note 1537, at 91, 107. See M. Byers and S. Chesterman, ‘Changing the Rules about Rules? Unilateral Humanitarian Intervention and the Future of International Law’, Humanitarian Intervention: Ethical, Legal, and Political Dilemmas 177, 182 (J. L. Holzgrefe and R. O. Keohane eds., 2003). See R. Wedgwood, ‘NATO’s Campaign in Yugoslavia’, 93 AJIL 828, 830–1 (1999). See Schachter, supra note 517, at 1640–1. Security Council Resolution 1244 (1999), 54 RDSC 32 (1999).

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retroactive ratification of the use of force by NATO.1925 In any event, the Council’s authorization of regional enforcement action must be sought before – and not subsequent to – the military operation.1926 The supremacy of the Council in the province of international peace and security can be utterly eroded if the expression ‘authorization’ in Article 53(1) is construed in a manner encompassing acquiescence with a fait accompli.1927 One reason is that a Permanent Member is apt to ‘shift the burden of the veto’ by acting unilaterally and then frustrating the adoption of any resolution terminating the action.1928 899. NATO’s Kosovo Air Campaign may also be looked upon as ‘an important and undeniable invocation of the so-called right of humanitarian intervention in state practice’1929 (supra 195 et seq.). Yet, ‘humanitarian intervention is not an exception to the Charter prohibitions on the use of force’.1930 The question whether the situation in Kosovo in 1999 was so agonizing that it warranted humanitarian intervention from the outside should have been resolved by the Security Council and not unilaterally by NATO. Obviously, in Kosovo – as in Bosnia-Herzegovina – there was room for synergy between the Council and NATO, but only on condition that the Council authorized NATO action against Serbia/Montenegro.1931 Failure by the Council to act in the face of ‘ethnic cleansing’ in Kosovo was distressing. Still, the ‘cure’ for that failure – opening the sluices for unilateral forcible intervention in a manner wreaking havoc on the Charter’s system prohibiting the use of inter-State force save for self-defence or collective security – appears to the present writer worse than the disease.1932 This was a source of considerable disquiet at the time, but it is noteworthy that – in the meantime – ‘substantial effort has been made’ by the key actor (the United States) ‘to limit the precedential value’ of the Kosovo campaign.1933 It speaks volumes about the new state of mind prevailing in NATO at the time of writing that there was no dissent from the view that any humanitarian intervention in Libya, in early 2011 (induced by the unrestrained use of governmental force against civilians demanding more freedom), must be firmly embedded in Security Council authorization. 1925 1926 1927 1928 1929 1930 1931 1932 1933

See U. Villani, ‘The Security Council’s Authorization of Enforcement Action by Regional Organizations’, 8 MPYUNL 535, 547–8 (2002). See G. Ress and J. Bröhmer, ‘Article 53’, I The Charter of the United Nations: A Commentary, supra note 485, at 854, 864–5. See N. D. White, The Law of International Organisations 215 (1996). L. Henkin, ‘Kosovo and the Law of “Humanitarian Intervention”’, 93 AJIL 824, 827 (1999). D. Kritsiotis, ‘The Kosovo Crisis and NATO’s Application of Armed Force against the Federal Republic of Yugoslavia’, 49 ICLQ 330, 357–8 (2000). J. I. Charney, ‘Anticipatory Humanitarian Intervention in Kosovo’, 93 AJIL 834, 836 (1999). See B. Simma, ‘NATO, the UN and the Use of Force: Legal Aspects’, 10 EJIL 1, 12 (1999). This is the answer to K. Nowrot, ‘Book Review’ [of the third edition of this book], 44 GYIL 781, 782 (2001). J. F. Murphy, ‘Is US Adherence to the Rule of Law in International Affairs Feasible?’, International Law and Armed Conflict: Exploring the Faultlines, supra note 1059, at 197, 226.

Collective security

V.

339

Is there an alternative to the Security Council?

900. In the 2005 Kadi case, the Court of First Instance of the European Communities expressed the need to proceed ‘without trespassing on the Security Council’s prerogatives under Chapter VII of the Charter of the United Nations in relation to determining, first, whether there exists a threat to international peace and security and, second, the appropriate measures for confronting or settling such a threat’.1934 This is self-evident as far as a European Court is concerned. The question is whether other organs of the United Nations – more specifically, the General Assembly or the International Court of Justice – may do such ‘trespassing’. A.

The General Assembly

901. The Security Council is the sole body competent under the United Nations Charter to adopt binding decisions entailing enforcement measures (see supra 835). If the Security Council fails to adopt such a binding decision (perhaps because of inability to surmount a veto cast or threatened by one of the Permanent Members), the General Assembly does not have the competence to become a substitute for the Council. 902. The impasse reached by the Security Council during the ‘Cold War’ – due to the frequent exercise of the veto power – became apparent shortly after the entry into force of the Charter. In 1950, the General Assembly adopted a famous Resolution – entitled ‘Uniting for Peace’ – which was supposed to surmount the obstacles standing in the way of concerted international action in the face of aggression: Resolves that if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security. If not in session at the time, the General Assembly may meet in emergency special session within twenty-four hours of the request therefor.1935

When adopted, the ‘Uniting for Peace’ Resolution was greeted as ‘epochmaking’.1936 With the passage of time, much of the original appeal of the 1934 1935 1936

Kadi v. Council of the European Union and Commission of the European Communities (Court of First Instance of the European Communities, 2005), 45 ILM 81, 113 (2006). General Assembly Resolution No. 377 (V), 5 RGA 10, id. (1950). L. H. Woolsey, ‘The “Uniting for Peace” Resolution of the United Nations’, 45 AJIL 129, 130 (1951).

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Resolution has considerably subsided.1937 The radical increase in the composition of the General Assembly has turned it into an unwieldy body, ill-suited for the task at hand. Apart from its size, the overall record of the General Assembly has given rise to a lot of criticism and even a sense of disenchantment.1938 903. There is no need to dwell upon the fact that the ‘Uniting for Peace’ Resolution did not, and could not, amend the Charter. Nowhere in the text did the General Assembly purport to arrogate powers exceeding those allotted to it in the Charter.1939 Nor does the Resolution say that the General Assembly will supplant the Security Council. 904. The central question concerning ‘Uniting for Peace’ is often presented as one of defining a failure on the part of the Security Council to exercise its responsibility or, at least, ascertaining which United Nations organ is to decide that such a failure has occurred.1940 But in reality this is a side issue. The main problem is that, in all matters pertaining to international peace and security, the General Assembly is authorized (under Chapter IV)1941 to adopt only nonbinding recommendations. Each Member State ‘remains legally free to act or not to act on such recommendation’.1942 In its 1962 Advisory Opinion on Certain Expenses of the United Nations, the International Court of Justice held that – although, generally speaking, the responsibility of the Security Council respecting the maintenance of international peace and security is ‘primary’ rather than exclusive (see Article 24(1) quoted supra 809) – only the Council possesses the power to impose explicit obligations of compliance under Chapter VII.1943 905. During the ‘Cold War’ era, the General Assembly tried to ‘usurp the primary responsibility of the Security Council on quite a number of occasions’, although in recent years it appears to have largely reconciled itself to taking ‘a secondary or silent role’.1944 In any event, when the General Assembly adopts a recommendation for action by States in the realm of international peace and security, such a resolution – while not bereft of political significance – does not alter the legal rights and duties of those States. In particular, the General Assembly is incapable of placing any forcible measures employed on a new juridical footing.1945 In that, a General Assembly resolution falls conspicuously

1937 1938 1939 1940 1941 1942 1943 1944 1945

See P. R. Baehr and L. Gordenker, The United Nations in the 1990s 75–6 (2nd edn, 1994). See T. M. Franck, Nation against Nation 117 (1985). See J. Andrassy, ‘Uniting for Peace’, 50 AJIL 563, 572 (1956). See H. Reicher, ‘The Uniting for Peace Resolution on the Thirtieth Anniversary of Its Passage’, 20 Col.JTL 1, 10 (1981). Charter of the United Nations, supra note 248, at 334–8. Stone, supra note 27, at 274–5. Advisory Opinion on Certain Expenses of the United Nations, supra note 1875, at 163. White, supra note 1885, at 143. See C. Leben, ‘Les Contre-Mesures Inter-Etatiques et les Réactions a l’Illicite dans la Société Internationale’, 28 AFDI 9, 33 (1982).

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short of a Security Council decision, which (pursuant to Chapters VII and VIII) can validate an otherwise unlawful use of force. 906. So far, the General Assembly (which, over the decades, applied the ‘Uniting for Peace’ Resolution to convene ten Emergency Special Sessions) has not recommended the use of force as envisaged in the Resolution.1946 But even if it were to do so, a General Assembly recommendation to employ force ought to be interpreted merely as an exhortation addressed to Member States, to take joint action in the exercise of their right of collective selfdefence1947 (see Chapter 9). Unlike a similar recommendation by the Security Council (see supra 814), the General Assembly is unable even to attach to the action the cachet of bona fide self-defence. That is not to assert (as some scholars stringently do1948) that the General Assembly lacks competence to recommend that Member States resort to self-defence. It is the prerogative of the General Assembly to encourage Member States to exercise a right which is conferred upon them under the Charter (as well as by customary international law), but this does not diminish the ultimate power of the Security Council to review the situation and appraise the exercise of self-defence (see supra 622). 907. Collective security differs from collective self-defence in that the right to decide whether to fight an aggressor is accorded not to every single State, but to a central organ of the international community. It is settled in the Charter that the organ in question is the Security Council. When the Council fails to carry out its mandate, no other United Nations organ can serve as its surrogate. Collective self-defence may be instigated on the initiative of the General Assembly. But if it is, freedom of inaction redounds on every Member State, and the Council retains its right to accept or reject claims of self-defence. 908. When the Security Council refrains from setting in motion collective security measures, any force used by States must be restricted to self-defence (individual or collective), namely, a response to an armed attack. The ‘Uniting for Peace’ Resolution was carefully crafted in specifying that the General Assembly may recommend recourse to armed force only when an actual breach of the peace or aggression occurs, and not in circumstances of a threat to the peace. Perhaps the Resolution ought to have been drafted even more meticulously, for, under the Charter, even a breach of the peace or aggression as such is not an adequate justification for the use of counter-force (unauthorized by the Security Council), unless it constitutes an armed attack (see supra 512).

1946 1947 1948

See H. Volger, ‘Uniting for Peace Resolution’, A Concise Encyclopedia of the United Nations, supra note 490, at 742, 744. See Thomas and Thomas, supra note 1622, at 175–6. See H. Kelsen, Recent Trends in the Law of the United Nations 979 (1951).

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B.

The International Court of Justice

909. There are two separate, albeit related, issues concerning the interaction of the Security Council and the International Court of Justice. The first is the concurrent or consecutive competence of the Council and the Court. The second is whether the Court can invalidate Council resolutions adopted under Chapter VII. (a)

Concurrent or consecutive competence of the Council and the Court 910. In the Nicaragua case, the United States challenged the jurisdiction of the International Court of Justice (as a judicial organ) to deal with complaints concerning the unlawful use of force (including acts of aggression or breaches of the peace), on the ground that this is a task assigned by the Charter to the political organs of the United Nations, chiefly the Security Council.1949 The Court, in 1984, rejected the argument, inasmuch as the responsibility ascribed to the Council in this domain is only ‘primary’ (see Article 24(1) of the Charter quoted supra 809) and not exclusive.1950 The Judgment distinguished between the purely judicial role of the Court and the political duties entrusted to the Council.1951 In the Court’s words, ‘[b]oth organs can therefore perform their separate but complementary functions with respect to the same events’.1952 Judge Schwebel upheld the same line of approach in his Dissenting Opinion of 1986: while the Security Council is invested by the Charter with the authority to determine the existence of an act of aggression, it does not act as a court in making such a determination. It may arrive at a determination of aggression – or, as more often is the case, fail to arrive at a determination of aggression – for political rather than legal reasons. However compelling the facts which could give rise to a determination of aggression, the Security Council acts within its rights when it decides that to make such a determination will set back the cause of peace rather than advance it. In short, the Security Council is a political organ which acts for political reasons. It may take legal considerations into account but, unlike a court, it is not bound to apply them.1953

911. This is a correct analysis of the powers of the Security Council. Under the Charter, the Council is put in charge of the all-important mission of maintaining or restoring international peace and security. The Council must concentrate on that task, functioning as a political rather than a judicial organ. As stressed by Fitzmaurice, the Council is not expected to settle a dispute as such, or to prevent or punish any violation of international law, although it may 1949 1950 1953

Nicaragua case (Jurisdiction), supra note 1385, at 431–3. Ibid., 434. 1951 Ibid., 435. 1952 Ibid. Nicaragua case (Merits), supra note 14, at 290.

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achieve these results as well.1954 The Council is not the most suitable body to pass judgment as to which side in an armed conflict is ‘guilty of violating its legal obligations’; such a determination may indeed impede it from taking the measures conducive to the safeguarding of international peace and security.1955 By contrast, the Court, not being hampered by political constraints or by motivations of expediency, is fully qualified to bring legal yardsticks to bear upon the armed conflict in a dispassionate fashion.1956 912. Since the Security Council and the International Court of Justice are both authorized to pronounce on the same events – one body applying political, and the other legal, criteria – the question that comes to mind is how to obviate the theoretical contingency of two contradictory, equally binding, decisions being reached by the two organs simultaneously. Most assuredly, such a headon collision is not likely to happen in reality.1957 The Court is not often seized with disputes affecting the maintenance or restoration of international peace and security. For jurisdictional and other reasons, it is reasonable to assume that the judicial regulation of such matters will ‘remain peripheral’ in the future.1958 In any event, once the Council issues a verdict about the occurrence of an act of aggression, it is hard to believe that the Court would be inclined to contradict it. 913. Nevertheless, as a matter of speculative inquiry, the scenario of a potential discord between the Council and the Court cannot be lightly dismissed. What happens if the Council determines that an act of aggression has been committed by Arcadia against Utopia, whereas the Court rules that Arcadia is not to blame and that it is actually the victim of aggression initiated by Utopia? In the Nicaragua case, the Court observed that, in the context of those proceedings, it was not ‘asked to say that the Security Council was wrong’.1959 But what would the Court do in the future, if it is requested to say precisely that? 914. One way to resolve the difficulty is to apportion different timeframes for the performance of the dissimilar functions of the Security Council and the Court. Thus, in an ongoing armed conflict (as argued by the United States),1960

1954 1955 1956 1957

1958 1959

G. G. Fitzmaurice, ‘The Foundations of the Authority of International Law and the Problem of Enforcement’, 19 Mod.LR 1, 5 (1956). O. Schachter, ‘The Quasi-Judicial Role of the Security Council and the General Assembly’, 58 AJIL 960, id. (1964). See B. S. Chimni, ‘The International Court and the Maintenance of Peace and Security: The Nicaragua Decision and the United States Response’, 35 ICLQ 960, 967–9 (1986). The present author was taken to task for this statement, reflecting ‘an optimism readily dispelled by the events leading to the Lockerbie cases in 1992’. S. A. M. Pasha, ‘Book Review’ [of the second edition of this book], 37 IJIL 790, 794 (1997). But, as will be shown infra 921, the author’s guarded optimism was eventually confirmed by the International Court of Justice. O. Schachter, ‘Self-Defense and the Rule of Law’, 83 AJIL 259, 276–7 (1989). Nicaragua case (Merits), supra note 14, at 436. 1960 Ibid.

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it would be preferable for the Council alone to exercise its mission of restoring international peace and security. The Council may ordain a cease-fire, insist on withdrawal of forces, and even initiate an enforcement action, without tackling the legality of the underlying issues. The measures taken by the Council need not curtail the power of the Court to investigate the legality of the use of force – as well as other legal rights and wrongs – after the hostilities are over. In the aftermath of the fighting, the Court must be at liberty to take a fresh look at the situation from the perspective of juridical standards. It may then come to conclusions that are at variance with those previously reached by the Council. For instance, the Court may rule that a disputed territorial zone, from which Arcadia was ordered by the Council to withdraw, actually belongs to it. In that case, Arcadian troops would be allowed to reoccupy the area. 915. Analytically, given different timeframes and divergent criteria for decision-making, there need be no real clash between a decree by the Security Council and a different ruling by the Court. The Council’s responsibility in an ongoing conflict is to restore international peace and security. The Court’s role is to settle disputes in accordance with international law, i.e. to ‘restore the law’.1961 The restoration of peace is more urgent than the settlement of the dispute, and it ought to be given temporal priority. But the measures taken by the Council are not necessarily the last word on the subject. The final judgment is left to the Court (provided, of course, that it has jurisdiction). 916. Belligerent Parties, acting together, may elect to submit their dispute to the Court even in the midst of an international armed conflict. Should that happen, there is no reason for the Court to decline jurisdiction.1962 Under these circumstances, the Security Council must allow the Court to exercise its judicial powers without undue interference, although a cease-fire order will not be out of place. However, if the Belligerent Parties are not at one in their desire to bring their dispute before the Court, and as long as hostilities are not terminated, it is submitted that the Court ought to exercise judicial restraint. The reason is not that the ‘factual matrix is fluid and constantly changing’,1963 but that the Court should do whatever it can to avoid an actual or potential dissension with the Council. While the armed conflict continues, and in the absence of agreement between the Belligerent Parties as to the Court’s jurisdiction, the Court ought to defer to the Council, letting it discharge its duties pursuant to the Charter. If an application instituting contentious proceedings is filed with the Court pendente bello, unless all the Belligerent Parties explicitly urge the Court to entertain the dispute without delay, it is on the whole better to regard the case as unripe – as yet – for judicial determination. 1961 1962 1963

Kelsen, supra note 564, at 294. See R. B. Bilder, ‘Judicial Procedures Relating to the Use of Force’, 31 Vir.JIL 249, 265 (1990–1). K. Highet, ‘Evidence, the Court, and the Nicaragua Case’, 81 AJIL 1, 43 (1987).

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(b)

Can the Court invalidate binding decisions adopted by the Council? 917. Does the International Court of Justice have the power of judicial review over binding resolutions, adopted by the Security Council under Chapter VII? In its 1970 Advisory Opinion on Namibia, the International Court of Justice stated that ‘[u]ndoubtedly, the Court does not possess powers of judicial review or appeal in respect of the decisions’ of the Security Council.1964 But the full implications of this dictum are questionable.1965 918. As explained by Judge Fitzmaurice in his Dissenting Opinion in the Namibia proceedings, the proviso ‘in accordance with the present Charter’ – appearing in Article 25 of the Charter (quoted supra 835), from which the binding powers of the Council flow – is openly intended to qualify these powers.1966 The question whether a Council resolution is binding – in accordance with the Charter – ‘must be a matter for objective determination’,1967 and only the International Court of Justice is in a position to answer it authoritatively. It stands to reason, however, that – in case of ‘fundamental irregularities’ – the Court may question the validity of any act taken by an organ of the United Nations, including the Security Council.1968 For instance, should a professed decision of the Council run afoul of the procedural requirements laid down in the Charter (e.g., insofar as voting is concerned), the Court may have no choice but to declare it to be null and void. 919. The issue of the competence of the Court to pass judgment on a binding decision of the Council seemed on the verge of being disposed of in the Lockerbie case.1969 Here a bomb was placed aboard a Pan American aircraft, which exploded in mid-air over Lockerbie (Scotland), in 1988, with vast loss of life. Two Libyan officials were suspected of responsibility for the terrorist act, and Libya was requested to surrender them to trial either to the United States (the State of nationality of the airline) or the United Kingdom (the State in whose airspace the explosion occurred). Libya refused to do so. The Council adopted three resolutions on the subject. In the first (Resolution 731 of January 1992), it merely urged Libya to cooperate fully in establishing responsibility for the terrorist act by responding to the requests for the surrender of the suspects.1970 In the second (Resolution 748 of March 1992 cited supra 475), the Council – acting under Chapter VII – decided that Libya must comply with 1964 1965 1966 1968 1969 1970

Advisory Opinion on Namibia, supra note 1782, at 45. See A. Orakhelashvili, ‘The Acts of the Security Council: Meaning and Standards of Review’, 11 MPYUNL 143, 192 (2007). Advisory Opinion on Namibia, supra note 1782, at 293. 1967 Ibid. V. Gowlland-Debbas, ‘Article 7 UN Charter’, The Statute of the International Court of Justice: A Commentary, supra note 516, at 79, 98. For the facts of this case, see F. Beveridge, ‘The Lockerbie Affair’, 41 ICLQ 907–20 (1992). Security Council Resolution 731 (1992), 47 RDSC 51, 52 (1992).

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those requests, determined that failure by Libya to demonstrate by concrete action its renunciation of terrorism constituted ‘a threat to international peace and security’, and imposed on Libya sundry sanctions (mainly, arms and air embargo). In the third (Resolution 883 of November 1993), the Council – again acting under Chapter VII and reiterating the existence of a threat to the peace – extended the range of the sanctions (primarily, by the freezing of Libyan assets abroad).1971 920. In March 1992, after Resolution 731 but prior to Resolution 748 (and, of course, Resolution 883), Libya instituted legal proceedings against the United Kingdom and the United States before the International Court of Justice. The Libyan claim was that the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation1972 should be applicable to the case. The United Kingdom and the United States maintained that the case was inadmissible, being governed by Security Council resolutions which supersede any obligations under the Montreal Convention in light of Articles 25 (quoted supra 835) and 103 (quoted supra 778) of the Charter.1973 921. In an early phase of the case, in 1992, the Court practically confirmed the binding effect of Resolution 748 (given the provisions of Articles 25 and 103) vis-à-vis any rights claimed by Libya under the Montreal Convention.1974 However, in 1998, the Court upheld a Libyan submission that admissibility must be determined by the critical date of the filing of the Libyan Application: Security Council resolutions 748 (1992) and 883 (1993) cannot be taken into consideration in this regard, since they were adopted at a later date. As to Security Council resolution 731 (1992), adopted before the filing of the Application, it could not form a legal impediment to the admissibility of the latter because it was a mere recommendation without binding effect.1975

Clearly, had the Libyan Application been filed subsequent to Resolution 748, this binding text would have formed a legal impediment to its admissibility. 922. The Court’s ruling was issued at a Preliminary Objections stage. How the Court would have pronounced itself on the merits is a matter of conjecture. In the event, the two Libyan suspects were surrendered to the Netherlands,

1971 1972 1973

1974

1975

Security Council Resolution 883 (1993), 48 RDSC 113, 114 (1993). Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1971, [1971] UNJY 143. Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Preliminary Objections) (Libya v. United Kingdom), [1998] ICJ Rep. 9, 24; (Libya v. United States), ibid., 115, 129–30. Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Request for the Indication of Provisional Measures) (Libya v. United Kingdom), [1992] ICJ Rep. 3, 15; (Libya v. United States), ibid., 114, 127. Lockerbie case, supra note 1973, at 26; 130–1.

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which undertook to host a Scottish Court for the purpose of their trial.1976 The Security Council, in Resolution 1192 (1998), agreed to suspend the sanctions against Libya once the accused arrived in the Netherlands.1977 Ultimately, one of the two accused was convicted in 2001 of murder.1978 The conviction was upheld on appeal in 2002.1979 In 2003, Libya consented to pay appropriate compensation to the families of the victims (a payment of $2.7 billion was made), and its cases in the International Court of Justice against the United Kingdom and the United States were withdrawn.1980 For its part, the Security Council terminated the sanctions in Resolution 1506 (2003).1981 923. The Court in the Lockerbie case shied away from a direct confrontation with the Security Council, although it is evident that the Court did not exclude the feasibility of simultaneous proceedings before the Council and itself.1982 But the case sparked a debate as to whether the Court had the authority to override binding decisions of the Council (such as Resolution 748). In his Dissenting Opinion, in 1998, President Schwebel denied that the Court is generally ‘empowered to exercise judicial review of the decisions of the Security Council’, and asserted that the Court ‘is particularly without power to overrule or undercut decisions of the Security Council made by it in pursuance of its authority under Articles 39, 41 and 42 of the Charter’.1983 924. The present writer believes that President Schwebel went too far. A more modulated assessment of the inter-relationship between the Court and the Council was made by Judge Weeramantry, in his Dissenting Opinion of 1992: Thus, any matter which is the subject of a valid Security Council decision under Chapter VII does not appear, prima facie, to be one with which the Court can properly deal.1984

The word that should be underlined in this proposition is the adjective ‘valid’. The Council is vested by Chapter VII with extensive powers coupled with the widest possible discretion, and as a rule the Court cannot gainsay the Council. 1976 1977 1978 1979 1980

1981 1982 1983 1984

The Netherlands–United Kingdom, Agreement Concerning a Scottish Trial in the Netherlands, 1998, 38 ILM 926, 927 (1999) (Articles 2–3(1)). Security Council Resolution 1192 (1998), 53 RDSC 74, id. (1998). Scottish High Court of Justiciary at Camp Zeist (the Netherlands): Her Majesty’s Advocate v. Al Megrahi et al. (2001), 40 ILM 582, 612–13 (2001). Verdict in Libya Terrorist Case: Pan Am 103, [2002] Digest of United States Practice in International Law, supra note 1128, at 111, id. See S. D. Murphy, ‘Libyan Payment to Families of Pan Am Flight 103 Victims’, 97 AJIL 987, 990–1 (2003). The Court placed on record the discontinuance of the proceedings in Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Order) (Libya v. United Kingdom), [2003] ICJ Rep. 149, 150; (Libya v. United States), ibid., 152, 153. Security Council Resolution 1506 (2004), 43 ILM 251, id. (2004). See B. Martenczuk, ‘The Security Council, the International Court and Judicial Review: What Lessons from Lockerbie?’, 10 EJIL 517, 532 (1999). Lockerbie case, supra note 1973, at 73; 164–5. Lockerbie case, supra note 1974, at 66; 176.

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To take but one prime example, a determination by the Council that a particular situation constitutes a threat to the peace is non-reviewable on the facts by the Court1985 (see supra 823–4). Nevertheless, the Council’s decisions – to be binding – must be legally valid. 925. As implied in Judge Weeramantry’s words, there is a prima facie presumption that the Security Council’s resolutions are valid. But it must not be forgotten that the Council’s powers and competence flow from the United Nations Charter. Consequently, if any resolution adopted by the Council is ultra vires the Charter (owing to exceptional circumstances rebutting the presumption), the Court may have no choice but to declare it invalid.1986 As mentioned (supra 918), even the pivotal text establishing the Council’s power to adopt binding decisions – Article 25 (quoted supra 835) – proclaims that these decisions are to be accepted and carried out by Member States ‘in accordance with the present Charter’. The Charter thus imposes built-in limits on the Council.1987 (c) Binding decisions of the Council and jus cogens 926. A Grand Chamber of the European Court of Human Rights held in 2007, in the Behrami case, that binding Security Council resolutions (adopted under Chapter VII of the United Nations Charter) – as well as operations carried out on their basis – cannot be subject ‘to the scrutiny of the Court’ on human rights grounds.1988 The Court relied in this respect on the combined thrust of Articles 25 and 103 of the Charter.1989 927. It is noteworthy that the reach of Article 103 is confined to a conflict between Charter obligations and ‘obligations under any other international agreement’ (supra 778). Naturally, the Charter prevails also over any previous inconsistent custom: this would follow from the normal application of the lex posterior derogat lex priori principle.1990 There may be a question regarding a later custom which is at odds with the Charter, inasmuch as subsequent practice may drastically impact even upon the language of the Charter.1991 But it is

1985 1986

1987 1988 1989 1990 1991

See J. G. Merrills, International Dispute Settlement 251 (3rd edn, 1998). D. Bowett, ‘The Impact of Security Council Decisions on Dispute Settlement Procedures’, 5 EJIL 89, 95–6 (1994). The possibility of a United Nations organ acting ultra vires was touched upon tangentially in the International Court’s Advisory Opinion on Certain Expenses of the United Nations, supra note 1873, at 167. See V. Gowlland-Debbas, ‘Security Council Enforcement Action and Issues of State Responsibility’, 43 ICLQ 55, 90 (1994). Behrami v. France (European Court of Human Rights, Grand Chamber, 2007), 46 ILM 746, 773 (2007). Ibid., 772. See J.-M. Thouvenin, ‘Article 103’, II La Charte des Nations Unies, supra note 507, at 2133, 2140. See Dinstein, supra note 536, at 408–10.

Collective security

349

generally agreed that the Security Council is entitled to deviate from customary international law.1992 928. Article 103 is not germane to a clash between Security Council decisions and a customary jus cogens (defined supra 280) that developed subsequently to the adoption of the Charter.1993 It is difficult to gainsay the proposition that the Security Council cannot simply dismiss jus cogens.1994 Indeed, the proposition that ‘[a]ny Security Council decision in conflict with a norm of jus cogens must necessarily be without effect’ has gained much traction.1995 929. In the 1993 Application of the Genocide Convention case, Judge ad hoc E. Lauterpacht – in his Separate Opinion – offered an illustration to a Security Council decision giving ground to jus cogens: if the Council required States to participate in the perpetration of genocide, the obligation to do so may be set aside by the Court.1996 In the 2006 Armed Activities case (Congo v. Rwanda), the International Court of Justice held that the prohibition of genocide ‘assuredly’ has the character of jus cogens.1997 930. In actuality, the Security Council has been sensitive to the need to prevent and punish the crime of genocide: this has been a recurrent subject on its agenda since the early 1990s.1998 Yet, the top priority of the Council under the Charter has always been the maintenance or restoration of international peace and security. Due account must be given to the fact that the prohibition of inter-State use of force constitutes jus cogens (see supra 283) no less than the ban on genocide. In theory, at least, when the Council ordains enforcement measures to counter aggression (with a view to safeguarding one peremptory norm), the steps taken may possibly entail some form of genocide (in violation of another peremptory norm). However, (i) even if the exercise of the Council’s judgment is challenged in specific circumstances, it is very difficult to contend that the Council has actually violated jus cogens (owing to countervailing

1992 1993

1994 1995

1996

1997 1998

See Weiss, supra note 1746, at 52–5. See M. N. Shaw, ‘The Security Council and the International Court of Justice: Judicial Drift and Judicial Function’, The International Court of Justice: Its Future Role after Fifty Years 219, 229 (A. S. Muller et al. eds., 1997). See K. Doehring, ‘Unlawful Resolutions of the Security Council and Their Legal Consequences’, 1 MPYUNL 91, 108 (1997). D. Akande, ‘The International Court of Justice and the Security Council: Is There Room for Judicial Control of Decisions of the Political Organs of the United Nations?’, 46 ICLQ 309, 322 (1997). Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Provisional Measures) (Bosnia and Herzegovina v. Yugoslavia), 1993, [1993] ICJ Rep. 325, 440. Case Concerning Armed Activities on the Territory of the Congo, supra note 690, at 32. See W. A. Schabas, Genocide in International Law: The Crime of Crimes 546–55 (2nd edn, 2009).

350


requirements of maintaining or restoring peace);1999 and (ii) should the allegation be made, the legal situation may boil down to a clash between two norms of jus cogens, and it may be debatable which one takes precedence over the other.2000 931. The inter-relationship between binding Security Council resolutions and jus cogens is not restricted to the domain of genocide. Special attention must be given in this context to the European Kadi case. The Court of First Instance of the European Communities pronounced in 2005: the Court is empowered to check, indirectly, the lawfulness of the resolutions of the Security Council in question with regard to jus cogens, understood as a body of higher rules of public international law binding on all subjects of international law, including the bodies of the United Nations, and from which no derogation is possible.2001

On appeal, in 2008, the Grand Chamber of the European Court of Justice recalibrated this holding. It held that it is not for the Community judicature to review the lawfulness of a resolution adopted by the Security Council under Chapter VII of the United Nations Charter, ‘even if that review were to be limited to examination of the compatibility of that resolution with jus cogens’.2002 Still, if the Community judicature decides that a Community measure ‘intended to give effect to such a resolution is contrary to a higher rule of law in the Community legal order’, this ‘would not entail any challenge to the primacy of that resolution in international law’.2003 932. Although the Appeal Kadi Judgment blunted the edge of the decision of the First Instance, it is evident that – indirectly or even tangentially – a European Court may ground its decision on the finding of incompatibility of a (supposedly) binding Security Council resolution with jus cogens. Nevertheless, surely, a European Court is not the proper venue to adjudge that a Security Council resolution and jus cogens are irreconcilable. The only suitable venue for a direct challenge to the validity of a Security Council resolution – in light of jus cogens – is the International Court of Justice (which, under Article 92 of the Charter, is ‘the principal judicial organ of the United Nations’2004). Of course, the chances that the Court will actually rule expressis verbis that a binding Council resolution – adopted under Chapter VII – is incongruent with jus cogens, are not very high in practice. 1999 2000 2001 2002

2003

See P. Hilpold, ‘EU Law and UN Law in Conflict: The Kadi Case’, 13 MPYUNL 141, 171–2 (2009). See K. Svanberg-Torpman, ‘The Security Council as a Law Enforcer and Legislator’, Peace and Security, supra note 349, at 85, 94–5. Kadi v. Council of the European Union and Commission of the European Communities, supra note 1934, at 107. Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities (European Court of Justice, Grand Chamber, 2008), 47 ILM 927, 958 (2008). Ibid. 2004 Charter of the United Nations, supra note 248, at 359.

Conclusion

933. The use of force in international relations is currently forbidden by both the United Nations Charter and customary international law (except within the prescribed circumference of collective security and self-defence): aggression even constitutes a crime. The legal proscription of inter-State force – particularly in the form of an outright war – forms the bedrock of the contemporary international legal system. Admittedly, to date, the prohibition has not had a profound impact on the actual conduct of States. As of now, its imprint has been more noticeable in the vocabulary of States. An international climate has been generated in which the term ‘war’ has an unsavoury connotation. Hence, while States continue to wage war,2005 they prefer taking the moral high ground and describe their activities in palatable euphemisms. One may say, in a combination of cynicism and realism, that so far the legal abolition of war has stamped out not wars but declarations of war. This lip-service to the cause of peace may be hypocritical. However, as pithily put by La Rochefoucauld, ‘l’hypocrisie est un hommage que le vice rend à la vertu’.2006 The recognition of virtue is an indispensable first step without which no vice is likely to be eliminated. 934. All the same, a taboo on the use of the word ‘war’ in legal analysis makes no sense at all.2007 The fact that war is banished linguistically will not make it vanish empirically. Whether we employ this or that phrase does not alter the incontrovertible truth that comprehensive armed conflicts still permeate international relations. If the phenomenon of war is to be eradicated, it must be faced and not ignored. Otherwise, all that we are left with is hypocrisy. 935. For aggressive war – as well as unlawful uses of inter-State force ‘short of war’ – to disappear, the international community must establish effective measures of collective security. The ‘harnessing’ of force to international procedures of law and order is the real challenge of our day.2008 Unfortunately, the lacklustre 2005

2006 2007 2008

For a comprehensive list of armed conflicts (both inter-State and intra-State) occurring in the half-century between 1945 and 1995, see K. J. Holsti, The State, War, and the State of War 210– 24 (1996). La Rochefoucauld, Oeuvres Complètes 432 (Maxime 218) (Gallimard ed., 1964). See R. R. Baxter, ‘The Law of War’, 62 ILS 209, id. (R. R. Lillich and J. N. Moore eds., 1980). R. Y. Jennings, ‘General Course on Principles of International Law’, 121 RCADI 323, 584 (1967).

351

352

Conclusion

performance of the United Nations Security Council (which has been entrusted with this task by the Charter) has instigated widespread disappointment and dissatisfaction. The binding enforcement mechanism of the United Nations – embedded in Article 42 of the Charter (quoted supra 818) – has not been activated despite the end of the ‘Cold War’ (and notwithstanding concrete proposals submitted by the Secretary-General in 1992, in response to the Council’s invitation; see supra 872). A Security Council policy of permissive enforcement action based on subcontracting to a regional organization – NATO – in Bosnia-Herzegovina has indirectly led to the disquieting precedent of NATO imposing law and order in Kosovo, in 1999, without the authorization of the Council. 936. As long as the Charter’s scheme of collective security fails to function adequately, States are left to their own devices when confronted with an unlawful use of force. Again and again, they invoke the right of (individual or collective) self-defence in response to an ‘armed attack’, in conformity with Article 51 of the Charter (quoted supra 498). Thus, instead of being a provisional interlude pending the exercise of collective security – pursuant to Article 39 (quoted supra 810 et seq.) – self-defence (individual as well as collective) has largely taken the place of collective security.2009 During the ‘Cold War’, the very ‘centre of gravity in the United Nations has swung from Article 39 to Article 51’.2010 Notwithstanding the palpable changes in the world political landscape since the termination of the ‘Cold War’, the right of self-defence – individual and collective – remains the principal shield against armed attacks. 937. Drawing a sharp distinction between collective self-defence and collective security is especially important when the Security Council gives its blessing to the former without committing the international community to the latter. Only genuine collective security – namely, the activation by the Council of binding enforcement mechanism consonant with Article 42 – can turn the use of counter-force into an approximation of an international police action. The exercise of collective self-defence, even by a vigorous coalition of the willing operating with the advance blessing of the Security Council, is apt to trigger political doubts and plant the seeds of legal confusion. The Gulf War in its various phases, from the invasion of Kuwait to the occupation of Iraq, is a prime example of such doubts and confusion. 938. The new challenges posed by international terrorism have only added to the complexity of the situation. Paradoxically, the idiom ‘war’ is freely used – as a figure of speech – in the context of the struggle against terrorism. But the crux of the issue is that the concept of an ‘armed attack’ is now clearly

2009

See Kelsen, supra note 1605, at 785.

2010

Feinberg, supra note 261, at 70.

Conclusion

353

understood as embracing acts of international terrorism. Self-defence against international terrorists can and does develop into a full-scale war, as happened in Afghanistan following the devastating events of 9/11. War, aggression and self-defence appear to be more common and more intricate than ever.

Index of persons (References are to page numbers)

Abass, A., 120 Abramovsky, A., 257 Ago, R., 115, 189–90, 192, 198, 219, 227, 232, 255, 265, 271, 279 Ajibola, B. A., 78 Akande, D., 161, 349 Akehurst, M., 180, 231, 258, 280, 283, 310 Alexandrov, S. A., 282 Allain, J., 115, 123 Alland, D., 262 Ambos, K., 143 Amin, I., 257 Amin, S. H., 264 Amnéus, D., 60 Ando, N., 50 Andrassy, J., 340 Andreopoulos, G. J., 67 Antonopoulos, C., 115, 205 Anzilotti, D., 77 Arai-Takahashi, Y., 237 Arangio-Ruiz, G., 218, 250 Arend, A. C., 318 Ary, V. A., 56 Ashburton, Lord, 274 Augusine, St., 66 Aust, A., 60, 104, 202 Ayala, 67 Badr, G. M., 211 Baehr, P. R., 340 Bailey, S. D., 57, 239, 302, 317, 326, 330 Balling, F. C., 51 Barbour, S. A., 272 Barboza, J., 267 Bassiouni, M. C., 130, 137 Bastid, S., 53 Bate, J. P., 67–8 Baty, T., 11 Baxter, R. R., 12, 53, 60, 74, 120, 169, 259, 351

Beard, J. M., 228 Beckett, W. E., 198, 287 Bell, C., 7 Bellier, S., 212 Bello, E. G., 78 Beres, L. R., 49 Bermejo-García, R., 206 Bernhardt, R., xvii Beveridge, F., 345 Bilder, R. B., 237, 344 Bindschedler, R. L., 98 Bin Laden, O., 261, 273, 326 Blix, H. M., 183 Blum, Y. Z., 221 Boddens Hosang, J. F. R., 297 Boisson de Chazournes, L., 173 Boldt, N., 55 Booth, K., 22 Borchard, E. M., 14, 34 Borght, K. Van der, 191 Bothe, M., 216, 260, 265, 330 Boustany, K., 300 Bouthillier, Y. Le, 300 Boutros-Ghali, B., 327–8 Bowett, D. W., 115, 165, 196, 218, 237, 239, 250–1, 253, 255, 259, 277, 280, 287, 348 Brand, G., 143 Breckenridge, L., 4 Bretton, P., 56 Briand, A., 84–7, 101, 103, 127–8, 163, 179, 192–3, 197, 235, 282 Brierly, J. L., 14, 69, 76, 79, 86, 95 Briggs, H. W., 78 Bröhmer, J., 338 Broms, B., 135, 217, 304, 307 Brown, D., 245 Brown, E. D., 16 Brown, P. M., 32

355

356

Index of persons

Brownlie, I., 17, 27, 75, 79, 115, 121, 183, 232, 243, 249, 256 Bryan, W. J., 80 Buchwald, T. F., 322, 324 Buergenthal, T., 229 Bugnion, F., 171 Bush, G., 299 Bush, G. W., 3, 31, 195, 322 Butler, W. E., 95 Byers, M., 261, 324, 337 Carnahan, B. M., 300 Caron, D. D., 113 Carsten, M. D., 219 Carver, J., 307 Casey, L. A., 206 Cassese, A., 22, 117, 122, 147, 224, 268 Cassin, V., 220 Castrén, E., 25, 33 Chainoglou, K., 275 Charney, J. I., 338 Charpentier, J., 90 Chaumont, C., 329 Chayes, A., 238 Chesterman, S., 121, 337 Chimni, B. S., 343 Chinkin, C., 291 Christopher, W., 214 Churchill, R. R., 23 Cicero, 15, 65, Clark, R. S., 132 Claude, I. L., 317 Clinton, W. J., 337 Cohan, J. A., 18, 197 Cohen, M., 315 Colbert, E. S., 249 Coll, A. R., 318 Collins, E., 188 Combacau, J., 239, 260 Condorelli, L., 31, 173, 219 Conforti, B., 310 Conlon, P., 307 Constantine, 66 Corbett, P. E., 78 Corten, O., 61, 261 Cot, J.-P., 90 Cottereau, G., 112 Coudert, F. R., 180 Crawford, J., 6, 50, 116 Cryer, R., 89, 142 Cummins, S. J., 3, 194, 337 Currie, J. H., 335 Dalton, R. E., 88 D’Amato, A., 74, 89, 100, 199, 276

Damrosch, L. F., 238 D’Angelo, J. R., 93 Danilenko, G. M., 105, 108 D’Argent, P., 305 D’Aspremont Lynden, J., 96, 305 Davis, G. B., 69 Daws, S., 239, 302, 317, 326, 330 Debevoise, W., 220 Dekker, I. F., 55, 210 Delbrück, J., 20, 226, 283 Delissen, A. J. M., 178 Denza, E., 17, 188 Dickinson, E. D., 78 Dickinson, L. A., 272 Dinh, N. Q., 237 Doehring, K., 349 Domb, F., 112 Dominicé, C., 301 Dopagne, F., 305 Doswald-Beck, L., 23, 119, 172 Drago, L., 81 Draper, G. I. A. D., 167 Drost, P. N., 115 Drumbl, M. A., 228 Dubuisson, F., 261 Dugard, J., 218 Dupuy, P.-M., 114, 321 Durch, W. J., 331 Eagleton, C., 5, 32, 34, 75, 175 Eichensehr, K. E., 257 Eisele, M., 331 Elbe, J. von, 66 Elias, T. O., 78 Elliott, K. S., 238 Evans, M. D., 159 Falk, R. A., 252 Fassbender, B., 316 Fawcett, J. E. S., 218, 270, 311 Feder, N. M., 255 Feinberg, N., 46, 164, 352 Feinstein, B. A., 273 Feliciano, F. P., 196, 198, 280 Fenrick, W. J., 217 Fenwick, C. G., 176, 190, 270, 288 Ferencz, B. B., 72, 137, 139 Fernández-Sánchez, P. A., 206 Ferretti, M. J., 264 Finch, G. A., 128, 273 Fitzgerald, M. A., 199 Fitzmaurice, G. G., 43, 99, 106–7, 182, 210, 218, 293, 342–3, 345 Fleck, D., 111 Fletcher, K. M., 136, 140

Index of persons Focarelli, C., 310 Fonteyne, J.-P. L., 93 Fortna, V. P., 20 Foster, B. O., 65 Fox, Hazel, 158 Fox, Henry, 274 Francioni, F., 22 Franck, T. M., 73, 96, 197, 209, 275, 310, 312, 316, 340 Franckx, E., 243 François, J. P. A., 170 Freeland, S., 24 Friman, H., 142 Froman, F. D., 213 Frowein, J. A., 35, 301, 308, 333 Fuller, G. E., 73 Fuller, G. O., 33 Furley, O., 122 Gaeta, P., 147, 152, 290 Gaja, G., 105, 107, 117, 334 Galdorisi, G. V., 23 Garcia-Mora, M. R., 270, 275 Gardam, J. G., 262, 309 Garner, J. W., 119 Garraway, C. H. B., 6 Garvey, J. I., 137, 331 Garwood-Gowers, A., 310 Gasser, H. P., 247 Gautier, P., 243 Gazzini, T., 233, 235. 243, 335 Geiger, R., 329 Gentili, 68 Gerard, A., 256 Giladi, R., 169 Gilbert, G., 135 Giles-Carnero, R., 326 Gill, T. D., 233, 251, 313 Gilmore, W. C., 256 Ginkel, B. T. van, 135 Ginsburgs, G., 130 Gioia, A., 265 Giraud, E., 188 Glahn, G. von, 44 Glaser, S., 146 Glennon, M. J., 74, 108, 228 Glueck, S., 168 Gomaa, M. M., 60 Gómez Robledo, A., 105 Goodhart, A. L., 142, 282 Goodrich, L. M., 189, 304, 307–8, 328–9 Goodwin-Gill, G. S., 121 Gordenker, L., 340 Gorelick, R. E., 71, 93 Gowlland-Debbas, V., 345, 348

357 Graham, D. E., 72 Graham, M. W., 44 Gray, C., 55, 120, 202, 210–11, 232, 237, 239, 257, 331 Green, J. A., 174, 231–2 Green, L. C., 23, 125, 241, 251, 257–8, 300, 328 Greene, P. L., 257 Greene, W. C., 66 Greenspan, M., 30, 50, 141, 181 Greenwood, C., 6–7, 14, 173, 218, 255, 265, 299, 301, 312, 320, 323–4 Greig, D. W., 197, 240, 253 Grewe, W. G., 39 Griebel, J., 224 Grob, F., 15 Gross, L., 128–9, 304 Grotius, 15, 68, 163, 179 Guggenheim, P., 11 Guttry, A. de, 114 Haggenmacher, P., 40 Halberstam, M., 239 Hall, W. E., 76 Hambro, E., 175, 189, 304, 307–8, 329 Hamid, A. G., 197 Hampson, F. J., 247 Hanessian, J., 22 Hanna, M. W., 130 Hannikainen, L., 108 Hargrove, J. L., 209, 211, 308 Harris, W. R., 76 Harry, M. A., 220 Hay, J., 21 Haye, E. La, 222 Heintchel von Heinegg, W., 54, 180 Heller, K. J., 143 Henderson, C., 232, 322 Henkin, L., 71, 93, 96, 114, 259, 338 Hershey, A. S., 66, 78, 81 Higgins, A. P., 32, 76 Higgins, R., 173, 229 Highet, K., 344 Hill, N., 31 Hill, S. M., 334 Hilpold, P., 350 Hitler, A., 143, 150, 279 Hofman, R., 323 Hogan-Doran, J., 135 Hole, L. Van den, 206 Holsti, K. J., 351 Holtzendorff, L. von, 133 Holzgrefe, J. L., 337 Hoogh, A. J. J. de, 223 Hope, Lord, 157–8 House, E. M., 125

358

Index of persons

Howard, M., 67 Hudson, M. O., xviii, xx, 34 Hulsmann, J., 307 Hussein, S., 14, 130, 266, 322 Hyde, C. C., 270, 273

Kritsiotis, D., 199, 322, 332, 338 Krutzsch, W., 17 Kudriavtsev, V. N., 130 Kunz, J. L., 21, 51, 70, 78, 188, 198, 211, 259, 266, 286 Kwast, P. J., 213

Israel, F. L., xix Jackson, R. H., 168, 179 Jacobsson, M., 60 Janis, M. W., 272 Jasani, B., 24 Jeffery, A., 259 Jekewitz, J., 293 Jennings, R. Y., 40, 221, 236, 245, 274, 280, 294–5, 351 Jessup, P. C., 15, 25, 28, 141, 170, 267, 317 Jiménez de Aréchaga, E., 41, 94, 107, 188, 330 Jones, J. R. W. D., 115, 147 Joyner, C. C., 109 Kaikobad, K. H., 57, 264 Kailes, H., 220 Kalshoven, F., 178, 244 Kammerhofer, J., 275 Kaplan, W., 315 Kaye, D., 245 Kearley, T., 274 Kearney, R. D., 88 Kellogg, F., 84–7, 101, 103, 127–8, 163, 179, 192–3, 197, 235, 282 Kelsen, H., 50, 69–70, 78–9, 86, 98, 153, 187, 191, 198, 259, 280, 283, 309–10, 329, 341, 344, 352 Kenny, K. C., 231 Keohane, R. O., 337 Ker, W. C. A., 15 Keyes, C. W., 65 Keynes, J. M., 113 Khrushchev, N., 71 Kioko, B., 122 Kionacioglu, M., 325 Kirgis, F. L. Jr., 96, 313 Kittrich, J., 228 Klafkowski, A., 42 Knisbacher, M., 241 Kolb, R., 231, 305, 310 Komarnicki, T., 25, 180 Kooijmans, P. H., 229, 272, 313 Koppe, E. V., 114 Koskenniemi, M., 117 Kotzsch, L., 9, 49, 164 Kress, C., 133, 227 Krift, T. R., 188 Krisch, N., 301, 308, 333, 337

Lachs, M., 90, 267 Lagerwall, A., 61 Lalive, P., 18–19, 33, 44 Lambert, J. L., 258 Lapidoth, R., 147, 200 Lauterpacht, E., 39, 164, 349 Lauterpacht, H., 5, 36, 39, 76, 168–70, 179, 184, 293 Lawrence, T. J., 32, 69 Leben, C., 340 Lerner, N., 145 Levenfeld, B., 254 Levie, H. S., 44 Levitin, M. J., 94 Levitt, J. I., 122 Levontin, A. V., 82 Lietzau, W. K., 270 Lillich, R. B., 73, 93, 112, 237, 256, 269, 351 Linnan, D. K., 295 Lipsky, G. A., 166 Livy, 65 Lobel, J., 55 Lorch, N., 7 Lowe, A. V., 23, 216 Luca, S. M. De, 302 MacArthur, D., 126 McCormack, T. L. H., 200 McDonald, A., 30 McDonald, G. K., 8, 145, 152 Macdonald, R. St. J., 292 McDougal, M. S., 73, 196, 198–9, 280 McNair, A. D. (Lord), 3, 14, 39, 44, 290–1 McNeill, J. N., 256 McRae, D., 315 Mackenzie, W. L., 274 Maggs, G. E., 215 Makarczyk, J., 267 Malanczuk, P., 231, 271 Malekian, F., 118 Malik, S. P., 334 Malone, D., 314 Mann, F. A., 50 Maogoto, J., 24 Marek, K., 114, 184 Martenczuk, B., 347 Martin, A., 281

Index of persons Mathews. J. M., 49 Maugham, Viscount, 142 May, R., 122 Meltzer, B. D., 168 Mendelson, M. H., 95 Menon, R., 73 Menthon, F. De, 168 Meron, T., 8, 97, 108, 182 Merrills, J. G., 348 Meyen, J. E., 256 Meyrowitz, H., 146, 170 Mico, J., 40 Miller, E., 200 Miller, W., 65 Millett, Lord, 158 Minear, R. H., 155 Mohn, P., 52 Möller, A., 83 Monaco, R., 59 Moore, J. B., 29 Moore, J. N., 49, 77, 120, 241, 285, 300, 351 Morin, M., 300 Morrison, F. L., 295 Morriss, D. M., 55, 57 Mosler, H., 91, 250 Mrazek, J., 90 Muller, A. S., 349 Müllerson, R., 173, 230, 276 Murphy, J. F., 130, 312, 338 Murphy, S. D., 100, 195, 224–5, 323, 347 Myjer, E. P. J., 200, 228, 265, 336 Nagy, K., 190 Nahlik, S. E., 247 Nanda, V. P., 256–7, 307 Nasser, G., 33 Necatigil, Z. M., 292 Nesi, G., 313 Nguyen-Rouault, F., 260 Noel Baker, P. J., 84 Noriega, M., 121 Nowrot, K., 74, 338 Noyes, J. E., 243, 272 Nussbaum, A., 65, 67, 76 O’Brien, W. V., 252 Occelli, M. B., 267 Ochoa-Ruiz, N., 249 O’Connell, D. P., 213 O’Connell, M. E., 265 Oda, S., 282 O’Donnell, B., 88 Oellers-Frahm, K., 91 O’Kowa, P. N., 54

359 Oppenheim, L., 4–5, 9, 11–13, 20, 22, 27, 38, 40, 52, 59, 76, 79, 119, 150, 157, 179, 183–4, 198, 234, 264, 271, 280–2, 289 Orakhelashvili, A., 105, 108, 121, 160, 180, 306, 309, 345 Osterdahl, I., 306 Ottensooser, D., 51 Oxman, B. H., 23 Parker, E. B., 112 Parker, G., 67 Partsch, K. J., 293 Pasha, S. A. M., 343 Pauncefote, J., 21 Paust, J. J., 198, 217 Paxman, J. M., 269 Pearce, Lord, 332 Pedersen, F. C., 258 Pejic, J., 180 Pella, V. V., 114 Pellet, A., 90 Penna, D. R., 301 Philip II, 67 Phillipson, C., 50, 65 Pictet, J., 17, 54 Plofchan, T. K., 238 Plücken, M., 224 Pogany, I. S., 203, 311 Politakis, G. P., 178 Pompe, C. A., 77, 128 Ponti, C., 211 Porter, H., 81 Post, H. H. G., 55, 114 Poulantzas, N. M., 270 Pratt, H. M., 83 Printer, N. G. Jr., 262 Pugh, M., 334 Pugh, R. C., 114 Pyrich, A., 300 Quigley, K. W., 233 Ragazzi, M., 117 Rambaud, P., 140 Ramsbotham, O., 74 Randelzhofer, A., 87, 90, 207, 214, 221, 309 Ratner, M., 55 Rauch, E., 19 Reicher, H., 340 Reichler, P. S., 240 Reisman, W. M., 73, 93, 121, 194 Ress, G., 338 Reuter, P., 40 Rezac, D., 195 Rivkin, D. B. Jr., 206

360

Index of persons

Roberts, W. L., 4 Robertson, H. B., 212, 320 Robinson, D., 142 Rochefoucauld, La, 351 Rodley, N. S., 73–4 Rogoff, M. A., 188 Rolfe, J. C., 68 Röling, B. V. A., 47, 129 Ronzitti, N., 180, 216, 219, 252, 265, 337 Roscini, M., 88–9, 231 Rosenne, S., 45–6, 173, 191, 209 Rosenstock, R., 96 Rossi, C. R., 82 Rostow, E. V., 238, 333 Rostow, N., 60, 232, 300 Rousseau, C., 57 Rowles, J. P., 219 Roxburgh, R. F., 95 Rozakis, C. L., 41, 108 Rubin, A. P., 17, 193 Rumpf, H., 36, 303 Rütor, C. F., 129 Ruys, T., 199, 206, 214, 218, 227, 273 Saavedra Lamas, C., 103, 183 Sadoff, D. A., 195 Sadurska, R., 89, 213 Salamanca-Aguado, E., 249 Salpeter, A. N., 15 Salzman, Z. A., 272 Sandoz, Y., 174 Sands, P., 173 Santori, V., 313, 326 Sapiro, M., 323 Sarooshi, D., 335 Sassòli, M., 230 Scelle, G., 177 Schabacker, E. W., 74 Schabas, W. A., 131, 161–2, 349 Schacht, H., 146 Schachter, O., 88, 91–3, 97, 114, 190, 213–14, 227, 232, 236, 238, 244, 250, 257–8, 262, 271, 281–2, 300, 315, 337, 343, Scheffer, D. J., 71, 133, 238 Schick, F. B., 127, 282, Schindler, D., 175–6, 178, 180 Schmitt, M. N., 6, 23–4, 88, 120, 180, 207, 219, 268, 276, 312, 324 Schrijver, N., 287 Schwarzenberger, G., 15–16, 32, 35, 50, 114–15, 192, 303, 306 Schwebel, S. M., 71, 73, 93, 172, 196, 209, 215, 221, 234, 236–7, 240, 245, 253, 266, 342, 347 Schweisfurth, T., 50, 218

Scott, G. W., 81 Scott, J. B., xvii, 125 Seidl-Hohenveldern, I., 113 Sette-Camara, J., 105 Seyersted, F., 166–7 Seymour, C., 125 Shah, N. A., 196 Shahabuddeen, M., 172 Shaw, A., 71 Shaw, M. N., 204, 349 Shawcross, H., 168 Sherif, L., 162 Sherman, G. E., 69 Shoham, U., 49 Shraga, D., 174 Shulman, M. R., 67 Sibert, M., 51 Sicilianos, L. A., 252, 335 Siekmann, R. C. R., 332 Sierpinski, B., 90 Silk, J., 121 Simbeye, V., 159 Simma, B., 87, 94, 117, 139, 209, 254, 262, 272, 338 Simons, A. P., 189, 304, 307–8, 328–9 Sims, S., 191 Sinclair, I., 40–1, 98, 106, 108 Singh, N., 105, 253 Skubiszewski, K., 184, 198, 249 Sloane, R. D., 229 Smit, H., 114 Sofaer, A. D., 195 Sohn, L. B., 209 Sommereyns, R., 330 Sørensen, M., 198 Sparks, T. M., 206 Spencer, J. H., 304 Spiermann, O., 107 Spinedi, M., 117, 262 Stahn, C., 225–6 Stavropoulos, C. A., 316 Steenberghe, R. van, 305 Stein, T. L., 215 Stephen, N., 8 Stephens, D. G., 214 Stewart, D. P., 3, 194, 337 Stone, J., 9, 44, 89, 124, 196, 283, 340 Stowell, E. C., 31 Stürchler, N., 88 Suárez, 68 Sucharitkul, S., 226 Sulmasy, G. M., 206 Sur, S., 321 Suy, E., 115 Svanberg-Torpman, K., 60, 350

Index of persons Swaak-Goldman, O., 145 Swinarski, C., 54 Sztucki, J., 106 Tabory, M., 333 Taft, W. H. IV, 211, 231, 322, 324 Talmon, S., 121, 326 Tams, C. J., 117–18 Tanja, G. J., 178 Tansill, C. C., 48 Taubenfeld, H. J., 177 Taulbee, J. L., 277 Taylor, H., 78 Taylor, T., 102 Temperley, H. W. V., 42 Tesón, F. R., 74 Textor, 68 Thiam, D., 130 Thomas, A. J., 146, 283, 341 Thomas, A. R., 194 Thomas, A. V. W., 146, 283, 341 Thomas Aquinas, St., 66 Thompson, T. W., 220 Thomson, D., 113 Thouvenin, J.-M., 348 Thürer, D., 120 Tigroudja, H., 3 Tittemore, B. D., 174 Tomuschat, C., 91, 115, 155, 183, 334 Torrelli, M., 176 Toufayan, M., 313 Trapp, R., 17 Triffterer, O., 132, 154 Truman, H. S., 51 Tucker, R. W., 77, 183, 251 Tunkin, G. I., 15, 114 Vanderpol, A., 66 Vattel, 190 Venezia, J.-C., 298 Venturini, G., 114 Verdross, A., 191, 283 Verhoeven, J., 188 Verhoeven, S., 227 Vermeer, A., 216 Verosta, S., 21, 78 Verwey, W. D., 73, 173 Verzijl, J. H. W., 20, 46, 50, 86, 290, 292 Vetschera, H., 305 Victoria, 67–8 Villa, F., 273 Villani, U., 338 Villiger, M. E., 95 Virally, M., 78, 192, 287 Visscher, C. De, 78

361 Visscher, P. De, 175 Vlasic, I. A., 24 Voelckel, M., 31 Vohrah, L. C., 8, 152 Volger, H., 88, 341 Vulcan, C., 91 Wagner, M., 155 Waldock, C. H. M., 40, 87, 204, 239, 255–7 Walker, G. K., 207, 217, 330 Wall, A. E., 195, 302, 321–2 Waller, J. C., 15 Walter, C., 335 Warbrick, C., 321 Warner, A. M., 130 Watts, A., 3, 22, 40, 44 Waxman, M. C., 195, 200 Webb, W. F., 142 Webster, D., 188, 231, 272, 274–6 Weckel, P., 320, 324 Wedgwood, R., 215, 230, 257, 269, 321, 323, 337 Weeramantry, C. G., 347–8 Weeramantry, J. R., 210 Wehberg, H., 86, 88, 198 Weightman, M. A., 188 Weiler, J. H. H., 117, 248 Weiss, F., 145 Weiss, W., 309, 349 Wellens, K., 115, 311 Weller, M., 55 Wellman, H. R., 28 Wengler, W., 202, 251 Werle, G., 126 Werner, W. G., 210 Westerfield, D. L., 4 Westlake, J., 76 Weston, B. H., 112 Wet, E. de, 175, 310 Wharton, F., 190 White, N. D., 89, 228, 265, 332, 334, 338, 340 Whiteman, M. M., 203 Whitton, J. B., 83 Wickremasinghe, C., 159 Wilhelm II, 125 Williams, G. L., 68 Williams, J. F., 81, 118, 291, 304 Williams, S., 162 Wilmshurst, E., 142, 231 Wilson, W., 273 Winfield, P. H., 32 Wingfield, T. C., 256 Wippman, D., 73, 240, 331

362

Index of persons

Woetzel, R. K., 155 Wolfrum, R., 23, 101, 111, 155, 309, 323 Woodhouse, T., 74 Woolsey, L. H., 339 Wright, Lord, 128 Wright, Q., 9, 60, 76, 79, 111, 121, 128, 163–4, 166, 168–9, 182, 199 Yihdego, Z. W., 327 Yoo, J., 205, 323

Young, R. W., 4 Yoxall, T., 268 Zanardi, P. L., 269 Zedalis, R. J., 23, 218 Zemanek, K., 117 Zimmermann, A., 91, 219, 224 Zimmern, A., 80 Zourek, J., 92 Zwanenburg, M., 335

Index of subjects (References are to page numbers)

Aaland Islands, 21 ‘accumulation of events’, 206–7, 255 acts of State, 153–4 actus reus, 141–5 Afghanistan and Al-Qaeda, 3, 7, 31, 228, 239, 261, 312, 326 arms supply to insurgents in, 10 consent to Soviet intervention, 121 International Security Assistance Force (ISAF), 312 inter-State and intra-State conflicts, 7 Security Council resolutions about, 228, 326 Soviet withdrawal from, 290–1 Taliban Government of, 3, 7, 31, 228, 261, 322 ultimatum to, by the United States, 31 war against, 31, 239, 261 African Union, 103, 122–3 ‘Agenda for Peace’, 328, 352 aggression and armed attack, 196–7, 210 and breach of the peace, 137, 305–6, 308, 315–16, 339–41 crime of See crime of aggression definition of in general, 124 by General Assembly, 71–2, 101–2, 124, 129, 135–9, 146, 183, 196, 201, 208, 217, 220-1 in the Statute of the International Criminal Court, 135, 138 high seas and, 23, 217 non-aggression pacts, 80, 102–4, 183, 227 reparations for, 110–14 Security Council and, 137, 305–6, 318 State responsibility for, 109–10 and threat to the peace, 137, 305–6, 308, 315–16, 339–41

agreements See treaties air embargoes, 178, 327, 346 airspace, 19, 26, 178, 216, 345 Alabama Rules, 29 alliance See military alliances Albania, 226, 332 ‘all necessary means’, 178, 233, 299, 314, 320, 323, 327, 332 Al-Qaeda, 3, 7, 31, 228, 239, 261, 273, 312, 326 amicable settlement of disputes, 45, 57, 79, 81, 232–3, 249, 262, 267–8 Angola, 248, 313, 318 animus aggressionis, 146 animus belligerendi, 14 annexations, 92, 138, 181–4 Anschluss, 102, 295 Antarctica, 22 anticipatory action, 194–8, 203, 205–7, 230, 251 Arab-Israeli conflict armistice agreements, 43–6, 48 cease-fires, 45, 48, 57–8 peace preliminaries, 39 peace treaties, 36–7, 104, 332–3 war ‘civil’, 7 inter-State, 7 Israel’s War of Independence, 7, 43, 52, 54, 318 ongoing with Iraq and Syria, 58, 199 rounds of hostilities, 58 Security Council resolutions, 52–4, 56–8, 311 ‘Six-Day War’, 58, 206–7 ‘Yom Kippur War’, 58 arbitrations, 18, 29, 33, 44, 79–83, 86, 89, 92, 111, 248–9 archipelagic waters, 19, 26, 271 Argentina, 81, 92, 103, 318

363

364

Index of subjects

armed attack and aggression, 196–7, 210 beginning of, 201–3, 260 and breach of the peace, 337, 341 choice of weapons in, 212 constructive, 202, 214 ‘first shot’ test, 139–40, 201–4 frontier crossing, 201–2, 210–14, 266, 273 gravity of, 135–6, 208, 211, 220–1, 263 incipient, 200, 205, 207, 213–14, 216 locale of, 212–16 and non-State actors, 215, 224–30, 268–77 pin-prick assaults, 221, 254–5 and self-defence, 193–4 series of acts, 206–7 ‘short of war’, 242–59 small-scale, 207–12 target of, 216–19 outside the territories of all States, 216 and terrorism, 218, 225–30, 239, 252, 255–8, 260–1, 265, 268–72, 275–7, 298 and threat to the peace, 308, 312 within the territory of the aggressor, 214–15 within the territory of third States, 215–16 armed bands See non-State actors armed reprisals, 244–55 armistice in Arab-Israeli conflict, 43–6, 48 distinguished from cease-fire, 41–4 clauses of, 48 in Korean War, 43–4, 166 nature of, 47 distinguished from peace treaty, 47–8 permanent character of, 46 Security Council and, 47–8 transformation in the meaning of, 41–4 in World War I, 42 in World War II, 42–3 arms embargo, 28, 237, 319, 326–7 attempts as crimes, 141–2 Australia, 119, 182 Austria Anschluss of (1938), 102, 295 peace treaty after World War I, 112 auxiliary forces, 219–24 Bangladesh, 56 Belgium, 80, 116, 158, 291, belligerent occupation, 50, 181, 229–30 belligerent reprisals, 244, 246–7, 253 bellum justum See just war Benin, 227, 319 biological weapons, 253, 323

blockade, 138, 299, 308, 320, 330 Bosnia-Herzegovina cases, 110, 116, 349 NATO and, 335–8, 352 nature of armed conflict in, 8 peacekeeping and, 332, 334 Security Council resolutions, 327, 332, 334–7, 352 boycott economic, 10, 88 political, 302, 317 breach of the peace and aggression, 137, 305–6, 308, 315–16, 339–41 and armed attack, 337, 341 and Falkland Islands War, 317–18 and Gulf War, 177–8, 299, 301 and Iran-Iraq War, 317–18 and Korean War, 165, 301, 317 and non-Members of the UN, 177–8 preparations for, 330 and threat to the peace, 137, 305–6, 308–9, 315–16, 326 Britain See United Kingdom Bulgaria, 35, 112 Burundi, 332 Cambodia, 131, 217 Canada, 198, 274 canals, 21, 46 Caroline incident, 188, 197–8, 267, 272, 274 ‘cash and carry’, 28–9 casus foederis, 289 cease-fire distinguished from armistice, 41–4 Arab-Israeli conflict, 45, 48, 57–8 breach of, 59–61 clauses of, 53–4 denunciation of, 58–9 general, 53–4 and General Assembly, 56 in Gulf War, 55, 60–1, 113, 260, 266, 299, 302, 321 local, 52–3 ‘material breach’ of, 59–61, 324 nature of, 56–7 and Security Council, 53–6, 113, 237–8, 264–6, 299, 302, 308, 313, 318, 321, 323–4, 344 as suspension of hostilities, 51–2 transition to peace, 56–7 Chechnya, 73 chemical weapons, 17, 253, 323 Chile, 157

Index of subjects China in Gulf War, 302 and Korean War, 166 Permanent Member of Security Council, 316 Christian theology and just war, 66 ‘civil wars’, 5–8, 119–20, 122 civilians attacks against, 217, 246–7, 327, 338 as perpetrators of crime of aggression, 142, 144, 148 coalitions in self-defence, 165, 260, 266, 279, 281–2, 299–302, 314, 317, 320, 325, 352 ‘Cold War’, 10, 35, 56, 103, 165, 238, 287–8, 302, 317–19, 325, 327, 331, 339–40, 352 collective punishment, 115 collective security and UN Charter, 304–8 and League of Nations Covenant, 303–4 definition of, 303 and the Definition of Aggression, 136 and equal application of the jus in bello, 174–5 and neutrality, 176–8 and the prohibition of the use of inter-State force, 72, 91, 93 and regional organizations, 333–5 role of Security Council, 200, 237, 308–9, 314–6, 327–9 and self-defence, 91–3, 165, 190, 281, 299–303, 312–13, 338, 341, 351–2 without total victory, 165–7 collective self-defence and armed attack, 293–4 distinguished from collective security, 165, 281, 299–303, 312–13, 338, 351–2 as defence of self, 280–1 and General Assembly, 339–41 and individual self-defence, 278–80 and Korean War, 301–2 modalities of, 297–8 and request by victim State, 294–6 and Security Council, 304–5, 315–17 spontaneous, 281–2 and terrorism, 224–30, 298, 312, 352–3 treaties of, 281–93 Colombia, 273 colonial regimes, 70–3, 92–3 compensation, 110–13, 117–18, 293, 347 complicity, 27, 126, 141–2, 257–8, 268, 293 comprehensive use of force, defining war, 9, 11–13, 15, 18, 33–4, 259, 263 computer network attacks, 33, 212, 231 Congo, 53, 116, 158, 256, 318, 334, 349

365 consent to the use of force abuse of, 121 ad hoc, 118–19, 122 basic principle of consent, 118–19 and extra-territorial law enforcement, 268, 273 only by the Government, 119–20 and peacekeeping, 331 by treaty, 122–3 withdrawal of, 121–2 conspiracy, 107, 126, 141–2 constructive armed attack, 202, 214 consular immunities, 157–8 contiguous zones, 271 continental shelf, 19, 23, 271 Control Council Law No. 10, 126 cooling-off periods, 80–1 cordon sanitaire, 330 Council of Europe, 145 counterwar, 69–70 crime of aggression actus reus, 141–5 attempt as, 141–2 character, gravity and scale, 135–6, 139, 210–11 civilians as perpetrators, 142, 144, 148 complicity, 126, 141–2 conspiracy, 126, 141–2 defences, 147–54 definition of, 135, 138 immunities, 153–4, 156–62 individual accountability, 110, 114–15, 125, 140–1, 143, 147, 210 mens rea, 141, 145–7, 152 mitigation of punishment, 151–4 penal proceedings, 154–6 planning of, 110, 126, 130, 135, 139, 141, 143 policy-makers, 142–4, 147–8, 150, 153 ratione materiae, 141–2 ratione personae, 142–4 ratione temporis, 144–5 States, criminal responsibility of, 114–6 universal jurisdiction, 155, 158 war and ‘short of war’, 135–6 crimes against humanity, 126, 131, 144–5, 155, 158–9 crimes against peace, 126–9, 131, 134, 141, 143, 154 Croatia, 290 Cuba, 199 customary international law belligerent reprisals, 247 crimes against peace, 127–8 declaratory treaties and other texts, 32, 39–40, 87, 94–8, 100, 103, 108, 124, 127–8, 137, 139, 220, 224, 226

366

Index of subjects

customary international law (cont.) definition of, 94 Definition of Aggression and, 124, 137, 139, 220 generating treaties, 94–8, 100 general practice of States, 9, 23, 42, 94, 109, 150, 164, 180, 192, 197, 239, 247, 293 immunities from jurisdiction, 156, 158–9, 161 nuclear weapons, 263–4 opinio juris, 94–6 self-defence, 193, 196–7, 230–1, 239–40, 242–5, 258, 282 use of force, 87, 95–100, 106, 109–10 Cyprus, 288, 292, 318, 332 Czechoslovakia, 289 debellatio, 48–51, 181–4 debt collection, 81 declarations of war, 9–11, 14–15, 17, 30–4, 42–3, 51, 65, 138, 179, 197, 285 de facto organs, 219–20, 222, 224–5, 228, 268 de minimis clause, 136, 210–11, 220 defences, admissible duress, 148–9, 152 insanity, 149 lack of mens rea, 147, 152 mistake of fact, 147–8, 152 mistake of law, 148, 151–2 defences, inadmissible acts of State, 153–4 domestic law, obedience to, 150 superior orders, obedience to, 150–3 defensive armed reprisals definition of, 244–5 and collective self-defence, 298 distinguished from extra-territorial law enforcement, 276 and immediacy, 247, 249, 254 legality of, 249–55 and necessity, 247, 249 distinguished from on-the-spot reaction, 245, 249–50 distinguished from war, 250–1 and pin-prick assaults, 254–5 and proportionality, 247–9, 262 and retribution, 251 and Security Council, 252–3 as a means of self-defence, 195, 244–55 Definition of Aggression and collective security, 136 criminal impact of, 135–40 and customary international law, 124, 137, 139, 220 de minimis clause of, 136, 210–11, 220 and Draft Code of Offences, 129–30

and ‘first shot’ test, 139–40, 201–2 and ‘fleets’, 138, 217 adopted by General Assembly, 124, 129 and Kampala Amendments, 101–2, 135–6, 138–40 and ‘national liberation’, 71–2 non-exhaustive nature of, 140 non-use by Security Council, 136–7 and UN Charter, 71–2, 101–2, 138–9 definition of war, 3–15 demilitarization, 20–2, 24, 48, 53, 300 denunciation of cease-fire, 58–9 Denmark, 94 deterrence, 200, 251, 305 diplomatic immunities, 156–7 diplomatic relations breaking off, 9, 17–19 and termination of hostilities, 35–6, 47, 49 Djibouti, 157 domestic courts, 4, 155–8 domestic jurisdiction, 83, 314 domestic law, obedience to, 150 Dominican Republic, 256 Draft Code of Crimes (or Offences) against the Peace and Security of Mankind, 102, 115, 129–30, 135, 140–1, 143, 151, 154, 220, 226 due diligence, 29, 269 due process of law, 154, 156, 164 due regard, 23, 231 duel and war, 163, 176 duress defence of, 148–9, 152 treaties under, 39–41 economic sanctions, 177–8, 238, 299, 304, 306–7, 319–20, 327 ECOWAS, 122–3 Ecuador, 273 effective control, 8, 183, 221–4, 228 Egypt armistice with Israel, 43–6, 48–9 cease-fires with Israel, 45, 48, 58 declaration of war (1956), 33 peace treaty with Israel, 36–7, 104, 332–3 and peacekeeping, 332–3 in ‘Six-Day War’, 58, 206–7 Suez canal, 21, 46 in ‘Yom Kippur War’, 58 embargoes, 28, 178, 237, 319, 326–7, 346 embassies, attacks on, 214–15, 261 enemy nationals, 9, 34, 164 enforcement See collective security; extraterritorial law enforcement Entebbe raid, 257–9

Index of subjects equal application of jus in bello and collective security, 174–5 and self-defence, 167–74 erga omnes obligations, 116–7, 182, 280, 290, 296 Eritrea, 17, 30, 36, 92, 104, 113, 194, 209–11, 240, 243, 259, 311, 327 escalation, 191, 210, 244 estoppel, 45 Ethiopia, 17, 30, 36, 92, 104, 113, 194, 209–11, 240, 243, 259, 304, 311, 327 ethnic cleansing, 337–8 European courts, 339, 348, 350 ex factis jus oritur, 184 ex injuria jus non oritur, 168, 182, 184 exclusive economic zones, 22–3, 271 execution of judgments, 91–2 exports, 28–9, 319–20 expulsion, 304 extradition, 125 extra-legality of war, 75–7 extra-territorial law enforcement, 188, 268–77, 294, 298 fact-finding, 237 failed States, 120, 123, 226 Falkland Islands War, 54, 92, 268, 317–18 ‘fathers’ of international law, 67–9 fetiales, 65–6 Finland, 35, 103, 304 ‘first shot’ test, 139–40, 201–4 flags of truce, 127 ‘fleets’ in the Definition of Aggression, 138, 217 foreign bases, 21, 24, 287 Foreign Ministers, immunity of, 158–9 formalities apology, 110 armistice, 47 auxiliaries, 220 cease-fires, 48–9, 51–2, 55, 57 declarations of war, 9, 15, 17, 30–3, 65, 164 exchanges of notes, 85–6 non-ratification announcement, 247 report to the Security Council, 241 request for assistance in self-defence, 294 Security Council determinations, 311, 318–19, 326 termination of war, 9, 51 withdrawal of consent, 121 France cases, 157 and declarations of war, 33 Permanent Member of Security Council, 316 treaties, 35, 80, 85, 126, 289, 291 and World War II, 31, 126

367 ‘Friendly Relations’ Declaration, 46, 71, 96, 130, 181, 183, 220, 226, 253 frontier incidents, 209–12 ‘gaps’ between prohibited use of force and armed attack, 207–10 in League of Nations Covenant, 83–4, 125, 317 in UN Charter, 317 General Assembly See also Table of resolutions and cease-fire, 56 and collective security, 339–41 effect of resolutions, 96, 108, 136–7, 339 and Security Council, 136–7, 339–41 and self-defence, 341 genocide, 73–5, 110, 116, 131, 155, 158, 349–50 Georgia, 257 Germany Anschluss of Austria (1938), 102, 295 cases, 94, 110, 248 treaties, 35, 80, 289, 291 in and following World War I, 9, 42, 112–13, 125, 248, 289 in and following World War II, 9, 28–9, 31, 35, 42–3, 50–1, 114–15, 171–2, 179, 234–5, 265–6, 274–5, 279, 322 Goa, 92 good faith, 58, 68, 82, 207, 232 Governments in exile, 50, 299, 320 Great Britain See United Kingdom Greece, 280, 288, 292 Grenada, 256, 258 guarantees, 283, 289–92 Guatemala, 80 Gulf War beginning of the War, 11–12, 260, 319 as breach of the peace, 177–8, 299, 301 cease-fire and ‘material breach’, 55, 60–1, 113, 260, 266–7, 299, 302, 321–4 as collective self-defence, 299–302 Compensation Commission, 113 economic sanctions and, 177, 307, 319–20 and immediacy, 233, 267–8 Kuwait in, 12, 14, 233, 266–7, 319 and neutral countries, 178 phases of, 319–25 not ‘preemptive’, 322–3 Security Council and, 177–8, 233, 299–302, 319–21, 323–5 termination of the War, 325 Hague Rules of Aerial Warfare, 26–7, 29 Haiti, 178, 314, 322, 327

368

Index of subjects

Harvard Research in International Law, 25, 169–70 Heads of Governments, immunity of, 158–9 Heads of States, immunity of, 157–9 Helsinki Final Act, 103 Hezbollah, 219, 273 High-Level Panel, 198, 205 high-ranking officials, immunity of, 158–9 high seas, 22–3, 179, 199, 216–17, 225, 243, 245, 270–1 hindsight, 141, 207 hit-and-run attacks by non-State actors, 220, 225, 268 Holland See Netherlands Honduras, 80 hostages, 215, 218, 236, 256–9, 261 hot pursuit, 270–1 HPCR Manual, 23, 25–9 humanitarian assistance, 93, 331 ‘humanitarian intervention’ and genocide, 73–5, 93 and human rights, 73–4, 93–4 and just war doctrine, 73–4 and Kosovo, 338 distinguished from protection of nationals abroad, 93, 259, 297 and Security Council, 74–5, 94, 292 and UN Charter, 73–4, 93–4, 259, 292 human rights and collective punishment, 115 and excessive war reparations, 112 and ‘humanitarian intervention’ 73–4, 93–4 and jus in bello, 169 and protection of nationals abroad, 259 and Security Council decisions, 348 and self-determination, 181–2 violations of, as threat to the peace, 313 Hungary, 35, 42–3, 112, 121, 205 Iceland, 39 ignorantia facti excusat, 147 ignorantia juris non excusat, 148 immediacy as a condition of self-defence, 202, 205, 230–1, 233–4, 271, 274–5, 296, 309 and defensive armed reprisals, 247, 249, 254 and extra-territorial law enforcement, 276 and Gulf War, 233, 267–8 and on-the-spot reaction, 244 and protection of nationals abroad, 255 and war, 261, 267–8 imminence, 149, 187, 194–7, 205–6, 255, 310, 331 immunities of consular agents, 157–8 of diplomatic agents, 156–7

and foreign domestic courts, 156–60 of Foreign Ministers, 158–9 of Heads of Governments, 158–9 of Heads of States, 157–9 of high-ranking officials, 158–9 and international courts, 160–2 jurisdictional nature of, 159–60 limits of, 159–60 waiver of, 159–62 implied mutual consent to terminate war, 48–9 incidents ‘short of war’, 11–14, 16–17, 34, 85, 87–8, 135–6, 188, 198, 201, 232, 242–61, 263, 270, 298, 351 incitement, 141–2 India, 33, 53, 56, 92, 104, 201 individual criminal accountability, 110, 114–15, 125, 127, 135, 140–1, 143, 147, 210 insanity, 149 Institut de Droit International and equal application of jus in bello, 170, 175 and erga omnes obligations, 117 and humanitarian intervention, 94 and immunities from jurisdiction, 157–8 and neutrality, 177 and non-intervention in ‘civil wars’, 119 and self-defence, 205–6, 208, 230, 294 and treaties in war, 19 and UN forces, 177 and universal jurisdiction, 155 insurance and war, 3–4, 18 insurgency, 5–7, 10, 70–1, 119–20, 122, 273–4 intent, 4, 14, 44, 66, 145–7, 194, 215–16, 231–2 interceptive action, 203–7, 230 intermediacy See status mixtus internal waters, 19, 213, 271 International Court of Justice See also Table of cases disagreement with ICTY, 221–4 execution of judgments, 91–2 and genocide, 75, 349 and jus cogens, 106, 348–50 as judicial organ of the UN, 342, 350 and Security Council, 342–50 International Criminal Court, 131–4, 137, 155, 161–2, 169 International Criminal Tribunal for the former Yugoslavia (ICTY), 8, 105, 131, 142, 152–3, 155, 161, 222–4, 247, 310 International Criminal Tribunal for Rwanda (ICTR), 131, 155 international humanitarian law, 16, 130, 174–5, 222, 247 See also jus in bello International Law Association, 179, 216 International Law Commission and diplomatic protection, 218

Index of subjects and Draft Code of Crimes (Offences), 102, 115, 129–30, 135, 140–1, 143, 151, 154, 220, 226 and jus cogens, 105, 107 and necessity, 271–2 and Nürnberg Principles, 129, 143, 150–1 and reprisals, 249–50 and State responsibility, 105, 109–10, 115–18, 183, 219, 222–3, 249–50 and the law of treaties, 39–40, 105, 107 International Military Tribunal, 102, 126–9, 140, 142, 146, 149–51, 153–4, 235, 274–5 International Military Tribunal for the Far East, 126, 129, 154, 159–60, 192, 197 international policy, war as instrument of, 86 inter-State and intra-State wars, 5–8, 119–20 invasion in the Definition of Aggression, 138–9, 201–2, 213, 262 Iran, 80, 173, 200, 215, 236, 248, 261 See also Iran-Iraq War Iran-Iraq War, 55, 231, 264, 317 Iraq See also Gulf War; Iran-Iraq War and extra-territorial law enforcement, 272–3 war with Israel, 49, 199 islands, 20–1, 274 Israel and armed reprisals, 254 armistice agreements, 43–6, 48–9 cease-fires, 45, 48, 57–8 Entebbe raid, 257–9 and extra-territorial law enforcement, 273 peace preliminaries, 39 peace treaties, 36–8, 104, 332–3 ‘Six-Day War’, 58, 206–7 War of Independence, 7, 43, 52, 54, 318 war with Iraq, 49, 199 war with Syria, 58, 199, 273 ‘Yom Kippur War’, 58 Italy, 35, 43, 291, 304 Japan, 17, 25, 35, 114, 126, 197, 203–4, 265–6, 279, 322 joint criminal enterprise, 142 Jordan armistice with Israel, 43–6, 49 end of war with Israel, 37 and Gulf War, 307 peace treaty with Israel, 36–7, 104 in ‘Six-Day War’, 207 judicial review of Security Council decisions, 345, 347 jus ad bellum breaches of, 111, 113–14, 125, 130, 147, 169 central issue of, 5, 87

369 and customary international law, 97, 100, 107 development of, 81–2, 85, 87 and jus in bello, 49, 76–7, 111, 144, 147, 163, 167–75, 199, 217, 229–30, 233, 246–7, 253, 263–4 possibility of, 76–7 uncertainty of, 148 jus cogens consequences of, 105–7 contracting out, prohibition as the essence of, 105–7, 117, 123, 193 definition of, 104 and International Court of Justice, 106, 348–50 modification of, 100, 107–9, 193 and obligations erga omnes, 117 pacts of aggression and, 106–7, 293 prohibition of use of force as, 105–7, 117, 123, 193 and Security Council decisions, 348–50 jus dispositivum, 105–6 jus fetiale, 65–6 jus in bello difference between duties and rights under, 18–19 and extra-territorial law enforcement, 277 and jus ad bellum, 49, 76–7, 111, 144, 147, 163, 167–75, 199, 217, 229–30, 233, 246–7, 253, 263–4 equal application of, 167–75 incidents ‘short of war’, application in, 16–17 and status mixtus, 10, 16–17 terminology, 16 and war in the material or technical sense, 10, 164 jus naturale, 191–2 jus standi, 116–17 just war and Christian theology, 66 demise of doctrine in 19th century, 69 and equal application of jus in bello, 167 and ‘fathers’ of international law, 67–9 and humanitarian intervention, 73–5, 93–4 Kelsen’s theory, 69–70 and ‘national liberation’, 70–3, 92–3 and neutrality, 179 Roman origins, 65–6 and self-defence, 68, 188 justiciability, 236 Kampala See Table of treaties Kashmir, 201 Kenya, 215 knowledge, 145–8, 151–2, 207

370

Index of subjects

Korean War armistice agreement, 43–4, 166 as breach of the peace, 165, 301, 317 as collective self-defence, 301–2 unsatisfactory end of, 165–6 Kosovo Air Campaign, as a limited war, 12 NATO and, 337–8, 352 Security Council and, 337–8, 352 Kurds in Iraq, 272–3 Kuwait in Iran-Iraq War, 215 invasion of by Iraq, 11–12, 14, 50, 92, 113–14, 130, 177–8, 233, 260, 299, 319, 352 liberation by Coalition, 14, 266, 299 League of Nations, 34, 78, 82–4, 86, 125, 303–4, 317 Lebanon armistice with Israel, 43–6, 49 and extra-territorial law enforcement, 273 and Hezbollah, 219, 273 unratified peace treaty with Israel, 37–8 ‘lend-lease’, 179 lex specialis, 59, 107 Liberia, 122 Libya cases, 345–7 defensive armed reprisals against, 252 and Security Council Resolutions, 178, 327, 338, 345–7 limited wars, 11–13 local cease-fires, 52–3 lump sums, 112 mala in se, 128 manifest illegality, 151–2 violation of UN Charter, 135–6, 148 ‘material breach’, 59–61, 246, 266, 322–4 Mayaguez incident, 217 mens rea, 141, 145–7, 152 mercenaries, 27 merchant vessels, 217 Mexico, 273 military alliances, 21, 191, 214, 279, 283, 286–9, 292–3, 295, 297 military sanctions, 304, 307–8, 320, 328 military supplies in mutual assistance, 284 to non-State actors, 10, 219, 221 by neutrals, 27–9, 179 Military Staff Committee, 330 missiles, 19, 24, 49, 199, 202–3, 216, 270

mistake of fact, 147, 152 of law, 148, 151–2 mitigation of punishment, 151–4 mobilization, 200 modification of jus cogens, 100, 107–9, 193 Montenegro, 8, 110, 337–8 Moon, 24 moral choice, 149, 151 motives, 11, 146, 188, 250–1, 256–7 mutual assistance, 283–93, 315 Namibia, 248, 314, 316, 345 national law See domestic law ‘national liberation’, 70–3, 92–3 nationals abroad, protection of, 93, 217–19, 255–9, 275, 297 NATO, 228–9, 287–9, 297, 312, 334–8, 352 necessity as condition of self-defence, 173–4, 230-5, 296, 309 and defensive armed reprisals, 247, 249, 254 diverse uses of term, 271 and extra-territorial law enforcement, 271–2, 274–5 and on-the-spot reaction, 244 and protection of nationals abroad, 255 and war, 261–2, 267–8 Netherlands, 67, 94, 125, 197, 346–7 neutrality basic principles of, 25 duration of, 16, 25, 32, 34 and enrollment in belligerent armed forces, 27 and military supplies to belligerent armed forces, 27–9 and passage of belligerent military units, 26–7, 216 permanent, 21, 191, 283, 290, 295 qualified, 175–80 and region of war, 19, 26 and UN Charter, 176–7 neutralization, 20–2 Nicaragua, 6, 74, 80, 111, 253, 298 See also Table of cases 9/11 (September 11, 2001), 3, 7, 31, 194–5, 225, 227–8, 239, 261, 265, 311–12, 353 ‘no-fly’ zones, 266, 321–2, 327 non-aggression pacts, 80, 102–4, 183, 227 non-belligerency, 180 non-liquet, 172 non-Members of the UN, 102, 177–8, 282 normalization of relations, 36, 47 Norway, 213, 275

Index of subjects nuclear weapons, 13, 24, 49, 172–3, 199–200, 253–4, 263–4, 289 nullity of treaties, 40–1, 182, 293 nullum crimen sine lege, 127, 133, 140 Nuremberg legacy, 125–8 Nürnberg Principles, 129, 143, 150–1, 153–4

371 property, requisition of, 4, 9, 164 proportionality as condition of self-defence, 173–4, 230–4, 271, 296, 309 and defensive armed reprisals, 247–9, 253–5 and extra-territorial law enforcement, 274–6 and on-the-spot reaction, 244 and protection of nationals abroad, 255–7 and war, 261–5 protection of nationals abroad, 217–19, 255–9, 275, 297 punitive damages, 118 Purposes and Principles of the UN, 72, 87, 90, 98, 101–2, 139, 176, 252, 283, 310, 314, 334

obedience to domestic law, 150 to superior orders, 150–3 official and private acts, 156–61 official capacity, 153–4, 156 on-the-spot reaction, 232, 242–5, 249–50, 252, 262, 270, 275, 297, 332 opinio juris, 94–6 Organization of American States, 183, 229 organized armed groups See non-State actors outer space, 24, 216–17

qualified neutrality, 175–80 ‘quarantine’, 199

pactum de contrahendo, 39 Pakistan, 33, 53, 56, 104, 201, 273, 290 Palestinians, 273 Panama, 21, 121, 257 Panama Canal, 21 passage of belligerent military units in neutral territory, 26–7, 216 peace and armistice, 47–8 associative and dissociative, 47 and cease-fire, 56–7 peace preliminaries, 38–9, 42 peace treaties, 34–42, 47–8, 111–13, 125, 289 peacekeeping forces, 330–3 Pearl Harbor, 33, 179, 203–4, 265 penal proceedings, 154–6 peremptory norms See jus cogens permanent neutrality, 21, 191, 283, 290, 295 persona non grata, 188 pin-prick assaults, 220–1, 254–5 planning, 110, 126, 130, 135, 139–41, 143 Poland, 31, 35, 110, 234, 265–6, 285, 289 ‘police action’, international, 165–7, 352 policy-makers, 142–4, 147–8, 150, 153, 252 political independence, 82, 87, 89–90, 93, 101–2, 138, 259 ports, 21, 26, 138, 253, 320 See also internal waters Portugal, 182, 248 preemptive action, 194–8, 200, 203, 205, 305, 322 prescription criminal, 145 territorial, 183–4 primitive law, international law as, 70, 187 prisoners of war, 27, 48, 54, 127, 168, 246 prize, 18, 26

recognition of belligerency, 119 of state of war, 10, 164 of States, 9, 36, 47, 102 of territorial acquisition, 183–4 recommendations by General Assembly, 56, 136–7, 339–41 by Security Council, 54–5, 91, 165–6, 301–2, 305–6, 308, 314–16, 333, 346 recruitment, 27, 219, 312, 328 ‘regime change’, 322 region of war, 19–24, 26, 53, 265 regional organizations and collective security, 123, 282–3, 315, 333–8, 352 and collective self-defence, 336–7 reparations, 36, 110–13, 117–8, 249 reporting to Security Council, 189, 237, 239–41 reprisals belligerent, 244, 246–7, 253 defensive armed, 195, 244–55, 262, 275–6, 298 definition of, 244 and deterrence, 251 and nuclear weapons, 253–4 and on-the-spot reaction, 245, 249–50 and Security Council, 252–3 and war, 250–1 respondeat superior, 151 restitution, 65, 110–11, 113 Rhineland, 289 Rhodesia, Southern, 318–9, 334–5 riots, 17, 174, 257 Romania, 35, 42–3 Rome, ancient, 65–6

372

Index of subjects

Russia See also USSR and Chechnya, 73 and Georgia, 257 Permanent Member of Security Council, 316 Rwanda, 116, 131, 349 San Remo Manuals, 6, 23 sanctions economic, 177–8, 238, 299, 304, 306–7, 319–20, 327 military, 304, 307–8, 320, 328 satellites, 24, 216 satisfaction, 65, 110–11 sea warfare archipelagic waters, 19, 26, 271 continental shelf, 19, 23, 271 exclusive economic zones, 22–3, 271 ‘fleets’ in the Definition of Aggression, 138, 217 high seas, 22–3, 179, 199, 216–17, 225, 243, 245, 270–1 internal waters, 19, 213, 271 merchant vessels, 217 prize, 18, 26 straits, 26, 207 submarines, 213, 243, 245 territorial sea, 19, 213–14, 271 warships, 26, 214, 243–5 secession, 7, 73, 291 Secretary-General (UN), 54, 131, 174–5, 198, 327–8, 352 Security Council See also Table of resolutions authorization of enforcement action, 94, 301, 333–8, 352 binding decisions of, 25, 47–8, 55, 57, 60–1, 88, 165–6, 169, 175–7, 237–9, 261, 264–5, 301–2, 306, 312–16, 322, 325–6, 339, 343, 345–50, 352 and cease-fire, 53–6, 113, 237–8, 264–6, 299, 302, 308, 313, 318, 321, 323–4, 344 and General Assembly, 136–7, 339–41 and ‘humanitarian intervention’, 74, 94–5, 292 and International Court of Justice, 342–50 and jus cogens, 348–50 Permanent Members of, 301, 316 as a political body, 154, 237, 342–3 powers of, 198, 235–8, 308–11, 322, 342–3 recommendations by, 54–5, 91, 165–6, 301–2, 305–6, 308, 314–16, 333, 346 record of, 317–28 reporting to, 189, 237, 239–41 and reprisals, 252–3 responsibility of, 315–17 sanctions imposed by, 177–8, 238–9, 299, 306–8, 319–20, 327–8

and self-defence, 189–90, 198, 200, 228, 235–41, 264–5 and special agreements, 327–9 veto power in, 316–17, 339 voting in, 316–17 self-defence anticipatory, 194–8, 203, 205–7, 230, 251 authoritative determination of, 234–6 coalitions in, 165, 260, 266, 279, 281–2, 299–302, 314, 317, 320, 325, 352 collective See collective self-defence and collective security, 91–3, 165, 190, 281, 299–303, 312–13, 338, 341, 351–2 comparison between States and physical persons, 192–3, 267 conditions of, 173–4, 230–4, 296, 309 covert, 240 and defensive armed reprisals, 195, 244–55 definition of, 187–9 duty of, 190–1, 285, 289 and extra-territorial law enforcement, 268–77 incidents ‘short of war’, 188, 198, 232–3, 242–61, 263, 270, 298 individual, 189, 242–80 ‘inherent’ right, as an, 189, 191–3, 212, 228–9, 282, 286, 300 interceptive, 203–7, 230 modalities of, 242–77, 297–8, by peacekeeping forces, 331–2 preemptive, 194–8, 200, 203, 205, 305, 322 preventive, 195, 197–8, 200, 203–6, 230, 235 and prohibition of use of force, 72, 91, 93, 188–9, 197 and protection of nationals abroad, 218–9, 255–9 reporting duty to Security Council, 189, 237, 239–41 right of, 189–90 and Security Council, 189–90, 198, 200, 228, 235–41, 264–5 against self-defence, 190, 277, 294 as self-help, 187–8, 234, 238 two phases of, 234–6 unit, 242–3 war, 85–6, 197, 252, 259–68 self-determination, 70–2, 92–3, 116, 181–2, 184 self-help, 187–8, 234, 238 self-preservation, 172–3 Serbia, 9, 110, 337–8 settlement of disputes, 45, 57, 79–81, 232–3, 249, 262, 267–8 ‘short of war’ See incidents ‘short of war’ si vis pacem, para bellum, 286 Siam (Thailand), 35 Sierra Leone, 122, 131, 331

Index of subjects Sinai Multinational Force and Observers, 333 ‘Six-Day War’, 58, 206–7 Slovakia, 205 Solomon Islands, 119 South Africa, 318–19 sovereignty, 6, 12, 49–50, 67, 78–9, 101–2, 138, 167, 182–3, 192, 257, 266, 274–5, 314 Soviet Union See USSR Spain, 116 special agreements, 328–30, 333 State responsibility and aggression, 105, 110 and compensation, 110–11 and consent, 118–19 and criminal responsibility of States, 115–16 and de facto organs, 222–4 and effective control, 222–4 and erga omnes obligations, 116–17 essence of, 110 and jus cogens, 105 and necessity, 271–2 and non-recognition, 116, 183 and punitive damages, 118 and reparation, 110 and reprisals, 249–50 and restitution, 110 and satisfaction, 110 status mixtus meaning of, 15–16 peacetime, 16–17 wartime, 17–19 statutes of limitations, 145 straits, 26, 207 submarines, 213, 243, 245 Subsequent Proceedings (Nuremberg), 102, 126, 129, 142–3, 171, 181 subsoil, 19 Sudan, 161–2 Suez Canal, 21, 46 superior orders, obedience to, 150–3 surprise, 32 suspension of hostilities, 41–4, 51–61 Sweden, 213 Switzerland, 21, 78, 146, 178 Syria armistice with Israel, 43–6, 49 cease-fires with Israel, 45, 58 ongoing war with Israel, 58, 199, 273 in ‘Six-Day War’, 58, 206–7 in ‘Yom Kippur war’, 58 Taliban, 3, 7, 31, 228, 261, 322 Tanzania, 215

373 termination of war armistice agreements, 41–8 debellatio, 48–51, 181 implied mutual consent, 48–9 peace treaties, 34–41 unilateral declarations, 48, 51 territorial changes as a result of war, 180–4 integrity, 82, 87, 89–90, 92–3, 101–2, 138, 259, 266, 268, 292 sea, 19, 213–14, 271 terrorism See also Al-Qaeda, 9/11 and armed attack, 218, 225–30, 239, 252, 255–8, 260–1, 265, 268–72, 275–7, 298 and collective self-defence, 298 consent to foreign strikes against, 120, 268 cross-border attacks, 225–6, 229, 268, 272 domestic, 225, 313 and extra-territorial law enforcement, 268–70, 272, 275–7, 294, 298 imputability to a State, 219 Lockerbie bombing, 345 and occupied territories, 229–30 preemptive strikes against, 195 and protection of nationals abroad, 218, 255–8 as threat to the peace, 311–13, 326, 345 duty of ‘vigilance’ against, 226–7, 269 ‘war’ on, as a metaphor, 3, 261, 352 third States losses by, 113 and reprisals, 179–80, 245 and self-defence, 280–1, 295 and treaties, 79–80, 95, 98–9 and war, 12, 17–18 threat of force, 39, 41, 87–9, 101–4, 139, 180, 196–7, 199–200, 309–10 threat to the peace and aggression, 137, 305–6, 308, 315–16, 339–41 and armed attack, 196–7, 210 and breach of the peace, 137, 305–6, 308–9, 315–16, 326 discretion of Security Council, 309–11, 347–8 and domestic situations, 313–14, 322, 326 elasticity of term, 309–11 and execution of judgments, 91 formal determination of, 318–19, 326 and non-Members of the UN, 177–8 and terrorism, 311–13, 326, 345 time factor See immediacy; interceptive selfdefence Tiran, Straits of, 207 total war, 11–13

374

Index of subjects

trading with the enemy, 4 treaties bilateral, 20, 35, 60, 79–80, 103–4, 122, 191, 284, 290–1 cease-fire agreements as, 53, 59–60 collective self-defence, 281–92 consent by, 122–3 declaratory, 32, 39–40, 87, 94–8, 100, 103, 124, 127–8, 137, 139 demilitarization, 21–2, 24, 48, 53 under duress, 39–41 generated by customary international law, 94–8, 100 and jus cogens See jus cogens neutralization, 21–2 non-aggression pacts, 80, 102–4, 183, 227 offensive-defensive, 292–3 of peace, 34–41, 47–8 regional, 102–3, 122–3, 189, 196, 282–3, 285, 297, 315, 333–4 and third States, 79–80, 94–5, 98 void, 39–41, 104, 106 Treuga Dei, 52 truce, 41, 45, 51–3, 56, 127 Turkey, 80, 272–3, 288, 292 Uganda, 53, 257–8, 276 ultimatums, 30–2, 89, 299, 325 ultra vires, 72, 348 unconditional surrender, 50, 165–6, 266 unilateral declaration terminating war, 48, 51 United Kingdom See also Falkland Islands War and Afghanistan, 261 and armistice, 44 and Caroline incident, 197–8, 274 cases, 29, 39, 157, 226, 345–7 and Cyprus, 292 and declarations of war, 32–3, 265–6 and Gulf War, 320, 322–3, 325 and Libya, 345–7 Permanent Member of Security Council, 316 and protection of nationals abroad, 256 treaties, 21, 29, 35, 126, 179, 279, 285, 291, 347 and World War II, 28–9, 31, 35, 50, 126, 179, 265–6, 279 United Nations See General Assembly; International Law Commission; peacekeeping forces; Principles and Purposes of the UN; Secretary-General (UN); Security Council United Nations forces, 165–7, 170, 174–7, 300, 330-3 United States and Additional Protocol I, 247

and Afghanistan, 7, 10, 31, 228, 239, 261, 290–1, 312 and Cambodia, 217 and Caroline incident, 197–8, 231, 274 cases, 33, 76, 126, 142–3, 156, 171, 173, 181, 190 and Congo, 256 and Cuba, 199 and Dominican Republic, 256 and embassy bombings, 215 and extra-territorial law enforcement, 273–4 and Grenada, 256 and Gulf War, 14, 55, 282, 299, 301–2, 320–2, 330 and Haiti, 314 and Iran, 173, 215, 236, 248, 261 and Korean War, 165, 301–2, 317 and Kosovo Air Campaign, 338 and Libya, 252, 345–7 and Mexico, 273 and NATO, 228–9, 289, 338 and neutrality, 28–9, 178–9 and Nicaragua, 6, 74, 111, 233, 236, 253, 298, 342–4 and 9/11, 3, 7, 31, 194–5, 225, 227–8, 239, 261, 265, 311–12, 353 and Pakistan, 273, 290 and Panama, 21, 121, 257 Permanent Member of Security Council, 301, 316 and preemptive self-defence, 194–5, 322 Rules of Engagement, 194, 242–3 and Sinai Multinational Force and Observers, 333 treaties, 80–1, 85, 192, 284, 288, 290–1 and World War I, 25 and World War II, 25, 28–9, 35, 51, 126, 178–9, 203–4, 265, 279 ‘Uniting for Peace’ Resolution, 339–41 universal jurisdiction, 155, 158 use of force in international relations, prohibition of attempts to limit, 91–4, 213, 259, 268 and collective security, 72, 91, 303, 307–8, 333–5 customary nature of, 87, 95–100, 106, 109–10 exceptions to, 70–3, 91–4 and ‘humanitarian intervention’, 73–5, 93–4, 338 as jus cogens, 105–7, 117, 123, 193 and Kellogg-Briand Pact, 84–7, 101, 103, 127–8, 163, 179, 193, 197 and ‘national liberation’, 70-3, 92–3

Index of subjects and non-Members of the UN, 98–9 non-restrictive meaning of, 89–91 and self-defence, 72, 91, 93, 188–9, 197 and treaties other than UN Charter or Kellogg-Briand Pact, 101–4 and UN Charter, 87–102, 109 USSR and Afghanistan, 10, 121, 290–1 boycott of Security Council (1950), 302, 317 and Cuba, 199 and definition of aggression, 124 expulsion from League of Nations, 304 and Gulf War, 319 and Hungary, 121 ‘incident’ with Japan (1939), 17 and ‘national liberation’, 71, 73, 92 Permanent Member of Security Council, 316 treaties, 103, 124, 279, 290–1 and World War II, 25, 35, 126, 279 validity of Security Council decisions, 345–50 veto, 316–17, 339 ‘vigilance’, duty of, 226–7, 269 void treaties, 39–41, 104, 106 volunteers, 27, 166, 328 war of aggression, as a crime, 125–30, 134–6, 141, 143, 167, 171–2, 197 aims, 13–14 as an asymmetrical phenomenon, 13–14 beginning of, 30–4 causes of, 30, 66–9 ‘civil’, 5–8, 119–20, 122 ‘Cold’, 10, 35, 56, 103, 165, 238, 287–8, 302, 317–19, 325, 327, 331, 339–40, 352 as counterwar, 69–70, 259–60, 298 declarations of, 9–11, 14–15, 17, 30-4, 42–3, 51, 65, 138, 179, 197, 285 definition of, 3–15 devastation caused by, 11, 75–6, 128, 263 duel compared to, 163, 176 extra-legality of, 75–7 frequency of, 12, 75–6, 163, 351 games, 146 and immediacy, 261, 267–8 inter-State nature of, 5–8, 119–20 just, 65–75, 92–4, 167, 179, 188 legality of, 74, 78–84, 128, 167, 188, 192 limited, 11–13 in the material sense, 9–12, 15, 18, 33–4, 164 of ‘national liberation’, 70-3, 92–3 compared to natural disaster, 75–7 and necessity, 261–2, 267–8 planning of, 110, 126, 130, 135, 139–41, 143

375 powers, 3–4 preparation for, 126, 130, 135, 139–41, 147, 200, 204, 268, 282, 286, 328 preventive, 197–8, 309 and proportionality, 261–5 region of, 19–24, 26, 53, 265 renunciation of, in Kellogg-Briand Pact, 85–7, 127, 193, 197 single State required to start, 11–12, 30, 51 target State, started by, 14, 259–60 in the technical sense, 9–11, 15, 30–3, 164 termination of, 34–51, 181 third State determination of, 12, 17–18 total, 11–13 and unconditional surrender, 50, 165–6, 266 and UN Charter, 87–8 waging of, 22, 66, 110-11, 126, 130, 134, 141–3, 168, 262 war crimes, 126–8, 131, 144–5, 147–8, 155, 158–9, 161–2, 171 warnings, 30–2, 51, 58, 65, 88 Warsaw Pact, 288, 293 warships, 26, 214, 243–5 waterways, 11, 20–1, 243–4 withdrawal of consent, 121–2, 331 of forces, 8, 48, 53, 65, 237–8, 291, 299, 308, 318–19, 344 World War I armistice, 42 incident with neutral country, 248 peace treaties, 34, 38, 42, 47, 111–13, 125, 289 reparations, 112–13 responsibility for, 125–6 technical participation in, 9 World War II Anglo-Soviet alliance in, 279 armistices, 42–3 beginning of, 28, 31, 234, 265–6, 285 neutrality in, 28–9, 178–9 peace treaties, 35 Pearl Harbor, 33, 179, 203–4, 265 technical participation in, 9 unconditional surrender, 50, 165, 266 war crimes trials, 102, 126–9, 142–3, 147–8, 171–2, 181 World Summit Outcome, 100, 109 wounded, 53 ‘Yom Kippur War’, 58 Yugoslavia, 7–8, 103, 116, 130–1, 178, 288, 290, 307, 349

War, Aggression and Self-Defence

War, Aggression and Self-Defence

War, Aggression and Self-Defence, 4th Edition