POINTS OF DISCUSSION

• Evolution of Use of Force

• Elements of Art. 2(4)
• Exceptions
1. Measures against Former Enemy States
2. UNSC Enforcement Actions
3. Self-defence
• Non-state Actors and Use of Force
 WHY FORCE?

• Why Force is used by States?

 FORCE

• Due to current levels of armament, prevailing strategic concepts, and the development of
modern weaponry, war today endangers the survival of mankind.
• Mechanisms to avoid wars has taken several forms like:-
(1) the prohibition of the use of force,
(2) collective measures to secure that prohibition,
(3) the obligation to resort to peaceful means for the settlement of disputes,
(4) regulations on arms limitation and reduction, and
(5) rules, though so far barely developed, concerning ‘peaceful change’.
 PRACTICE BEFORE UN CHARTER

Just War Kellogg-

LON
Theory Briand Pact
 JUST WAR THEORY

• Claim of Right to wage war – Claims were based on religious and moral grounds
• The issue arose when 2 Christian states were at war with each other.
• Aquinas – Just War Theory – Moral basis to wage war
• Certain wars were excluded from its ambit:
1. Wars fought for imperial reasons
2. Self-interest
3. Acquisition of territory
• The issue with Just war theory – Discretion and Perspective
• The theory has been perceived as an enabler of wars in support of colonialism and subjugation of non-
western powers.
 TREATY OF WESTPHALIA

• Right to wage war as an extension of the state’s sovereignty

• Right to wage war as part of national policies
 PRACTICE BEFORE UN CHARTER

• The medieval theory of bellum iustum had been developed by theologians and was never a valid
rule of public international law. the theory lost its (virtual) war-preventing effects when it was
recognized that recourse to war could be just for either side.

• In Art. 1 of the Hague Convention III of 1907 relating to the Opening of Hostilities, the contracting
powers recognized that hostilities between them must not commence without a prior and
unambiguous warning in the form of either a reasoned declaration of war or an ultimatum
containing a conditional declaration of war.
 LON

• procedural constraints on resort to war, but, provided the procedures foreseen in

Articles 11 to 17 were exhausted, resort to war was permissible.
• Obligation to settle disputes peacefully
• Arbitration and Judicial Settlement
• Council’s role in dispute settlement
• Prohibition of war against league decisions
 LON

• This was despite Article 10, under which members were obliged to respect and preserve as
against external aggression the territorial integrity and existing independence of all members of
the League. (Collective Security)
• most of the disputes submitted to the Council were not dealt with unanimously, this
mechanism of the Covenant did not prove to be an effective prohibition of war. In case the
Council failed to adopt a report by unanimous vote, the League members reserved to
themselves ‘the right to take such action as they shall consider necessary for the maintenance
of right and justice’
• United States never belonged to the League, and that the Soviet Union, Germany, Japan, and
Italy were members for only a short period of time.
 POST-LON

• After 1919 the effort took the form of attempts to fill what was described as the ‘gap in the
Covenant’.
• The Sixth Assembly of the League adopted a resolution on 25 September 1925 which stated that a
‘war of aggression’ constituted ‘an international crime’, in accordance with a Spanish proposal.
• At the Eighth Assembly a Polish proposal for a resolution prohibiting wars of aggression was
adopted unanimously.

• Neither proposal was put forward as representing existing law.

 KELLOGG-BRIAND PACT

• Frank B Kellogg – USA Secretary of State

• Aristide Briand – Foreign Minister of France
• General Treaty for Renunciation of War as an Instrument of National Policy
• important development was the conclusion in 1928 of the General Treaty for the Renunciation of War (the
Kellogg–Briand Pact).
• By Article I, the parties ‘condemned recourse to war for the solution of international controversies, and
renounced it as an instrument of national policy in their relations with one another’.
• By Article II, they agreed that settlement of all disputes arising among them ‘shall never be sought except
by pacific means’.
• Article III – Ratification of Treaty and Entering into Force
 KELLOGG-BRIAND PACT 1928

• The system which emerged had four elements:

first, the obligation not to resort to war to solve international controversies;

secondly, the obligation to settle disputes exclusively by peaceful means;
thirdly, the reservation of the right of self-defence including collective self-defence, and

fourthly, the reservation of the obligations of the League Covenant.

 1928 ACT AND CHARTER: COMPARED

• the wording of Art. 2 (4) constitutes a considerable improvement in comparison with Art.
I of the Briand-Kellogg Pact.
• The use of force in general is prohibited, rather than only war.
• Furthermore, the prohibition is not confined to the actual use of force, but extends to the
threat also.
• the prohibition is, at least in theory, safeguarded by a system of collective sanctions
against any offender.
 UN CHARTER
ARTICLE 2
• 3. All Members shall settle their international disputes by peaceful means in such a manner that
international peace and security, and justice, are not endangered.
• 4. All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any State, or in any other manner
inconsistent with the Purposes of the United Nations.
• 7. Nothing contained in the present Charter shall authorize the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of any State or shall require the
Members to submit such matters to settlement under the present Charter; but this principle
shall not prejudice the application of enforcement measures under Chapter VII.
 SCOPE OF 2(4)
FORCE – ARMED FORCES ONLY
• Armed forces, Political and economic force??
• Armed force only (Para 7 of Preamble, Art. 44, Teleological Interpretation of 2(4), and travaux
préparatoires of the UN Charter reference to rejection of inclusion of economic force proposed by
Brazil)
• “to ensure, by the acceptance of principles and the institution of methods, that armed force shall not
be used, save in the common interest, and” (Para 7 of the Preamble)
• Article 44 provides that When the Security Council has decided to use force, it shall, before
calling upon a Member not represented on it to provide armed forces in fulfilment of the obligations
assumed under Article 43, invite that Member, if the Member so desires, to participate in the
decisions of the Security Council concerning the employment of contingents of that Member's
armed forces.
 POST-UN

• Friendly Relations Declaration, adopted by the GA on 24 October 1970 (UNGA Res 2625
(XXV)) which contains an interpretation of the fundamental Charter principles.
• When interpreting the principle that States shall refrain in their international relations
from the threat or use of force, the Declaration deals solely with military force.
• Apart from that, the Declaration stipulates as a further principle the obligation not to
intervene in matters within the domestic jurisdiction of another State. It is in this context
that the Declaration reads: ‘No State may use or encourage the use of economic, political
or any other type of measures to coerce another State’. By doing so, the Declaration
underlines the fact that the scope of Art. 2 (4) is restricted to armed force.
 FORCE

• Definition of Aggression adopted by the GA on 14 December 1974, in Res 3314 (XXIX),

Art. 1 of which states that ‘[a]ggression is 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’.
 PHYSICAL NON-ARMED FORCES

• cross-frontier expulsion of populations, the diversion of a river by an up-stream State, the release of
large quantities of water down a valley, and the spreading of fire across a frontier
• 2(4) or Principle of Non-intervention or Principle of Territorial Integrity
• use of physical non-military force may produce the effects of an armed attack prompting the right of
self-defence laid down in Art. 51 – whether the use of force in self-defence would be legal??
 DIRECT AND INDIRECT FORCE

• States do not prefer to use direct force, but whether 2(4) prohibits using indirect force or not.
• The reasons that preference is given to the indirect use of force are manifold, among them the risk
of an escalation of the conflict, the consideration for public opinion against war, insufficient
military strength for a traditional war, or the obviousness of a breach of the prohibition of the use of
force.
• every possible act of support can be included under terms such as ‘encouraging’, ‘assisting’, or
‘participating’. This kind of interpretation, however, blurs the limits of the notion of armed force
and can hardly be reconciled with the object and purpose of Art. 2 (4).
• That is why in the Nicaragua Case the ICJ correctly found that not every act of assistance is to be
qualified as a use of force. Thus it characterized the arming and training of the ‘Contras’ by the
United States as use of force, but not the mere supplying of funds to them.
 PROHIBITION FOR WHOM?

• The provision refers to MEMBERS and According to Art. 4 of the Charter, only States are
eligible to become members of the UN.
• State not members of UN (can be read through Article 2(6))
• De facto authority exercised by government but lacks recognition
• IOs responsibility for use of force – they are not parties to UN Charter, does CIL binds
them?
 ACTS OF PRIVATE INDIVIDUALS AND GROUPS

• In Wall Opinion the ICJ made it clear that acts of violence by non-State actors can only become relevant
as amounting to an armed attack, if they are attributable to a State which then would be the legitimate
target of self-defence.
• The same must apply to the prohibition of the use of force, as both rules systematically correspond to each
other.
• This is why the ICJ in Armed Activities on the Territory of the Congo took great pains in attributing
private violent conduct to the government of Uganda, having recourse to Arts 4–8 of the 2001 ILC Draft
Articles on the Responsibility of States and to the Friendly Relations Declaration.
• attributing private actions to a State through making the latter responsible under the prohibition of the use
of force, is the concept of indirect force applied by the Court in the Nicaragua Case.
 INTERNATIONAL RELATIONS

• Reference to International Relations – A prohibited use of force must affect the

relations between the state using force and another state.
• Territories which do not form part of the territory of any state
Use of Force within a State’s Own Territory against its Own
Population

Forceful Response by a State to Small-scale Territorial Incursion

by Armed Forces to Another State

Law enforcement against Foreign Private Actors within or

Outside Own Territory
 INTERNATIONAL RELATIONS

• Attack in the high seas

• in the Oil Platforms Case the ICJ clearly proceeded on the assumption that the attack on a
military vessel of another State, either through missiles or sea mines, may in case of the
required severity amount to an armed attack, provided the vessel is flying the flag of that
State.
• When a foreign ship or aircraft is attacked in the territory of a third State, the use of force
is not only directed against the flag State but also against the State whose territory is
affected.
 TERRITORIAL INTEGRITY & POLITICAL
INDEPENDENCE
• Does the requirement restrict the application of the provision??

• The requirement was absent in Dumbarton Oaks Conference but was later included in San
Francisco Conference on demands by several smaller states
• The terms ‘territorial integrity’ and ‘political independence’ are not intended to restrict the scope of
the prohibition of the use of force.
• the two modes of the use of force cover any possible kind of trans-frontier use of armed force

• ‘integrity’ has to be read as ‘inviolability’

• Rest gaps are filled “in any other manner inconsistent with the purposes of the United Nations”
 TERRITORIAL INTEGRITY & POLITICAL
INDEPENDENCE
• Objection to GENERAL and BROADER interpretation of 2(4) by those who believe that the insertion of
these terms restrict the application

• in Corfu Channel the UK argued along similar lines in defending its mine-sweeping operation to collect
evidence within Albanian waters. However, the preparatory work of the Charter is sufficiently clear: this
phrasing was introduced precisely to provide guarantees to small states and was not intended to have a
restrictive effect; the Court has consistently so held.

• Objection flows with respect to failed states - The argument points out that, when effective government
has vanished due to civil war or violent unrest, the protective effect of the prohibition to use force would
merely benefit the warring parties within the State concerned and add to the suffering of the population,
which is why in those cases a forcible intervention by the international community, but also by
neighbouring States must be admissible.

• Such a reduction of the prohibition, however, is not generally recognized in State practice which, for
example, seems to continue to apply Art. 2 (4) to Somalia and which seems to prefer to have interventions
in ‘failed States’ authorized by means of Chapter VII UN Charter, rather than left to the sovereign will of
individual States.
 ‘THREAT’ OF USE OF FORCE
• Lesser attention to the THREAT aspect as
1. most of these threats are followed by Actual use or
2. states are more tolerant towards such threat or

3. the causal link between a threat and the behaviour of the target State is often indeterminable.

4. they play the role of a ritualized substitute for the use of force and, as such, may help to speed up
the peaceful settlement of disputes.
• The piling-up of armaments, as well as the shaping of alliances, both imply the threat of force
against any possible aggressor

• distinguishing in a clear-cut manner between offensive and defensive preparations is far from easy,
and is often virtually impossible

• the threat of force forbidden by Art. 2 (4) requires a coercive intent directed towards specific
behaviour on the part of another State.
NICARAGUA V USA
 US V NICARAGUA
• Fall of Somoza Government in Nicaragua in July 1979

• Formation of government in Nicaragua the Frente sandista Liberacion Nacioanl (FSLN) formed the
government
• Formation of Irregular Forces by those who were against the current government and it consisted of
supporters of Somoza and members of National guard of Nicaragua
• Opposition to current government in Nicaragua – Fuerza Democratica Nicaraguense (FDN) operated along
Honduras, and Alianza Revolucionaria Democratica (ARDE), operated along the borders of Costa Rica
• Contras – A term to denote those fighting against the present Nicaragua Govt, and support came from USA
• UCLAS – Unilaterally Controlled Latino Assets – USA military Personnel, or persons of nationality of
unidentified Latin American Countries, paid by, or acting on the direct instructions of US Military or
intelligence personnel

• US in the beginning was in support of Nicaragua - Support for Guerillas in El Salvador – Reason for
Change in Attitude of USA
ACTS DONE BY US DIRECTLY OR THROUGH UCLA

Mining of Nicaraguan Ports or Waters in Early 1984

through authorization by USA president

Attacks on, in particular, Nicaraguan port and oil

installations in Late 1983 and Early 1984

Infringement of Airspace

Joint Manoeuvres across Honduras Borders

 LAYING OF MINES

• Done through authorization of USA president

• It was done in the internal waters or in territorial sea, or in both
• US government offered no warning either before or after laying of mines
• Personal and material injury caused including rise in marine insurance rates.
• All these acts were done by Persons in the pay and acting on the instructions of that
agency, under the supervision and with logistic support of USA agents.
 GENESIS, DEVELOPMENT, AND ACTIVITIES OF
CONTRAS
• Existed even prior to USA intervention ever since the fall of Somoza regime
• Financing of contras – earlier undisclosed but later it became public due to specific legislations
• Funding through funds available to CIA
• Events between 1981-1984 – US was providing funds for the activities of Contras. Later on the funds for
humanitarian assistance
• Every activity of Contra does not reflect the strategy and All operations carried out by Contras were not decided
by USA. Various forms of assistance provided by USA to contras were logistic support, supply of information
on location and movements of Sndinista troops, use of sophisticated method of communication, the deployment
of field broadcasting networks, radar coverage etc.
• There were several military and paramilitary activities were decided and planned, if not by USA directly, then in
close collaboration with US.
 CONTRAS
DEPENDENCE AND CONTROL
• Dependence and Control – to equate contras as an organ of the USA, Or as acting on
behalf of USA
• Element of Control – cessation of aid
• Assistance of USA was crucial for pursuing the activities but insufficient to demonstrate
their complete dependence on the USA aid.
 DEGREE OF CONTROL

• Acc. to Nicaragua, the contras are no more than a band of mercenaries that have been
recruited, organized, paid, and commanded by the US govt.
• Court – requirement of effective control of USA over the acts of Contras
• Assistance given by the USA does not mean that Contras are an organ of the USA
 MEASURES OF ECONOMIC NATURE

• Cessation of economic aid – indirect form of intervention in its internal affairs

• New condition was added of giving assurance of not aiding, abetting or supporting acts of
violence or terrorism in other countries
• Modification of system of quotas for USA imports of sugar – reduction of quota
attributed to Nicaragua by 90%
• Declaration of national emergency by USA due to acts of Nicaragua
• Nicaragua aggressive activities – total trade embargo
 SELF-DEFENCE

• El Salvador – court found that there was an intermittent flow of arms routed via
Nicaragua to El Salvador but there is no sufficient evidence for the court to conclude
that after 1981 any assistance has reached to opposition in Salvador through Nicaragua
or they themselves have provided any support.
• Honduras and Costa Rica – certain transboundary military incursions can be imputed to
Nicaragua.
• FDN and ARDE operated through the border of Honduras and Costa Rica.
 CLAIMS OF NICARAGUA

• Violation of Article 2(4) and CIL obligation

• Violation of Article 2(7) and CIL obligation
• Violation of the sovereignty of Nicaragua
• Violation of FCN Treaty because ats of USA tried to defeat the purpose of that treaty
 USA

• Reliance on collective self-defence

• They provided support on request
• Absence of USA in merits Judgement – Article 53 – other party may call upon the court to
decide in their favor
• Absence will not affect the judgment
 BASIS FOR THE EXERCISE OF JURISDICTION

• USA multilateral treaty reservation under its declaration accepting jurisdiction under
Article 36(2) of the ICJ Statute. The reservation provided that
dispute arising under a multilateral treaty, unless
1. All parties to the treaty affected by the decisions are also parties to the case before
the court, or
2. The USA specially agrees to jurisdiction
MULTILATERAL TREATIES INVOKED BY NICARAGUA

• UN Charter
• Charter of the Organization of American States
• Montevideo Convention on Rights and Duties of States
• Havana Convention on the Rights and Duties of States in the Event of Civil Strife
• Nicaragua has not relied on 3rd and 4th treaty.
 LAW APPLICABLE IN THE PRESENT DISPUTE

• Exclusion of application of Multilateral Treaties through USA Reservation

• Nicaragua – Customary and General International Law

• USA – The content can not be derived without reference to Multilateral Treaties – UN Charter has subsumed
and supervened related multilateral treaties

• "cannot dismiss the claims of Nicaragua under principles of customary and general international law, simply
because such principles have been enshrined in the texts of the conventions relied upon by Nicaragua. The fact
that the above-mentioned principles, recognized as such, have been codified or embodied in multilateral
conventions does not mean that they cease to exist and to apply as principles of customary law, even as regards
countries that are parties to such conventions. Principles such as those of the non-use of force, non-
intervention, respect for the independence and territorial integrity of States, and the freedom of navigation,
continue to be binding as part of customary international law, despite the operation of provisions of
conventional law in which they have been incorporated." (I.C.J. Reports 1984, p. 424, para. 73.)
 APPLICABLE LAW

• Rules of customary international law

• Multilateral treaties can not be applied to decide the dispute but it can be used to
deduce the content of a particular obligation
 CIL ON USE OF FORCE

• US – accepted that 2(4) has become CIL, AND rules of UN Charter and CIL on use of
force is identical.
• Nicaragua – in certain cases the rule of customary law is not identical in content and
mode of application to the conventional rule.
 USE OF FORCE

• Res. 2625 Friendly Relations Declaration

• US support to 6th International Conference of American States condemning Aggression
1928 and its ratification to Montevideo Convention on Rights and Duties of States 1933
• Helsinki Declaration
• Statements of State representatives
• ILC affirming the status of use of force as Jus cogens norms, same recognized by
Nicaragua, even USA recognized this
 GRAVITY OF USE OF FORCE

• Force – Most Grave (Armed Attack) Forms and Less Grave Forms
• Even for less grave forms, the regulation is in Res. 2625, Res. Of General Assembly of
OAS
 USE OF FORCE

"recruiting, training, arming,

equipping, financing, supplying
Laying of mines in Nicaraguan and otherwise encouraging.
Attacks on Nicaraguan Ports,
internal or territorial waters in supporting, aiding, and directing
Oil Installations and a naval base
early 1984 military and paramilitary
actions in and against
Nicaragua"
 USE OF FORCE
LIABILITY OF USA

"organizing or encouraging the arming and training of the

organization of irregular forces "participating in acts of civil contras can certainly be said to
or armed bands. . . for incursion strife . . . in involve the
into the another State" threat or use of force against
territory of another State". Nicaragua

the mere supply of funds to the

contras, while
undoubtedly an act of
intervention in the interna1
affairs of Nicaragua does not in
itself amount to a use of force
 RIGHT TO SELF-DEFENCE
• Covers both collective and individual self-defence
• Use of ‘inherent’ – customary existence
• Res. 2625
• Requirements for its exercise:
1. The state must be a victim (Assessment from the point of view of the victim)
2. Armed Attack (Direct or indirect) (Indirect+scale+effects=Armed Attack)
3. Necessity and Proportionality
• Armed attack must not be understood as including merely action by regular armed forces across an international border, but also
“the sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry out acts of armed forces
against another state of such gravity as to amount to” an actual armed attack conducted by regular armed forces, “or its
substantial involvement therein.”
• The requirement is visible in Art. 3(g) of Res. 3314 reflecting customary international law.
• Same requirements are there in COAS
• Reporting is not CIL requirement, but in the present case absence of report can be considered as indication of state action in self-
defence or not.
 SELF-DEFENCE

• July 1979 – Early Months of 1981 – Supply of arms to El Salvador

• No concrete evidence of it reaching Salvadorian armed opposition, on scale of any significance
• Neither Nicaragua can be held responsible for flow, even if it has then such act will not amount to armed attack
• Honduras and Costa Rica – very little information on such incursions and such incursions amounting to armed attack
• Generally, it is the victim state who brings such knowledge before other states
• But in this case there is hardly any evidence supporting this idea before US started its activities in Nicaragua
• Declaration and request for USA came but much later than the initiation of USA activities.
• Honduras and Costa Rica – submitted to UNSC that it is a central America problem and solve it through regional mechanism
• Even USA has not submitted any report to UNSC – USA itself in its statement has argued for it as a ground to contradict an
action being taken in self-defence.
• No need to evaluate necessity and proportionality because preliminary condition itself has not been fulfilled.
 NON-INTERVENTION

• Right of every sovereign state to conduct its affairs without outside interference
• Respect for territorial sovereignty and political integrity as foundation of international law
• This principle is not part of the Charter but it is not necessary that each principle must have been part of the UN Charter
• Statements of states, Res. 2131, Res. 2625, and it is considered a corollary of the Principle of Sovereign Equality of States, Corfu Channel
Case
• Inter-American relations– reflected in Montevideo Convention, Helsinki Declaration, Resolution of states
• Content of non-intervention
1. States are forbidden to intervene directly or indirectly in internal or external affairs of the state
2. The prohibited intervention must be one bearing on matters in which each state is permitted, by the principle of state sovereignty, to
decide freely
• Intervention is wrongful when it uses a method of coercion in regard to such choices, which must remain free ones.
 NON-INTERVENTION

• In this case neither US nor Nicaragua has tried to justify its action by claiming a right of
intervention.
• Such right does not exist in international law.
• 2 important aspect from the court:
1. The USA intended, by its support of the contras, to coerce the government of
Nicaragua in respect of matters in which state is permitted, by principle of State
sovereignty, to decide freely.
2. The intention of the contras was to overthrow the present government.
 NON-INTERVENTION

Replacement by
Actual overthrow Substantial
government
of existing damaging of the
acceptable to
government economy
USA

To coerce it to
Weakening of the accept the US
political system policies and
political demands
 NON-INTERVENTION

• Through support given to the contras

• Court did not accept the argument that the intention was to overthrow.
• However, it accepted that through support to contras US tried to coerce the govt. in
respect of matters in which each state is permitted to decide freely
• And the intention of the Contras was to overthrow the government
• Financial Support, training, supply of weapons, intelligence and logistic support to contras
– breach of the principle of non-intervention
 INDIRECT INTERVENTION

90% reduction in the

Cessation of Economic
sugar quota for US Trade Embargo
Aid
imports from Nicaragua

Such breach is in nature

of violation of intl
economic law which is
outside the jurisdiction
of the court
 STATE SOVEREIGNTY

• The principle of state sovereignty overlaps with the principle of prohibition of use of
force and intervention
• Extension of state sovereignty to internal waters of the state, and territorial sea of the
state
• Right of innocent passage to enjoy access to ports
• Freedom of navigation
• Freedom of Maritime Commerce and Communications
• Relevance of Corfu Channel Case
 STATE SOVEREIGNTY

Armed attack against

Incursion into Aerial Trespass into
Nicaragua by Air, land,
Territorial Waters Nicaragua Airspace
and Sea

Efforts by direct and

Indirect means to
coerce and intimidate
the government of
Nicaragua
 COUNTERMEASURES

• Response through intervention to an intervention as a countermeasure

• Nicaragua – El Salvador – USA – Nicaragua
• Right to Respond Intervention by Intervention to the extent of justifying use of force in
relation to measures not constituting armed attack but may nevertheless involve a use of
force
• Use of force is only valid in response to an armed attack and not in a less grave form of
use of force
• There is no right to collective armed response to acts not constituting armed attack
 POSSIBILITY OF APPLICATION OF IHL

• USA v Nicaragua – IAC

• Contras v Nicaragua – NIAC
• Martens Clause
• Minimum guarantees mentioned in Common Article 3
 OIL PLATFORMS CASE

• Events took place in the Persian Gulf between 1980-1988 during Iran– Iraq war
• Iran – defense exclusion zone in Persian gulf
• Iraq – prohibited war zone and Naval total exclusion zone
• Tanker War
• Iran has denied responsibility for any actions apart from those which has been taken involving
ship refusing a proper request for stop and search, and other attack shall be attributed to Iraq
• USA – attribution to Iran
• Operation Earnest Will – Reflagging of Ships
 ATTACKS IN QUESTION

Striking of mines
Attack on Sea
by USS Samuel
Isle City
B. Roberts
 CLAIMS OF IRAN

• Breach of 1955 Treaty between Iran and USA

• Denies responsibility for attack and attributes it on Iraq because Iraq was interested in
internationalizing the conflict
• Actions taken by Iran was for defensive purposes
• It even accused Iraq of getting support from 3rd parties
 CLAIMS OF USA

• Attacks by USA in exercise of Right to self-defense

• Violation of Article X of 1955 Treaty – because of mining and attacking vessels, Iran was violating its obligation as its actions
were dangerous and detrimental to commerce and navigation between USA and Iran
• USA claims dismissal of Iran’s claims on 3 related grounds:
1. a party that acts improperly with respect to the subject matter of a dispute is not entitled to relief; according to the United
States, Iran had committed, at the time of the actions against the platforms, manifestly illegal armed attacks on United States
and other neutral shipping in the Persian Gulf, and it has misrepresented, in the present proceedings, the facts of the case
before the Court.
2. a party that has itself violated obligations identical to those that are the basis for its application is not entitled to relief and
Iran had allegedly infringed itself the "mutual and reciprocal" obligations arising from the 1955 Treaty.
3. an applicant is not entitled to relief when the actions it complains of were the result of its own wrongful conduct.
• USA is asking for the dismissal of the claim and not the admissibility.
 1955 TREATY

• Article X – between the territories of two HCP there shall be freedom of commerce and
navigation
• The court needs to ascertain whether USA has breached Article X?
• USA reliance on Article XX – the present treaty shall not preclude the application of measures:
(d) necessary to fulfil the obligations of a high contracting party for the maintenance or
restoration of international peace and security, or necessary to protect essential security
interests.
• Actions complained by Iran were necessary to protect the essential security interests.
• Even if their action does not fall within Article XX, its actions were justified in self-defense.
 EVENTS OF 19TH OCTOBER 1987

• Attack on Reshadat and Resalat Complex

• Drilling and Oil production of platforms
• At the time of the attack these complexes were not producing oils as it was already damaged
by an Iraqi attack and the repair work was about to complete.
• The warning was issued of an imminent attack and asked to abandon the facility
• Attack was made on Reshadat but it affected the Resalat also
• Iran – production was interrupted for several years due to the attack
• USA – Submitted a report to the UNSC of exercising right to self-defence
 RESHADAT AND RESALAT

"In accordance with Article 51 of the Charter of the United Nations, 1 wish, on behalf of my Government, to report that United States forces
have exercised the inherent right of self-defence under international law by taking defensive action in response to attacks by the Islamic
Republic of Iran against United States vessels in the Persian Gulf.
At approximately 11 p.m. Eastern Daylight Time on 16 October 1987, a Silkworm missile fired by Iranian forces from Iranian-occupied Iraqi
territory struck the Sea Isle City, a United States flag vessel, in the territorial waters of Kuwait. This is the latest in a series of such missile
attacks against United States flag and other non-belli- gerent vessels in Kuwaiti waters in pursuit of peaceful commerce. These actions are,
moreover, only the latest in a series of unlawful armed attacks by Iranian forces against the United States, including laying mines in
international waters for the purpose of sinking or damaging United States flag ships, and firing on United States aircraft without
provocation.
At approximately 7 a.m. Eastern Daylight Time on 19 October 1987, United States naval vessels destroyed the Iranian military ocean platform
at Rashadat [sic] (also known as Rostam) in international waters of the Persian Gulf. The military forces stationed on this platform have
engaged in a variety of actions directed against United States flag and other non-belligerent vessels and aircraft. They have monitored the
movements of United States convoys by radar and other means, coordinated minelaying in the path of our convoys, assisted small-boat
attacks against other non-belligerent shipping, and fired at the United States military helicopters, as occurred on 8 October 1987. Prior
warning was given to permit the evacuation of the platform."
 RESHADAT AND RESALAT
BURDEN OF PROOF
1. Iran did the attack on the USA.
2. The attack must be like an armed attack.
3. The actions of the USA were necessary and proportionate.
• Burden of proof – USA
• If the USA fails to prove that the attack was carried out by Iran, then the USA will fail in
discharging its burden of proof.
 SEA ISLE CITY
USA
• Kuwaiti oil tanker reflagged to USA
• After completing a voyage under Operation Earnest Will it was attacked through a missile and USA
claimed it to be 7th attack
• Missile was launched from Fao Area, an area which has been occupied by Iran
• Missile site was under Iran Control
• It could not recover and examine the fragments of specific missile
• Independent Expert Opinion – Missile was of Chinese manufacturer
• Testimony of 2 Kuwaiti officers – Lunching of 6 missiles in 1987, one of them asserted that he has
observed the path of the missile
 SEA ISLE CITY
IRAN
• It acknowledged the occupation of missile sites but asserts that it was damaged and were
inoperative
• According to their own experts Satellite images were not clear and it does not resemble
to silkworm missile sites
• Kuwaiti officers – based on hearsay and inconsistent
• Missile was hit by Iraq as it possess modified version of Silkworm missile with a range of
upto 150-200 km and normal range of such missile is 95 km
• The missile may have been launched from Air or by Naval forces
 SEA ISLE CITY
COURT
• No physical evidence of missile could be produced by USA, BUT COURT EXAMINED OTHE REVIDENCE ON
THE HYPOTHESIS THAT MISSILE WAS OF THIS TYPE.

• Satellite images were not clear about the site of firing missiles and presence of Iranian missile firing equipment.

• Testimony of Kuwaiti officials – was given 10 years after the incident, he did not observe the launch and the
distance was such that it was not possible for him to observe.

• Inconsistency in Arabic and Englsih text of witnesses statement

• Conflict of evidence between parties as to characteristics of Silkworm missiles, its range and the course it
follows after firing

• Announcement of Iranian President asking USA to leave the region – not sufficient

• Attack by Iran on British ships – public sources are secondary sources as court is not aware of the original
source
 SEA ISLE CITY
CUMULATIVELY
• USA in its report to UNSC claimed that they are not relying only on attack at Sea Isle City for the purposes of constituting
Armed Attack
• It was latest in a series of atatcks and these attacks added to the gravity of the specific attacks, and reinforced the necessity of
action in self-defence
• Sea Isle city was in Kuwaiti waters at the time it was attacked more than 100 km away – the missile was not specifically for this
vessel rather it must have been hit some target.
• Texaco carribean was not even flying USA flag.
• Firing on USA helicopters – no sufficient evidence
• No evidence of mineslaying by Iran Ajr (Iranian Military vessel) at the time when they were at war with Iraq but it was meant
for USA.
• USA could not prove that the mine which hit Bridgerton was laid with specific intention of harming that ship any other USA
vessels.
 2ND INCIDENT
ATTACK ON SALMAN AND NASR COMPLEX
• At the time of the attack Salman was going through repair but nearing completion.
• Nasr complex was functioning normally.
• USA warned of attack, some evacuated but some opened fire
• Shelling through USA ships, warplanes and helicopters
• Placed and detonated explosives on oil platforms
• Iran – severe damage and regular production at Salman only possible in 1992 4 years
after the atatck
 SALMAN AND NASR

In accordance with Article 51 of the Charter of the United Nations, 1 wish, on behalf of my Government, to report that United States forces have exercised their
inherent right of self-defence under international law by taking defensive action in response to an attack by the Islamic Republic of Iran against a United States naval
vesse1 in international waters of the Persian Gulf. The actions taken are necessary and are proportionate to the threat posed by such hostile Iranian actions.
At approximately 1010 Eastern Daylight Time on 14 April the USS Samuel B. Roberts was struck by a mine approximately 60 miles east of Bahrain, in international
waters. Ten US sailors were injured, one seriously, and the ship was damaged. The mine which struck the Roberts was one of at least four mines laid in this area. The
United States has subsequently identified the mines by type, and we have conclusive evidence that these mines were manufactured recently in Iran. The mines were
laid in shipping lanes known by Iran to be used by US vessels, and intended by them to damage or sink such vessels. This is but the latest in a series of offensive
attacks and provocations Iranian naval forces have taken against neutral shipping in the international waters of the Persian Gulf.
Through diplomatic channels, the United States has informed the Government of Iran on Four separate Ocassions , most recently 19 October 1987, that the United
States wouldnot accept Iran's minelaying in international waters or in the waters of neutral States. In October, my Government indicated that the United States did
not seek a military confrontation with Iran, but that it would take appropriate defensive measures against such hostile actions.
Starting at approximately O100 Eastern Daylight Time 18 April US forces attacked military targets in the Persian Gulf which have been used for attacks against non-
belligerent shipping in international waterways of the Gulf.
The US actions have been against legitimate military targets. Al1 feasible measures have been taken to minimize the risk of civilian damage or casualties . .
 SALMAN AND NASR

• The attack was not an isolated operation but it formed part of more extensive military action
Operation Praying Mantis
• USS Samuel B Roberts returning after providing convoy to a merchant ship in context of
Operation Earnest Will
• It hit a mine and mines were discovered by USA and other countries bearing Iranian serial
numbers
• Mining by Iran Ajr
• Statements of Iranian Military leaders
• Iran – no independent evidence has been submitted
 SALMAN AND NASR
BURDEN OF PROOF
• Proof that a mine laid by Iran hit Samuel – since laid during War the evidence is not clear
• US – Mines were laid in lanes known to be used by USA
• Iran – laid for defensive purposes
• USA – identified moored mines bearing Iranian serial numbers – evidence highly suggestive but not not
conclusive
• Attack on Samuel was linked to a series of attacks, Mining was sufficient to constitute armed attack and
the pattern of use of force added to the gravity
• No evidence of attack on USA except for the one involved in Reshadat complex
• There is possibility of mining of a single vessel to constitute armed attack but evidence was not sufficient.
 NECESSITY

• USA – It considered in good faith that the attacks was necessary to protect essential security interest and a
measure of discretion is required in application of measure
• Iran – USA is valid in protecting but in the present circumstance the attacks on platforms was not necessary
• Factor – Nature of the target of force
• USA – platforms being used as Military communication facilities
• Iran – defensive purpose
• Court – no evidence of military presence in Salman and Nasr
• Failure on the part of USA to complain about the attacks in the same way that it did for minelaying and attack
on neutral shipping
• R-4 platform was attacked as a target of opportunity as it was not previously identified as an appropriate
military target.
 PROPORTIONALITY

• If USA had proved that there was an armed attack on sea isle city then response of USA
would have been proportional.
• Samuel – Part of Operation Praying Mentis involving destruction of 2 Iranian frigates and
number of other naval vessels and aircrafts
• Who has laid the mines was unknown, single USA ship which was severely damaged but
not sunk and no loss of life
 PROPORTIONALITY

• The term ‘proportionality’ is used in various legal contexts. But it is used to mean two radically
different things.
• Sometimes the term refers to the relationship between an act and the legitimate response to that act
(‘just desserts’, ‘eye for an eye’, or ‘tit for tat’ proportionality). The response must be proportionate
to the act that provoked it. This is the way the term is used in judging criminal sanctions: the
punishment must fit the crime.
• In other contexts, proportionality relates to an assessment of the harm caused by means used to
further legitimate ends (‘means-ends proportionality’). That harm must not be disproportionate to
the expected benefits of achieving those ends.
 PROPORTIONALITY

• Necessity is generally taken to refer to the resort to force, rather than to non-forcible
measures, while proportionality assesses the force used.
• However, the term ‘necessity’ is also used to assess whether the force used was necessary
to achieve legitimate ends of self-defence.
• When used in this sense there is an obvious affinity between necessity and proportionality.
Means can only be proportionate when they are necessary to achieve the legitimate ends.
 PROPORTIONALITY

1. first stage in assessing proportionality is to define the legitimate ends of using force in the specific
case.
2. The second stage will involve assessing whether the forcible means used by the state acting in self-
defence were necessary to achieve those ends. (In this context, ‘necessary’ may have one of two
meanings: that there is a rational connection between the means and the ends, or that there were no
less drastic means available to achieve those ends.)
 PROPORTIONALITY

• In other contexts in which proportionality is assessed according to a means-ends test, after

establishing whether the means used were necessary in both of the above senses, they are
then subjected to a ‘narrow proportionality’ test.
• This requires assessing whether the harm caused by those necessary means outweighs the
expected benefits.
• There is a difference of opinion whether this narrow pro- proportionality test is relevant in
jus ad bellum.
 EXCEPTION TO 2(4)
1. MEASURES AGAINST FORMER ENEMY STATES
• Art. 107 of the UN Charter, which reads: “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 authorised as a result of that war by the Governments
having responsibility for such actions.”
• Article 53 (1) allows enforcement actions under regional security arrangements to be taken against
such enemy States without authorization by the SC.
• these provisions have become obsolete, since all former enemy States are now UN member States
and it was confirmed by ICJ in its Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons, dealing with the exceptions to the prohibition of the use of force does not mention Arts 53
(1) and 107.
 EXCEPTION
2. UNSC ENFORCEMENT ACTIONS
• According to Arts 24 and 12 of the Charter, the SC has the primary responsibility for the
maintenance of international peace and security. If pursuant to Art. 39 it determines the existence of
a threat to the peace, a breach of the peace, or an act of aggression, it can decide to take measures
involving the use of armed force.
• Threat to peace is found then it may take non-forcible measures under Article 41 and forcible
measures under Article 42
• UN members are bound to carry out the decision taken by the Council, thus a member State is
entitled to use armed force against another if it is acting under the terms of a resolution of the UN
Security Council, adopted under Chapter VII UN Charter.
 THREAT TO THE PEACE

• International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Tadić case to note that
declaration of a threat entails a factual and political judgment, not a legal one.
• the concept is intended to enable a response to imminent armed conflict between states.
• Severe intrastate violence (such as the Balkan War prior to the splintering of Yugoslavia), serious
violations of human rights and humanitarian law (such as in Somalia and other east/central African
nations during the early 1990s), and terrorism have also been designated as threats to the peace.
• The concept has been further expanded to include not only situations in which the use of armed
force appears imminent but those where factors subsist that may lead to the use of force.
• In 1992, the President of the Security Council stated that ‘[t]he absence of war and military conflicts
amongst states does not in itself ensure international peace and security. Non-military sources of
instability in the economic, social, humanitarian and ecological fields have become “threats to peace
and security”
 BREACH OF THE PEACE

• A breach of the peace within the meaning of Article 39 is typically characterized by

hostility between the armed units of two states. Since the term focuses on the point at
which hostilities commence, it accordingly becomes irrelevant if one side is defeated
quickly thereafter.
• In SC Resolution 502, the Security Council considered the Argentine invasion of the
Falklands to be a breach of the peace even prior to the UK’s counter-offensive.
• A similar determination was made following the Iraqi invasion of Kuwait in 1990.
Resolution 660 – asking for withdrawal and later Res. 678 – authorized state to take all
necessary measures to ensure implementation of Res. 660.
 ACT OF AGGRESSION

• In 1974 the General Assembly adopted Resolution 3314 on the definition of aggression. It defines
‘aggression’ broadly as: “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, as set out in this definition.”
• the International Criminal Court (ICC) Assembly of States Parties in 2010 adopted a definition of
the crime of aggression for the purposes of the Rome Statute of the International Criminal Court.
• Notably, Article 8bis(2) provides that acts of aggression which may generate individual criminal
responsibility for the crime of aggression are the same as those contained in Article 3 of GA
Resolution 3314
 AGGRESSION
RES. 3314
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:

(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 Stat e, 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.
 UN PRACTICE
RES. 665 AND 678
OCCUPATION OF KUWAIT BY IRAQ
• SC is not actually ‘taking’ the actions envisaged in Art. 42 UN Charter itself, but usually
authorizes the Member States to take the measures assigned.
• Thus, UN enforcement actions under Chapter VII function in practice as often ill-defined
authorizations of States to use armed force against or in the territory of another State.
• Such evolution is possible through the second sentence in Article 42, Article 48, and
Article 106
 UNSC AUTHORIZED USE OF FORCE

• A large- scale operation was mounted in Somalia in 1992; the peacekeeping operation itself used force in
1993.
• Limited use of force in support of humanitarian operations was authorized with respect to the Balkan War
in 1992, expanded to support economic sanctions and a no-fly zone soon afterwards, and finally extended
to cover the use of force in the defence of ‘safe areas’, which led to a prolonged NATO bombing
campaign in 1995.
• In 1994, force was authorized in order to reinstate the elected president of Haiti.
• Difficulties encountered in addressing the situations in Bosnia and Somalia, however, caused the Security
Council to adopt a more cautious attitude towards Article 42, ordering the use of force only reluctantly
and with considerable qualification.
 IMPLICIT AUTHORIZATION TO USE FORCE

• major controversy over the US/UK attempt to justify the invasion of Iraq in 2003 on the ground that SC
Resolution 1441 of 2002 ‘revived’ an earlier ‘implied’ authorization to use force in SC Resolution 678 (1990).
• The better and certainly more widely held view rejects the doctrine of revival after more than a decade; and
although the subsequent occupation of Iraq was covered by Chapter VII resolutions, this was done in terms
which left the original illegality very much open.
• In relation to the 2011 authorization of force in Libya, SC Resolution 1973 confined the use of force to
‘protect[ing] civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya,
including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory’ and
the support of a no-fly zone.
• Again there were suggestions that outright support for the rebels went beyond the limited scope of SC
Resolution 1973. This may well be true, but the contrast between responses to Iraq and Libya shows the value of
a Security Council umbrella—or even a semblance of one.
 SITUATION OF KOREAN WAR
AUTHORIZATION THROUGH UNGA
• on 25 June 1950, the SC, in the absence of the Soviet representative, characterized North Korea’s
invasion of South Korea as a breach of the peace. On 27 June and 7 July, the Council recommended
that the members assist South Korea. But further decisions pursuant to Art. 42 were vetoed by the
Soviet Union, which, as of 1 August 1950, had returned to its seat in the SC.
• As a consequence, the GA adopted the ‘Uniting for Peace’ Resolution on 3 November 1950, para 1
of which reads: “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...the use of armed force.”
• The ICJ seems to consider that resolution and the prerequisites set up in it as still binding on the GA
since in its recent Wall opinion it examined the conduct of the Assembly by those standards
 3. SELF-DEFENCE

• Article 51 of UN Charter states

“Nothing in the present Charter shall impair the inherent right of
individual or collective self-defence if an armed attack occurs
against a Member of the United Nations, until the Security
Council has taken measures necessary to maintain international
peace and security....”
 TYPES

Anticipatory – when the

Interceptive – Physical
attack has not happened
Reactive – Art. 51 Force has not crossed the
yet , but the proof of
defending state’s border
imminence is present.

Preventive – The threat is

not imminent, there is only
a general state of anxiety
but it is not certain that it
will lead to armed attack.
 SELF-DEFENCE

• Use of the term “armed attack” and its relevance in modern warfare
• Modern warfare includes modern weapons, use of non-state actors, and engagement of
PMSC
• In Nicaragua, drawing on the law of state responsibility and the General Assembly’s 1974
definition of ‘aggression’, the Court concluded there was general agreement that armed
attack included ‘the sending by or on behalf of a State of armed bands, groups, irregulars
or mercenaries’, ‘if such an operation, because of its scale and effects, would have been
classified as an armed attack rather than as a mere frontier incident had it been carried out
by regular armed forces’.
 AID AND SUPPORT AMOUNT TO ARMED ATTACK

• whether a state which provides aid and support to rebel groups without actually sending
them against another state has committed an ‘armed attack’.
• In Nicaragua, the Court was not persuaded that the provision of arms and other support to
irregular groups demonstrated an armed attack by the US against Nicaragua or by
Nicaragua against neighbouring states, although other illegalities (the mining of a harbour,
intervention in internal affairs) had been committed.
• Such assistance may amount to a threat or use of force, or unlawful intervention, but falls
short of ‘armed attack’ triggering the Article 51 right of self-defence.
 ARMED ATTACK: SCALE AND EFFECTS

• Another criterion for ‘armed attack’ focuses on the ‘scale and effects’ of an attack, distinguishing
the ‘most grave forms’ of force (armed attacks) from ‘other less grave forms’ (e.g. border
skirmishes or ‘mere frontier incident[s]’).
• The gravity threshold was reiterated in Oil Platforms. There the US alleged that the gravity of an
attack on one of its ships was exacerbated because it was part of a pattern of similar incidents; the
Court left open whether a series of attacks could cumulatively amount to an ‘armed attack’. The
majority of Oil Platforms also found that any attack must be carried out with ‘the specific intention
of harming’.
• But the addition of such criteria, based as they are on an ex post facto assessment of a state’s
behaviour, is problematic; it may be difficult for a state to discern if a minor incursion is part of
some larger design, or done with harmful intent.
 COLLECTIVE SELF-DEFENSE

• In Nicaragua, the Court indicated three conditions for the lawful exercise of
collective self-defence.
1. there must have been an ‘armed attack’.
2. the victim state ‘must form and declare the view that it has been so attacked’.
3. the ‘use of collective self-defence by the third State for the benefit of the attacked
State...depends on a request addressed by that State to the third State’.
• It did not require (as had sometimes been argued) that the assisting states should
themselves have been the subject of an armed attack.
 ANTICIPATORY SELF-DEFENSE

• whether the Charter definitively excludes the possibility of anticipatory self-defence, that is, the use
of force pre-emptively to avert an imminent armed attack.
• the proponents of anticipatory self-defence rely on two related propositions.
1. Article 51 reserves a right of self-defence which existed in customary law and included certain
anticipatory actions.
2. The customary law was formed in the nineteenth century, in particular, as a result of
correspondence exchanged by the US and Great Britain in the period from 1838 to 1842. (led to
the formulation of Webster doctrine) (it requires examination of status of such rule in 1945 and
then post-1945)
 ANTICIPATORY SELF-DEFENSE

• The cause of the exchange was the seizure and destruction in 1837 in American territory by British armed forces
of a vessel (the Caroline) used by private persons assisting an armed rebellion in Canada. In protesting against
the incident the US Secretary of State Daniel Webster required the British government to show
“the existence of a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment
for deliberation. It will be for it to show, also, that the local authorities in Canada, even supposing the necessity of
the moment authorised them to enter the territories of the United States at all, did nothing unreasonable or
excessive; since the act justified by the necessity of self-defence, must be limited by that necessity, and kept clearly
within it.”
• the International Court may have impliedly excluded anticipatory self-defence from the ambit of Article 51. In
Armed Activities (DRC v Uganda), the Court said: “Article 51 of the Charter may justify the 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 those parameters. Other means are available to a concerned State, including,
in particular, recourse to the Security Council.”
 CAROLINE

• It was carried out during an ongoing conflict because insurgents occupied Navy Islands
• Attacks were carried out by American Individuals (state v non-state) and not state v state
• State practice + opinio juris
 CUBAN MISSILE CRISIS

• Delivery of armaments by Soviet into Cuba

• USA had 2 options – strike against Cuba and eliminate the missile system, or naval
blocade
• But it chose to rely on Art 52 and not on 51 to justify its actions
 ISRAEL’S ATTACK ON EGYPT, SYRIA AND JORDAN

• Alliance between Egypt, Syria, Iraq, and Jordan

• Sending of UN Peacekeeping Missions by President Nasser from Sinai Peninsula and Gaza Strip

• Egypt imposed Naval Blocade on Straits of Tiran, the only access of Israel to Red Sea

• Israel – Luanched an air strike

• Initially, Israel based its actions on anticipatory self-defense. When this argument failed, in part due to the fact
that, after the victory against the Arab forces, they continued annexing land, Israel argued that the Egyptian
naval blockade was an act of war and the eviction of the UN troops was further proof that they had hostile
intentions.

• Although the majority of States sided with Israel and somewhat approved the way it exercised the right to self-
defense, they however did not base their support for Israel's actions on anticipatory self-defense grounds.
 ISRAEL-IRAQ

• Israel attacked and destroyed nuclear reactor site

• In justifying its actions, Israel explicitly invoked anticipatory self-defense and argued that
the threat of the use of nuclear weapons entitled it to act pre-emptively. “Israel
contended that technological advances had effectively broadened the scope of self-
defense as stated under the Charter and that it should now encompass the right to
attack pre-emptively to thwart a surprise nuclear attack”
• States were divided on this stance
 US-LIBYA

• Killing of an American Soldier in West Berlin

• USA blamed Libyan Terrorists
• The attack was described as an attack to deter terrorist acts by Libya
• The UN Security Council failed to condemn the attack. Even though the draft resolution
won the nine votes necessary to be passed it was vetoed by the US, France and the UK
 INDIA-PAKISTAN

• Pakistan's action in the region of Kashmir in 1950. Pakistan reasoned its action on the
fact that "India was mounting an offensive to clear the State of all military resistance", that
the action taken was to "to avoid the imminent danger that threatened [its] security and
[its] economy".
• India objected and affirmed that Article 51 "imposes two limitations upon the right of
self-defence: first, there must be an armed attack upon the Member that exercises the
right; and, secondly, measures taken . . . must be immediately reported to the Security
Council. In the present instance there was no armed attack on Pakistan, and admittedly
the sending of the army into Kashmir was not reported to the Security Council"
LEGALITY OF ANTICIPATORY SELF-DEFENCE

Restrictive Expansionist
School School
 RESTRICTIVE SCHOOL

• Ordinary meaning of Article 51

• Since not expressly mentioned hence it was not acceptable to the drafters
• Reliance on Caroline Incident which took place in 1837
• CIL has been changed by the charter – Normative Position of the treaty and applying the
lex posterior principle
• Very difficult to prove proportionality
• If the state has knowledge of being attacked in future submit it to UNSC
 EXPANSIONIST

• ‘Inherent Right’
• Existence of CIL and being different from Treaty Law
• Action in anticipatory self-defence will help in fulfilment of its purpose of Maintenance of
Peace.
• ‘if an armed attack occurs’ does not mean ‘if, and only if, an armed attack occurs’
• Rapid evolution of Technology
 ICJ CASES
US V NICARAGUA
• While not directly approaching the concept of anticipatory self-defense, the Court did
stop at the term 'armed attack'. It stated that:

• "In view of the circumstances in which the dispute has arisen, reliance is placed by the
Parties only on the right of self-defence in the case of an armed attack which has already
occurred, and the issue of the lawfulness of a response to the imminent threat of an
armed attack has not been raised. Accordingly, the Court expresses no view on this
issue."
 WALL ADVISORY OPINION

• dissenting opinion of Judge Schwebel. He observed that the Court did not deal with the
aspect of self-defense where the armed attack is missing because it was not asked to do so.
Nevertheless, he goes on saying that:

• "[...] I wish, ex abundanti cautela, to make clear that, for my part, I do not agree with a
construction of the United Nations Charter which would read Article 51 as if it were
worded: "Nothing in the present Charter shall impair the inherent right of individual or
collective self-defence if, and only if, an armed attack occurs...”
 DRC V UGANDA

• DRC accused Uganda, Burundi, and Rwanda of aiding rebels who opposed the DRC government
• Uganda justifies its actions on two grounds:
1. Military and logistic support to anti-Uganda forces by DRC hence state agency existed
2. Creation of political and administrative vaccum in the Eastern part of the country raised security
concerns.
• Court held
1. No state agency existed.
2. Actions were disproportionate
3. Right to self-defence can only be invoked only if armed forces of a state attack the defending state
 RELEVANT UN DOCUMENTS

• The First Report of the UN Atomic Energy Commission to the Security Council was given
following a memorandum submitted by the United States within the framework of the
Commission which called for a more flexible interpretation of the right to self-defense:
• "Interpreting its provisions [Article 51 of the Charter] with respect to atomic energy matters,
it is clear that if atomic weapons were employed as part of an 'armed attack', the rights
reserved by the nations to themselves under Article 51 would be applicable. It is equally clear
that an 'armed attack’ is now something entirely different from what it was prior to the
discovery of atomic weapons. It would therefore seem to be both important and appropriate
under present conditions that the treaty define 'armed attack' in a manner appropriate to
atomic weapons and include in the definition not simply the actual dropping of an atomic
bomb, but also certain steps in themselves preliminary to such action."
 RES. 1368

• Resolution 1368 affirms that it is:

• "(...) Determined to combat by all means threats to international peace and security
caused by terrorist acts,
Recognizing the inherent right of individual or collective self-defence in accordance with
the Charter,
 RES. 1373

• Reaffirming the need to combat by all means, in accordance with the Charter of the
United Nations, threats to international peace and security caused by terrorist acts (...)"
 REPORT OF HIGH-LEVEL PANEL ON THREATS,
CHALLENGES AND CHANGE
• "The language of this article is restrictive: “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 measures to
maintain international peace and security”. However, a threatened State, according to
long established international law, can take military action as long as the threatened
attack is imminent, no other means would deflect it and the action is proportionate. The
problem arises where the threat in question is not imminent but still claimed to be real:
for example the acquisition, with allegedly hostile intent, of nuclear weapons making
capability.”
 REVIVAL OF ACCEPTANCE OF ANTICIPATORY SELF-
DEFENSE
• The Bush administration denounced the ‘reactive posture’ of the past, refusing to wait for
enemies such as ‘rogue states and terrorists’ to strike first and announcing its readiness to act to
prevent threats from potential adversaries, even in the face of uncertainty as to the time and
place of an attack.
• This goes further than pre-emptive self-defence into the realm
of preventive self-defence; it lacks any legal basis and is not generally accepted.
• It may be noted that when the US Expeditionary Force began military operations against Iraq
in March 2003, the letter to the Security Council of 20 March 2003 relied upon Security
Council resolutions as the primary putative legal basis of the action, not on any right to pre-
emptive or preventive self-defence under general international law.
 HUMANITARIAN INTERVENTION

• A state which had abused its sovereignty by the brutal and excessively cruel treatment of those within its power
was regarded as having made itself liable to action by any state which was prepared to intervene.

• Some writers restricted it to action to free a nation oppressed by another; some considered its object to be to put
an end to crimes and slaughter; some referred to ‘tyranny’, others to extreme cruelty; some to religious
persecution, and, lastly, some confused the issue by considering as lawful intervention in case of a feeble
government or ‘misrule’ leading to anarchy.

• humanitarian intervention as an issue of exercise of imperial powers

• the doctrine of humanitarian intervention did not survive the post-1919 era.

• For example, the Indian intervention in Bangladesh (1971), the Tanzanian action in Uganda (1979), and the
Vietnamese invasion of Cambodia (1979) were all possible examples of humanitarian intervention, but in all
three cases the belligerents chose to justify their actions under the rubric of self-defence.
 HUMANITARIAN INTERVENTION

• Those who espouse the right of humanitarian intervention tend to ignore state practice. Instead,
reliance is placed upon a number of ambiguous episodes, which, it is said, either presage or
constitute a change in the customary law.
• The first was the Air Exclusion Zone in northern Iraq, created in 1991. This involved using force
with the object of excluding Iraqi air power in order to protect the Kurds of northern Iraq. This was,
in the view of the British government, justified by ‘the customary international law principle of
humanitarian intervention’. Again no sources were provided to support this view.
• The Air Exclusion Zone in southern Iraq, created in 1992, was also controversial but was, unlike its
predecessor, purportedly based upon SC Resolution 668 of 1990.
• The UK position over the life of the no-fly zones was, however, inconstant; on occasion, it claimed
that both zones were supported by the resolution; in other instances, it claimed that even without the
resolution, both zones could be justified under the supposed principle of humanitarian intervention.
 HUMANITARIAN INTERVENTION

• Another episode is the operations authorized by the Economic Community of West

African States (ECOWAS) in Liberia in 1990.
• The operations (by the Economic Community of West African States Monitoring Group)
were a regional peacekeeping exercise which, at a certain stage, received the support of
the Security Council and the Organization of African Unity.
• Contemporary observers did not recognize the episode as a case of humanitarian
intervention. The practical basis of the action was the need to restore order in a state
without an effective government.
 JUSTIFICATION

When the state collapses Collective response by Intl.

Only justified under or itself becomes the Community acting as
Chapter VII (Positivist perpetrator others have General Trustees of the
Argument) right and duty to intervene General Interest (Realist-
(Natural Law Justifications) Constructivist Theory)
 R2P

Inability of
Genocide in Rwanda and lack
UNPROFOR to NATO intervention
of political will and sense of
prevent massacre in in Kosovo 1999
legal obligation to intervene
Serbenica, Bosnia
 ICISS (INTERNATIONAL COMMISSION ON
INTERVENTION AND STATE SOVEREIGNTY)
• Established by Canada
• The report recognized R2Protect, R2React, R2Rebuild
• Responsibility to be exercised through UNSC, UNGA, and Regional Organization
• UNSG welcomed this idea, which was presented in the 2005 World Summit
• Summit expressed its intervention through Chapter VII but did not recognize a right of
humanitarian intervention outside the charter, or duty to intervene within the charter
 RESPONSIBILITY TO PROTECT(R2P)

• the term ‘responsibility to protect’ emerged in 2001 in a Report of the International Commission on
Intervention and State Sovereignty (ICISS).
• It was subsequently adopted in several other United Nations documents, most notably the General
Assembly’s 2005 World Summit Outcome.
• In essence, it is intended to permit (and even require) international action in the face of the most
serious human rights abuses or international crimes, in cases where a state fails in its duty to protect
its own citizens
 R2P
THREE PILLARS

1. Every state has the Responsibility to Protect its populations from four mass atrocity crimes:
genocide, war crimes, crimes against humanity and ethnic cleansing.
2. The wider international community has the responsibility to encourage and assist individual
states in meeting that responsibility.
3. If a state is manifestly failing to protect its populations, the international community must be
prepared to take appropriate collective action, in a timely and decisive manner and in accordance
with the UN Charter.
 R2P

• The 2001 Report purported to identify three situations where the ‘residual responsibility of the
states to take action was activated:
(a) when a particular state is clearly unwilling or unable to fulfil its responsibility to protect;
(b) where a particular state is itself the perpetrator of crimes or atrocities; or
(c) where people living outside a particular state are directly threatened by actions taking place there.
• This was rendered more generally in the 2005 World Summit Outcome: “In this context, we are
prepared to take collective action, in a timely and decisive manner, through the Security Council, in
accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with
relevant regional organizations as appropriate, should peaceful means be inadequate and national
authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic
cleansing and crimes against humanity.”
 R2P

• the responsibility to protect cannot be used within the framework of Articles 2(4) and 51 to
justify the unilateral use of force.
• The Security Council has been receptive to the nascent doctrine, highlighting that states have a
responsibility to protect their own citizens in relation to the situation in Sudan (though not
commenting on the capacity of other states to intervene), and more dramatically, authorizing
the collective use of force under Chapter VII against Libya.
• the concept reflects an evolution in the way the Security Council views its powers under
Articles 39 and 42 of the Charter.
• the ‘responsibility to protect’ cannot justify the unilateral use of force, but may justify
collective measures within the Charter system.
 R2P

• This leaves an underlying concern unaddressed.

“[M]ust the international community stand idly by whilst millions of human beings are
massacred just because in the Security Council a permanent member holds its protective
hands over the culprit? Must national sovereignty be understood as the paramount rule of
international law that overrides any other value? Giving an affirmative response to these two
questions would totally deprive international law of its essential value content.”
 EXAMPLES

1. Libya (2011): In 2011, the international community intervened in Libya under the R2P
doctrine to protect civilians from the Gaddafi regime's violent suppression of peaceful
protests. A UN-mandated intervention, which included a no-fly zone and targeted
airstrikes, helped prevent further atrocities and ultimately led to the downfall of the
regime.
2. Côte d'Ivoire (2011): The UN authorized a French-led intervention in Côte d'Ivoire to
protect civilians and support the legitimate government after former president Laurent
Gbagbo refused to step down following a disputed election. The intervention helped
restore stability and prevent further violence against civilians.
 EXAMPLES

1. Central African Republic (2014): The UN authorized an African Union-led intervention to

protect civilians in the Central African Republic after a coup and subsequent violence
between rival militias. The intervention helped stabilize the situation and protect civilians.
2. South Sudan (2013-2014): In South Sudan, ethnic conflict erupted between the Dinka and
Nuer groups, leading to widespread violence and human rights violations. Under the R2P
doctrine, the UN authorized a peacekeeping mission to protect civilians and support the
government in establishing stability and addressing the underlying causes of the conflict.
 DRC V UGANDA

• Attribution
• Use of force
• Possibility of applying it against non-state actors
 TIMELINE OF EVENTS
DRC CLAIMS
29th May 1997 – Kabila, a July 1998 – Kabila knew
rebel leader succeeded in about a coup by Colonel Ordered withdrawal of
overthrowing Mobutu in Kabarebe, chief of defence foreign forces, the order
DRC (With support from force of DRC, but a only mentioned Rwanda
Uganda and Rawanda) Rwanda national

Operations by Uganda in • Creation of Irregulars

RCD – U+R Victorian Fall Summit
Kitona, Kinshasa IN
August 1998 MLC – U Lusaka Agreement
ALC, the military wing of MLC
 UGANDA CLAIMS

May-July 1998 – Breaking up of July 1998 – issue of statement

1997 – overthrow of Mobutu’s
May 1997 – invite to Uganda to ties and established ties with to withdraw forces, but no
regime by AFDL with support
deploy its forces Chad, Sudan, and Anti-Uganda mention of Uganda hence
of Rwanda Armay
insurgent groups continued presence

August –September 1998

DRC+Sudan – Preparing for an Lusaka Agreement Provided support to MLC and
No involvement in rebellion to attack on Uganda forces on
Disengagement Plan RCD but never established
carry coup or attack on Kitona eastern border
Luanda Agreement them
Hence exercised Right to Self-
defence
 TIMELINE AT ISSUE

• May 1997 – September 1997 – presence justified on the basis of Consent

• 11 September 1998 – 10 July 1999 – justification through lawful self-defense (DRC claims of
violations is on the basis of acts done by Uganda in this period)
• July 1999 – Renewal of DRC consent for Uganda presence through Lusaka Agreement
• The presence was to put an end to the existence of rebel group operating on either side of the
common border
• July 1998 – withdrawal order, no mention of Uganda because they were very few in number
• Court – concludes that Kabila statement is not conclusive and it is even ambiguous.
 WITHDRAWAL ORDER

“The Supreme Commander of the Congolese National Armed Forces, the Head of State of
the Republic of the Congo and the Minister of National Defence, advises the Congolese
people that he has just terminated, with effect from this Monday 27 July 1998, the
Rwandan military presence which has assisted us during the period of the country’s
liberation. Through these military forces, he would like to thank all of the Rwandan
people for the solidarity they have demonstrated to date. He would also like to
congratulate the democratic Congolese people on their generosity of spirit for having
tolerated, provided shelter for and trained these friendly forces during their stay in our
country. This marks the end of the presence of all foreign military forces in the Congo.”
 CONSENT: OPEN-ENDED OR LIMITED

• Limited consent – Territorial Limitation (Operate on Eastern Border), and Purposive

Limitation (to stop irregulars from operating across the common border)

Expansion by
Issue of
Uganda of the
withdrawal of
scope and nature
consent by DRC
of the activities
UGANDA’S USE OF FORCE IN REPSECT OF KITONA

• Event of 2nd August 1998 – aimed at overthrowing Kabila

• 4th August – Heavy Military action in Kitona
• Actions in Kivu and Oriental Province
• Uganda Claims that – Kabila asked for assistance from Sudan, Involvement of Sudan raised
security concerns for Uganda
• Uganda claims that – actions taken were not as per the plan of Rwanda to overthrow Kabila
but due to security concerns and by virtue consent given by DRC
• Court – could not find the sufficient participation regarding Uganda’s participation in Kitona
CHARACTERIZATION OF MILITARY ACTION IN THE
EAST OF DRC AND OTHER AREAS
• Parties have not contested the occurrence of events in August 1998 rather their contest
is about the Characterization of the event
• The claim of MLC being deployed by the DRC raises the question of whether MLC can
be treated as Ugandan
• Based on statements made by Senior officials (Brigadier General Kazini) against their own
interest holds value of an evidence
• He referred before the Porter commission about taking up of Beni (7th August), Bunia
(13th August), but no conclusive evidence about Watsa
 EVENTS OF SEPTEMBER, OCTOBER 1998

• Uganda sent forces to Kisangani airport to guard that facility against Rwandan forces
• Uganda accepted the attack on Buta and Aketi in October 1998
• For other regions like Mobenzene, Bururu, Bomongo, and Moboza – no sufficient
evidence
 SELF-DEFENCE

• Whether Uganda’s military activities starting from 8th August 1998 could be justified as action in self-
defense??
• Actions has been taken by UPDF alone, UPDF+Irregular, and UPDF+Rawanda
• Uganda High Command Document – Operation safe Haven – mainly to protect their own security interest
• Actions taken by UPDF was different from the actions taken when they had consent
• It was no longer involved in military operations across borders and Now they were taking control of
towns in DRC
• The only justifications of these acts were rights under Art. 51
• But Uganda has not tried to justify these acts on the ground of self-defense. Rather, the ground used by
them is “Protection of Uganda’s Legitimate Security Interests.”
 SELF-DEFENCE

• Uganda has tried to justify action starting from mid-September 1998 to June 2003 as action in self-
defence
• The object of Operation Haven was not for self-defence
• Tripartite Agreement between – DRC, SUDAN, AND ANTI-UGANDAN FORCES
• ADF alone was responsible for attack and no role of DRC in them
• The operation Safe Haven was not in response to the force used by DRC rather it was to protect the
future security interests
• Art. 51 does not cover Preventative aspect, and Uganda has never claimed that it was under armed
attack
• No report has been sent to UNSC as per art. 51
 ACTS OF ADF

• Armed attack reference w.r.t.ADF

• No sufficient evidence to consider ADF as organ, entity or acting under direction and
control of DRC
• Even the actions taken were neither necessary nor proportionate
 VIOLATION OF NON-INTERVENTION

• Uganda’s action violation of non-intervention and use of force

• Act of MLC – Uganda has not established but provided support
• Mere provide of support is not sufficient to constitute Organ, entity, or acting on the
direction and control
• That does not mean no responsibility under international law for helping a non-state actors
 CONSENT THROUGH LUSAKA, KAMPALA AND
HARARE AGREEMENT AND LUANDA AGREEMENT
• Until 11th September 1998 – consent of DRC
• 11th September – 10th July 1999 – self-defence
• Presence of soldiers after July 1999 – consented under Lusaka Agreement
 LUSAKA AGREEMENT

• Signed on 10th July 1999

• Makes no mention of consent for the presence of Uganda’s forces
• Provides for withdrawal as per the calendar included in Annex B
• D-day + 180 days, D-day is the date of signature of the agreement
• It was not merely a ceasefire agreement rather it also provided for withdrawal of troops.
• Till the time of final withdrawal – the forces shall remain in the declared and recorded locations
• Court – agreement does not provide consent for the presence of forces
• Court – Lusaka agreement and later UNSG letter to President of Uganda confirmed the importance of stability
of internal situation
• The agreement can not be a justification for sending of more troops into DRC between mid-September 1998 and
mid-July 1999
 LUSAKA, KAMPALA, AND HARARE

• Whether the calendar for withdrawal and its relationship to the series of Major Events taken together with
the reference to D-DAY+180 days refers to consent?
• Lusaka Agreement – agreed Modus Operandi for the parties and how the parties should move forward
• It did not intend to qualify the Uganda’s military presence
• Acceptance of Modus Operandi does not mean giving of consent
• UNSC Res. 1234 – declared Uganda’s force presence in DRC as violation of territorial integrity and
territorial sovereignty of DRC
• Change of schedule through Kampala and Harare disengagement plan did not change the purpose.
• Change was necessary because the requirement of D-day became unrealistic to be followed. But delay did
not result into legality of their presence.
 LUANDA AGREEMENT

• Signed on 6th September 2002

• Purpose - Withdrawal of troops, Co-operation and Normalisation of relations between DRC and Uganda
• Altered the terms of Lusaka, including schedule of withdrawal of the forces
• Within 100 days from the date of signature
• Luanda agreement has merely revised the modus operandi.
• The Parties also agreed that “the Ugandan troops shall remain on the slopes of Mt. Ruwenzori until the Parties
put in place security mechanisms guaranteeing Uganda’s security, including training and co-ordinated patrol of
the common border”.
• The above requirement highlights the security needs.
• But all these agreements did not constitute consent for presence of troops after July 1999.
 TERRORISM, NON-STATE ACTORS AND CHARTER

• whether the activities of such actors can constitute an ‘armed attack’ within the meaning of Article
51.
• Consideration of the issue by the International Court has been generally unhelpful. In the Wall
advisory opinion, the majority’s consideration of the issue was perfunctory. The Court simply
remarked that ‘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’, thereby apparently
excluding non-state actors.
• In Armed Activities (DRC v Uganda), the majority declined to address the issue, attracting criticism
from judges in the minority.
 TERRORISM, NON-STATE ACTORS AND CHARTER

• a state under assault by non-state actors cannot effectively defend itself against them by recourse to
Article 51 unless, following the position of the Court in Nicaragua, they are under the effective
control of a foreign state.
• Three potential counter- arguments to this exist:
(1) Notwithstanding the Wall opinion, Article 51 of the Charter does permit the exercise of self-
defence against non-state actors.
(2) The criterion in Nicaragua for the attribution of the actions of irregular forces to a state should be
loosened.
(3) Where non-state actors are taking refuge in a state unable to exert the control necessary to prevent
attacks, Article 51 ought to permit action in self-defence.
 TERRORISM, NON-STATE ACTORS AND CHARTER
1. PERMISSION UNDER ART. 51
• The first position was taken by Judge Higgins in the Wall opinion, arguing that the limitation
imposed by the majority derived not from the text of the Charter but from the Court’s earlier
opinion in Nicaragua, itself a flawed appropriation of Article 3(g) of Resolution 3314(XXIX).
• The upshot is effective that the right to self-defence must give way to territorial sovereignty unless a
state has participated in an armed attack, a position Judge Higgins argues is ‘operationally
unworkable’.
• Nonetheless, Judge Higgins conceded that this was an authoritative statement of the law as it then
stood.
• Any rebuttal of Wall is contingent on the recognition of a shift in state practice that has occurred
since 2001
 TERRORISM, NON-STATE ACTORS AND CHARTER
1. PERMISSION UNDER ART. 51
• Since 2001, however, state practice has, from some perspectives, become more accepting of self-
defence abroad with respect to independent non-state actors.
• The primary evidence of this shift was the attitude of the international community towards
Operation Enduring Freedom, the invasion of Afghanistan in October 2001, following SC
Resolution 1368 identifying terrorism as a threat to the peace under Article 39 of the Charter.
• The Security Council in Resolution 1373 of 2001 directed states to ‘[t]ake the necessary steps to
prevent the commission of terrorist acts’, language which arguably authorized the use of force.
• Acceptance of Enduring Freedom was conditioned heavily on the manner in which the US linked
the Taliban ‘government’ of Afghanistan to al- Qaeda.
 TERRORISM, NON-STATE ACTORS AND CHARTER
2. LOOSENING THE RULE ON ATTRIBUTION
• acceptance of the dictum of the majority in Wall that self-defence can only be exercised in response
to an armed attack by a state, but at the same time arguing for the relaxation of the test of ‘effective
control’ imposed in Nicaragua that permits the acts of non-state actors to be attributed to states.

• This position was foreshadowed in the dissent of Judge Jennings in Nicaragua.

• an armed attack occurs in situations where a state makes its territory available to non-state actors
carrying out the actual attack with a view of facilitating the attack or provides logistical support or
safe haven.
• An obvious parallel in this respect is the concept of aiding or abetting, which has the advantage of
being able to take into account a broader range of activities than those contemplated in Nicaragua,
as well as the intention of the state in question.
 TERRORISM, NON-STATE ACTORS AND CHARTER
2. LOOSENING OF THE RULE ON ATTRIBUTION
• This position arguably does not take into account of the increased role of the Security
Council in the regulation of force between states.
• A central element in Judge Jennings’ reasoning in Nicaragua was the ongoing Security
Council deadlock that frustrated the effective operation of Chapter VII.
• With the Cold War barrier removed, it may be better to leave the use of force against non-
state actors to the Security Council.
 TERRORISM, NON-STATE ACTORS AND CHARTER
3. INABILITY TO EXERT CONTROL BY STATE OVER NON-
STATE ACTOR
• arises in the context of so-called ‘failed states’, where the central government is simply unable to
control non-state actors operating within its territory.
• This has led some to argue for a right of self-defence in such circumstances even where the acts in
question cannot be attributed to the state.
• In Armed Activities (DRC v Uganda), Judge Kooijmans referred to “a phenomenon which in
present-day international relations has unfortunately become as familiar as terrorism, viz. the almost
complete absence of government authority in the whole or part of the territory of a State. If armed
attacks are carried out by irregular bands from such territory against a neighbouring State, they are
still armed attacks even if they cannot be attributed to the territorial State. 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.”