Self-Defence PDF

🐋 Self-Defence 🍎 Requirements for self-defence (summary) Article 51 UN Charter Armed attack Reporting to the Security Council Customary international law...

🐋 Self-Defence 🍎 Requirements for self-defence (summary) Article 51 UN Charter Armed attack Reporting to the Security Council Customary international law Immediacy Necessity Proportionality Request by attacked state (in case of collective self-defence) Self-Defence 1  Fun fact: North Korea is a necrocracy, as Kim-Il Sung is still the official leader of the country, even though he is dead and his grandson is now in power → Self defence has always been the main justification throughout history, “self-preservation”, “national security interests” → 1945 ‘self-defence’ became an explicitly used phrased on the basis of Art 51 UN Charter Article 51 UN Charter 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. Customary law requirements not written explicilty in Art 51: Necessity, immediacy and proportionality e.g. Israel in Gaza is relying on right to self-defence, but its response is hugely disproportionate! Self-Defence 2  Inherent right = you don’t have to be a UN member to have the right to self- defence, it is just codifying customary law that applies to everyone What’s the point of the article then? If the right to self-defence applies to everyone anyway? Because the UN was designed for a collective security system → UN wanted to avoid alliances from being created, as that had led to both world wars, so wanted to create a global alliance It takes so long for the Security Council to reach a decision, that by that time the attacked country would be taken over, therefore there needs to be an immediate right to self-defence to keep the country’s right to sovereignty until the SC makes a decision Problem: if attacker is one of the permanent members and can veto decision to help Self defence only designed to apply immediately after and during attack It was not created to last for long periods of time, but rather just as a temporary allowance before the Security Council would intervene through the collective security system BUT SC is often super slow + doesn’t even have its own troops e.g. North and South Korea have been in a ‘state of war’ for decades, meaning they are allowed to attack at any point - but this is not legal under the UN Charter! When an attack is over peace is restored - retaliating after the attack is NO LONGER self defence, it is a new violation of Art 2(4) In normal criminal law, after an attack, the attacker is dealt with in criminal law, which prevents these cycles of revenge, because the attacked is vindicated by the judicial system, but this does not take place in international law! once an attack is over, the attacker is not necessarily punished - creates this problem of vicious cycle attack-response-attack- response, each time escalating to more and more severe Art 51 is the closest thing you get to a criminal prosecutor to stop this vicious cycle - but unfortunately in reality it only worked once (Iran Self-Defence 3  annexing Kuwait war) Molotov-Ribbentrop pact: pact of aggression, when two states agree to attack states and divide the territory among them → today would violate jus cogens, so would be invalid ab initio UN Charter always ranks higher than other treaties (Art 103?) → it is the legal ceiling No pre-emptive self-defence: you have to wait to be attacked first before self- defence becomes lawful = Hals Kelsen interpretation, traditional (but in practice this is different) Self-defence to protect nationals abroad? Not accepted customary law, but has been argued as justification by multiple states, e.g. 1983 US invasion of Grenada (which took place even without a clear threat to US nationals there), Russian prior to 2003 war with Georgia + invasion of Crimea If it were to be allowed, the following requirements would need to be met: 1. an imminent danger 2. the government of the country unwilling or unable to protect those in danger 3. the resuce operation must be minimally invasive; only what is necessary Collective Self-Defence ARTICLE 5 NATO Treaty The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognized by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it Self-Defence 4  deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area. Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security. Article 6 NATO Treaty = geographical scope of armed attack For the purpose of Article 5, an armed attack on one or more of the Parties is deemed to include an armed attack: on the territory of any of the Parties in Europe or North America, on the Algerian Departments of France,2 [now inapplicable] on the territory of Turkey or on the Islands under the jurisdiction of any of the Parties in the North Atlantic area north of the Tropic of Cancer; on the forces, vessels, or aircraft of any of the Parties, when in or over these territories or any other area in Europe in which occupation forces of any of the Parties were stationed on the date when the Treaty entered into force or the Mediterranean Sea or the North Atlantic area north of the Tropic of Cancer. “as it deems necessary” - not a strong legal obligation, it is more of a political obligation On purpose: post-WW2 the US did not want to be dragged into another European war Huge gap between theory and practice: now under Trump administration, US is not actually obligated to provide military assistance to attacked countries that need its help Trump angry that so many countries are not investing at least 2% of their GDP on defence - feels that the other are just parasites relying on the US without contributing anything, but is still willing to be friendly with/helpful to countries that spend enough on defence The only time Art 5 was applied was after 9/11, when other countries supported the US Self-Defence 5  Article 42(7) TEU If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of certain Member States. “all the means in their power” - much stronger obligation! BUT European countries have such weak defence systems anyway, that it would probably not amount to much anyway Both TEU and NATO mention Art 51 UN Charter - they are under its umbrella! Other regional collective security systems (particularly Rio Act (the Americas) in relation to Nicaragua case) OAS+Rio Act (all Americas), Warsaw pact WAS (Eastern European bloc), African Union, CTSO (Russia+others) Article 3 Inter-American Treaty of Reciprocal Assistance and Final Act of the Inter-American Conference for the Maintenance of Continental Peace and Security, 2 September 1947, 21 UNTS 77 1. The High Contracting Parties agree that an armed attack by any State against an American State shall be considered as an attack against all the American States and, consequently, each one of the said Contracting Parties undertakes to assist in meeting the attack in the exercise of the inherent right of individual or collective self-defense recognized by Article 51 of the Charter of the United Nations. 2. On the request of the State or States directly attacked and until the decision of the Organ of Consultation of the Inter-American System, each one of the Contracting Parties may determine the immediate measures which it may individually take in fulfillment of the obligation contained in the preceding paragraph and in accordance with the principle of continental solidarity. The Organ of Consultation shall meet without delay for the purpose of examining those measures and agreeing upon the measures of a collective character that should be taken. Self-Defence 6  3. The provisions of this Article shall be applied in case of any armed attack which takes place within the region described in Article 4 or within the territory of an American State. When the attack takes place outside of the said areas, the provisions of Article 6 shall be applied. 4. Measures of self-defense provided for under this Article may be taken until the Security Council of the United Nations has taken the measures necessary to maintain international peace and security. Nicaragua case 1986 US justified its support of the contras in Nicaragua on the basis of the collective self-defence system in Article 1 But Art 2 specifically says that this may only be done on request of the attacked state - Nicaragua had NOT requested aid from the US at the time that it started getting involved in the conflict Case also turned to customary international law to further prove that there is no rule permitting collective self-defence in the absence of a request by the state Nicaragua did eventually make a request to US for support, but at this point the stage of the conflict was much less dire, and it would no longer satisfy the criteria for an “armed attack” in Art 3 Therefore, the actions of the US in Nicaragua were a violation of the prohibition of the use of force A country can request help but specifically exclude one country: when Iraq invaded Kuwait, Kuwait said it would rather stay under Iraq’s cruel dictator than be saved by Isreal Self-Defence 7  Rebels supported/controlled by foreign states are NOT an armed attack War in Ukraine: originally Russia claimed that the rebels are independent of direct Russian control, they are just Ukrainian pro-Russian seperatists, but when it became clear that they were actually Russian soldiers, classified as an armed attack Therefore, legally speaking, the war started already in 2014 with annexation of Crimea Armed Attack Self-Defence 8  “the most grave forms of the use of force” ICJ, Nicaragua case, para 191 “the predicate for a valid claim of self-defence under the Charter is that the party resorting to force has been subjected to an armed attack. Localized border encounters between small infantry units, even those involving the loss of life, do not constitute an armed attack for purposes of the Charter.’’ Arbitral award of 19 December 2005, Ethiopia vs. Eritrea, jus ad bellum, Ethiopia’s claim 1–8 High threshold of force before it becomes an armed attack → wanting to minimise the amount of justified wars No self-defence against mere interventions, low-level force, or indirect force 1986 Nicaragua case (again) → court held that the Nicaraguan government’s actions NOT an armed attack, therefore no US right to collective self defence Armed attack = “not merely action by regular armed forces across an international border, but also “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to” (inter alia) an actual armed attack conducted by regular forces, “or its substantial involvement therein” BUT assisting rebels does NOT constitute an armed attack, only a threat or use of force, or an intervention There is no right to exercise collective self-defence based on the helping state’s own assessment of the situation In this case, the Nicaraguan government, having aided guerrillas in El Salvador by providing some arms, was NOT an armed attack Therefore US cannot justify its actions on the basis of collective self- defence Self-Defence 9  Dissenting opinion on Nicaragua case: threshold of ‘armed attack’ too strict, as most interventions these days are indirect, but nevertheless far-reaching consequences Summary of court decision Where a State is involved with the organization of “armed bands” operating in the territory of another State, this, “because of its scale and effects”, could amount to “armed attack” under Article 51 But that this does not extend to “assistance to rebels in the form of the provision of weapons or logistical or other support” Such conduct may not amount to an armed attack; but “may be regarded as a threat or use of force, or amount to intervention in the internal or external affairs of other States” It may readily be agreed that the mere provision of arms cannot be said to amount to an armed attack. But the provision of arms may, nevertheless, be a very important element in what might be thought to amount to armed attack, where it is coupled with other kinds of involvement. Accordingly, it seems to me that to say that the provision of arms, coupled with “logistical or other support” is not armed attack is going much too far. … it becomes difficult to understand what it is, short of direct attack by a State’s own forces, that may not be done apparently without a lawful response in the form of collective self-defence… This looks to me neither realistic nor just in the world where power struggles are in every continent carried on by destabilization, interference in civil strife, comfort, aid and encouragement to rebels, and the like. Self-Defence 10  Sir Robert Jennings Oil Platforms case (Iran vs US) 2003: US claimed it was a armed attack, but insufficient evidence, so no right to self-defence “… customary practice suggests that, subject to the necessity and proportionality criteria, even small-scale bombings, artillery, naval or aerial attacks qualify as ‘armed attacks’ activating Article 51 UN Charter, as long as they result in, or are capable of resulting in destruction of property or loss of lives. By contrast, the firing of a single missile into some uninhabited wasteland as a mere display of force, in contravention of Article 2(4) UN Charter, would arguably not reach the gravity threshold.” Tom Ruys, ‘Armed Attack’ and Article 51 of the UN Charter. Evolutions in Customary Law and Practice (Cambridge University Press 2010), 155 In practice, the threshold is lower from the ICJ requirement Focus on proportionality On the spot reaction to small cross-border incursions possible Pre-emptive self-defence? Two strains of thought: Restrictive reading of article 51 – self-defence only in the event of an (actual) armed attack Hans Kelsen (Austrian academic lawyer) Self-Defence 11  Pre-emptive self-defence against imminent armed attacks possible Imminent = if troops already on the way to the border Difference between preventive and pre-emptive self defence? Pre-emptive = self defence against na imminent attack Preventive = self defence against an attack that might unfold in a few weeks BUT states use these terms loosely, not set definitions Caroline test – Webster formula Canadian rebellion against Great Britain 1837 US nationals assisted from Navy Islands (Canadian Waters) by raiding the Canadian shore and attacking British Ships US supported the rebels from their own shore by the ship Caroline (American steamboat) British seized Caroline in American port, set her on fire and sent her over Niagara falls (two dead US nationals) US claimed that Britain violated their sovereign rights: UK destroyed a US ship on US territory Correspondence between Great Britain and US (Great Britain sought release of British subject, Mr McLeod): Mr Webster: “It will be for [her Majesty’s] Government to show a necessity of self- defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.” A threatened State, according to long established international law, can take military action as long as the threatened attack is imminent, no other means would deflect it and the action is Self-Defence 12  proportionate. High Level Panel on Threats, Challenges and Change of the United Nations, Dez 2004 para 188 2002 US National Security Strategy: US declared it would use pre-emptive self-defence post 9/11 While during the Cold War, nuclear weapons seen as a deterrent, they are now seen as “weapons of choice” “Traditional concepts of deterrence will not work against a terrorist enemy whose avowed tactics are wanton destruction and the targeting of innocents” Therefore, there is a need for anticipatory action to defend the US 6 Day War 1967 Historical context Extremely significant moment in the conflict Pre WW1, territory neglected by Ottoman empire = main Israeli argument; under Muslim control the area was completely underdeveloped Jewish immigration already pre WW1, post-WW1 came under British mandate, which promised Arab rulers independence with time (Balfour Declaration) Britain never wanted a colony there, they were just administering the territory, unpopular among both Arabs and Jews, Israeli terrorist attacks against Britain - e.g. against the King David hotel, which was the main command post for the British, killed a Swedish UN official Terrorism is the weapon of the weak Four waves of terrorism: anarachic wave, anti-colonial wave, socialist wave (fighting against imperialism), now Islamist wave directly against Self-Defence 13  civilians Previously, terrorists would attack the oppressors, today the civilians, individuals, are targeted 6 day war = first Israeli actual war of independence Egypt and Jordan controlled a lot of territories that had been promised to Israel (Gaza was under Egypt, West Bank under Jordan, Jerusalem was meant tpo be international zone under Jordan) 1948-1967 Suez crisis: British and French had to retreat their forces because the US told them to; pivotal moment because both had to accept the reality that they are no longer global players UN peacekeeping operation set up in the Suez Later, Nasser, portraying himself as a fighter against imperialism, kicked out the UN peacekeeping troops They had been a buffer between Israel and Egypt Nasser also closed the strait of Tiran, economic blockade on Israel, and sent troops to the border of Israel Israel did not want to wait to be attacked first; they lacked strategic depth, because they were such a small country (they cannot let the enemy in and then stab them in the back) Therefore, Israeli had to use a fortress defence approach, could not afford Egyptian troops to enter its territory Self-Defence 14  Occupied Palestinian territories = OPT First shot fired by Israel But: Egypt/Nasser had issued a series of threats, withdrew consent for the UNEF I peacekeepers, closed straights of Tiran, formed a military alliance with Jordan, amassed troops at the border 5 June Security Council meeting: Egypt and USSR charged Israel with aggression Israel claimed it had been attacked first: [This] morning Egyptian armoured columns moved in an offensive thrust against Israel’s borders. At the same time Egyptian planes took off from airfields in Sinai and struck out towards Israel. Egyptian artillery in the Gaza Strip shelled the Israel villages of Kissufim, Nahal-Oz and Ein Hashelosha. Netania and Kefar Yavetz have also been bombed.... The Egyptian forces met with the immediate response of the Israeli Defence Forces, acting in self- defence [in] accordance with Article 51 of the Charter… But in fact: Egypt had not (yet) attacked by land and air and Egyptian aircrafts had not (yet) approached Israel Israel’s foreign minister Abba Eban repeated his country’s position on 6 “On the morning of 5 June, June when Egyptian forces engaged us by air and land, Self-Defence 15  bombarding the villages of Kissufim, Nahal-Oz and Ein Hashelosha, we knew that our limit of safety had been reached, and perhaps passed. In accordance with its inherent right of self defence as formulated in Article 51 of the United Nations Charter, Israel responded defensively in full strength … approaching Egyptian aircraft appeared on our radar screens.” In the 4 July General Assembly meeting Israel also argued that the blockade itself was an act of war: The blockade is by definition an act of war, imposed and enforced through armed violence. […] From 24 May onward, the question who ← finally acknowledged that started the war or who fired the Egypt did not strike first, but framed Blockade as the act of first shot became momentously war irrelevant. […] From the moment the blockade was imposed, active hostilities had Self-Defence 16  commenced and Israel owed Egypt nothing of her Charter rights.” Security Council condemned neither side for aggression General Assembly rejected a Soviet-sponsored resolution labelling Israel as the aggressor July 7: Israel acknowledged it had struck first, justifying it as “legitimate defense” in anticipation of an Egyptian attack: “the massive concentration of Arab forces on Israel’s borders” endangered “its very existence” Due to lack of time + strategic depth they HAD to strike first, pre-emptive force justified Egypt is bigger, had more weapons… Reactions: No UN Member explicitly subscribed to the lawfulness of Israel’s actions Many states refrained from blaming one or the other state Muted sympathy for Israel (in light of its weaker geostrategic position) when USSR draft resolution was voted down in Security Council Arab states and states associated with USSR condemned Israel Therefore no legal conclusion: no Security Council resolution, international scene too divided But from today’s perspective → we know that an Egyptian attack was not in fact imminent, and therefore pre-emptive self-defence was not justified Israel now occupied territories that had been under Egyptian and Jordan control, but they could not claim them back, because they had also occupied those territories unlawfully Only the Palestinians have an actual right to that land Self-Defence 17  2005 Israel withdrew its troops from these territories, but this did not change the legal status of the territories? Preventive self-defence Iraq war: context 9/11 2001: most severe attack on the US since pearl harbour Attack by a non-state actor, and part of a larger terrorist threat to the US, because they had prior also attacked US embassies in other countries US, under George W Bush, switched its strategy: it must fight terrorism, not just against Afghanistan, but every terrorist threat to the US Oct 2002: US declared it must go to war against Saddam Hussein, accused him of connection to Al-Qaeda, and also attempted assassination of George Herbert Bush (previous president, GW Bush’s father) = need for pre-emptive force US had already once fought against Saddam when Iraq invated Kuwait Bush sr. had called on Iraqi people to rise up against Hussein, but they were brutally crushed, refugee crisis at Turkish border Iraq labelled as one of the ‘rogue states’ = states threatening world peace Iran because of hostage crisis in 1979 Aghanistan because of Taliban that allowed Al-Qaeda to operate on its territory North Korea since its formation Libya which sponsored terrorist attacks Syria Cuba And others… Hussein had already killed thousands of Kurds with chemical weapons Self-Defence 18  Hussein isolated in international politics US National Security Strategy, 17 September 2002 → No need to wait for attack to be imminent, because the means of war have changed, if nuclear weapon used, it will be too late by then, therefore US has a right to act preemptively if its cause is just For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat— most often a visible mobilization of armies, navies, and air forces preparing to attack. Self-Defence 19  We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction—weapons that can be easily concealed, delivered covertly, and used without warning. The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction— and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively. The purpose of our actions will always be to eliminate a specific threat to the United States or our allies and friends. The reasons for our actions will be clear, the force measured, and the cause just. “cause just” - revived the old just war theory? Self-Defence 20  Not complete nonsense; if you wait too long, your enemy becomes too strong But, international law of war is still tied to old, traditional conceptions of war, and this constitutes a return to the ‘laws of the jungle’ High Level Panel report, Dec 2004 → no preventive self-defense 191. … in a world full of perceived potential threats, the risk to the global order and the norm of non-intervention on which it continues to be based is simply too great for the legality of unilateral preventive action, as distinct from collectively endorsed action, to be accepted. Allowing one to so act is to allow all. Written after the Iraq war, reaction of international law, rejected the US national security strategy Labelled the action as “preventive” even though US said “pre-emptive” For them, “pre-emptive” is lawful, but only before an imminent attack, so different meaning of the word from the US Self-Defence 21  The US Security Strategy of 17 Sep 2002 ❌ by Art 51 UN Charter The reporting requirement of Article 51 and custom Procedural obligation (only) Absence of report → indication that state acting on the basis of self- defence itself not convinced that it had a right to self-defence? BUT no legal consequences Obligation is a remnant from the 1940s, when new of wars took longer to be spread Also made still with the hope that the Security Council would get involved with the conflict Immediacy and Necessity Self-Defence 22  No peaceful measures possible/reasonable Self-defence requires a certain temporal proximity to armed attack BUT: time must be granted for military preparations (e.g. Falklands Islands War) Took British a lot of time to prepare to respond to the Argentina’s occupation of the Islas Malvinas (Falklands) This did not invalidate their right to self-defence US not obligated to back Britain under NATO because Falklands not part of the North Atlantic area (just political allies, voluntary solidarity) Occupation = a continuous attack Ukraine can technically legally try to reconquer Crimea at any time Once armed attack over, self-defence measures afterwards not justified - unless many successive attacks? Proportionality Self-Defence 23  Old approach to international relation placed value on old alliances Trump has no such belief - erratic foreign policy Trump does not really care for proportionality: if you hit us, we will hit back three times harder (both in trade wars, as well as actual force) Three approaches to proportionality: 1. Self-defence must be proportionate to the prior attack 2. As much force as necessary to halt attack (and prevent further attacks?) 3. The least intrusive method to halt attack (and prevent further attacks) In practice → mixture of all three Proportionality in practice - threshold lower, as unrealistic to expect states to only do the bare minimum It would be mistaken, however, to think that there must be proportionality between the conduct constituting the armed attack and the opposing conduct… … a State which is the victim of an attack cannot really be expected to adopt measures that in no way exceed the limits of what might just suffice to prevent the attack from succeeding and bring it to an end. If, for example, a State suffers a series of successive and different acts of armed attack from another State, the requirement of proportionality will certainly not mean that the victim State is not free to Self-Defence 24  undertake a single armed action on a much larger scale in order to put an end to this escalating succession of attacks. Eighth Report on State Responsibility by Mr. Roberto Ago, Special Rapporteur—The Internationally Wrongful Act of the State, Source of International Responsibility (Part 1), Yearbook of the International Law Commission 1980. Vol. II(1), para 121 Who determines whether a measure was proportionate? The state which considers itself the victim → there is no time to consult the Security Council/other states and wait for their response BUT after the measures have been taken, other states can bring forward a dispute, which can be settled If, afterwards, state found to have acted unlawfully, will incur responsibility This as deterrence to acting disproportionally?? Nuclear Weapons? (Advisory Opinion of ICJ does not know) Can a state ever use nuclear weapons as self-defence and it be proportional, as there is such a huge risk of escalation and extreme destruction? If not, can just the existence of a nuclear weapon and using it as a threat be a proportionatal self-defence measure? Advisory Opinion acknolwedges the “policy of deterrence”, but ultimately does not know, because the use of nuclear weapons is not legal, and therefore the threat to use them should also not be legal, but also does not want to make it illegal, when the survival of a country could be at stake Example cases Oil platforms case (operation praying mantis) - accumulation of events theory (individual small attacks can, together, constitute an armed attack) Self-Defence 25  Non-state armed groups operating on the territory of DRC against Uganda, not prevented by DRC - obiter dictum in case: the reaction of Uganda (troops penetrating over 100km into DRC territory) was NOT proportionate to the non-state armed groups operating on the DRC territory Armed attack against citizens abroad? Tehran hostages case Operation Eagle Claw US unable to solve the crisis displomatically (negotiations failed as extremist government in place), 1979 Iran revolution in Tehran so they decided to act unilaterally against the previous government, instead which was closely tied to the west, Operation to rescue the US the Shah, who was living in excess hostages luxury, eventually led to the Troops, helicopters and toppling of the regime commandoes US embassy broken into Aircrafts landed in nearby city, but Inside they were destroying blinding sandstorm, one aircraft documents that proved that US crashed into something and wanted to overthrow the new exploded regime Rescue attempt failed and At the time Iranians feared they worsened relations with Iran would organise a counter- coup, as they had done in Self-Defence 26  1953, to reinstate the status Operation ended in disaster; image quo anti (what existed before) of dominant US shattered 52 US diplomats brutally taken Hostages held there for 444 days! hostage, released after the Algiers This failure arguably contributed to Accords why Carter was not reelected Diplomats have immunity from arrest Generally, countries reluctant to Is this an attack on the US? accept legality of using force to Embassy is NOT US territory - it is protect citizens abroad, because it merely inviolable (one cannot enter can be applied to widely (e.g. without admission by the Russia justifying war in Ukraine) ambassador) Iranian governmnent endorsed the actions of the demonstrators, (said they acted on behalf of Iran), therefore it was as if Iran itself took them as hostages US argued: armed attack against citizens abroad 94. At the same time, however, the Court must point out that neither the question of the legality of the operation of 24 April 1980, under the Charter of the United Nations and under general international law, nor any possible question of responsibility flowing from it, is before the Court. […] Vienna Convention on Diplomatic Relations = no use of force provisions, so case decision unfortunately completely irrelevant to determining legality of US actions Attacks against nationals of a state → attacks against the state? Protection of Nationals-doctrine Self-Defence 27  Requirements for protection of citizens abroad to be justified Imminent threat of injury to nationals A failure or inability on the part of the territorial sovereign to protect them Rescue operation is strictly confined to the objective of protecting its nationals So you cannot start a full blown war against a country because your citizens are endangered, but a minimally invasive operation Protection of Nationals-Doctrine State Practice (not necessarily legally justified, but claimed by the states ) UK in Suez crisis 1956 Not about protecting British nationals, but UK said it was protecting British interests of British companies US in Lebanon 1958 Belgium in Congo 1960 Belgium was colonial power in Congo, and committed many crimes there One of the few cases where the citizens abroad were actually threatened Belgium and USA in Congo 1964 Belgium and USA claimed it was protecting its companies there US in Dominican Republic (1965) Teheran (1980) Hostages crisis → not many countries complained, it was also a minimally invasive operation attempt, so understoof Grenada (1983) and Panama (1989) Grenada also had a revolution, need to protect US students tehre → rejected by other states, they were not actually threatened and they were not workers of the state like diplomats Self-Defence 28  Need to protect US nationals in Panama Israel in Entebbe (1976) Egypt in Cyprus (1978) US in Liberia and France in Chad 1990 France in Central African Republic 2003 Russia in Georgia 2008 Also completely false excuse Eastern Ukraine/Crimea 2014- Obviously bogus, no actual threat to nationals Locus classicus: Entebbe 1976 Cruel dictator of Uganda = Idi Amin Air France-flight with 248 passengers hijacked by Palestinian and German (the „revolutionary cells“) terrorists Flown to Entebbe via Paris (where all non- Jewish/non-Israeli passengers were freed) Idi Amin had given his approval (allowed the operation to end in Entebbe) Aim: freeing Palestinian fighters Israel’s reaction: a rescue operation to save its nationals Operation Entebbe/Operation Thunderbolt/Operation Jonathan carried by IDF on the basis of Mossad- intelligence and support by Kenya (entired Entebbe via Kenya) Self-Defence 29  Three hostages, all hijackers, 20 Wilfried Böse, co-founder of the Ugandan soldiers and one Israeli soldier “revolutionary cells” killed (Jonathan Netanyahu, brother of At the beginning of Operation Benjamin Netanyahu = current prime Entebbe he allegedly told minister of Israel) hostages to hide instead of Idi Amin subsequently retaliated by shooting them killing hundreds of Kenyans living in Uganda = collective punishment (Kenya did not retaliate as too weak) Legal justification by Israel of Operation Entebbe …the right of a state to take military action to protect its nationals in mortal danger. What mattered to [Israel] [...] was the lives of the hostages, in danger […]. No consideration other than this […] motivated the government of Israel. Israel’s rescue operation was not directed against Uganda […]. They were rescuing nationals from a band of terrorists and kidnappers who were being aided and abetted by the Ugandan authorities. Statement of Israel in the Security Council Only US explicitly supportive of Israel Others (Sweden, France, Germany, UK, Japan) commended it without taking a clear stance on the legality = only political act of solidarity Majority of states qualified it as a violation of international law Not clear that Uganda was unable/unwilling to protect/free the hostages More time needed No armed attack against Israel Protection of nationals as revival of gunboat diplomacy of powerful states Self-Defence 30  FOR protection of nationals-doctrine AGAINST protection of nationals- in contemporary international law doctrine in contemporary international law Supporters: US, UK, France, Israel, Canada, Russia, Australia Many weak states against it = seen as a tool of imperialism Older, pre-Charter right to self defence also extended to nationals Majority silent Opium War 1842 Art 3d UNGA Res 3314 does not mention nationals abroad British said they were protecting their traders to Threat of abuse (eg Russia in justify their military intervention South against China, because their Ossetia and Abkhazia) traders were not protected by Article 51 more restrictive the Chinese Emperor Japanese invasion of Manchuria 1931, German taking Sudetenland 1938 → colonial doctrine? Conclusion: no customary right to protect nationals abroad In practice often consent by states invoked Operation Enduring Freedom and the right to self-defence (US reaction post 9/11 attacks) Terrorist attacks attributable to Afghanistan “nexus Taliban” and Al-Qaeda Therefore attacks against both groups possible Self-Defence 31  “Safe harbour” doctrine = when US explicitly said it is not as war country allows its with Islam, but those who are resources/territory to be used by instrumentilising Islam to inflict terrorists, even if they themselves violence do not lead them Self-defence against non-state armed groups always permissible Security Council and NATO practice after 9/11 UNSC Res 1368, 12 September 2001 […] Recognizing the inherent right of individual or collective self-defence in accordance with the Charter […] UNSC Res 1373, 28 September 2001 self-defence again mentioned in preamble Announcement of „Operation Enduring Freedom“, 7 October 2001 US and UK both invoke the right to self-defence Operation not undertaken “against the people of Afghanistan. It is designed to strike against Al-Quida training camps and military installations of the Taliban regime in Afghanistan.” Taliban were politically isolated, so nobody complained against the war against them (even Russia, China, Iran and Saudi Arabia!) Universal condemnation of 9/11 attacks The facts are clear and compelling. The information presented points conclusively to an Al-Qaida role in the 11 September attacks. We know that the individuals who carried out these attacks were part of the world-wide terrorist network of Al-Qaida, Self-Defence 32  headed by Osama bin Laden and his key lieutenants and protected by the Taliban. On the basis of this briefing, it has now been determined that the attack against the United States on 11 September was directed from abroad and shall therefore be regarded as an action covered by Article 5 of the Washington Treaty, which states that an armed attack on one or more of the Allies in Europe or North America shall be considered an attack against them all. Statement by NATO Secretary General Lord Robertson Attack and control over territory 1990s primary threat to Israel no longer state After Palestinian terrorist forces, but terrorist groups → particularly attacks, Israel built a wall on Hamas the border Therefore they began constructing a wall Major issue was the West Bank, because 1993 Oslo Accords The Court also notes that Israel exercises control in the Occupied Palestinian Territory and that, as Israel itself states, the threat which it regards as justifying the construction of the wall originates within, and not Self-Defence 33  outside, that territory. The situation is thus different from that contemplated by Security Council resolutions 1368 (2001) and 1373 (2001), and therefore Israel could not in any event invoke those resolutions in support of its claim to be exercising a right of self- defence. ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 136 = FINAL CONCLUSION Wall advisory opinion GA asked: is this wall legal? It will cause hardship for regular Palestinians who work in Israel 139. Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State. However, Israel does not claim that the attacks against it are imputable to a foreign State. Israel did not say that it was being attacked by another State, because it did not recognise Palestine as a state Self-Defence 34  Because Israel had control over the broder, argument that it could not rely on Article 51 Judge Bürgenthal: In assessing the legitimacy of this claim, it is irrelevant that Israel is alleged to exercise control in the Occupied Palestinian Territory - whatever the concept of "control" means given the attacks Israel is subjected from that territory - or that the attacks do not originate from outside the territory. For to the extent that the Green Line is accepted by the Court as delimiting the dividing line between Israel and the Occupied Palestinian Territory, to that extent the territory from which the attacks originate is not part of Israel proper. Attacks on Israel coming from across that line must therefore permit Israel to exercise its right of self-defence against such attacks, provided the measures it takes are otherwise consistent with the legitimate exercise of that right. Judge Higgins: I fail to understand the Court's view that an occupying Power loses the right to defend its own civilian citizens at home if the attacks emanate from the occupied territory - a territory which it has found not to have been annexed and is certainly "other than“ Israel. Further, Palestine cannot be sufficiently an international entity to be invited to these proceedings, and to benefit from humanitarian law, but not sufficiently an international entity for the prohibition of armed attack on Self-Defence 35  others to be applicable. This is formalism of an unevenhanded sort. Ruth Wedgwood: if the occupier is taken to stand in the shoes of the local sovereign, then it also enjoys the right and duty of the sovereign to prevent cross-border attacks by local inhabitants, and to protect its security forces as well ICJ on self-defence against non-state actors (DR Congo v. Uganda, 2005) Uganda invaded the DRC on grounds that anti-Ugandan rebels were in the DRC, using it as a base to destabilise Uganda However, it was not proven that the DRC was supporting the rebels, and thus the invasion of the DRC was not justified Even if it was, court held it would not have been proportionate nor necessary 146. It is further to be noted that, while Uganda claimed to have acted in self-defence, it did not ever claim that it had been subjected to an armed attack by the armed forces of the DRC. The „armed attacks“ to which reference was made came rather from the ADF. The Court has found above (paragraphs Self-Defence 36  131-135) that there is no satisfactory proof of the involvement in these attacks, direct or indirect, of the Government of the DRC. The attacks did not emanate from armed bands or irregulars sent by the DRC or on behalf of the DRC, within the sense of Article 3 (g) of General Assembly resolution 3314 (XXIX) on the definition of aggression, adopted on 14 December 1974. The Court is of the view that, on the evidence before it, even if this series of deplorable attacks could be regarded as cumulative in character, they still remained non- attributable to the DRC. 147. For all these reasons, the Court finds that the legal and factual circumstances for the exercise of a right of self-defence by Uganda against the DRC were not present. … The war in Syria and the ius ad bellum: ISIS and the right to self defence ISIS and the right to self-defense we [Iraq] have requested the United States of America to lead international efforts to strike ISIL sites and military strongholds, with our express consent. The aim of such strikes is to end the constant threat to Iraq, protect Iraq’s citizens and, ultimately, arm Iraqi forces Self-Defence 37  and enable the m to regain control of Iraq’s borders. Ibrahim al-Ushayqir al-Ja‘fari, Minister for Foreign Affairs of Iraq, 20 September 2014 ISIL and other terrorist groups in Syria are a threat not only to Iraq, but also to many other countries, including the United States and our partners in the region and beyond. States must be able to defend themselves, in accordance with the inherent right of individual and collective self-defence, as reflected in Article 51 of the Charter of the United Nations, when, as is the case here, the government of the State where the threat is located is unwilling or unable to prevent the use of its territory for such attacks. The Syrian regime has shown that it cannot and will not confront these safe havens effectively itself. Accordingly, the United States has initiated necessary Self-Defence 38  and proportionate military actions in Syria in order to eliminate the ongoing ISIL threat to Iraq … In addition, the United States has initiated military actions in Syria against al- Qaida elements in Syria known as the Khorasan Group to address terrorist threats that they pose to the United States and our partners and allies. Samantha J Power, 23 September 2014 Unwilling or unable doctrine = if the state is unwilling or unable to prevent the use of its territory for attacks, this justifies another state to act in self-defence NOT accepted explicitly by most states The Security Council has described the terrorist acts of Islamic State in Iraq and the Levant (ISIL), including abuses committed against the civilian populations of the Syrian Arab Republic and Iraq, as a threat to international peace and security. Those acts are also a direct and extraordinary threat to the security of France. In accordance with Article 51 of the Charter of the United Nations, France has taken actions involving the participation of military aircraft in response to attacks carried out by ISIL from the territory of the Syrian Arab Republic. Self-Defence 39  —François Delattre (France), 8 September 2015 Security Council Resolution 2249 The Security Council […] 5. Calls upon Member States that have the capacity to do so to take all necessary measures, in compliance with international law, in particular with the United Nations Charter, as well as international human rights, refugee and humanitarian law, on the territory under the control of ISIL also known as Da’esh, in Syria and Iraq, to redouble and coordinate their efforts to prevent and suppress terrorist acts committed specifically by ISIL also known as Da’esh as well as ANF, and all other individuals, groups, undertakings, and entities associated with Al-Qaida, and other terrorist groups, […] and to eradicate the safe haven they have established over significant parts of Iraq and Syria; Moved towards endorsing a right to self defence against terrorist action, but did not explicitly state that it is lawful So to this day unclear whether there is such a right to self defence By adopting the resolution, the Council had unanimously recognized the exceptional nature of the threat, and had called on all Member States to eradicate Da’esh sanctuaries and push back its ideology. The text provided a guarantee that there would be an effective fight against transnational terrorism, he said, pointing out that collective action could now be based on Article 51 of the United Nations Charter. —Statement by François Delattre (France) Self-Defence 40  Self-defence against non-state actors? Self-defence against quasi-de-facto-regimes permissible: de-facto regimes controlling territory / acting like a state lacking any political legitimacy (terrorist groups) Self-defence against state/government not permitted / only if sufficient nexus (= connection) Self-defence against other non-state actors? → still unresolved Self-Defence 41