LAW 222 – International Law II Spring 2012

LAW 222 – International Law II Spring 2012
Weeks 5.2-7 The prohibition on the threat or use of force Assist.Prof. R.M.Önok

CONTENTS The Prohibition on the Threat or Use of Force 1. Basic distinction: Jus Ad Bellum/Jus In Bello 2. Intro to the Use of Force 3. Historical Development of the Right To Use Force 4. The Use of Force After the UN Charter 4.1 Is the Prohibition Absolute? The Permissive View 4.2 Is the Prohibition Absolute? The Restrictive View 5. Self-Defence 5.1 Basic issues a. Who Must the Attack Emanate From? b. What is an ‘Armed Attack’? c. ‘Protection of Nationals Abroad’ 5.2 Customary Right of Self-Defence 5.3 Does the Customary Right Still Exist After the UN Charter? 5.4 Anticipatory self-defence and pre-emptive action 5.5 General Conclusion on Self-Defence 5.6 Collective Self-Defence

6. Use of Force Against Terrorist Acts 6
6. Use of Force Against Terrorist Acts 6.1 Is there a Definition of Terrorism? 6.2 Terrorism and the Law on the Use of Force 6.3 Different Cases of State-Sponsored or State-Tolerated Terrorism 6.4 State-Support to Terrorist Activities not Amounting to an ‘Armed Attack’ 6.5 A Survey of State Responses to Terrorism 6.6 ‘Operation Enduring Freedom’ (!) 7. Humanitarian Intervention – R2P (Responsibility to Protect) 8. Invitation and Intervention in Civil Wars 9. Hot Pursuit 10. Reprisals (Zararla karşılık verme) Case study 1: Turkish cross-border operations against the PKK in northern Iraq Case study 2: ‘Operation Iraqi Freedom’ (!) 2.1 Chronology of events 2.2 The line of thought/ reasoning/ “case for action” provided by the UK and Australian Attorney-Generals 2.3 Evaluation

The Prohibition on the Threat or Use of Force

1. Basic distinction: JUS AD BELLUM/JUS IN BELLO
Jus ad bellum refers to the rules that regard the right to resort to the use of force. So, rules regarding the right to wage war or issues such as the legitimacy of transboundary anti-terrorist operations would fall within the scope of jus ad bellum. A different concept is jus in bello, which concerns the rules regulating the conduct of warfare. Such rules regarding the conduct of armed conflicts is regulated by humanitarian law (also referred to as ‘the law of armed conflict’ or ‘the law of war’). Therefore, rules regarding the prohibited means of warfare (e.g., the ban on the use of certain types of weapons), the prohibited methods of combat (e.g., intentional killing of enemies who have surrendered, intentional attack on civilian targets) would fall within the scope of jus in bello. For the next two weeks we shall study the rules concerning the use of force. Later on, we shall also study International Humanitarian Law (IHL).

2. Intro to the Use of Force
The well-known general principle is that the use of force is prohibited by international law. UN Charter Art. 2 (4) lays down this basic rule. The rules on the use of force regard actual physical coercion, in other words, the use of military action. This may be done ‘directly’, by deploying regular armed forces (e.g., Iraq against Kuwait, NATO against Serbia, US-led coalition against Iraq), or ‘indirectly’, when irregular armed groups operate on another State’s behalf. The primary obligation not to use force has reached the status of jus cogens as emphasised in the ICJ’s Nicaragua judgment of 1986. However, the prohibition is not absolute in that it has certain exceptions. The UN Charter itself recognizes the right to self-defence and allows for the use of force authorized by the UN SC. The use of force by peoples in the exercise of their right to self-determination is another exception established outside the UN Charter (we had already studied this). In addition, States have sometimes invoked a number of other justifications, which we shall study (e.g., “humanitarian intervention”). So, when it comes to determining the scope of the exceptions to the rule, there are diverging views.

The rules regulating the right to use force may be analysed under two sections:
Unilateral use of force: This is the use of force by individual States or group of States acting on their own initiative. ‘Unilateral’ refers to the fact that the decision to use force is taken unilaterally by the State/s intending to do so. The purpose is to achieve personal objectives. So, ‘unilateral’ does not refer to the number of States using force. More than one State may resort to a unilateral use of force (e.g., the US-led invasion of Iraq). Collective use of force: It is the use of force by a competent international organisation, such as the UN. It is referred to as ‘collective’ use of force, because it is based on the collective decision taken by a duly authorised body. Usually, more than one State will be involved in the use of armed action (e.g., the multinational action against Iraq in 1991). But the number of States involved is not the decisive factor in qualifying the use of force as ‘collective’. The important criteria are the authority and purpose of the actions. Collective use of force is based on the decision of an int’l. organisation, and the aim is to act on behalf of the int’l. community at large. We have already studied the role of the UN (and of regional organizations) in the maintenance of int’l. peace and security. Therefore, the explanations below concern unilateral use of force. Use of force authorized by the UN SC has already been lectured in the classes concerning the UN.

3. Historical Development of the Right to Use Force
From the Middle Ages until the 17th century the use of force was governed by the “Just War” doctrine, which defended that war would be unlawful unless undertaken for a “just cause”. This meant that a State could only wage war in response to a wrong suffered or a right illegally denied. Later, this doctrine was developed and refined many times. But the fact remained that it was not an objective legal test, and it ultimately came down to the moral judgment of the state concerned. After the 1648 Peace of Westphalia the doctrine of just war was abandoned as it was deemed that the right of a State to wage war was inherent in the concept of State sovereignty (Kaczorowska at 696). Therefore, by the 18th century it was accepted that war was lawful and every sovereign had the right to resort to force. It was seen as a legitimate diplomatic method in conducting international relations. This was the basic precept until the end of WWI.

After WWI, the Covenant of the League of Nations introduced some major innovations concerning the right to wage war (Kaczorowska at 697-8): If a dispute arose between members of the League they were obliged to submit the matter either to arbitration or to inquiry by the Council of the League and they agreed not to resort to war until three months after the award by the arbitrator or the report by the Council. This provision was important as it introduced a duty to first try to settle the dispute by peaceful means. However, it is also only a procedural restriction on the right to resort to war, since there was no general prohibition on war yet. The Covenant only expressly prohibited 1) wars of aggression, 2) wars commenced in breach of the obligation just mentioned, 3) wars started in defiance of a judicial or arbitral decision rendered under the auspices of the League of Nations, 4) wars declared despite recommendations adopted unanimously by the Council of the League. The second innovation is that the Covenant introduced the first system of collective security and provided for sanctions against a member violating the Covenant. Art. 16 provided that should any member of the League resort to war in disregard of the rules above, it shall, ipso facto, be deemed to have committed an act of war against all other Members of the League. In this case, all Members would have to severe all trade or financial relations, prohibit all intercourse between their nationals and the nationals of the Covenant-breaking State, prevent all financial, commercial or personal intercourse between the nationals of the Covenant-breaking state and the nationals of any other State, whether a Member of the League or not.

However, the system developed by the League of Nations did not work for two major reasons (Kaczorowska at 698): 1) Not all states were members of the League. Germany was admitted in 1926, the Soviet Union in Most notable, the US never became a member as the required two-thirds majority for ratification could not be obtained before the US Senate. 2) The Member of the League failed to impose effective sanctions against a Covenant- breaking state. Military sanctions were never imposed, and even economic sanctions were seldom applied. As a result: No sanctions were imposed on Japan when it invaded Manchuria in All that was done was to prepare a report that was later adopted by the Assembly condemning the act of aggression committed by Japan, and refusing to recognize the State of Manchukuo created by Japan on the invaded territory. After the condemnation Japan formally withdrew from the League. No sanctions were imposed on Germany after Hitler’s invasion of the Rhineland, Austria and Czechoslovakia. Germany withdrew anyway from the League. Inefficient economic sanctions were imposed on Italy after its invasion of Abyssinia (now Ethiopia) in Even those were revoked in 1936 when Italy was on the verge of economic collapse because of internal problems. The only serious sanction was to expel the Soviet Union from the League in following its invasion of Finland. But by then WWII Had already started (too little, too late!)

A notable development prior to WWII occurred in 1928, when the ‘General Treaty for the Renunciation of War’ (known as the Kellogg-Briand Pact or the Pact of Paris) entered into force. The Pact was the result of the initiative of the French Minister for Foreign Affairs, Aristide Briand, and the US Secretary of State, Frank Kellogg. By 1939, 63 States had signed the Treaty, including Turkey. This was the first attempt to introduce a general prohibition on war. Art. 1 stated that the parties ‘condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy in their relationship with one another’. Art. 2 provided for the settlement of international disputes exclusively by peaceful means. However, the Pact only prohibited ‘war’, but not every resort to force (although Dixon refers that State practice reveals the ban to have been applied more extensively). In any case, it did not provide for any sanctions against a party State violating the Pact. In addition, the Pact, as an international treaty, was only binding between the parties. In sum, until 1945, there was no customary rule outlawing the use of force, although the 1928 Pact laid down a treaty rule banning the resort to war.

4. The Use of Force After the UN Charter
According to Art. 1 (1) ‘the suppression of acts of aggression or other breaches of the peace’ is amongst the main purposes of the UN. In that vein, Art. 2 (3) provides that ‘All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.’ Art. 2 (4): ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’

The basic principle embodied in Art
The basic principle embodied in Art. 2 (4) has been affirmed by many subsequent GA resolutions, such as the: Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States (GA Res (XX) (1965)), (see (2. II) in particular) Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations (GA Res (XXV) (1970)), Definition of Aggression (GA Res (XXIX) (1974), Resolution on Enhancing the Effectiveness of the Prohibition of the Use of Force (GA Res. 42/22, 18/12/1987). (You may find the texts on KUAIS under courseware).

An act of aggression is an obvious violation of the prohibition on the use of force. It is for the UNSC to determine whether aggression has occurred (Art. 39 UN Charter). The Resolution adopted by the UN GA in 1974 is intended to assist the SC in deciding when the use of force can be qualified as an aggression. According to Art. 1 of the 1974 UN GA Res., “Aggression 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, as set out in this Definition.” Art. 3 lists certain acts, which, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression. Some examples: 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, 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;

The blockade of the ports or coasts of a State by the armed forces of another State;
An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; 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; 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. Article 4 specifies that the acts enumerated in Art. 3 are not exhaustive and the Security Council may determine that other acts constitute aggression under the provisions of the Charter.

Article 5 (1) is important as it elucidates that ‘No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.’ According to the second para. ‘A war of aggression is a crime against international peace. Aggression gives rise to international responsibility.’ Finally, per Art. 5 (3) ‘No territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful.’ According to Art.7 ‘Nothing in this Definition, and in particular article 3, 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 Cooperation among States in 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.’ Finally, Art. 2 provides for a rebuttable presumption (adi karine): ‘The First use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity.’

Returning to Art. 2 (4) of the UN Charter, the customary nature of the rule also determined by the ICJ in the Nicaragua decision of The principle laid down in Art. 2 (4) was also reaffirmed by the ICJ in the Palestinian Wall Advisory Opinion of 2004. Art. 2 (4) only applies to resort to force in ‘international relations’ against another State. Therefore, it does not affect a State’s right to use armed force in the suppression of internal disturbance, like the deployment of the army in fighting a terrorist organization stationed within the country. Obviously, in the case of domestic use of force (eg., to end a civil war), the rules of international human rights law and international humanitarian law will apply (Aust at 206). Art. 2 (4) prohibits the threat of, and the use of armed force against another State except in self-defence (Art. 51) or in execution of collective measuresd authorised by the UN (Kaczorowska at 700).

As explained before, Art. 2 (4) only covers armed force
As explained before, Art. 2 (4) only covers armed force. Measures of coercion which do not involve the use of military force (e.g., economic pressure, anti-government propaganda) do not fall within the scope of the prohibition on the use of force stated in Art. 2 (4) of the UN Charter. Obviously, such measures may still be in breach of other provisions of the UN Charter (or of treaty obligations or customary law on state responsibility). Art. 2 (4) does not only prohibit war in the technical sense, but all types of threat or use of force. Moreover, the threat/use of force “in any other manner inconsistent with the Purposes of the United Nations” is prohibited. As Art. 1 of the UN Charter sets out the purposes of the UN in very broad terms (for example, maintenance of int’l. peace and security, promoting friendly relations amongst nations) , ‘any use of force by a State outside its own borders is likely to be’ inconsistent with the Charter (Kaczorowska at 700).

4.1 IS THE PROHIBITION ABSOLUTE? The Permissive View
Returning to Art. 2(4) of the UN Charter (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), what is the scope of the prohibition on the threat or use of force? At first look, the prohibition laid down in the provision seems to be absolute. However, some writers have a different view of the ban. According to the ‘permissive view’, the ban on the threat or use of force only protects the following values: - the ‘territorial integrity’ or ‘political independence’ of any state, or - the threat or use of force ‘in any other manner inconsistent with the Purposes’ of the UN.

Thus, if one of these values is not attacked, the use of force is permissible. So, the use of force is legitimate unless it is against UN purposes and unless it results in: - the loss or permanent occupation of territory (territorial integrity), or the compromise of the target state’s ability to take decisions (political independence). If the permissive view was to be adopted, the Israeli rescue operation at Entebbe Airport in 1976, the US intervention in Panama in 1989 to capture General Noriega, the NATO action against Serbia for humanitarian purposes are all lawful. This is because those interventions did not intend to compromise the ‘territorial integrity’ or ‘political independence’ of the victim state in the sense described above. In fact, it could even be argued that the interventions in Afghanistan and Iraq to remove oppressive, terrorist-like regimes would be lawful, although Dixon finds it very hard to say that overthrowing a regime could be not regarded as against the ‘political independence’ of that State.

In int’l. practice, the permissive view is rarely defended and has been relied upon by Israel in 1976 and by the UK in the Corfu Channel Case of 1949 (see next slide) before the ICJ. The so-called “humanitarian interventions” may also be justified on the basis of the permissive approach. Its proponents argue that when the UNSC is unable or unwilling to take action, the use of force is allowed to further the purposes of the UN. ‘A State can only rely on Art. 2 (4) to exclude the use of force against it if it fulfils its duty to protect the rights of persons within its jurisdiction. If it fails, then other States are entitled to intervene’ (Kaczorowska at 702). This was the argument relied upon by Belgium before the ICJ in the Case Concerning Legality of Use of Force (Preliminary Objections, 2004). However, the ICJ never got to judge on the merits of the case, so the chance to analyze this argument was lost. The biggest drawback of the permissive view is that it is based on a subjective test: the intention or aim of the acting state. It is argued that if the use of force is to be regulated by rules, it has to be on the basis of objective legal criteria. Furthermore, the very narrow meaning attributed to ‘territorial integrity’ is also objectionable.

Operation Entebbe Operation Entebbe, also known as the Jonatan Operation (or Entebbe Raid or Operation Thunderbolt/Thunderball), was a counter-terrorism hostage-rescue mission carried out on 3-4 July 1976 by the Israel Defence Forces(IDF) at Entebbe Airport (in Uganda). Air France Flight 139 had been hijacked a week before, and all non-Israeli passengers (except for one French) had been released. In the wake of the hijackers' threats to kill the hostages if their prisoner release demands were not met, a plan was drawn up to airlift the hostages to safety. These plans took into account the likelihood of armed resistance from Ugandan military troops. The operation, which was conducted by Israeli commandos, lasted 90 mşnutes and ended with the rescue of 102 hostages. Three hostages were also killed and five Israeli commandos were wounded. A fourth hostage was killed by Ugandan army officers at a nearby hospital. All the hijackers and 45 Ugandan soldiers were also killed, and thirty aircrafts belonging to Uganda's air force were destroyed. The operation was later renamed Operation Yonatan in memory of commander Lt. Col. Yonatan Yoni Netanyahu who was killed in action. His little brother is Benjamin Netanyahu, the incumbent Israeli PM. (you may watch – this is part 1. The full National Geographic documentary: Uganda asked the UN SC to condemn this operation as a violation of their territorial integrity. The SC did not pass any resolution on the matter. Also see the movie: Victory at Entebbe (1976) with Anthony Hopkins, Burt Lancaster, Elizabeth Taylor and Richard Dreyfuss, Director: Marvin J. Chomsky.

US Intervention in Panama
The United States froze economic and military assistance to Panama in the summer of 1987 in response to a domestic political crisis in Panama and an attack on the U.S. Embassy. In April 1988, U.S. President Ronald Reagan froze Panamanian Government assets in all U.S. organizations. In May 1989 Panamanians voted overwhelmingly for the anti-Noriega candidates. The Noriega regime promptly annulled the election. By the fall of 1989 the regime's oppressive behaviours (allegedly) made existence unsafe for American citizens. On December 20, 1989, President George H.W. Bush ordered the U.S. military into Panama to protect U.S. lives (he argued that the lives of approximately Americans living in Panama was under threat- Aust (at 210) finds the argument ‘spurious’ ) and property, to fulfill U.S. treaty responsibilities to operate and defend the Canal, to assist the Panamanian people in restoring democracy, to protect human rights, to fight drug trafficking, and to bring Noriega to justice. The U.S. troops involved in “Operation Just Cause” achieved their primary objectives quickly, and Noriega eventually surrendered to U.S. authorities. The operation lasted around 40 days, and resulted in the death of Panamian soldiers, 23 US soldiers, and in at least 250 civilian (500 according to the UN) casualties.

On 29 December 1989, the UN GA adopted a resolution (by 75 votes in favour and 20 against (with 40 abstentions)) condemning the invasion as a ‘flagrant violation’ of int’l. law. On 22 December 1989, the Organisation of American States also passed a resolution deploring the invasion and calling for the withdrawal of US troops. The intervention was discussed in the UN SC. However, a draft resolution demanding the immediate withdrawal of United States forces was vetoed on 23 December by three permanent members (France, United Kingdom, and the United States) who cited the USA’s right of self-defense on account of the 35,000 Americans present on the Panama Canal. Noriega was tried in the US and completed his sentence (30 years, reduced to 17 for good behaviour) for drug trafficking charges in September 2007. In 1999, the Panamanian government sought the extradition of Noriega to face murder charges in Panama because he had been found guilty in absentia in 1995 and was sentenced to 20 years in prison. France also requested the extradition of Noriega after he was convicted in absentia of money laundering in 1999. In April 2010, France had its extradition request accepted. Noriega was tried again and found guilty (and sentenced to seven years) in July He was finally extradited by France to Panama where he arrived on December 11, 2011.

The NATO Intervention against Serbia led to two international judicial applications:
A state application made to the ICJ - Legality of Use of Force (Serbia and Montenegro v Belgium, Canada, France, Germany, Italy, Netherlands, Portugal, UK; Yugoslavia v Spain and USA), Judgment of (Preliminary Objections): The Court unanimously found that it had no jurisdiction to entertain the claims made in the application filed by Serbia and Montenegro on 29 April The ICJ reasoned that at the time it made its application Serbia and Montenegro was not a Member of the United Nations. As a result, it could not be a State party to the Statute of the International Court of Justice, at the time of filing its Application. For that reason ‘the Court was not then open to it’ (i.e., it could not apply to the Court). An individual application made to the ECtHR - Banković and others (admissibility decision of ). The application was made against 17 States* by or on behalf of persons killed or injured due to air strikes carried out by NATO countries in Belgrade in 1999 during the Kosovo conflict. The ECtHR found the case inadmissible due to lack of territorial jurisdiction. That is because according to Art. 1 ECHR an alleged violation must have occurred in a territory “within the jurisdiction” of a contracting state in order for the Court to proceed with examining the complaint. Belgrade was not within that scope. * Belgium, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey and the United Kingdom.

4.2 IS THE PROHIBITION ABSOLUTE? The Restrictive View
The majority seems to defend the ‘restrictive view’ of the use of force (Dixon, Cassese, Brownlie). According to this view, Art. 2 (4) of the UN Charter totally prohibits the right to use force, unless some specific exception is made by the Charter itself. In that sense, Art. 51 regarding self-defence and Art. 107 concerning action against ex-enemy states are the only permissible exceptions to the unilateral use of force. Wallace agrees by stating that the use of force is legitimate only in the following cases: - In self-defence, either individual or collective, in accordance with art. 51 of the UN Charter; - In case of collective measures taken under the auspices of the UN; - If authorised by a competent organ of the UN.

UN CHARTER Art. 51: ‘Nothing in the present Charter shall impair the inherent right of individual or collective selfdefence 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. Measures taken by Members in the exercise of this right of self-defence 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’. Art. 107: ‘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.’

According to the restrictive view, ‘territorial integrity’ and ‘political independence’ aim to express all that a State comprises. It does not intend to mean that the use of force not attacking these values may be permissible. In the same way, the wording (use of force) ‘in any other manner inconsistent with the Purposes’ of the UN was incorporated in order to make sure that the prohibition covers all situations. It does not mean that there are certain purposes compatible with the UN Charter under which force may be used. The preparatory works of the Charter also confirm this opinion. In sum, art. 2 (4) should be interpreted as to prohibit all use of force, under all circumstances, whatever the purpose is, unless the Charter itself provides for an exception. State practice also shows that apart from Israel in 1976, the permissive view has never been the basis for justifying the use of force. States have relied on alleged exceptions to the rule, instead of interpreting the rule itself narrowly. The UN GA has also endorsed a restrictive approach in its resolutions 2131 (XX) (1965) and 2625 (XXV) (1970) by ruling out any kind of military operation irrespective of its purpose. The ICJ in the Corfu Channel Case (UK v Albania) (Merits) (1949) also adopted a restrictive approach (see next slide).

Corfu Channel Case Two British warships were struck by mines while exercising a right of innocent passage (zararsız geçiş hakkı – to be explained when I lecture the law of the sea) in Albanian territorial waters. Consequently, the UK carried out minesweeping operations (‘Operation Retail’) in the Corfu Channel. The UK argued that this action was not in breach of Art. 2 (4) since ‘it threatened neither the territorial integrity nor the political independence of Albania. Albania suffered thereby neither territorial loss nor (loss to) any part of its political independence. The UK also argued that its unilateral action was necessary because of the UNSC’s inability or unwillingness to act. The ICJ rejected these arguments. (This slide is based on Kaczorowska at 701-2).

5. SELF-DEFENCE

UN Charter Art. 51 ‘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. Measures taken by Members in the exercise of this right of self-defence 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.’

5.1 Basic Issues Art. 51 of the UN Charter reaffirms the right to self-defence. This right is undoubtedly part of customary law. However, this is not to say that the scope of the right to self-defence as defined in Art. 51 is the same as the scope of the customary right to self-defence. We shall revisit this isue. Self-defence is the lawful reaction to an armed attack. The purpose of self-defence is to repel the attack, therefore it must not go beyond that aim. The magnitude of the force used must not exceed what is required for that purpose. Thus, self-defence will only legitimise ‘measures which are proportional to the armed attack and necessary to respond to it’ (Nicaragua Case, § 176). The requirements of necessity and proportionality have to be construed strictly. At the end of the day, the assessment on whether these requirements have been met will depend on the particular circumstances of each case. The requirement of proportionality is not mentioned in Art. 51, however it is undoubtedly part of customary law, as accepted in the Nicaragua Case. In that sense, the force used in self-defence must be proportionate to the seriousness of the attack and justified by the seriousness of the danger. As a result of the requirement of necessity (and proportionality), self-defence must not be retaliatory or punitive. The purpose must be to neutralize an attack, and not to subsequently impose punishment for an attack previously committed. The issue of proportionality and necessity was examined by the ICJ in the Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America) (2003).

“(...)Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council (...): According to the ICJ in the Nicaragua case (para. 200) ‘...the absence of a report may be one of the factors indicating whether the state in question was itself convinced that it was acting in self-defence’. Kaczorowska states (at 707) that ‘Although the reporting requirement is of a procedural nature and a failure to comply will not make a claim to self-defence invalid, the warning of the ICJ has been taken seriously by the great majority of States’. However, this statement seems to be a bit optimistic as in quite a few instances States have either delayed to report, or failed altogether to do so (Aust at 209). “(...) [the right of self-defence] until the Security Council has taken measures necessary to maintain international peace and security”: Once the action in self-defence is being taken it requires an affirmative decision of the UNSC to order the cessation of that action (Kaczorowska at 707). Furthermore, the State using force in self-defence does not have to stop as soon as the SC adopts measures: such measures have to prove effective first (Aust at 211).

The Case Concerning Oil Platforms
(excerpt from Kaczorowska at 718-9): Facts: The actions giving rise to the dispute occurred in the context of an armed conflict between Iran and Iraq which started on 22 September 1980, when Iran was invaded by Iraqi military forces. The war, which lasted eight years, started as a land war, but from 1984, when Iraq began attacking oil tankers on their way to and from Iranian ports in order to disrupt Iran’s oil exports, also affected the Persian Gulf. This so-called ‘Tanker War’ lasted till During that time commercial vessels and warships of various nationalities, including neutral vessels, were attacked by aircraft, missiles or warships, or struck mines in the waters of the Persian Gulf. Whilst Iran denied any responsibility for these attacks, other than incidents involving vessels refusing a proper request for stop and search, the US attributed responsibility for some of these incidents to Iran.

(Facts of ‘The Case Concerning Oil Platforms’, continued) The ICJ examined two specific attacks by US military forces on Iran as a result of US claims of Iranian involvement in the incidents above. The first took place on 19 October On 16 October 1987 the Kuwaiti tanker Sea Isle City, which had been reflagged to the US, was struck, according to the US, by an Iranian missile near Kuwait harbor. In response, three days later, the US attacked and destroyed Iranian offshore oil production installations in the Reshadat (Rostam) complex. The second took place on 18 April On 14 April 1988 the US warship USS Samuel B Roberts struck a mine in international waters near Bahrein. Four days later, in retaliation, the US attacked and destroyed oil production installations in the Nasr (Sirri) and Salman (Sassan) complexes. The alleged justification for the attacks was presented by the US to the UNSC. The US claimed that it acted in self-defense. Unlike the incident of 19 October 1987 the attacks on the Salman and Nasr platforms were not isolated operations as they, in fact, formed part of a much more extensive military operation called ‘Praying Mantis’, during which the US attacked other Iranian naval vessels and aircraft. It is important to note that the Rostam, the Salman and the Nasr complexes were not producing any oil at the time of the US attacks. These installations were under repair as they had been badly damaged by earlier Iraqi attacks.

Judgment The ICJ found that the missile attack on the Sea Isle City could not be regarded as an armed attack because Iran did not specifically target a U.S. ship. As to the principle of proportionality, the attack of 19 October 1987 might have been proportionate had the US’s response to the Sea Isle City incident been shown to be necessary (i.e. to be a response to an armed attack). In the case of the attack of 18 April 1988, however, which was conceived and executed as part of a more extensive operation entitled ‘Operation Praying Mantis’ (and constituted a response to the mining , by an unidentified agency, of a single US warship, which was severely damaged but not sunk, without loss of life), the ICJ found that neither ‘Operation Praying Mantis’ as a whole, nor even that part of it that destroyed the Salman and Nasr platforms , could, in the circumstances of the case, be regarded as a proportionate use of force in self-defense.

The following conditions must be met for a lawful exercise of the right to self-defence (Cassese):
a) The victim of aggression must use an amount of force that is strictly necessary to repel the attack and proportional to the force used by the aggressor; b) Only ‘legitimate military targets’ may be attacked (necessary precautions must be taken in order to minimise incidental damage to civilians); c) The state that has been the target of an ‘armed attack’ must not occupy the aggressor’s state territory, unless this is strictly required in order to prevent the aggressor from continuing the aggression (so, prolonged military occupation and/or annexation of territory is prohibited); d) Self-defence must be terminated as soon as the UN SC steps in (this means that the victim of aggression may act on its own until the UN has taken effective measures which render any further use of force by the victim state unnecessary); e) Self-defence must cease as soon as its purpose (repelling the aggression) has been achieved.

a. Who must the attack emanate from?
A debate regarding Art. 51 concerns the source of the attack. Art. 51 does not state that an armed attack must be made by another State. The article just seeks the existence of an armed attack, whoever it comes from, against a state. So, it may be argued that if groups of insurgents operating from other states, but not under the control of the host state, attack another state, the right to self-defence may arise (see, for example, Kaczorowska at 715). However, the Palestinian Wall Advisory Opinion suggests that this right is only available when the armed attack emanates from another State. This view was confirmed in Armed Activities on the Territory of Congo (DRC v Uganda) (Judgment) of 2005. Dixon argues that this interpretation adopted by the majority of the ICJ is questionable. Cassese goes further and clearly states that the aggression does not have to come from another state, it may originate from a terrorist organisation or insurgents operating on the territory of another state (in the same direction Aust at 209). Indeed, following the 9/11 terrorist attacks, the UNSC had recognized the right of the US to use force in self-defence (see Res adopted on 12 September 2001 and Res adopted on 28 September 2001). On the other hand, Brownlie (at 732) takes a much narrower view, and finds it ‘very doubtful’ that Art. 51 applies to cases of assistance to revolutionary groups and forms of subversion which do not involve offensive operations by the forces of another State.

Therefore, one contentious issue regarding the interpretation of Art
Therefore, one contentious issue regarding the interpretation of Art. 51 is whether a State can rely on self-defence in the event of an armed attack by non-State actors (eg., terrorists) ‘when they are launching attacks from outside the territory of the target State, and the State on whose territory they are located is neither responsible for their attacks nor willing to consent to any military intervention, on its territory, by the target State’ (Kaczorowska at 714-5). We shall return to this issue furher on, under Chapter 6 (Use of Force against Terrorist Acts).

b. What is an ‘armed attack’?
Another problem is the meaning of ‘armed attack’. For example, is it an armed attack if State A provides assistance to guerrillas or armed bands operating inside State B against the sovereign government? In the Nicaragua Case of 1986 the ICJ provided an answer that Dixon finds not wholly convinving. In that case, the majority of the Court determined that the provision of weapons, finance, training facilities and general encouragement for armed forces operating against another state was ‘an unlawful use of force’. But the Court also found that it did not amount to ‘an armed attack’ so as to trigger the right to self-defence. The Court thought that such acts will be an unlawful use of force and an intervention in the internal or external affairs of another state (§ ). But, unless the provision of significant military support is major and demonstrable, it will not constitute an armed attack for the purposes of Art. 51(§ 195). A similar view is adopted in the Palestinian Wall Advisory Opinion of 2004. Therefore, it is necessary to distinguish between an “armed attack” and an unlawful use of force which, however, does not amount to an armed attack.

Cassese defines an armed attack as a ‘massive armed aggression against the territorial integrity and political independence of a State that imperils its life or government’. Therefore, not every unlawful use of force is so intense as to be qualified as an armed attack. The determination depends on the magnitude of the force used. Therefore, the bombing of a Turkish gendarmerie station by the hands of Iraqi authorities would be an unlawful use of force, but not an armed attack. The same reasoning holds true for terrorist attacks. Thus, the ICJ also adopts the view that not every unlawful use of force amounts to an armed attack. While every use of force unauthorised by int’l. law will constitute a violation of int’l. law, only use of force which goes beyond a certain level will be qualied as an armed attack. Only then may the attacked state resort to self-defence. That is because a State can only enjoy the right to self-defence if and when an ‘armed attack’ occurs. Art. 3 (g) of the GA Resolution on the Definition of Aggression also provides for a similar gravity criterion by stating that ‘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’ will be an act of aggression. So, only attacks of a certain gravity will be an act of aggression.

The Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (1986) Nicaragua applied to the ICJ alleging that the US had committed the following acts: the mining of Nicaraguan ports, the arming, training and directing of the Contra rebels, the supplying of financial and logistical support to the Contras. The US argued in its defence, inter alia, that they were acting in the collective self-defence of El Salvador and Costa Rica, against which, they alleged, Nicaragua had been involved in illegal uses of force. ‘The Court appeared to limit the right of self-defence to circumstances which amount to an armed attack. The Court defined this as acts which, because of their scale and effects, would be classified as an armed attack rather than a mere frontier incident. In this context, the sending of armed bands, rather than regular army units, could amount either to an armed attack or a mere frontier incident depending on the magnitude of the operation. As to the assistance provided by the US consisting of the supply of arms, financial and logistic support, this could be regarded as a threat or use of force, or amount to intervention in the internal or external affairs of another State but did not amount to an armed attack. While the Court appeared to accept that use of force amounting to something less than an armed attack may give rise to a right to take counter-measures, it did not discuss this at any lentgth’ (excerpt from Kaczorowska at 714). In his dissenting opinion, Sir Robert Jennings argued that the Court’s distinction between uses of force amounting to an armed attack and those which did not was ‘neither realistic nor just’.

c. Protection of Nationals Abroad
Can a State use force on the territory of another State, without the permission of the territorial sovereign, in order to rescue nationals who are under a serious threat? In this case, the intervening state’s territory is not the object of an armed attack. But its nationals located abroad are under danger. The Belgium intervention in Congo in 1960, the Entebbe operation of 1976, the US action in Grenada in 1983 and in Panama in 1989 can be given as examples. The Anglo-French invasion of Suez in 1956 might also be mentioned, although that action was regarded as illegal by the int’.l community (Kaczorowska at 730). We had analysed Entebbe and Grenada from the viewpoint of the permissive view on the use of force. We shall now discuss it from another perspective: the protection of nationals abroad. This theory has much in common with self-defence, and such instances of use of force are usually justified under self-defence (Cassese agrees). In fact, the nationals of the acting state may be considered as a component of the state itself. Indeed, the first two examples mentioned above (Congo and Entebbe), as well as the Libya bombing of 1986 were justified under the self-defence theory.

While some writers would regard the right to use force in order to protect nationals abroad as an aspect of the customary law right of self-defence (Dinstein), C. Gray observes that few states accept it as a right. If such right exists, and Dixon and Wallace find it uncertain, customary law would seem to require the existence of the following conditions: The host State must be unable or unwilling to protect the nationals; The nationals must be in serious and immediate danger of life-threatening harm. In the Suez crisis of 1956, the UK had claimed that state property could also be protected this way, but since then no other similar claim has been advanced; Use of force must be the last option (it must be unavoidable). Cassese elaborates in detail this condition by stating that no peaceful means of saving the nationals’ lives must be available because they already have been exhausted or because they would be very unlikely to prove successful.

d) The acting State may only use such force as is reasonably necessary and must vacate the territory of the host State as soon as possible. So, the purpose of the action must be to exclusively save or rescue nationals. Thus, the continued occupation of territory by the US in Grenada and Panama can not be justified under this defence. e) A further condition seeked by Cassese is that the State that has used force abroad should immediately report to the UN SC, and, in particular, explain in detail the grounds on which it has resorted to such method. Kaczorowska (at 731) further seeks a conditions: the action should be expected to save more lives than are likely to be destroyed. Kaczorowska argues (at 731) that it might be said that in most cases where a State has relied on this justification, the main objective of the military action was to further its own foreign policy objectives. Even so, she argues that when the above-mentioned conditions have been met, there is sufficient evidence in State practice to suggest that there is a right to use force. However, she also adds that such state practice contradicts the strict interpretation of Art. 51, and the wording of UNGA Res (XX) of 1965 and Res (XXV) of 1970.

US Intervention in Grenada
On October 19, 1983, Bernard Coard, a communist, led a coup against the government of Maurice Bishop. Though Bishop was cooperating with Cuba and USSR on various trade and foreign policy issues, Bishop sought to maintain a "non-aligned" status, and so was deemed insufficiently revolutionary by Marxists in his government. A few days later Bishop and several of his followers were executed by the Coard regime, which then put the island under martial law. For four days no one was allowed to leave their homes, under threat of summary execution. The next day, October 25, Grenada was invaded by combined forces from the US, the Regional Security System and Jamaica, in an operation codenamed Operation Urgent Fury. While the Governor-General, Sir Paul Scoon, later stated that he had requested the invasion, it was highly criticised by the governments of the United Kingdom, Trinidad and Tobago and Canada. In fact, contradicting American claims, independent reports later showed that there was no imminent threat or danger to the lives of the American citizens (also see Aust (at 210) who finds the American argument of defending its nationals ‘spurious’). The UN General Assembly later stated that it ‘deeply deplores the armed intervention in Grenada, which constitutes a flagrant violation of international law and of the independence, sovereignty and territorial integrity of that State’. The resolution was adopted by a vote of 108 in favor to 9, with 27 abstentions.

5.2 CUSTOMARY RIGHT OF SELF-DEFENCE
The right to self-defence was first expressed in 1837 following The Caroline incident between the UK and the US (see Dixon at 315, Cassese at 298). (excerpt from Kaczorowska at 705: ‘The case arose out of the Canadian Rebellion of 1837 against the British colonial power. The rebel leaders, despite steps taken by the US authorities to prevent assistance being given to them, managed on 13 December 1837 to enlist at Buffalo in the US the support of a large number of American nationals. The resulting force established itself on Navy Island in Canadian waters, from which it raided the Canadian shore and attacked British ships. The force was supplied from the US by an American ship, the Caroline. On the night of December a small Canadian force loyal to the British seized the Caroline, which was then in the American port of Schlosser, set her on fire and sent her drifting over Niagara Falls. Two US nationals were killed (...) The US claimed reparation to which Great Britain replied that the destruction of the Caroline had been a necessary act of self-defence.

The US Secretary of State’s statement defined the use of force in self-defence as lawful if it is made in response to an immediate and pressing threat, which could not be avoided by alternative measures and if the force used to remove that threat was proportional to the danger posed. Although the US and British governments disagreed over the facts of the case, they were in complete agreement concerning the principles - as stated below - applicable to armed intervention in self-defence (Kaczorowska at 706). Hence, the exercise of force in self-defence was justified under customary int’l. law provided the need for it was: - Instant; - Overwhelming; - Immediate; - There was no viable alternative action which could be taken; The force used was not unreasonable and excessive (proportionality).

Dixon argues that according to customary law and in view of the Caroline Case, self-defence would permit the use of force in any of the following circumstances: a) In response to and directed against an ongoing armed attack against State territory, e.g., by Kuwait against Iraq in 1990; b) In anticipation of an armed attack or threat to the State’s security. Thus, a State may strike first to neutralise an immediate but potential threat to its security, e.g., this was Israel’s justification for its strike against an Iraqi nuclear reactor in 1981; c) In response to an attack (threatened or actual) against State interests, such as nationals, property and rights guaranteed under int’l. law, e.g., Israel against Uganda in the Entebbe Case, the US-led invasion of Afghanistan and Iraq to counter terrorist threat; d) Where the attack does not involve measures of armed force, e.g., economic aggression and propaganda. All that is required is the existence of an instant and overwhelming necessity for forceful action.

The US invasion of Grenada in 1983, the US bombing of Libya in 1986, the US attack on Baghdad in 1993 in response to an alleged terrorist threat against President Bush were all based by the US on this customary understanding of self-defence. Baghdad 1993: USA launched missiles in June of 1993 against the capital, allegedly as a response to a planned, but never realised, attack on former US President Bush. Libya ( ): The La Belle disco in West Berlin was bombed on 5 April, allegedly by Libyans supported by the Libyan government. 41 people were killed and over a hundred injured. The casualties included an American soldier, and many other US citizens were injured. As a response, the US bombed Libya. The raid was considered by many States to be a disproportionate use of force (Aust at 210). As you see, the scope of the customary law is very wide, and in any case, much wider than that permitted by the UN Charter. So, it is important to analyse if the UN Charter has changed customary law.

5.3 DOES THE CUSTOMARY RIGHT STILL EXIST AFTER THE UN CHARTER?
According to the restrictive view, this wide understanding of self-defence is no longer available. Since Art. 2 (4) of the UN Charter prohibits all use of force, the only right of self-defence now exists under Art. 51. So, the old customary rule is superseded. Therefore, certain writers argue that after the UN Charter, the right of self-defence ‘has no other content than the one determined by art. 51’ (Kelsen) and that ‘a State cannot be acting in self-defence unless within Article 51’ (Brownlie). According to these views, there can not be a separate (and wider) right to self-defence which has survived under customary law. This is important in that per Art. 51, a state may resort to self-defence only ‘if an armed attack occurs’. In this case, of the above-mentioned circumstances (see slide 49), only option a) (use of force in response to and directed against an ongoing armed attack) would give rise to a right to self-defence.

According to the opposite view, the right to self-defence can not be construed so restrictively. Those in favour of the broader, pre-existing (and surviving) customary understanding argue that: 1) Art. 2 (4) does not prohibit in absolute terms the use of force (permissive view), therefore the customary right of self-defence has never been abolished; 2) Art. 51 is not a definitive statement of the right to self-defence: the preparatory works suggest that the purpose was not to define the scope of the right, and that the right would have been existed even in the absence of a provision in the Charter; 3) Customary right is preserved by the wording of Art. 51 which makes reference to the ‘inherent right’ of self-defence. This is taken to mean ‘pre-existing in customary law’. The ICJ accepted this view in the Nicaragua judgment (§ 176); 4) Art. 51 does not say that self-defence is available only if an armed attack occurs. Furthermore, it does not indicate that the ‘armed attack’ must be made by a State. Also see DW Bowett, Self-Defence in International Law, (Manchester: Manchester University Press, 1958) at 185-6: ‘It is (...) fallacious to assume that members have only those rights which the Charter accords them; on the contrary they have those rights which general international law accords to them in so far as they have surrendered them under the Charter’.

To make an assessment, the arguments defended in favour of a wider understanding of self-defence are strong and do support the suggestion that Art. 51 was not intended to narrow the right of self-defence existing prior to the Charter. However, as we shall see, State practice has not been in that direction. The great majority of States have adopted a narrow understanding of the right. In any case, it is not possible to say that the content of self-defence was fixed once and for all in 1945 with the UN Charter. As accepted by the ICJ in the Nicaragua Case, the concept of self-defence is dynamic and evolving over time through State practice (also see Aust at 209). A demonstration of this fact is the response of the int’l. community to the 9/11 terrorist attacks (Kaczorowska at 709).

5.4 Anticipatory Self-Defence (önleyici meşru müdafaa) and Pre-Emptive Action
Is an imminent threat sufficient to create a right to resort to force in self-defence or must the victim wait until the aggressor has struck the first blow before it can resort to force in self-defence? In case of anticipatory self-defence, the purpose is to strike first, in order to neutralise an immediate but only potential threat. Some examples are the Israeli attacks against Egypt in (1967), against Palestinian camps in Lebanon (1975), against the Iraqi nuclear reactor near Baghdad (1981). In 2003, the doctrine was also relied upon in order to justify the US-led invasion of Iraq (although the official justification was not this). The rationale behind the concept is a factual one: in this era of advanced military technology it would be meaningless to expect a state to have to wait for the actual attack to take place when it is certain to happen, and it involves the use of extremely destructive weapons. Those defending the right to preventive self-defence argue that Art. 51 reserves the right to self-defence existing in customary law, and the customary rule allows for pre-emptive action (see the previous slides concerning the question whether the customary understanding of self-defence still exists after the UN Charter). It is further argued that at the time Art. 51 was drafted, State practice and the generally accepted view of int’l. law recognized anticipatory self-defence.

The idea of anticipatory self-defence is objected on the following grounds (Kaczorowska at 709-10):
Art. 51 is an exception to Art. 2 (4). The general rule of interpretation is that exceptions to a principle should be interpreted restrictively, so as not to undermine the principle. Some collective defence treaties such as the North Atlantic Treaty, based on Art. 51, provide only for defence against armed attacks, and not for defence against imminent danger of armed attacks. The question whether an attack is imminent is subjective and open to abuse. A State can never be absolutely certain about the other side’s intentions and may mistakenly launch a pre-emptive strike in a moment of crisis when no actual threat in fact exists. Allowing an aggressor State to strike the first blow may not in practice result in military disadvantage to the innocent State as first strikes in inter-State hostilities are seldom conclusive.

If accepted, anticipatory self-defence could only be justified under the following conditions (Wallace & Martin-Ortega, at 298): a) a state is the target of hostile activities of another state; b) the threatened state has exhausted all alternative means of protection; c) the danger is imminent; d) the defensive measures are proportionate to the pending danger. However, those opposing anticipatory self-defence argue that Art. 51 of the UN Charter has superseded all pre-existing law, and Art. 51 refers only to situations where ‘an armed attack occurs’. This is to mean ‘after an armed attack has occurred’. In any case, even if a wider understanding was adopted based on customary law, they argue that customary law did not ever envisage a right of anticipatory self-defence. In the Nicaragua judgment the ICJ did not express its view on the opinion since the parties to the dispute had not raised the issue.

State practice seems to show that the right of self-defence is interpreted very strictly. Both Cassese and Brownlie argue that state practice since 1945 is opposed to anticipatory self-defence. Compare Aust (at ): ‘it is not necessary to wait to be attacked: force can be used in anticipation of’ an imminent attack. In the instances where states relied on an expanded understanding of self-defence, this argument was very disputed by the majority of other states. Cassese believes that State practice does not show the existence of an agreement between states with regard to anticipatory self-defence. For example, when Israel attacked Palestinian camps in Lebanon in 1975, developing and socialist and western countries condemned Israel. In April 2005, when the UN Sec. General’s Report entitled ‘In Larger Freedom’ was discussed before the UN GA, most States rejected anticipatory self-defence. However, there are also documents recognizing a right to anticipatory action. An example is point 3 of the ‘Resolution on Present Problems of the Use of Armed Force in International Law’ adopted by the Institute of International Law at the session on 27 October 2007: ‘The right of self-defence arises for the target State in case of an actual or manifestly imminent armed attack. It may be exercised only when there is no lawful alternative in practice in order to forestall, stop or repel the armed attack, until the Security Council takes effective measures necessary to restore international peace and security’. The UN High Level Panel on Threats, Challenges and Change also recognized the lawfulness of anticipatory self-defence (Kaczorowska at 711).

In 2002, the ‘Bush doctrine’ (later restated in 2006) claimed a right of pre-emptive action against states who are seen as potential adversaries (pre-emptive self-defence). The doctrine would allow a state to take action in the absence of any proof of an attack or even an imminent attack. This is different from anticipatory self-defence in that there is not even an imminent threat of attack. According to this interpretation, a State would be allowed to resort to self-defence to respond to an armed attack which is not imminent but which may take place at some point in the future if action is not taken. Brownlie simply states (at 734) that the Bush doctrine ‘lacks a legal basis’. It would further leave to each individual state the right to determine if the necessary conditions have been met. Israel relied on this understanding when it bombed an Iraqi nuclear reactor under construction on 7 June 1981, claiming that the reactor was designed to produce nuclear weapons which would have been subsequently used against Israel. The Israeli action was regarded as ‘a clear violation of the Charter of the United Nations’ by the SC Res. 487 (1981). With a Resolution adopted on 13 November 1981, the UN GA classified the attack as a premeditated and unprecedented act of aggression (109 votes in favour, two against, 34 abstentions). (A/RES/36/27).

The Report of the Bush Administration to the US Congress on the National Security Strategy of the United States of America of September 2002 advocated the understanding of pre-emptive action: We must be prepared to stop rogue states and their terrorist clients before they are able to threaten or use weapons of mass destruction against the US. The doctrine of self-defence needs to be revised in the light of modern conditions. In particular the requirement that a threat be imminent needs to be revisited. In any case, the doctrine of pre-emptive action was not formally invoked in the US-led invasion of Iraq. As we’ll see further on, when military operations kicked off in March 2003, the US letter sent to the SC relied upon previous SC Resolutions as the alleged basis for the action. The doctrine of pre-emptive self-defence was rejected by two reports (Kaczorowska at 712): The Report of the High-Level Panel on Threats, Challenges and Change; The UN Secretary General’s Report entitled ‘In Larger Freedom’. Further, point 6 of the Resolution of 27 October 2007 adopted by the Institute of International Law condemned the doctrine and stated that it has no basis in international law.

5.5 GENERAL CONCLUSION ON SELF-DEFENCE
The scope of self-defence is open to debate. While a study of the history of the UN Charter suggests the existence of a wide right based on customary law, the interpretation adopted by the majority of States since 1945 has been in the restrictive way. The existence of a right to anticipatory self-defence has been disapproved by the great majority of States. The doctrine of pre-emptive action has been almost unanimously disapproved. Cassese concludes that an analysis of State and UN practice shows that the overwhelming majority of States believe that anticipatory self-defence is not allowed by the UN Charter, even in cases of terrorism. Brownlie is also of the view that the UN Charter rules it out (p. 732) However, there are a few but very strong states (USA and Israel, partly followed by the UK and Russia) that believe the opposite. Cassese, having regard to the object and scope of art. 51, and, more generally, to the system of the UN Charter, is of the view that pre-emptive strikes are legally prohibited (and that, ideally, they should indeed be banned). Cassese accepts (at 362), however, that there can be certain situations in which such actions may be justified on moral and political grounds. In these cases, the int’l. community will eventually condone the action. As a last point, he also accepts that as a matter of lege ferenda anticipatory self-defence could be legitimised under certain conditions (see at 362-3), if States reach an agreement in the future.

5.6 COLLECTIVE SELF-DEFENCE
Art. 51 of the UN Charter authorises collective as well as individual self-defence. Art. 51 thus provides the legal basis upon which a number of regional security systems have been founded. In fact, by 1945 there already was in place a Pan-American regional system of mutual defence, and one of the reasons for introducing Art. 51 into the Charter was to safeguard the compatibility of this system with the regime established by the UN Charter (Kaczoworska at 727). Collective self-defence indicates the right of each State to use force in defence of another State. In that sense, it is collective defence of another, rather then ‘self’ defence (Wallace at 304). Collective self-defence will be lawful under the same circumstances as individual self-defence. So, the above-mentioned discussions apply here too. It’s prime example was the armed response to liberate Kuwait by Iraqi invasion (Operation Desert Storm). UN SC Res. 661 (1990) makes express reference in the preamble to the ‘inherent right of individual or collective self-defence’. The debate here is whether it is required that all states participating to the exercise of collective self-defence must have been subject to indivual attacks. In other words, can states that have not been personally attacked help the victim?

Military alliances such as NATO (North Atlantic Treaty art
Military alliances such as NATO (North Atlantic Treaty art. 5) are based on the understanding that all members of the alliance will use force if any one of them has been attacked. In the Nicaragua judgment the majority was also of this view. Dixon and Cassese also agree. However, as an additional requirement not found in the language of Art. 51 of the UN Charter, the majority of the Nicaragua judgment was also of the view that the attacked state must have requested assistance before action by other states can be lawful. While Dixon thinks this criterion is unrealistic, Cassese defends it by stating that a state cannot use force against a country which has attacked another State, without the request or previous consent of the latter. The most famous example to collective self-defence was the armed response to liberate Kuwait by Iraqi invasion (Operation Desert Storm). Although the use of force in that case was authorised by UN SC Res. 661 (1990), the action’s legal and moral basis was grounded on the concept of self-defence. We have already studied the UN system for collective self-defence. You should refer to those slides for extensive information.

6. USE OF FORCE AGAINST TERRORIST ACTS
Assigned introductory reading: Aust at

6.1 Is there a definition of terrorism?
Excerpts from Michael P. Scharf, Special Tribunal for Lebanon Issues Landmark Ruling on Definition of Terrorism and Modes of Participation, ASIL Insights, March 4, 2011 (Vol. 15, Issue 6): In 2007, the UN Security Council established the Special Tribunal for Lebanon (“STL”), the world’s first international court with jurisdiction over the crime of terrorism, to prosecute those responsible for the 2005 assassination of Lebanese Prime Minister Rafiq Hariri and twenty-two others (...) On February 16, 2011, the STL Appeals Chamber handed down a landmark ruling: (...) the Appeals Chamber found that “although it is held by many scholars and other legal experts that no widely accepted definition of terrorism has evolved in the world society because of the marked difference of views on some issues, closer scrutiny reveals that in fact such a definition has gradually emerged.” (para. 83). Based on its review of state practice and indicators of opinio juris, the Appeals Chamber declared that the customary international law definition of terrorism consists of the following three key elements: (i) the perpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson, and so on), or threatening such an act; (ii) the intent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; (iii) when the act involves a transnational element. (para. 85).

Reading the Lebanese law on terrorism together with the definition of terrorism under customary international law, the Appeals Chamber concluded that the particular means used in an attack were not dispositive in determining whether an attack is terrorism or simply murder. In other words, contrary to Lebanese case law, the Appeals Chamber opined that attacks committed using rifles or handguns, which are not likely to cause a danger to the general population per se, are nevertheless within the jurisdiction of the STL. Yet, the significance of this aspect of the Appeals Chamber opinion is far broader than its application to the case before the STL. This is the first time that an international tribunal has authoritatively confirmed a general definition of terrorism under international law. This decision will likely have a momentous effect on the decades-long effort of the international community to develop a broadly acceptable definition of terrorism. Unable to reach consensus on a general definition, the international community has over the past thirty years adopted a dozen counterterrorism conventions that impose an obligation to prosecute or extradite in cases of hostage-taking, hijacking, aircraft and maritime sabotage, attacks at airports, attacks against diplomats and government officials, attacks against UN peacekeepers, use of bombs or biological, chemical, or nuclear materials, and providing financial support to terrorist organizations.

By listing the dozen counterterrorism conventions in the preambular clauses of numerous UN General Assembly and Security Council counterterrorism resolutions, which confirm that acts of terrorism are criminal and unjustifiable, the United Nations has arguably crystallized the acts prohibited by those Conventions into customary international law crimes. Yet, significant gaps exist in the coverage of these anti-terrorism conventions. For example, assassinations of businessmen, engineers, journalists, and educators are not included, while similar attacks against diplomats and public officials are covered by the treaties. Attacks or acts of sabotage by means other than explosives against a passenger train or bus, or a water supply or electric power plant, are not dealt with, while similar attacks against an airplane or an ocean liner are. Moreover, most forms of cyber-terrorism are not encompassed by the treaties. Acts of psychological terror not involving physical injury are not covered either, even though placing a fake bomb in a public place or sending fake anthrax through the mail can be every bit as traumatizing to a population as an actual attack. Notably, the STL Appeals Chamber stated that the customary rule can be held to impose a duty on States to prosecute those who commit acts of terrorism as defined under customary international law. This would include cases falling within the gaps of the dozen counterterrorism conventions. Moreover, the U.N. Security Council in Resolution 1373 prohibited the financing of terrorism without defining the term or listing proscribed groups. The Appeals Chamber’s general definition of terrorism will thus facilitate more effective implementation of that important resolution.

6.2 Terrorism and the law on the use of force
An interesting development is the use of force against another state in order to counter terrorist attacks directed against the territory or nationals of the acting state. This is a different type of action from the swift, Entebbe-style rescue missions. Alleged examples are the US-led invasions of Afghanistan and Iraq. Dixon argues that these actions can not be justified under the self-defence or the ‘protection of nationals abroad’ theories. That is because they have led to the overthrow of the governing regimes, and the continued occupation of state territory. Dixon would simply qualify these actions as ‘punitive reprisals’ or ‘pursuance of foreign policy by force’. Most states dispute the existence of any extended right to use force to combat terrorism. In that sense, the first thing that should be noted is that there is no separate legal regime regulating terrorism. Thus, the general principles of int’l. law regarding the use of force, and its exceptions must be applied (Brownlie at 745). At most, it might be argued that the 9/11 attacks have influenced the development of the law on self-defence.

There is no separate rule of int’l
There is no separate rule of int’l. law that would legitimise extraterritorial military actions when the alleged purpose is to capture and punish those responsible for terrorist actions or widespread human rights violations. Especially, there is hardly any justification for engineering a government change and occupying over a prolonged time the territory. Therefore, Dixon concludes that US action following the 2001 events can not be justified under any exception, simply because there is no rule that permits a state to take unilateral action under those circumstances (at 323). Brownlie also stresses with regard to the Iraqi intervention that the UN scheme does not allow states to unilaterally resort to force (for purposes other than self-defence) except with the express authorisation of the UN (at 746).

After these initial considerations, let’s analyse more in detail the forcible response to terrorist actions. Remember that not every unlawful use of force amounted to an armed attack. So, in the case of an isolated terrorist attack, when there is no ‘armed attack’ for the purposes of Art. 51, the target state could defend itself against the rebels themselves (see, below, the slides concerning “armed reprisals against unlawful small-scale use of force”). But when it comes to taking action against the state harbouring the terrorists, the threatened state may only resort to ‘proportionate countermeasures’, as there would be no right to self-defence (because there is no “armed attack”). However, it is unclear if actual use of force is within the scope of such countermeasures. Cassese analyses this problem under the concept of indirect armed aggression. Certain states, such as the USA, Israel and South Africa have defended that indirect aggression will also trigger the right to self-defence. However, the int’l. community has never been convinced by this argument. Various states objected to this view during SC meetings. The Nicaragua judgment also distinguished between unlawful use of force and armed attack.

Therefore, self-defence against a State supporting an insurgency or acts of terrorism will generally depend on the following: - The level of such support; - The evidence of the support; - The evaluation of that evidence by the ICJ or any other competent organ; - The proportionality of the response; The legality of the means used to respond. Therefore, in certain cases, the state victim of terrorist acts supported by other states may take forcible action by way of self-defence against that other state. However, for such right to arise, the terrorist act should qualify in first place as an ‘armed attack’.

So, when can terrorist acts constitute an armed attack?
Cassese believes that to qualify as an armed attack, terrorist acts must form part of a consistent pattern of violent terrorist action rather than just being isolated or sporadic use of violence. Brownlie also accepts that a co-ordinated and general campaign by powerful bands of irregulars, with complicity of the government of a State from which they operate, could constitute an armed attack. It seems apparent that PKK actions against Turkey would satisfy this criterion, as well as any other harsher criteria. Hence, in cases where the terrorist attack amounts to an armed attack, the right to self-defence against the attacking group would be triggered. But when it comes to assessing whether force may be used in self-defence against the State from which they operate, or that supports them, distinctions have to be made.

6.3 DIFFERENT CASES OF STATE-SPONSORED OR STATE-TOLERATED TERRORISM
In cases of state-sponsored or tolerated terrorism, Cassese argues (at 470) that there are different degrees of support that may be given by a State to terrorist groups. He categorises such support under six options: 1) Terrorist groups committing acts of terrorism abroad may comprise state officials. This is the extreme case, as with the Lockerbie tragedy or the La Belle disco bombing in which Libyan officials were implicated. 2) A state may employ unofficial agents, mercenaries, armed bands that are controlled by the State. So, certain groups may not be part of the official state apparatus, but they may de facto act as state organs. 3) Terrorist groups may be independent but may be supplied with financial aid or military weapons by a State.

4) Terrorist groups may be provided with logistical support, e,g
4) Terrorist groups may be provided with logistical support, e,g., providing training facilities. 5) A State may not support the terrorists in any active manner, but may close an eye on the fact that they find shelter on its territory before or after the terrorist attacks. In general, this happens when a State consciously disregards the presence of terrorists and does not take any coercive measure to prevent or repress these acts (ülkesinde yuvalanmasına göz yumma). The situation in northern Iraq would amount, at least, to this option. 6) Finally, terrorists may be operating on the territory of a State which is factually unable to exercise control over them.

So, even when the terrorist attacks may be qualified as an ‘armed attack’, could the target state in each of these options use force against the state itself for their involvement with the terrorists? Of course, if the State where the terrorists are located consents to the opration by the target State, no problem arises under int’l. law. Below, we shall consider what happens if the State from whose territory the terrorist attacks ar launched does not consent to military intervention on its territory by the target State. The first two options do not present any difficulty, since terrorists are officially or de facto state agents. The use of force in self-defence against such state would be lawful. This is because the acts of non-State actors would be attributable to the State where they are located. The options considered under 3-5 are more problematic and there is no general rule on the matter. It can be said that if the state may be held responsible at the int’l. level (state responsibility) for the terrorist actions, the right to self-defence will arise. In other words, it is a matter of determining the attributability/ imputability (isnat edilebilirlik) of these actions to a certain state (Cassese at 470-1). This determination will be made in light of the general principles of state responsibility (to be lectured by Prof. Stadlmeier in April).

With regard to options 3-5, you should remember that in the Nicaragua judgment the majority of the Court found that providing rebels with logistical support, financial aid and weapons could be considered unlawful, but that such acts did not constitute an ‘armed attack’ by itself. However, SC 748 (1992) later ‘reaffirmed’ that, in accordance with the principle in Art. 2 (4) of the UN Charter ‘every State has the duty to refrain from organizing, instigating, assisting or participating in terrorist acts in another State or acqueiscing in organized activities within its terrritory directed towards the commission of such acts, when such acts involve a threat or use of force’. This resolution would seem to suggest that such actions would constitute an armed attack by the State involved. To make an assessment, probably, the majority view of the ICJ is flawed because the distinction is very artificial. On the other hand, the view propounded in the SC Resolution is also too broad because it does not make any distinction between different levels of State involvement in terrorist activities. The truth is that there is no clear-cut answer, and a case-by-case appraisal would be appropriate. It could be concluded that the options considered under 3-5 may constitute an armed attack for which the State involved is responsible, if the gravity of the terrorist attacks reaches a certain magnitude, the state involvement is substantial, and if the attack may be attributed to the State in question.

Cassese also comes to a similar conclusion by stating that ‘it may be safely contended that in those instances where the assistance or acquiescence is not sporadic but regular and consistent, one may well conclude that the State involved is responsible for a breach of Article 2 (4) and must hence be held accountable for terrorist attacks coming from its territory’ (at 471). Finally, in the case of option 6, the State concerned may not be held responsible for the acts of terrorist organisations stationed within its own territory. But that state can not object to the target state’s use of force against the terrorists (at 472). However, there also diverging views on this last issue. It is argued that if the attack by non-State actors is not attributable to the State where they are located, Art. 51 would seem to prohibit any use of force in the territory of that State. This position is also supported by the Organisation of American States which condemned an armed attack carried out by Colombia on 1 March 2008, on the territory of Ecuador, against members of the Revolutionary Armed Forces of Colombia (FARC) which were stationed in Ecuador, and launched attacks on Colombia from the territory of Ecuador. In this case, both the UNSC and the OAS had determined that the FARC’s actions constituted acts of terrorism that threatened peace and security (Kaczorowska at 715-6). During the incursion of 1 March 2008, Colombia killed 22 militants, including the second highest-ranking member of FARC. Ecuador accused Colombia of violating Art. 2 (4) of the UN Charter, while Colombia relied on self-defence. The OAS (OAS/CP/RES/930 (1632/08) declared that ‘the territory of a state is inviolable and may not be the object, even temporarily, of military occupation or of other measures of force taken by another state, directly or indirectly, on any grounds whatsoever’.

6.4 State-support to terrorist activities NOT AMOUNTING to an ‘armed attack’
In all of the above six options, we based our analysis on the assumption that the terrorist attacks reached a certain magnitude that would justify the qualification as an ‘armed attack’. But, what is the case of a state supporting terrorist activities that have not reached the magnitude of an ‘armed attack’? As explained above, no right to self-defence will arise in such case. Military reprisals are also prohibited (see Chapter 10 below). However, Dinstein, Brownlie and Cassese believe that an immediate armed reaction is legitimate. Otherwise, the aggrieved State may remain impotent against the unlawful attack that causes an immediate and unavoidable threat to the life of the victims. The Corfu Channel judgment of 1949 confirms this view by stating that a warship passing through an international waterway was entitled to ‘retaliate quickly if fired upon’ by the batteries of the coastal State (of course, in this case the attack was coming from the authorities of the coastal State).

Therefore, even if Art. 51 is not applicable to this case, the victim state should be allowed to react forcibly if there is no other means of avoiding an immediate danger to the life of persons belonging to the victim state. Obviously, the target state can not be expected to do nothing, because that would leave the citizens of law-abiding states at the mercy of aggressive States. So, if a unit of the Turkish Armed Forces patrolling the frontier with Iraq is being hit by missiles launched by militia men stationed just across the border, they would be entitled to return fire. This is because, although Art. 51 is not applicable, there is no other means of avoiding an immediate danger to the life of persons belonging to the victim state. Consequently, under this view, armed reprisals against unlawful small-scale use of force is allowed, but only when directed to the aggressors (not to the authorities of the State where they are located).

6.5 A survey of state responses to terrorism
If we analyse state practice and survey the response of the int’l. community to terrorism, we may draw certain results. As a first point, it should be borne in mind that according to Art. 2 (3) of the UN Charter (All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered) and the 1970 UN GA Declaration, States may only resort to military action in response to a terrorist attack after they have first made every effort to deal with the issue by peaceful means. But, in practice, in some cases states opt immediately for a forcible response, and it seems that the int’l. community does not provide a strong reaction to these instances. Anyway, the general rule is that peaceful remedies should be exhausted first, before resorting to forcible measures.

1) One of the available peaceful responses is to resort to the UN SC, which may adopt sanctions or countermeasures. An example is the SC Res. 748 (1992) which imposed sanctions on Libya following the blowing up of the Pan Am flight 103 on 21 December 1988 ( and France’s UTA flight 772 on 19 September These sanctions included: - To deny permission to any aircraft destined to Libya to take off from, land, or overfly the territory of UN member states; - To prohibit the supply of any aircraft or aircraft components to Libya; - To prohibit any provision to Libya of arms and ammunitions, technical advice, assistance, or training on military matters. - The UN SC also set up a Committee which would monitor compliance with the decisions on sanctions. Eventually, Libya acknowledged responsibility (but not guilt) in 2003 by stating in a letter addressed to the UN that Libya accepted ‘responsibility for the actions of its officials’, and paid compensation to the victims.

As a result, the sanctions were lifted and the Committee dissolved in 2003 by Res. 1506.
Later, in September 2004 Libya also admitted responsibility for the 1986 disco attack. German courts had previously determined that the Libyan Secret Service had been behind the bombing. Libya paid 35 m. USD in compensation to victims. Another example is the SC Res (2001) adopted on 28 September 2001, following the 9/11 attacks. Acting under Chapter VII, the SC laid down some strict conditions for all States regarding the adoption of measures to be taken at national level in order to prevent and punish terrorism. The Counter-Terrorism Committee, charged with monitoring the implementation of the resolution and the fulfilment of the obligations was also set up.

2) As an instance of forcible response, we can analyse the armed attack by the USA and the UK against Afghanistan in On 12 September 2001 the UN SC passed Resolution 1368 which recognised in its preamble the right to individual and collective self-defence. However, in the operative paragraph, the 9/11 events were defined as a ‘threat to the peace’, but not as an ‘armed attack’ giving rise to the right to self-defence under Art. 51. In operative § 5 of the Resolution the SC expressed its ‘readiness to take all the necessary steps to respond to the terrorist attacks...in accordance with its responsibility under the Charter of the United Nations’. So, the SC declared itself to be ready to authorise military and other action, if necessary. But, as we know, the USA never approached the SC for the adoption of such a resolution and preferred unilateral action instead.

On the other hand, the North Atlantic Council unanimously adopted a statement where it relied upon Art. 5 of the NATO Statute, which provides for the right of collective self-defence. So, the NATO-member States have opted for a solution under Art. 51 of the UN Charter. In the following days, some new trends that meant a departure from established int’l. law could be discerned: 1) States equated action by a terrorist group to an armed aggression by a State, thus entitling the victim State to resort to individual self-defence, and allowing third states to act in collective self-defence upon request of the victim State. 2) Although self-defence requires an immediate response, following the events of 9/11 a delayed response was considered admissible. 3) While under art. 51, the victim state may only strike at a specific State or group of States (the aggressor/s), the USA was allowed to choose its target, and did so by establishing by itself which states were to be held responsible for the attack.

6.6 ‘Operation Enduring Freedom’ (!)
The USA, assisted by the UK, launched ‘Operation enduring freedom’ on Afghanistan (7 October 2001). The alleged aim was to destroy the bases and infrastructures of the El Kaide (Al-Qaeda), and to disrupt the Taliban authorities, who allegedly supported the terrorist organisation. Bush had declared that there was compelling evidence pointing at bin Laden and Al Qaeda being involved in the 9/11 attacks. Al-Qaeda is a terrorist organisation that was founded in the early 1990s and has been led, until his death, by Osama Bin Laden, a national of Saudi Arabia. The main objective of this organisation is to destroy the US and its allies. In February 1998 bin Laden issued a fetva (fatwa) which called for the killing of Americans and their civilian and military allies as a religious duty for each and every Muslim to be carried out in whichever country they are. The Al-Qaeda was thought to be responsible for conducting a number of terrorist attacks against the US, in particular the bombing of US embassies in Kenya and Tanzania on 7 August 1998 (Kaczorowska at 719). Osama bin Laden established many camps in Afghanistan for training his militants. Osama bin Laden had provided the Taliban with military support during the civil war in Afghanistan in the 1990s. Once the Taliban won the civil war and established themselves as the government of Afghanistan, they allowed bin Laden to operate within the country (Kaczorowska at ).

Many UNSC Resolutions (1189 (1998), 1193 (1998), 1214 (1998), 1267 (1999)) requested the Taliban to surrender bin Laden to justice, but the Taliban refused to comply with them. Many non-military sanctions have been imposed on Afghanistan on this account. Following the 9/11 attacks, Bush requested the Taliban to hand over bin Laden or to face the consequences. This request was rejected, and the Taliban offered to send bin Laden to stand trial before an Islamic court established in a neutral country. ‘It seemed reasonable at that time that the Taliban wanted some evidence of [his] involvement in the September 11 attacks’. The possibility of bin Laden being offered a fair trial in the US was also unlikely as the US President had declared to have his ‘head on a plate’ (Kaczorowska at 720). The UNSC had strongly condemned the terrorist acts of 9/11 in two resolutions: Res (2001) passed on 12 September 2001, and Res (2001) passed on 28 September. Both Resolutions recognized the US’ right to self-defence and determined that the attacks constituted ‘a threat to international peace and security’. However, neither of these Resolutions can be deemed as having authorized the US (and the UK) to resort to the use of force (see next slide, excerpt from Kaczoworoska at 721). On 7 October 2001, the US and the UK started a military operation in Afghanistan. The purpose was to capture bin Laden and bring him to justice, to destroy Al-Qaeda, and the Taliban regime that had supported them. The USA relied on individual self-defence, and the UK relied on collective self-defence. Only Iraq and Iran openly and expressly challenged the legality of such action.

Both Resolutions 1368 (2001) and 1373 (2001) refer in their preamble to the inherent right of self-defence. Can that reference be construed as authorisation by the UNSC for the US to use force? (excerpt from Kaczorowska at 720): - Resolution 1368 was passed the day after the terrorist attacks took place and at that time it was unclear who was behind the terrorist attacks and whether they were directed from abroad or internally. Resolution 1373 was passed on 28 September 2001 and, although the members of the UNSC had by then had time to reflect upon the matter, the Resolution neither mentions the Taliban nor Osama bin Laden as being responsible for the terrorist attacks on the US. - The reference to the right of self-defence was part of the preamble of both Resolutions and not of their operative part. - No explicit authorization is granted in the above Resolutions to the US to use armed force. In the past when the UNSC was authorizing the use of force the relevant resolutions were very clear and unambiguous given the seriousness of the measures to be taken against a culprit State. - Resolution 1368 explicitly expressed the UNSC`s ‘readiness to take all necessary steps to respond to the terrorist attacks of 11 September’. Resolution 1373, relying on Chapter VII, calls on all States to ‘prevent and suppress the financing of terrorist acts in general, and international terrorism in particular, by freezing financial assets of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorism acts’. Furthermore, Resolution 1373 calls on all States to refrain from providing any support to persons or entities involved in international terrorism.

- Neither Resolution specifies the State against which the US is allowed to use armed force. At that time about 60 States supported terrorist organizations. Therefore, it seems preposterous to conclude that the UNSC was authorizing the US to use force against all States supporting international terrorism without specifically mentioning any of them and in circumstances where it was uncertain who was behind the terrorist attacks carried out against the US on 11 September 2001. - In the letters addressed to the UNSC neither the Government of the US nor the Government of the UK referred to any existing, actual or implied, authorization of the UNSC to commence a military intervention in Afghanistan. Certainly, had such an authorisation been in existence both Governments would have made an explicit reference to it. It is based on these points that Kaczorowska concludes (at 721) that neither Resolution authorised the US and its allies to use force against Afghanistan. Therefore, the next step should be to analyze whether the operation might be justified based on self-defence. In that frame, the operation should be deemed unlawful, especially because it went far beyond the scope of neutralising an armed attack, and resulted in a change of government engineereed by the USA, and in a prolonged occupation of territory. Thus, the reaction was not proportional and carried out solely for the legitimate purpose of repelling the attack.

Both Dixon and Cassese agree that the American response could not be justified under the concept of self-defence. Brownlie also expresses strong doubts, without expressing a clear opinion. Cassese thinks it was an armed reprisal, prohibited by international law. Kaczorowska (at 722-3) believes that the attacks on the twin towers qualify as an ‘armed attack’ committed by armed bandits. However, she argues that ‘the crucial matter is whether the terrorists involved in the 9/11 attacks were acting on behalf of the Taliban’. She argues that ‘[T]here is no direct evidence that either the Taliban or Osama bin Laden was involved in the attacks. The lack of any reference to them in both UNSC’s Resolutions as being responsible for the terrorist attacks against the US is, at least, puzzling’. She argues that there is no doubt that the Taliban provided support for bin Laden and Al-Qaeda, mainly by allowing them to stay in Afghanistan and to operate training camps. However, ‘there is a lack of evidence that the Taliban was sending members of the Al-Qaeda network to the US with a view to committing terrorist attacks.’ That is why she concludes that it seems arguable that the US was not a victim of ‘an armed attack’ on behalf of Afghanistan, and therefore could not resort to self-defence to justify its intervention in Afghanistan. Furthermore, it can neither be said that this example marked the emergence of a new and wider understanding of self-defence. This is because, although there was a large convergence in the int’l. community with regard to the initial lawfulness of US action, such convergence was largely motivated by the emotional reaction to the 9/11 events. Therefore, this convergence may not amount to the consistent practice and opinio juris required for the change of the existing customary rule (Cassese at 475).

7. Humanitarian Intervention – Responsibility to Protect (R2P)

7.1 HUMANITARIAN INTERVENTION
We discussed the position of a State trying to defend its own nationals from harm emanating from other states (whether under self-defence or the ‘protection of nationals abroad’ or the permissive view on the use force). What is the case with a state committing widespread human rights violations against its own people? May other States interfere? The doctrine of humanitarian intervention (insancıl müdahale) defends that State (A) may use force in the territory of another State (B) in order to protect the human rights of individuals in that State, usually being nationals of State B. In that sense, it may be defined as ‘coercive interference in the internal affairs of a State, involving the use of armed force, with the purpose of addressing massive human rights violations or preventing widespread human suffering’ (JM Welsh, Humanitarian Intervention and International Relations, Oxford: OUP, 2006, p. 3). What we discuss here is not enforcement action for humanitarian purposes authorised by the UNSC (eg, Somalia, Rwanda, Haiti and East Timor), but military interventions pursuing allegedly humanitarian purposes conducted by a State or group of States in the absence of UNSC authorisation (eg, Kosovo). (Aust at 211).

Some possible early examples were the Indian action in Pakistan (in 1971, which resulted in the creation of Bangladesh) to help people under Pakistani repression to secure independence, the Tanzanian action in Uganda (1979) which led to the overthrow of İdi Amin, and the Vietnamese invasion of Cambodia (1978) which led to the overthrow of Pol Pot (Saloth Sar or Minh Hai). However, the intervening states did not rely their justification for action on humanitarian action, but on self-defence. The first clear example was the ‘Operation provide comfort’ in northern Iraq in Kurdish refugees were being killed on a large-scale by Iraqi forces. The UN SC passed Resolution 688 (1991) where it asked Iraq to allow immediate access by int’l. humanitarian organisations to those in need of assistance. The Resolution was not passed under Chapter VII and it did not (and could not) authorise any forcible individual action (Aust at 212). Even so, the US, the UK and France acted in order to set up ‘safe-havens’ in northern Iraq. ‘No-fly zones’ were later created, again without any SC authorisation. The UN SC did not later condemn or protest these actions. At that time, the States in question did not advance any legal justification for their acts. But later, the UK relied on the doctrine of humanitarian intervention (though, not before the SC, but in response to domestic pressure, in statements made to the UK public). Another example is the ECOWAS military action in Liberia to intervene in a bloody conflict between rival parties in a State where law and order no longer existed. No authorization was seeked from the UNSC, which later even commended the action (Aust at 212).

The prime example of humanitarian intervention is the NATO bombing against Serbia in 1999 (Operation Allied Force). The purpose was to respond to the repression of ethnic Albanians in the region of Kosovo by the federal government of Yugoslavia led by President Milosevic. Before the breakup of the Former Yugoslavia (the ‘Socialist Federal Republic of Yugoslavia’), Kosovo, a province of Yugoslavia, had 2.2 million inhabitants, 90 % being ethnic Albanians. Kosovar Albanians enjoyed a high degree of autonomy at that time. After the Federal Republic of Yugoslavia (FRY- formed by today’s Serbia and Montenegro, now two independent States) came into existence, their autonomy was removed and they were targeted by the Serbian policy of ethnic cleansing. When Serbian oppression intensified, the UNSC adopted Res (1998) imposing a mandatory arms embargo on FRY. However, the dose of violence escalated further and in Sept. 1998, the UNSC adopted Res (1998) in which it determined the situation in Kosovo to constitute a ‘threat to peace and security in the region’ (Kaczorowska at 733).

Res requested both parties to the conflict to stop hostilities and to return to negotiations. Although there were calls for more drastic measures to be imposed on the Belgrade government, it became obvious within the UNSC that Russia would not support measures involving the use of force. As a result, Res did not authorise NATO intervention (Kaczorowska at 733). When the atrocities committed by the Serbian forces further escalated, NATO announced imminent military action against the FRY for failure to comply with Res (1998). As a result, the FRY agreed to a ceasefire and signed two agreements, one with the OSCE , concerning the establishment of verification missions in Kosovo and undertaking to comply with the UNSC Resolutions, and one with NATO. UNSC Res (1998) of 29 October 1998 endorsed both agreements and urged the FRY to promptly implement them (Kaczorowska at 733). However, Serbian forces intensified their policy of ethnic cleansing. At this point, the humanitarian situation was very grave, with 5,000 Kosovars having been executed and another 225,000 Kosovar men missing. The FRY, while continuing its policy of abuse, started peace negotiations with Albanian Kosovars in February The gov’t. of the FRY rejected a peace plan for Kosovo, and the UNSC was paralyzed by the Russian veto. As a result, NATO forces began an aerial bombing campaign against FRY military targets on 23 March The campaign ended on 10 June 1999 with the withdrawal of Serbian forces from Kosovo (Kaczorowska at 734).

As explained earlier on, Belgium relied on the permissive view on the use of force before the ICJ to justify its intervention by stating that its action was compatible with Art. 2 (4) as its purpose was to prevent a humanitarian disaster. Belgium invoked as precedents the intervention of India in Pakistan, Tanzania in Uganda, Vietnam in Cambodia, ant the actions of the Economic Community of West African States in Liberia (1990/92) and in Sierra Leone (1998) (Kaczorowska at 702). As explained before, the ICJ did not consider the merits of the case as it found that Serbia and Montenegro did not have the right to institute proceedings before the ICJ. As for the legal assessment, the UN Charter does not authorise individual states to use force against other States with a view to stopping atrocities. Only the UN SC may authorise the use of force in such cases. The Nicaragua judgment (merits, § 268) confirms this view that is also supported by state practice. However, the wording of the paragraph does not make it clear if the right to use force to protect human rights is totally rejected by the Court, or if such argument could not be relied upon in this particular case because the US action did not justify it.

In 1992 the UK defended that if the following conditions were met, a right to humanitarian intervention would arise: - There should be a compelling and urgent situation of extreme humanitarian distress which demands immediate relief; - The other state should not be able or willing to meet the distress or deal with it; - There should be no practical alternative to intervening in order to relieve the stress; - Action should be limited in time and scope. However, within the academic circle, this argument has not elicited positive response. Even for those in favour of it, humanitarian intervention will be lawful only if authorised by a competent int’l. organisation, and only in cases of extreme violations of human rights. In fact, the UK Foreign Secretary later restated in 2000 that any use of force should be collective, and that no individual country can reserve to itself the right to act on behalf of the international community. The UK thought that the Kosovo action was justified because it relied on a collective decision, backed by the members of NATO.

Vietnam appears to have based its intervention in Cambodia in 1978 on this idea, but the great majority of states participating to the later UN SC debates on the issue have rejected this argument. The NATO armed intervention in Kosovo was supported by many states (e.g., the USA, the UK, France, Italy), but similarly, many other states opposed it (e.g., Russia, China, India). For example, the Non-Aligned Movement (see next slide) rejected the argument of humanitarian intervention in Kosovo as having no legal basis. The Group of 77 (see next slide) also thought the action to be illegal. Even Germany and the USA, who had supported the operation, argued that it should not be seen as a precedent for future action. (However, a draft resolution declaring the NATO bombing to be illegal was rejected by a majority of 12 votes (China, Russia and Namibia voted in favour). In addition, the UN Commission on Human Rights adopted a resolution on 13 April 1999 declaring the intervention lawful by 44 votes in favour, only two against (Russia and Cuba). The UNGA also never condemned the operation, and further endorsed the Military-Technical Agreement of 9 June 1999, which was obtained as a result of the bombing campaign, between NATO and the FRY). States leading the 2003 Iraqi invasion did not rely on any considerations of humanitarian interention.

The Non-Aligned Movement (NAM) was founded in 1955 and it has around 120 members. The purpose of the organization as stated in the Havana Declaration of 1979 is to ensure "the national independence, sovereignty, territorial integrity and security of non-aligned countries" in their "struggle against imperialism, colonialism, neo-colonialism, racism, and all forms of foreign aggression, occupation, domination, interference or hegemony as well as against great power and bloc politics." The NAM comprises 55 percent of the world population, particularly countries considered to be developing or part of the third world. The Group of 77 is a coalition of developing nations, designed to promote its members' collective economic interests and create an enhanced joint negotiating capacity in the United Nations. There were 77 founding members of the organization, but the organization now has 130 members. (www. wikipedia.org)

Wallace clearly states that humanitarian intervention ‘remains at odds’ with Art. 2 (4) of the UN Charter and ‘as yet the position in contemporary international law is not to recognise such an exception’ (to the prohibition on the use of force) (at 300). But she also adds that in certain circumstances particular situations have demanded at least a tacit acceptance of intervention, as was the case with Kosovo. However, Brownlie observes that the humanitarian purpose of the action in Kosovo is questionable, since the use of force was directly linked to a collateral political agenda, which was, the acceptance of political demands concerning the status of Kosovo by Serbia. Aust further criticizes (at 214) the manner in which force was used: air strikes on other parts of Serbia rather than the use of ground forces in Kosovo. Dixon rightly argues (at 324) that neither the existence of humanitarian intervention, nor the conditions for its exercise, are supported by unequivocal state practice. Dixon points out that the invasion of Iraq was explained (by some) by terms of humanitarian considerations – the need to remove a bloody dictator. However, this idea was advanced as a political justification, but no clear claim of humanitarian intervention as a right has been made. C. Gray believes that ‘the doctrine is far from firmly established in international law’. Kaczorowska (at 732) also refers that the majority opinion is that int’l. law does not allow such humanitarian interventions. On the other hand, Aust is supportive of the concept (at 213), provided that certain conditions are met. He argues that the promotion of human rights and the solving of humanitarian problems are amongst the purposes of the UN, therefore the use of force to uphold those values will not violate Art. 2 (4).

To sum up, the legitimacy of humanitarian intervention is highly debatable.
Dixon (at 324-5) believes that it would run counter to the whole purpose of Art. 2 (4) of the UN Charter and many GA resolutions (for example, Art. 1 of the UNGA Resolution 2131 (XX) of 1965, Art. 5 (1) of the UNGA Resolution 3314 (XXIX) of 1974). Humanitarian intervention is against Art. 2 (4) particularly because any such action would almost always require the removal of the government, or it would at least seriously compromise its freedom of action. Thus, it would be against the ‘political independence’ of the target state. The principle of non-intervention in internal and external affairs of a State also makes any such intervention unlawful The UN Sec.Gen. has also written in his 1999 report that ‘enforcement action without SC authorization threatens the very core of the international security system founded on the Charter of the UN’. Brownlie makes reference to the Ministerial Declaration produced by a meeting of foreign ministers (of the G77) held in New York in 1999, three months after the Kosovo intervention. The Declaration, which represents the view of 132 states, makes it clear in para. 69 that ‘they rejected the so-called right of humanitarian intervention, which has no basis in the UN Charter or international law’. Brownlie argues that those in favour of the doctrine tend to ignore the practice of states, including the opinion of these 132 states.

Furthermore, the UN GA Declaration of 1970 excludes the right to intervene and the UN GA Definition of Aggression makes it clear that ‘no consideration of whatever nature, whether political, economical, military or otherwise, may serve as a justification for aggression’. Cassese also thinks (at 374) that it is apparent that an int’l. customary rule, legally entitling individual States to use force to induce a State to terminate large-scale violations of human rights has not crystallised. Indeed, there is yet little evidence that states have accepted as a right the existence of such an institution. It may be said, at most, that the Iraqi and Serbian examples could be the first steps in the formation of a new customary law exception to Art. 2 (4). On the other hand, the lack of intervention in Rwanda and Sudan (and so many other states) indicates that the practice is not consistent. In any case, even if a right to humanitarian intervention was to be accepted, its dangers are clear. Humanitarian intervention would provide powerful states a perfect tool for interfering in the internal affairs of other states. This is even more so if we think that in real life a state would almost never be prepared to spend money and to risk its own citizens’ life in order to intervene in an affair when it has no personal gain.

Kaczorowska (at 732) also argues that ‘it is difficult to find any example, apart from NATO’s intervention in Kosovo, where military intervention by a State has not been a cover for pursuing its national interests. Dixon’s conclusion on the subject (at 325) very much reflects my personal thought: According to a positivist understanding of law, a rule of international law may only exist if it is based in treaty or found in state practice supported by opinio juris. So far, we have no treaty rule authorising humanitarian intervention, and no general and consistent state practice that can be regarded as a legal obligation. Thus, humanitarian intervention may not be accepted to exist just because it should - morally - exist. (‘There is no moralistic magic that can manifacture the right simply because it ought to exist’ (Dixon at 325)).

7.2 R2P (Responsibility to Protect)
The failure of the concept of ‘humanitarian intervention’ to establish itself as a rule of int’l. law, together with dramatic examples such as Kosovo and Darfur, Sudan, has led to the creation of a different concept, the responsibility to protect (R2P). Already in 1999, the then UN Sec-Gen. Kofi Annan, at the UNGA, had invited States to rethink the concept of sovereignty and called on States to ‘forge unity behind the principle that massive and systematic violations of human rights should not be allowed to stand’. In the 2000 Millennium Report he invited the int’l. community to find the answer to the following question: If humanitarian intervention is, indeed, unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that affect every precept of our common humanity (UN Doc A/54/2000, 48). The concept was introduced into legal terminology when the International Commission on Intervention and State Sovereignty (ICISS), established by the Canadian Foreign Minister in 2000 and composed of recognised experts in IL, published its report entitled ‘The Responsibility to Protect’. The idea behind the concept is simple: a State has primary responsibility to protect its nationals from avoidable disasters such as mass killing, mass rape, starvation, etc. If a State fails because it is unable or unwilling to protect its nationals, then the int’l. community has collective responsibility to take the necessary action, including military action (Kaczoworska at 734).

In December 2004, the High-Level Panel on Threats, Challenges and Change established by Kofi Annan published its Report entitled ‘A More Secure World: Our Shared Responsibility’. In para. 203, the ICISS Report was praised and the following was stated: ‘the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and large-scale killing, ethnic cleansing or serious violations of international humanitarian law which sovereign Governments have proved powerless or unwilling to prevent’. The High-Level Panel identified five criteria to take into consideration in assessing whether military intervention is justified (Kaczoworska at 736): The seriousness of the threat, i.e. only the most serious int’l. crimes will justify the use of military force. The proper purpose, i.e. the purpose must be to stop or avert humanitarian disaster or a threat of it. Last resort: all non-military options and their potential effectiveness must be considered before resorting to military action. Proportional means: The scale, duration and intensity of the proposed military action must be proportional to the threat in question. Balance of consequences: The proposed intervention must have a reasonable chance of success.

The next step in the development of the R2P was the Report entitled ‘In Larger Freedom’ prepared by K. Annan. This Report was endorsed by 170 heads of State and government attending the 2005 World Summit session of the UNGA. The 2005 World Summit Outcome (UNGA Res 60/1 of 16 September 2005) provides for the ‘Responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’ (paras 138-9). ‘138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.

139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. 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. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.

In January 2009, the UN Sec-Gen
In January 2009, the UN Sec-Gen. presented a Report entitled ‘Implementing the Responsibility to Protect’ which proposes a three-pillar strategy for implementing the R2P: The protection responsibility of a State: the R2P applies to four specific crimes, namely genocide, war crimes, ethnic cleansing, and crimes against humanity. International assistance and capacity-building: Since the R2P lies first with a State, the Report examines the ways in which a State can be assisted in meeting its obligations deriving from the R2P. Timely and decisive response: There is the need to set up an early warning and assessment system; all available means must be used to respond collectively in a timely and decisive manner to a situation when a State is failing to protect its nationals; the permanent members of the UNSC should refrain from using or threatening to use their veto power when the intervention of the UNSC is clearly required.

All these developments might indicate that there is indeed a right, if not an obligation to interfere. However, the recognition of the responsibility to protect as a rule of int’l. law ‘remains uncertain’ (Wallace at 304). This is particularly so because non of the above-mentioned documents are primary sources of int’l. law. As for the development of a customary rule along the lines of the R2P, a general and consistent State practice backed up by the necessary opinio juris is still to be formed (Zifcak in Evans (ed.) at 522). Even more important, para. 139 of UN GA Res. 60 /1 makes it clear that any action shall be taken through the UNSC. Therefore, the Resolution itself does not pave the way to unilateral action. It is, in the words of Aust (at 214) ‘aspirational’. Even so, the concept has made its way into important and recent UNSC Resolutions. The preambles of Res (2011) concerning the situation in the Libyan Arab Jamahiriya (Libya) and imposing certain sanctions, and more important, Res (2011) authorizing ‘Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures (...) to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya’ refer to the R2P. Res (2011) of 30 March 2011 concerning the situation in Côte d’Ivoire, also refers to the concept.

8. INVITATION AND INTERVENTION IN CIVIL WARS
INVITATION: It goes without saying that a State may authorise or request the deployment of another State’s military forces in its territory (think of the “1 Mart Tezkeresi”). Similarly, a state may give permission for the use of force on its territory by foreign forces for any lawful purpose. When there is the valid consent of the territorial sovereign, no issue will arise. In such case there is no instance of unilateral use of force against the territorial state. Most peacekeeping operations are authorised within this framework. They are based on Chapter 6 of the UN Charter and peacekeeping forces are stationed in a certain State upon consent of the territorial sovereign. This had been lectured before.

In order to legitimise the use of force, consent (or invitation):
- Must be freely given, and it must be a real and genuine consent; - Must be given by the lawful government (by the authority empowered thereto by the constitution); - May not be given as an indefinite and blanket authorisation for the indeterminate future, it must be given ad hoc; - May not legitimise the use of force by the requested state against the territorial integrity and political independence of the consenting or requesting state (in other words, invitation shall not be a pretext or a means through which to establish control over the population or the territory of the consenting state); May not be given for an unlawful purpose (helping to commit int’l. crimes or to forcible deny the right to self-determination).

A problem arises in cases of civil war. According to int’l
A problem arises in cases of civil war. According to int’l. law, civil war is not unlawful. Due to the principle of non-intervention in internal affairs, Dixon argues that ‘it is extremely unlikely that third party military intervention can be justified’. Indeed, the Declaration of 1965 prohibits interference in civil strife occurring in another state. The 1970 Declaration reaffirms this rule (Gray in Evans (ed.) at 623). But there are some factual problems that will often arise. The first issue is to determine when an internal disorder amounts to civil war. This distinction is important, because the legitimate sovereign government may ask for foreign assistance in quelling riots and internal disturbances. The second issue is the case when both sides in a civil war establish factual control over certain part of the territory, they both establish rival governments, and they both ask for foreign assistance. Which one is entitled to legitimately ask for help?

There is no certain answer to these questions, it is a matter of fact-establishment. It will depend on the factual circumstances of each specific case. The determination made by int’l. organs will be of help but at the end, it will come down to the discretion of the state that is considering intervention. In theory, only the lawful authority of the inviting state may legitimately authorise foreign intervention. Thus, as accepted by the ICJ in the Nicaragua Case (1986) and in Armed Activities in the Territory of Congo (2005), military assistance to the gov’t. of a State is lawful, assistance to an opposition forcibly trying to overthrow the government is not ((Gray in Evans (ed.) at 624). But, for example, the Vietnamese intervention in Cambodia (1978) and the USSR intervention in Afghanistan (1979) followed a request made by minor rebel groups that were, in fact, trying to overthrow the established government. So, there was no invitation made by the actual and legitimate government. But the states in question still intervened (the USSR intervention was later condemned by the UNGA). In other cases, such as the US assistance to opposition forces in Angola, Cambodia and Afghanistan, the assistance was covert, and the legitimacy of the government was also challenged (Gray in Evans (ed.) at 624). In sum, Dixon concludes that if intervention by invitation is lawful (and it probably is), it should also be accepted that it is a loophole that states may exploit in order to perpetrate violations of int’l. law.

9. HOT PURSUIT The doctrine of hot pursuit is a concept, belonging to the law of the sea, whereby coastal states have the right to pursue ships guilty of offences in territorial waters into areas of the sea beyond national jurisdiction (Gray at 137). We’ll analyse this later on. Can, by analogy, the armed (or police) forces of State A cross the frontier into State B, without permission, in order to pursue and capture persons who have committed offences on the territory of State A? The ‘right to hot pursuit’ (sıcak takip/kesintisiz izleme hakkı) is sometimes claimed to justify armed incursions into the territory of neighbouring states in order to destroy military objectives of armed bands that have attacked, or will attack the state. In May/June 1977 Rhodesia entered territory of Mozambique and attacked bases used by terrorists opposed to the Rhodesian Government. This action was tried to be justified on the basis of ‘hot pursuit’, which Rhodesia argued to apply to land offences as well. The UNSC condemned the action (Kaczorowska at 739). South Africa had often resorted to his argument, but the SC condemned the practice (Resolution 568 (1985). South Africa later gave up this argument. Dixon explains (at 327) that States resorting to force based on this argument have found no int’l. support, and that generally, such action was believed to be against art. 2 (4). Gray also explains that this docrine was not well received by the community of States. Dixon concludes (at 327, also see Kaczorowska at 739) that it is ‘reasonably clear’ that int’l. law does not accept a right to land-based hot pursuit on any ground.

10. REPRISALS (Zararla karşılık verme)
Reprisals are acts or actions in response to an unlawful act by another state. An act of reprisal consists of a violation of int’l. rules against the wrongdoer. So, reprisals are acts that would normally be unlawful, but they become lawful when committed in reaction to the wrongful act of the other state. Reprisals/retaliation (Fr. Représailles): “Bir devletin uluslararası hukuka aykırı fiili nedeniyle zarar gören öteki devlet tarafından, yine uluslararası hukuka aykırı bir fiille karşılık verilmesidir” (Sur, s. 257). Thus, reprisals should not be confused with retorsion (misilleme), which indicate a response in accordance with international law to the act of another state (eg., restricting commercial relations with a state as a response to human rights violations in its territory). Retorsions are acts which in themselves, although unfriendly, are not unlawful (Wallace at 308). Reprisals can be of a military or non-military nature. In fact, peaceful reprisals are legitimate under certain conditions (Decision of the Arbitral Tribunal in the Naulilaa Case, Portugal v. Germany, ). While reprisals involving the use of armed force had been lawful until WWII, military reprisals are now unlawful. Military reprisals, that is to say, the use of force as the legal procedure for the vindication of rights illegally denied or as the proper method for inflicting punishment for harm suffered have been outlawed after the adoption of the UN Charter.

An example is Israel’s bombing of Lebanon (2006) in response to terrorist attacks (Hezbollah had killed eight and captured two Israeli soldiers in a surprise attack along the Israeli-Lebanese border. In response, Israel carried out air strikes against suspected Hezbollah targets in Lebanon. Hezbollah responded with rocket attacks against cities and towns in northern Israel. In order to force Hezbollah to retreat from its border, Israel launched a full-scale ground operation in Lebanon. Israeli attacks caused a massive destruction of Lebanon’s infrastructure, including thousand of houses, the death of about 1,000 civilians, injury to more than 3,500 persons, and displaced almost one million, see Kaczorowska at 716). Although Israel relied on self-defence, the action might be classified as a military reprisal. Dixon argues that it is generally accepted that Art. 2 (4) of the UN Charter has outlawed armed reprisals. So, armed reprisals are illegal under int’l. law, even when in response to a prior unlawful use of force. The Declaration on the Principles of International Law (GA Res (XXV)) indicates that states must refrain from acts of reprisal involving the use of force. The 1981 GA Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States is also to that effect. Various SC resolutions also condemn reprisals (e.g. SC Res 111 (1956), SC Res. 171 (1962), SC Res 188 (1964), SC Res 270 (1969)).

In Turkish academic writings, reprisals are recognised as a legitimate counter-measure, under some strict circumstances. But it is agreed that human rights, rules of humanitarian law and jus cogens norms may not be violated as a response. Thus, Turkish writers also agree that force may not be used as a reprisal. That is why the Isral example mentioned above is an unlawful instance. The only exception is the resort to armed reprisals against an unlawful small-scale use of force.

The Naulilaa Case (Portugal v. Germany) (1928)
Facts: In October 1914, when Portugal was a neutral State during WWI, three members of a party of German soldiers lawfully in the Portuguese colony of Angola were killed by Portuguese soldiers. On the evidence it was clearly established that the incident arose out of a misunderstanding. Germany, however, as a measure of reprisal sent into Angola a military force which attacked several frontier posts and destroyed property including the port at Naulilaa. Portugal claimed reparation for damage attributable to the German action. Germany argued that it was a case of legitimate reprisal.

Decision The German plea was rejected by the Arbitral Tribunal which held that: Reprisals are acts of self-help by the injured state, acts in retaliation for acts contrary to international law on the part of the offending state, which have remained unredressed after a demand for amends. In consequence of such measures, the observance of this or that rule of international law is temporarily suspended in the relations between two states. They are limited by considerations of humanity and the rules of good faith, applicable in the relations between states. They are illegal unless they are based upon a previous act contrary to international law. They seek to impose on the offending state reparation for the offence, the return to legality and the avoidance of new offences. The Tribunal laid down three conditions for the legitimacy of reprisals: There must have been an act contrary to international law on the part of the other State. The reprisal must be preceded by an unsatisfied request for the redress of the wrong committed. The measures adopted as reprisals must not be excessive, in the sense of being out of all proportion to the wrong committed.

Case study 1: Turkish cross-border operations against the PKK in northern Iraq
Until 1991 there was no major problem since Iraq either formally consented to or acqueisced in Turkish operations on its territory. However, after 1991, Iraq repeatedly protested against these incursions. Iran, who conducted similar operations, relied on art. 51 of the UN Charter (Un doc s/25483, 26 May 1993). However, Turkey did not advance any clear legal justification in support of its military operations, and did not explicitly rely on the right to self-defence. Following an operation in 1995 Turkey stated the following (UN doc S/1995/605): ‘As Iraq has not been able to exercise authority over the northern part of its country since 1991 for reasons well known, Turkey cannot ask the government of Iraq to fulfil its obligation, under international law, to prevent the use of its territory for the staging of terrorists acts against Turkey. Under these circumstances, Turkey’s resorting to legitimate measures which are imperative to its own security cannot be regarded as a violation of Iraq’s sovereignty. No country could be expected to stand idle when its own territorial integrity is incessantly threatened by blatant cross-border attacks of a terrorist organization based and operating from a neighbouring country, if that country is unable to put an end to such attacks. The recent operations of limited time and scope were carried out within this framework’.

At the time, the USA supported Turkish action by taking the view that it was done in self-defence, although Turkey itself did not openly make such claim. Following the operations in 1996 and 1997, Turkey again did not make any mention to Art. 51, but preferred to refer to the UN GA’s Declaration on Principles of International Law which enjoins States to refrain from acquiescing in organized activities within its territory directed towards the commission of terrorist acts in another State. In letters sent to the UN SC, Turkey relied on the principles of necessity and self-preservation. Turkey also referred to the need to take measures to safeguard its legitimate security interests, defending its borders and protecting its people against terrorism (UN docs S/1996/479, S/1997,7, S/1997/552). Thus, the language used seems to refer to the right to self-defence, although no explicit claim is made. Note, however, that Turkey did not assess Iraq’s responsibility for the actions of the PKK nor accused Iraq of an armed attack as the reason for conducting these operations.

Iraq protested against Turkish actions, and argued that it could not be held responsible for the attacks made from the northern part of its territory into Turkey because of the abnormal situation in Northern Iraq, created particularly by the USA. Iraq accused the US policy of intervention for the situation in northern Iraq, and claimed that it was unable to exercise its sovereignty over the region in question because of the deployment of US and British forces in Turkey in order to intervene militarily in northern Iraq. Iraq requested SC action, but despite the failure by Turkey to advance a clear legal justification, the operations escaped any SC condemnation or action thanks to the US support. However, the Arab League, the Gulf Cooperation Council and the Non-Aligned Movement thought the actions to be illegal.

The political situation changed in 2003, following ‘Operation Iraqi Freedom’, the overthrow of Saddam Hüseyin, and the establishment of an autonomous Kurdish region in northern Iraq. Turkey is claiming that the Kurdish regional government provides support to the PKK, and, at least, ignores their cross-border incursions into Turkey. In 2006, Turkey launched small-scale operations, which were clearly opposed by the USA which warned Turkey against any such action. Turkey and Iraq agreed to cooperate against the PKK in 2007, but the agreement did not give Turkey any right to cross-border military action. At the end of 2007, with the ‘Operation Sun’, Turkey launched a series of cross-border air and ground raids in northern Iraq. The USA seemed to acquiesce to the operation, and newspapers reported that it even agreed to provide intelligence to Turkey.

The 2006 and 2007 operations by Turkey were not reported to the UN SC under Art. 51 of the UN Charter, and no legal justification was provided. C.Gray thinks that this attitude could be taken as an indication to two factors (at 143): - Turkey is unsure as to the adequacy of its legal case; - States using force against terror may feel less constrained to offer such legal justification. OPTIONAL READING: Excerpts on Turkey’s cross-border operations (on share). I also placed the full-text versions of two articles in case you want to read them. Relevant excerpts are provided below.

Turkey’s Trans-Border Operations in Northern Iraq: Before and after the Invasion of Iraq by Funda Keskin (Research Journal of International Studies - Issue 8 (November, 2008): ‘Lastly, the Turkish operations in Iraq do not fulfil one of the conditions of the right of self-defence as developed in customary international law, which justifies self-defence only when the necessity of action is instant, overwhelming, and leaving no choice of means, and no time for deliberation. Obviously, this is not the case for many of the Turkish operations. After 1992, many Turkish operations have started in the spring, after the harsh winters which are common in the region have ended and before the PKK groups take the opportunity to infiltrate Turkish territory. If we are to call these operations self-defence, then we also have to call them actions of anticipatory self-defence’. ‘There is no legal instrument which recognizes Turkey’s right of intervention in northern Iraq, although the situation in that area was and is unique. Its legal sovereign was deprived of the right to establish Iraqi control over the region, and there was no other mechanism created to replace the Iraqi government’s control... After 2003 Iraq claimed full sovereignty in the region, but it is still unable to establish its authority there, since the local government led by Masood Barzani holds the authority in northern Iraq and Barzani behaves as if it is already an independent Kurdish state.’

Before 2003: ‘However, when the Iraqi government lost control over the region, they could no longer fulfil the obligation of preventing any hostile activity against another state on its own territory. If Iraq does not authorize these operations, Turkey faces the dilemma of protecting her own security by force on the one hand and of being condemned for violating Iraq’s territorial sovereignty on the other. Iraq is unable to fulfil the obligation of preventing hostile activities carried on in her own territory and yet she does not permit Turkey to do it. If Turkey complies with her decision and stops the operations, the result would be not only the most insecure conditions for the civilian people who live in the villages in the border area but also a continuous flow of PKK into Turkey.’ After 2003: ‘With the establishment of the new government in Iraq the situation even got worse for Turkey. The PKK activities still constitute a threat against Turkish security interests, and even though Turkey asked the US and Iraqi government to stop the PKK, both states claimed that they are unable to do it due to insecure conditions in Iraq. This claim is not convincing, because the northern part of Iraq is an autonomous Kurdish area and the most secure region in Iraq. It is felt in Turkey that if Iraq and the US have the desire to stop these terrorist activities they should be able to, and to be successful.’

M. Yasin ASLAN (Askeri Hâkim Binbaşı, Genelkurmay Başkanlığı Adli Müşavirliği,Uluslararası Hukuk İşleri Şube Müdürü) relies on the right to self-defence in order to justify cross-border military operations (Meşru Savunma Hakkı Çerçevesinde Sınır Ötesi Harekatın Hukuksal Esasları, Adalet Dergisi, s. 32,

İlyas DOĞAN, Devletler Hukuku, Ankara 2008, s. 168:
“Saldırganların konuşlandıkları bölgelere dönük meşru müdafaa önlemleri başka bir devletin ülkesel bütünlüğüne dönük bir ihlal olarak görülmemelidir”... Yani, buradaki amaç, terör odaklarının etkisiz hale getirilmesidir. Bu bakımdan, Türkiye, saldırgan olarak değil, meşru müdafaa yapan bir aktör olarak davranmaktadır. Bu nedenle de, bu eylemin BM Şartına aykırı olduğu söylenemez. Yazara göre: “Türkiye’nin PKK odaklarına karşı gerçekleştirdiği sınır ötesi silahlı operasyonları devletlerin tamamına yakını tarafından Irak devletine dönük bir saldırı olarak değerlendirilmemiştir. Bu durum hem 1990’lı yıllarda hem de 2007’de bu şekilde anlaşılmıştır.”

ATTACKS BY PRIVATE ACTORS AND THE RIGHT OF SELF-DEFENCE (Tom Ruys/Sten Verhoeven, Journal of Conflict and Security Law (3): ; doi: /jcsl/kri016: A number of states have, moreover, occasionally relied on the incapability of states to prevent attacks by nonstate actors operating from their territory, thereby copying the reasoning used by Israel with regard to the situation in Southern Lebanon. This was the case with Turkish and Iranian violations of Iraqi territory during the 1990s in response to guerrilla attacks by the Kurdish Workers’ Party (PKK). Turkey argued that its actions could not be regarded as a violation of Iraq’s sovereignty, as Iraq had not been able to exercise authority over its northern part and could therefore not be asked to prevent the use of its territory for the staging of cross-border terrorist attacks. Iran did not rely on Iraqi assistance to the PKK either, but simply declared that it had carried out necessary and proportionate operations in accordance with article 51 of the UN Charter. The reaction of the international community was rather mixed. In 1995, a Turkish offensive in Northern Iraq was condemned by the Arab League and the Gulf Cooperation Council. European states similarly called on Turkey to withdraw its troops without delay. The United States’ State Department on the other hand stressed that Turkey had the right to defend itself against attacks from a neighbouring country, although it later called on Turkey to withdraw its troops.

BACK TO BASICS: NECESSITY, PROPORTIONALITY, AND THE RIGHT OF SELF-DEFENCE AGAINST NON-STATE TERRORIST ACTORS (KIMBERLEY N TRAPP, ICLQ vol 56, January 2007 pp ] doi: /iclq/lei153): ‘Where a State is unable to meet its terrorism prevention obligations, either because it lacks the territorial control necessary to do so, or because it does not have the relevant human or financial resources available, it is arguably under an obligation to accept offers of counter-terrorism assistance, or even to seek such assistance. A State’s consistent failure to address its counterterrorism incapacity, where such assistance is available, could be interpreted as an unwillingness to meet its international terrorism prevention obligations. The international community has not been entirely consistent on the issue of self-defence necessitated by a State’s inability to meet its counter-terrorism obligations. It rejected Turkey’s invocation of the right to use force in selfdefence in Iraqi territory against PKK bases because of Iraq’s inability to control its northern border and prevent acts of terrorism (UN Doc S/1995/605).’

With regard to ‘Operation Sun’ (2007):
QUO VADIT JUS AD BELLUM?: A LEGAL ANALYSIS OF TURKEY'S MILITARY OPERATIONS AGAINST THE PKK IN NORTHERN IRAQ, Tom Ruys, in: Melbourne Journal of International Law, Vol. 9, 2008: With regard to ‘Operation Sun’ (2007): ‘.....states generally took a muted stance when Turkey eventually went ahead with the military option. A distinction can be made between the various protagonists. The US never explicitly endorsed the intervention, yet it certainly never condemned it. It consistently labelled the PKK a 'common enemy' and promised to step up efforts to combat the terrorist group, urging the Iraqi authorities to do the same.' More concretely, the US actually aided Turkey by supplying actionable military intelligence about PKK whereabouts and by clearing northern Iraqi airspace to enable Turkish strikes.’

‘When on 26 February, Turkey launched its large-scale ground campaign, advance warning was given to both Iraq and the US. On 28 February 2008, however, President Bush told a news conference that the Turks needed to 'move quickly, achieve their objective and get out'. The same day, US Defence Secretary Gates declared that Turkey's incursion 'should be as short and precisely targeted as possible'..... Turkish ground troops were withdrawn the next day. This striking conjunction of circumstances obviously fuelled speculations that the withdrawal was a concession to American demands, Turkish authorities unsurprisingly denied rumours of foreign pressure and insisted that the operation was terminated because it had achieved its objectives. .....At the same time, Talabani declared that Iraq would not hand over any Kurd to the Turkish authorities, and would not itself combat the PKK, while Barzani refused to recognise the PKK as a terrorist organisation.’

‘When aerial raids increased in December, another statement was issued, in which the EU expressed 'concern' over the military actions undertaken on Iraqi territory. The statement called on Turkey 'to exercise restraint, to respect the territorial integrity of Iraq and refrain from taking any military action that could undermine regional peace and stability'. A third Presidency statement, following the launch of 'Operation Sun', recognised 'Turkey's need to protect its population from terrorism', while again calling on Turkey 'to refrain from taking any disproportionate military action and to respect Iraq's territorial integrity'. It also called on Turkey 'to limit its military activities to those which are absolutely necessary for achieving its main purpose — the protection of the Turkish population from terrorism'. In sum, the EU essentially urged Turkey to seek a political solution and to avoid disproportionate military action, European countries did not regard military action as the best answer to PKK violence, but carefully refrained from formally condemning Turkey's behaviour. Taking account of the EU's critical and outspoken attitude vis-à-vis Turkish domestic politics in general, and its human rights policy in particular, this fairly mild and somewhat ambivalent approach is striking. In this regard, it is interesting to note that, in the midst of 'Operation Sun', EU officials announced that the operation would not influence Turkey's accession talks’

China expressed its hope that the relevant parties could 'properly resolve relevant issues through dialogue and consultation so as to maintain peace and stability in this region', Japan called upon Iraq 'to take appropriate measures to stop the terrorist activities of PKK members hiding in northrn Iraq', and urged Turkey 'to exercise utmost self-restraint', Russia called upon the concerned parties 'to search for political ways of resolving the existing acute problems', and warned that '[a] military escalation in conflict [could] only lead to an exacerbation of the situation'. United Nations Secretary-General Ban Ki-moon repeatedly expressed concern about the intervention, urging for 'utmost restraint' and for respect of the border between the two countries, and stressing the need to protect civilian life.....

On 3 March 2008, the Dutch Foreign Minister replied as follows to a parliamentary question regarding the legality of 'Operation Sun': On the basis of the information presently available, it seems justifiable that the Turkish military actions do not violate intemational law. This mainly concerns the question whether Turkey acted in accordance with the right of self-defence enshrined in Article 51 of the UN Charter. As it is established that Kurdish attacks from Iraq have taken place on Turkish territory, and since the UN Security Council has not yet taken any measures against these attacks, Turkey can invoke the right of self-defence. An important condition for this is amongst others that the measures taken correspond to the demands of necessity and proportionality..... Ruys’ personal opinion: ‘While there is no credible evidence of Iraqi authorities providing active support to PKK fighters in northern Iraq, it cannot be maintained that Iraq was unable to take action against the PKK presence in its territory.’

Finally, Ruys makes an analysis in light of the application of the principles of necessity and proportionality. His views are as follows: ‘A first component of the necessity criterion concerns the requirement that peaceful means of dispute resolution have reasonably been exhausted or would clearly be futile..... it may be expected that the victim state should first request the other state to take action against the non-state actors on its soil, before engaging in forceful action on the latter's territory. This view seems to be supported by third states' insistence that Turkey and Iraq should engage in a constructive dialogue and that Iraq should take appropriate measures against the PKK. In any case, Turkey seems to have complied reasonably well with this condition. It repeatedly engaged in discussions with Iraqi officials and warned of military action if no measures were taken. In light of the continuation of attacks following the security arrangement agreed on 28 September 2007 and the persistent reluctance of Iraqi authorities to take effective action, one might indeed conclude that Turkey's intervention was a 'last resort’’.

‘The second component of the necessity criterion is the requirement that there should be a close proximity in time between the start of the 'armed attack(s)' and the response in self-defence..... Turkey's initial aerial raids and commando incursions immediately followed the PKK attack of 21 October. Moreover, even if one would object that the main ground offensive only began in late February, it must be conceded that the criterion allows for a degree of flexibility especially when self-defence is used in response to a continuing series of attacks, rather than against an isolated attack. The victim state must be given the time to take the necessary preparations in terms of troop deployment, collecting intelligence, or exhaustion of peaceful means. In light thereof, it may reasonably be assumed that the Turkish intervention was not a punitive expedition against Iraq, but rather a genuine defensive action aimed at the prevention of future PKK attacks.’

‘Closely related to the necessity criterion is the requirement that the exercise of self-defence be proportionate to the exigencies of the concrete case..... How did the Turkish intervention live up to these demands (and its own promises)? In general, the balance appears positive. The operation was directed against PKK hideouts in northern Iraq and does not seem to have exceeded this objective. It was not used as a cover for harming the infrastructure or military capacities of the Iraqi Kurds as some had feared. The civilian population and infrastructure was kept out of harm's way. There were no reports of attacks resulting in large numbers of civilian casualties. Apart from Iraqi complaints that a few bridges had been destroyed, there were no significant excesses..... Interestingly, a number of states explicitly took the view that the Turkish actions were not disproportionate. On 21 February 2008, the Belgian Foreign Minister agreed that '[the Turkish] attack was precisely targeted and aimed only at PKK targets, without harming the population of northern Iraq or local factions'. In a similar vein, the Dutch Foreign Minister accepted that 'the Turkish actions appear to be restricted to specific actions against PKK targets in the border area of northern Iraq'. Even Iraqi President Talabani conceded that the withdrawal of Turkish ground troops 'indicate[d] the credibility of the Turkish government's statements that the military operation [would] be limited and temporary'. In the end, the Turkish intervention poses few problems in terms of proportionality.” In his conclusion, the writer states that “In light of the foregoing, a conclusive ruling on the legality of Turkey's conduct is difficult to make. However, at least from the perspective of the necessity and proportionality requirements, it could be argued that — in marked contrast to the Israeli intervention in Lebanon in 2006— Turkey exercised considerable restraint.’

Case study 2: ‘Operation Iraqi Freedom’ (!)
The US-led invasion of Iraq in March 2003 (the military operation was launched on 20 March) was based on the notion of ‘implied/revived authorisation to use force’. The alleged purpose of the operation was to disarm Iraq of weapons of mass destruction (WMD). Before the invasion, many UN, NATO and EU members were against the use of force, and, in any case, against the unilateral use of force by any individual state. However, the US argued that it was acting with the support of a coalition of at least forty state, and that the use of force had been authorised by the SC ‘under a combination of’ SC resolutions. Further see Kaczoworoska at for the reasons put forward by the US Congress Resolution HJ 114, passed on 2 October 2002, which authorised G.W.Bush to use whatever means necessary, including force, against Iraq. She concludes (at 726) that the reasons for the authorisation of the use of force by the US against Iraq contained in this Resolution ‘were neither justified in law nor in fact’. The reasons were as follows: Iraq has not complied with various UN Resolutions, Iraq has stockpiles of chemical weapons, an advanced nuclear development programme and a substantial weapons programme, which are a threat to the security of the US and Iraq’s neighbours, Iraq posed a threat to its immediate neighbours, Iraq supports terrorist groups and has provided assistance to the 9/11 attacks on the US , Iraq has demonstrated its continued hostility towards the US by firing (in 1998) on the US and Coalition forces engaged in enforcing UN resolutions and also in the 1993 attempt to assassinate President Bush, Saddam Hussein’s regime should be ousted and a new democratic government should replace the regime.

2.1 Chronology of events A) SC Resolution 678 (1990) (passed after the invasion of Kuwait by Iraq) authorised member states cooperating with the government of Kuwait to use all necessary means to drive Iraq out of Kuwait and to restore international peace and security in the area. B) As a ceasefire document, SC Resolution 687 (1991) was adopted. It had empowered UN weapons inspectors to monitor the disarmament of Iraq of its WMD. The inspector was withdrawn in December 1998 at the request of the USA due to Iraq’s failure to cooperate. Later, inspectors were not allowed by Iraq to return. The UK and the USA argued that in their absence Iraq was developing WMD and could be planning to supply terrorists with them.

C) After protracted debate, in order to secure a peaceful solution and to allow UN inspectors to return, SC Resolution 1441 (2002) was adopted. Resolution 1441 (2002) recalled previous relevant resolutions, including Resolution 678 (1990), and Resolution 687 (1991). Acting under Chapter VII of the UN Charter, Resolution 1441 (2002) made the following determinations: ‘1. Decides that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687 (1991), in particular through Iraq’s failure to cooperate with United Nations inspectors and the IAEA, and to complete the actions required under paragraphs 8 to 13 of resolution 687 (1991); 2. Decides, while acknowledging paragraph 1 above, to afford Iraq, by this resolution, a final opportunity to comply with its disarmament obligations under relevant resolutions of the Council.....” (paragraphs 3 regards the obligation to submit various reports, paragraphs 4-11 regard an enhanced inspection regime),

‘12. Decides to convene immediately upon receipt of a report in accordance with paragraphs 4 or 11 above, in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security; 13. Recalls, in that context, that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations’. As can be seen, this resolution does not allow the use of force. In fact, the negotiations before and during the adoption of the resolution clearly show that many states were not willing to give such authority. The UN SC records make it clear that this resolution was not sufficient to justify the use of force in the lack of a follow-up resolution granting clear authorisation.

D) Following Resolution 1441 (2002) the USA and the UK argued that Iraq had again breached the terms of the resolution. However, no new resolution was adopted. These two States argued that no further resolution was needed in order to use force. This was because Resolution 1441 (2002) did not expressly stipulate that another resolution was necessary in order to authorise the use of force (!) Para. 12 only required that the SC meet to ‘consider the situation’, no further decision was required (!) So, States were free to unilaterally resort to force against Iraq in case of further material breaches of the ceasefire regime. It has to be noted that the USA and the UK made persistent attempts to pass a new resolution, but France, Germany and Russia did not want to authorise the use of force. In February 2003 a draft resolution authorising the use of force was put forward by the USA, the UK and Spain, but was later withdrawn when it became clear that it would not obtain enough support in the SC, and would be vetoed anyway by France and Russia.

2.2 The line of thought/ reasoning/ “case for action” provided by the UK and Australian Attorney-Generals Within this framework, the ‘case for action’, as provided by the UK and Australian Attorney-Generals, was as follows: Authority to use force against Iraq exists from the combined effects of resolutions 678, 687 and All of these resolutions were adopted under Chapter VII of the UN Charter which allows the use of force for the purpose of restoring international peace and security. In Res. 678 the SC authorised the use of force against Iraq. In Res. 687, which sets out the ceasefire conditions, the SC imposed continuing obligations on Iraq to eliminate its WMD in order to restore international peace and security in the area. Res. 687 suspended but did not terminate the authority to use force under Res. 678. A material breach of Res. 687 revives the authority to use force under Res. 678.

In Res. 1441 the SC determined that Iraq has been and remains in material breach of Res. 687.
In Res Iraq was given ‘a final opportunity to comply with its disarmament obligations’ and warned Iraq of the ‘serious consequences’ if it did not. In Res it was also determined that failure to comply with and cooperate fully in the implementation of the resolution would constitute a further breach. It is clear that Iraq has failed to comply with the requirements of the resolution. Thus, the authority to use force under Res. 678 has revived. Resolution 1441 would have provided that a further decision of the SC was required to use force if that had been intended. In a letter sent to the SC, the USA also relied on the doctrine of the revival of resolution 678, the combined effects of resolutions 678, 687, 1441, as well as putting forward, in addition, the argument of self-defence.

CRITICISM of the implied/revived authorisation argument: How could possibly Resolution 678 (1990) provide authority to use force 12 years after it was passed, and under very different circumstances? What is a ‘material breach’ and who will make the determination? In this case, the US and UK unilaterally asserted a right to make this determination by themselves. They also unilaterally decided whether the use of force was necessary, bypassing the SC. Furthermore, their factual basis for such determination (the existence of WMD) turned out to be totally wrong. Examples: the int’l. inspectors at no time found any convincing evidence of the existence of WMD, Hans Blix (who was in charge of the UN Monitoring, Verification and Inspection Commission (UNMOVIC) found the evidence fo war ‘very, very shaky’ and on 22 April 2003 accused the US and the UK of deliberately undermining his efforts to locate the banned weapons alleged to be in Iraq, after the invasion, neither the US team of experts nor a UN commission found any credible evidence of the existence of WMD. Further, the 9/11 Commission , in its report investigating the 9/11 attacks, found no credible evidence linking Saddam’s regime with Al-Qaeda. Res (2002) did not authorise to use force, and there was no SC determination with regard to a material breach by Iraq of res As for the argument of self-defence, the US administration could only possible rely on the concept of pre-emptive self-defence, which , according to State practice, ‘has no place in international law’ (Kaczorowska at 726). Self-defence ‘can be relied upon only on the clearest evidence of a great emergency and as a measure of last resort. This was not the case in respect of Iraq as there was no evidence of any imminent armed attack to be launched by Iraq against the US, and there was no evidence to link Iraq with the 9/11 terrorist attacks.’ (ibid, at 727).

2.3 EVALUATION The then UN Sec-Gen. Kofi Annan openly stated that the use of force was illegal and in breach of the UN Charter. The NAM, the League of Arab States and many individual states (France, Germany, Russia, China) informed the SC of their official view regarding the unlawfulness of the action (aggression). The UN SC never implicitly or explicitly later legitimised the attack. However, certain post-conflict resolutions tried to regulate the future of Iraq (1483 (2003), 1511 (2003)), without making any determination as to the legality of the initial operation. The International Commission of Jurists, a consultative body of the UN, had also warned just before the launch of the operation that any military action without UNSC authorisation would constitute an act of aggression. C. Gray concludes by saying that for a majority of states, military action against Iraq was not in conformity with the UN Charter. And it would seem that it is her personal thought too. Kaczorowska (at 727): ‘Since the establishment of the UN the international community has never been faced with a situation where two founding members of the UN who are also two permanent members of the UNSC decided to ignore international law and the fundamental principles of the UN Charter. Both the US and the UK have seriously damaged the UN and NATO. The US war of aggression against Iraq constitutes a great threat to the rule of international law and has turned the clock back to 1945 when ‘might was right’. No State, even the most powerful in the world, should be careless or arrogant towards the institutions and ideals that have underpinned our civilisation’.

OPTIONAL READING (for those who want to acquire additional knowledge on the issue):
Christine Gray, International Law and the Use of Force, 3rd ed., pp ; AND/OR Carter/Trimble/Weiner, International Law, 5th ed., pp

LAW 222 – International Law II Spring 2012

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