Reappraising the Resort to Force: International Law, Jus ad Bellum and the War on Terror 9781472564962, 9781841136097

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For Lucy

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Acknowledgements This book developed from a short paper that I was asked to present at a Symposium organised jointly by the University of Waikato Law School in New Zealand and the McCoubrey Centre for International Law at the University of Hull Law School, and held in Hull in February 2005. For those who may be interested, a version of the original paper can be found in (2005) 8 Yearbook of New Zealand Jurisprudence, Special Issue: Law and Security after September 11th. Thanks are due to Dr John Hopkins, then of Waikato Law School and now of the University of Canterbury Law School, and to Dr Richard Burchill, Director of the McCoubrey Centre, for their initial invitation to participate, to the other participants for their comments and questions, and to the numerous colleagues and students who have assisted in the formulation of my arguments in the intervening period. Thanks, in particular, must go to Dr Matthew Happold, who took the time to comment on a draft of the manuscript, and provided me with numerous insightful comments and suggestions. The usual disclaimer regarding errors and inaccuracies, of course, applies. The fact that it has taken quite so long for this book to appear can be put down to a number of factors, including 14 months of severe personal disruption for my family following the extensive flooding that affected Beverley, Hull and the surrounding area in June 2007, and our subsequent, all-consuming battle with unreasonable, incompetent and intransigent insurers. I will not name them here, but they know who they are! The end result stands as a testament to the patience of Richard Hart and Rachel Turner, neither of whom (at least openly!) began to question whether the manuscript would ever arrive, and both of whom somehow managed to remain extremely supportive throughout the entire process. Thanks are also due to Melanie Hamill and Joanne Ledger of Hart Publishing for their assistance. My principal thanks, however, are reserved for my wonderful family: my wife, Alison, and my daughter, Lucy. Both of them endured an extremely difficult time during 2007–2008, but somehow emerged from the experience having provided me with their unfailing love, support and patience throughout—as they continue to do. In return, I can only strive to ensure that my work/life balance remains weighted firmly in their favour.

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Foreword The suggestion that the world changed on September 11th, 2001 has become a bit of a cliché. Yet, in the field of security affairs generally, and that of the public international law governing the use of force specifically, it certainly seems to have done so. On that day, a determined band of suicide terrorists hijacked four commercial airliners, flying two into the World Trade Center twin towers and one into the Pentagon, as a fourth crashed in a Pennsylvania field following a heroic attempt by passengers to overpower their captors. Thousands perished. The world economy suffered billions of dollars in losses. National security policies shifted overnight. And the consequent impact of the attacks—from heightened air travel security practices to often questionable intelligence practices— continues to tangibly affect the daily lives of the global populace. A shadowy terrorist network with loosely affiliated cells in some 60 nations had attacked the world’s most powerful State. The United States and its closest allies responded by launching Operation Enduring Freedom against not only al Qaeda bases in Afghanistan, but against the Taliban regime of the country. Sadly, the military operations did not prevent further transnational terrorist attacks. Bali, Madrid, London, Amman, Algiers, Baghdad. The list continues to grow and the death toll mounts. And the conflict in Afghanistan has now spread to the tribal areas in Pakistan, where al Qaeda and Taliban forces have sought sanctuary, and where US forces have conducted controversial air strikes against them. Within two years, attention turned to Iraq as the United States and United Kingdom saber-rattled over Saddam Hussein’s alleged development of weapons of mass destruction and continued resistance to UN weapons inspections. Assertions of a nexus with transnational terrorism heightened the angst. Unable to secure a United Nations Security Council mandate to take action, in March 2003 a US led coalition launched Operation Iraqi Freedom against the country. In contrast to Operation Enduring Freedom, Iraqi Freedom engendered widespread condemnation on grounds of both legitimacy and legality, including from some of the United States’ and United Kingdom’s closest friends. Today, hundreds of thousands of international troops remain engaged in Operation Enduring Freedom, Operation Iraqi Freedom, and the NATO-commanded International Security Assistance Force. The operations continue to draw attention from experts in global and regional security, counter-terrorism, counter-insurgency, stability operations and

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x Foreword humanitarian relief. Similarly, legal experts continue to debate the fallout of the operations in the context of the jus ad bellum, that facet of public international law that governs when a State may resort to force as an instrument of its national policy. Prior to 9/11 it all seemed so simple. When non-State actors engaged in violence, of whatever scale, the appropriate legal paradigm was law enforcement, informed in its execution by human rights law and domestic norms. Instances of robust military operations against such terrorist groups located in another State’s territory typically resulted in international condemnation. As enunciated by the International Court of Justice in its 1986 Nicaragua judgment, only when said groups were ‘sent by or on behalf’ of a State (or when ‘substantially involved’ in the attacks) was the jus ad bellum implicated such that the terrorists and their State sponsors became liable to a forcible response in self-defense. As to State-on-State conflict, the rules were equally clear cut. Pursuant to Article 2(4) of the UN Charter, the threat or use of force by one State against another was prohibited, save in two instances specified in the Charter itself. The first comprised the issuance—following a finding by the Security Council that a particular situation amounted to a threat to the peace, breach of the peace, or act of aggression—of a Council mandate to use force under Article 42. Article 51 contained the second, the right to engage in individual or collective self-defense in response to an armed attack. As then understood by most scholars and practitioners, the source of the armed attack was necessarily another State. But then 9/11 shook the jus ad bellum to its very foundations. Although conducted by transnational terrorists, States and international organizations quickly discarded law enforcement as the exclusive response paradigm. For instance, the Security Council adopted numerous resolutions citing the law of self-defense, NATO activated Article V of the North Atlantic Treaty (which is expressly based on Article 51 of the UN Charter), and many States offered assistance in the form of troops or other support in collective self-defense. It was therefore unsurprising that when Operation Enduring Freedom began the United States and its key partners informed the Security Council that they were acting pursuant to their right of self-defense. The attacks directly against the Taliban, who could hardly be accused of offering support to al Qaeda to the degree previously deemed necessary to subject them to an attack in self-defense, complicated legal analysis. Yet despite these departures from the accepted prescriptive architecture, nary a whimper in opposition was heard, even from the staunchest opponents of the United States and United Kingdom. International law scholars furiously sought to discern the legal implications of the events, often in ways that were counter-factual and counter-normative. Their explanations—ranging from delicate parsing of Charter text to claims of ‘instant custom’—evidenced great creativity, but little consensus.

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This legal fog was dramatically exacerbated with the issuance by the United States of a National Security Strategy in 2002 that claimed the right to engage in preemptive self-defense. Was this merely reasonable adaptation of the concept of anticipatory self-defense to current realities or rather the embrace of a new right, perhaps one more accurately labeled ‘preventive’ self defense? Ongoing counterterrorist strikes into Pakistan, some conducted without that government’s consent, have added further fuel to the jus ad bellum dialogue. Are such operations consistent with the law of self-defense or do they violate Pakistan’s territorial integrity? Lawful or unlawful? Operation Iraqi Freedom similarly challenged the extant jus ad bellum. The rhetoric as to a basis for using force rose precipitously in the months leading up to the invasion. Could action be justified on the basis of selfdefense against weapons of mass destruction and terrorism? Regime change? Humanitarian intervention? Democratization? Most of the lay debate either wildly contorted the law or was extra-legal. While consensus existed that the Security Council possessed the authority to sanction the use of force against Iraq, no such resolution proved possible in the face of unyielding opposition from various members of the Council, including, inter alia, P-5 heavyweight France. The United States and United Kingdom ultimately justified their operations on a hyper-legal confluence of the law of cease-fire and certain Security Council resolutions dating back to the First Gulf War of 1990–91. Although the explanation was legally credible to some (including this writer), it sold poorly to academia, foreign governments and the international public. Even if the operation was legal, it appeared illegitimate to many observers. Matters have become even more confused in light of recent International Court of Justice opinions, particularly Oil Platforms (2003), The Wall (2004), and Armed Activities (2005). With regard to the law of self-defense, and especially that bearing on actions by non-State actors, the Court seems to have ignored the impact of State practice in the aftermath of 9/11. Is this because it rejects contextual approaches to the interpretation and application of international law or because it finds that the practice in question has not matured into customary law? Perhaps the Court is uncomfortable with the practical implications of a contrary finding. Or perhaps it simply ‘got it wrong’, a possibility suggested by numerous distinguished commentators, including several members of the Court itself. Finally, State practice, in the form of uses of force and State reactions thereto, continues to shape post-9/11 understandings of the jus ad bellum. Thus, instances of conflict such as the Israeli actions in Syria and Lebanon, Russian counter-terrorists strikes along its border with Georgia, the Russia-Georgia war, and Ethiopian military operations in Somalia are of normative import in understanding the state of the law today, as well as its likely vector.

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In this book, Professor Lindsay Moir, Director of The University of Hull Law School, has taken on the herculean task of deconstructing and construing the jus ad bellum in the face of these complex events. He cautiously notes that ‘it may be dangerous, or premature, to conclude that any enduring change in international law has occurred’, and that ‘the UN Charter paradigm regulating the use of force is not dead’. While some may disagree with these assertions, it is unquestionable that Professor Moir offers a surgically precise analysis that lends clarity to a topic which has thus far generated heated debate and no small amount of confusion. His contribution in this regard cannot be over estimated. Professor Moir’s work will surely prove of great value to scholars and students. Much more important, however, will be its impact on State practice, for Reappraising the Resort to Force: International Law, Jus ad Bellum and the War on Terror offers practitioners in the field a sophisticated, yet accessible, resource for understanding the jus ad bellum as they provide advice to decision-makers on the most momentous calculation they can make in international affairs—whether to employ force in pursuit of national interests. Michael N Schmitt College of International and Security Studies George C. Marshall European Center for Security Studies Garmisch-Partenkirchen, Germany June 2009

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Table of Cases Advisory Opinion on Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), ICJ Reports (1962) 151...................................36 Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276, ICJ Reports (1971) 15 .............................37 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports (2004) 135 ...................................................47, 49, 131–32, 134, 137, 139, 148 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports (1996) 226....................................................28, 56, 124 Application of the Convention of 1902 Governing the Guardianship of Infants, Judgment, ICJ Reports (1958) 62 .............................................127 Caroline Case, 29 British and Foreign State Papers 1137; 30 British and Foreign State Papers 195....................................12–13, 16, 51, 75, 77, 110 Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment of 19 December 2005 (Armed Activities Case), ...........................xi, 135–40, 148, 153 Case Concerning Military and Paramilitary Operations in and Against Nicaragua (Nicaragua v United States of America), ICJ Reports (1986) 14 ............................x, 6–7, 9, 11, 13–14, 17, 23–24, 46, 48–50, 60–64, 118–20, 123, 127, 132, 136–39, 141, 147–48, 150–53, 156 Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America), Judgment, 6 November 2003, ICJ Reports (2003) 161 ............................................................xi, 117, 119, 122–25, 127–30 Corfu Channel Case (United Kingdom v Albania), ICJ Reports (1949) 4 ...................................................................................................7–8, 61 Naulilaa Arbitration (Germany v Portugal), (1928) 2 Reports of International Arbitral Awards 1011 ...............................................................56 Prosecutor v Dusko Tadic, Appeal on Jurisdiction, 2 October 1995, (1996) 35 International Legal Materials 32 ....................................................33 Prosecutor v Dusko Tadiç, Judgment of the Appeals Chamber, 15 July 1999, (1999) 38 International Legal Materials 1518.............50, 60, 63 United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), ICJ Reports (1980) 3 ................................................65–66

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Table of Treaties and Other Instruments Charter of the United Nations, 1945, 89 UNTS 119..............x, xii, 1–2, 6–11, 13–22, 27–28, 31–35, 37–39, 42–47, 49, 52–54, 57, 59–61, 63–64, 67–70, 73–76, 78, 86, 89, 92, 95–97, 103, 106, 108–9, 112–16, 118, 120–21, 128–33, 135–39, 141–44, 146, 150–51, 154, 156 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention IV), 1949, 75 UNTS 287..................135 North Atlantic Treaty (Washington Treaty) .................................x, 42, 47, 54 Regulations Respecting the Laws and Customs of War on Land, Annexed to Hague Convention (IV) Respecting the Laws and Customs of War on Land, 1907, UKTS 9 (1910), Cd. 5030 ........87–88, 135 Treaty of Amity, Economic Relations and Consular Rights 1955.....126–30 Treaty on Non–Proliferation of Nuclear Weapons....................................108

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Introduction Since the creation of the United Nations in 1945, the ability of states to resort to armed force without violating what is, perhaps, the most fundamental principle of modern international law has been severely limited. Article 2(4) of the UN Charter renders the use of force unlawful, unless such force can be demonstrated to come within the ambit of the two exceptions to the prohibition contained elsewhere in the Charter, namely the inherent right of individual and collective self-defence, as provided for in Article 51, or force that has been authorised by the United Nations Security Council acting under Chapter VII of the Charter. Despite these limitations, the use of force by states has remained a constant in international relations, and continues to permeate international society. Much of the relevant body of law—that is, the jus ad bellum—is the subject of widespread agreement, at least at the doctrinal level. Whilst relatively easy to state, however, the rules have not always been as easy to apply. Naturally, there have always been (and continue to be) areas of disagreement between states and commentators, good examples being the difficult questions of how and/or whether anticipatory self-defence and self-defence in response to terrorist attacks fit within the existing legal paradigm. Nonetheless, disagreement as to the legality of the unilateral resort to force by states has tended to focus as much on questions of how the particular facts of any given situation can best be reconciled with the framework of international law as it has on the scope and content of the jus ad bellum itself. Recent developments, such as the increased importance of non-state actors, and their corresponding capacity to carry out large-scale acts of international terrorism in and against states across the world, have combined to place the traditional rules restricting armed force under considerable strain. In this respect, what has become known somewhat imprecisely as the ‘War on Terror’ has served as the catalyst (or perhaps, in some cases, the excuse) for a number of states to seek a loosening of the relevant legal constraints.1 Although arguments relating to the use of force 1 C Gray, International Law and the Use of Force, 3rd edn (Oxford, Oxford University Press, 2008) at 1, suggests that the phrase may simply have become a ‘rhetorical device’, designed to legitimate a number of other policy goals.

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against non-state actors responsible for terrorist attacks had been made by states previously, there can be little doubt that attacks launched against the United States by international terrorists on 11 September 2001, the subsequent forcible response against Afghanistan, and the virtually universal levels of support and approval for the military response in question represented the main turning point in this area. It is certainly true that ‘September 11 generated a new dimension in legal and political discourse’.2 Indeed, the heightened awareness—if not fear—of the threat of future similar terrorist acts has had an enormous impact on many aspects of domestic law and daily life in numerous states, resulting in a significant erosion of civil liberties. At the same time, it appeared that the use of armed force against terrorists and those states in which the terrorists were based was becoming more widely seen as an acceptable option by the international community, impacting in equal measure on international law and, in particular, the jus ad bellum. It even led the United States to claim an extensive right to take military action against threats to its national security before those threats had actually materialised. Not only did this approach seek to assert that a much broader notion of self-defence was possible than that of traditional ‘anticipatory’ self-defence (that is, self-defence against a threat that was imminent—a concept that was, and still is, considered rather controversial by some), it also apparently sought to assume much of the role assigned to the Security Council by Article 24 of the Charter of the United Nations. Buoyed by the level of international approval for the military action taken against Afghanistan in 2001 (and seeking to place the desirability, necessity and legality of their actions in the context of a post-9/11 world and legal order), the United States and United Kingdom undertook further military operations against Iraq in 2003. Despite American attempts to broaden the right of self-defence, however, both states asserted that Operation Iraqi Freedom came within the pre-existing jus ad bellum framework, having been authorised by a combination of previous Security Council resolutions. In contrast to the widespread acceptance of the use of force against Afghanistan, the use of force against Iraq met with an extremely hostile reception. Indeed, Maogoto has suggested that international support not only for the United States, but also for any new discourse relating to the use of armed force against international terrorism, ‘fizzled away when the US chose to squander the legal and moral capital it had gained in the action against Afghanistan by invading Iraq on a mish-mash of justifications that were generally met with international scepticism’.3

2 JN Maogoto, Battling Terrorism: Legal Perspectives on the Use of Force and the War on Terror (Aldershot, Ashgate, 2005) at 4. 3 ibid.

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3

The level of international popular protest against Operation Iraqi Freedom was both massive and unprecedented.4 Of particular interest and importance, however, was the fact that criticism of the United States and United Kingdom was not limited to the political or moral sphere. Rather, criticism repeatedly hinged on the perceived illegality of their actions. Thus, international law was clearly seen as having a central role to play in the debate. For a generation of international law scholars perhaps more used to defending the validity and relevance of their subject in the face of an apparent disregard for the law by states, such widespread and popular invocation of the rules of international law was as innovative as it was startling. Of course, Operation Iraqi Freedom continued regardless.5 This perhaps provided confirmation, should it have been needed, that powerful states still feel relatively unconstrained by the rules of international law where those rules cannot easily be reconciled with national policy. Nonetheless, the military operations also resulted in the position whereby, ‘international law on the use of force, its content and effectiveness, is now the object of more speculation than ever before’.6 Faced with both of these outcomes, Thomas Franck has asked what role the lawyer is to play. He concluded that it is to stand tall for the rule of law. What this entails is self-evident. When the policymakers believe it is to society’s immediate benefit to skirt the law, the lawyer must speak of the longer-term costs. When the politicians seek to bend the law, the lawyers must insist that they have broken it. When a faction tries to use power to subvert the rule of law, the lawyer must defend it even at some risk to personal advancement and safety. When the powerful are tempted to discard the law, the lawyer must ask whether someday, if our omnipotence wanes, we may not need the law.7

Academic (and, indeed, popular) debate on the lawfulness or otherwise of both Operation Enduring Freedom and Operation Iraqi Freedom remains widespread and ongoing, and it is within this broad context, reflecting Franck’s view of the role of international lawyers, that this book seeks to play its part. Chapter one accordingly sets out, in necessarily concise terms, the relevant rules of the jus ad bellum as they stood at the moment of the 11 September 2001 attacks. Chapters two and three then assess the extent to which military operations in and against Afghanistan and Iraq 4 See D McGoldrick, From ‘9 –11’ to the Iraq War 2003: International Law in an Age of Complexity (Oxford, Hart Publishing, 2004) at 15. 5 Or, perhaps, not quite ‘regardless’—the states involved did bow (to a greater or lesser extent) to considerable public pressure with regard to the publication of formal legal justifications for their resort to force. Both the content of and process behind the legal advice received by the UK government in particular remains a continuing source of controversy. 6 Gray, above n 1 at 4. 7 TM Franck, ‘What Happens Now? The United Nations after Iraq’ (2003) 97 American Journal of International Law 607 at 620.

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respectively can be brought within the confines of that legal framework. In neither case is this particularly easy. The crux of the matter, however, is that—at least, in simple terms—it can be argued that international law is simply reflective of what states are prepared to accept as being binding upon them, usually best evidenced by what states say, and what states do. The attitudes of states to developments in international relations and the international legal system are not static, and the rules of international law therefore possess an innate capacity to develop organically, and to change. Conduct which may have been difficult to reconcile with a pre-existing body of rules, when allied with a favourable response on the part of the international community to such conduct, and to the legal justifications advanced for it, can serve to modify the content of existing law. In this way, many commentators have contended that the international community’s response to the ‘War on Terror’, taken in this context to encompass that military action taken against Afghanistan and Iraq, has significantly impacted upon the rules of international law regulating resort to armed force. Some scholars have suggested that the operations in Afghanistan and Iraq could herald a sea-change in terms of when states may—or will—resort to force, possibly even risking the very future of the United Nations system as we know it.8 As Christine Gray has indicated, the present discussion ‘may be seen as part of the wider—and sometimes rather apocalyptic— debate as to whether the USA now feels itself free from any constraint of international law and the implications of this for the UN and for other states’.9 Whether subsequent practice and the recent change of American administration will have a significant, long-term and calming influence in this area remains to be seen. At any rate, a detailed examination of the political impact of these military operations on the future of the United Nations and the UN Security Council is beyond the scope of this volume. As far as international law is concerned, however, it is certainly possible that the use of force against Afghanistan, in particular, has resulted in some level of change to the jus ad bellum. In light of the conclusions reached in chapters two and three, and the continuing debate in this area, chapter four goes on to assess subsequent developments and treatments of the relevant questions, as expressed since 2003 by the International Court of Justice, by states and by commentators alike. It concludes with an examination of whether and/or the extent to which the rules regulating the resort to force in international law have undergone (or, indeed, may still be undergoing) a radical transformation. 8 See eg, Franck, ibid; RA Falk, ‘What Future for the UN Charter System of War Prevention?’ (2003) 97 American Journal of International Law 590; TJ Farer, ‘The Prospect for International Law and Order in the Wake of Iraq’ (2003) 97 American Journal of International Law 621; JE Stromseth, ‘Law and Force After Iraq: A Transitional Moment’ (2003) 97 American Journal of International Law 628. 9 Gray, above n 1 at 252.

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1 General Legal Framework 1945–2001 The UN Charter Paradigm and the Jus ad Bellum

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HE POINT OF origin for any discussion relating to the rules of the jus ad bellum—that is, that branch of international law regulating the resort to armed force by states—must be the universally accepted truth that international law clearly prohibits the use of force by states in their international relations. Many scholars have sought to address the historical nature and development of the prohibition in considerable detail.1 The purpose of this book is simply to assess whether the military response to the ‘War on Terror’ (which, for present purposes, is taken broadly to comprise the military operations launched against Afghanistan in the wake of the 11 September 2001 terrorist attacks, and against Iraq in 2003) has brought about any change in the relevant legal regime. An examination of the international legal system’s various attempts to limit and/or outlaw the use of force by states is not accordingly necessary. Rather, it will suffice to begin with a brief examination of the jus ad bellum as it stood on the morning of 11 September 2001.2

I THE PROHIBITION OF THE USE OF FORCE

The prohibition on the use of force in international law crystallised in 1945, and is articulated in Article 2(4) of the United Nations Charter, in the following terms: 1 See eg, I Brownlie, International Law and the Use of Force by States (Oxford, Oxford University Press, 1963) at 3–122; SC Neff, War and the Law of Nations: A General History (Cambridge, Cambridge University Press, 2005) at 285–356; Y Dinstein, War, Aggression and Self-Defence, 4th edn (Cambridge, Cambridge University Press, 2005) at 63–85; AC Arend and RJ Beck, International Law and the Use of Force (New York, Routledge, 1993) at 11–25; L C Green, The Contemporary Law of Armed Conflict, 3rd edn (Manchester, Manchester University Press, 2008) at 1–25; A Randelzhofer, ‘Article 2(4)’ in B Simma (ed), The Charter of the United Nations: A Commentary, 2nd edn (Oxford, Oxford University Press, 2002) Vol I, 112 at 114–16. 2 Hence, reference to several works in this chapter will be to those editions that were current at that date, rather than to the most recent edition.

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General Legal Framework 1945–2001 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.3

Although the terms of the prohibition may, prima facie, seem relatively clear, the precise scope of this provision had nonetheless been the subject of continued debate, even regarding the central concept of ‘force’ itself— although this is now largely accepted as referring only to military, or armed, force.4 There had, for example, been suggestions that the Charter’s prohibition on the unilateral use of force was predicated upon—and was therefore necessarily contingent upon—an effective and functioning system of collective security.5 Thus, Sir Humphrey Waldock had argued that, ‘The more effective the executive arm of the United Nations is made, the stricter, we may be sure, will become the attitude of members to the use of force and their insistence that, except in the case of urgent selfdefence, lawful use of force is a monopoly of the United Nations itself’.6 The International Court of Justice (ICJ) authoritatively rejected any such notions, stating clearly in the Nicaragua case that, in light of the prevailing opinio juris, the prohibition of the use of force could be regarded as a principle of customary international law, ‘not as such conditioned by provisions relating to collective security, or to the facilities or armed contingents to be provided under Article 43 of the Charter’.7 Even on the bench of the ICJ, however, lingering disagreement remained, with Judge Jennings delivering a partially dissenting opinion in the following terms: The original scheme of the United Nations Charter, whereby force would be deployed by the United Nations itself, in accordance with the provisions of Chapter VII of the Charter, has never come into effect. Therefore, an essential element in the Charter design is totally missing. In this situation it seems dangerous to define unnecessarily strictly the conditions for lawful self-defence, so as to leave a large area where both a forcible response to force is forbidden, 3

Charter of the United Nations 1945, 89 UNTS 119. See eg, Dinstein, above n 1 at 85–86; Randelzhofer, above n 1 at 117; R Higgins, Problems and Process: International Law and How We Use It (Oxford, Oxford University Press, 1994) at 248. C Gray, International Law and the Use of Force, 3rd edn (Oxford, Oxford University Press, 2008) at 30 is rather more equivocal on the issue. 5 See eg, JL Brierly, The Law of Nations, 6th edn (H Waldock (ed.)) (Oxford, Oxford University Press, 1963) at 427–28; DP O’Connell, International Law, 2nd edn (London, Stevens and Sons, 1975) Vol I at 303–304; WM Reisman, ‘Coercion and Self-determination: Construing Charter Article 2(4)’ (1984) 78 American Journal of International Law 642. 6 Brierly, above n 5 at 432. 7 Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports (1986) 14 at para 188. See also D Nincic, The Problem of Sovereignty in the Charter and in the Practice of the United Nations (The Hague, Martinus Nijhoff, 1970) at 76–77; JF Murphy, ‘Force and Arms’ in CC Joyner (ed), The United Nations and International Law (Cambridge, Cambridge University Press, 1997) 97 at 102–103, argued that ‘the legislative history of Article 2(4) lends no support to the thesis that the effective functioning of a system of collective security is regarded as a condition of the continuing validity of the article’s severe constraints on the use of force’. 4

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The Prohibition of the Use of Force 7 and yet the United Nations employment of force, which was intended to fill that gap, is absent.8

Likewise, there had been a considerable degree of discussion as to whether the terms of Article 2(4) represented a blanket prohibition on the use of force in international relations, or whether states in fact retained some room for manoeuvre in light of those textual provisions making reference to territorial integrity, political independence and the purposes of the United Nations. In short, it had been maintained by some commentators that it was conceivable for one state to resort to the use of military force against another state without violating the terms of Article 2(4). Julius Stone, for example, had argued that to accept Article 2(4) as prohibiting the use of force outright was to take an ‘extreme view’, and one which ‘does not spring self-evidently from the relevant provisions of the Charter’: Article 2(4) does not forbid ‘the threat or use of force’ simpliciter; it forbids it only when directed ‘against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations’.9

His position was reminiscent of arguments made previously by the United Kingdom in the Corfu Channel case, namely, that its mine-sweeping operation (known as Operation Retail) carried out in Albanian waters— but without the consent of Albania—on 12–13 November 1946 did not represent a violation of Article 2(4) in that it had ‘threatened neither the territorial integrity nor the political independence of Albania. Albania suffered thereby neither territorial loss nor any part of its political independence’.10 Similar arguments had also been made subsequently in relation to the ability of states to rescue nationals or to undertake humanitarian intervention, for example in the context of Israel’s rescue mission at Entebbe in 1976, the same state’s attack on Iraq’s ‘Osirak’ nuclear reactor in 1981 and NATO’s military operations in Kosovo in 1999.11 That such 8

Nicaragua case, above n 7, Dissenting Opinion of Judge Jennings, at 543–44. See J Stone, Aggression and World Order (London, Stevens and Sons, 1958) at 95. See also DW Bowett, Self-defence in International Law (Manchester, Manchester University Press, 1958) at 152. 10 See the argument of the United Kingdom’s agent, Sir Eric Beckett, Corfu Channel case (United Kingdom of Great Britain and Northern Ireland v Albania), Oral Proceedings (First Part), Vol III, CR 1949/1 at 296. 11 See eg, Green, above n 1 at 11; A D’Amato, ‘Israel’s Air Strike Upon the Iraqi Nuclear Reactor’ (1983) 77 American Journal of International Law 584 at 584–85; Gray, above n 4 at 32–33, 45–46. Despite general agreement, some commentators apparently believe that doubt remains. CC Joyner, International Law in the 21st Century (Lanham, Rowman and Littlefield, 2005) at 166, for example, wrote subsequently that the answer to the question as to whether the use of force not aimed at the territorial integrity or political independence of another states violates Article 2(4) ‘remains unclear’. 9

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arguments continued to be made is, perhaps, surprising given that the ICJ had not accepted the United Kingdom’s contention in 1949.12 Furthermore, and referring to the background to Article 2(4), Ian Brownlie had written in 1963 that, whilst it was possible to argue that the references made to territorial integrity and political independence in Article 2(4) ‘must have some substance’, in reality there was ‘no indication in the [travaux préparatoires of the UN Charter] that the phrase was intended to have a restrictive effect’.13 Indeed, Brownlie asserted that those scholars suggesting that the terms in question could serve to limit the scope of Article 2(4) could only do so if, at the same time, they were accepting that there was ambiguity in the text of the provision, in which case recourse to the travaux préparatoires was permitted. Any such recourse duly demonstrated that, in fact, the exact opposite was true, and that the terms had been introduced by several smaller states intent on making the prohibition on the use of force even stronger.14 In fact, the argument that ‘force for a “benign” end’ does not fall foul of the prohibition contained within Article 2(4) had found little support—from either states or scholars.15 As has more recently been outlined by Albrecht Randelzhofer: The terms ‘territorial integrity’ and ‘political independence’ are not intended to restrict the scope of the prohibition of the use of force. . . . Rather, the two given modes of the use of force cover any possible kind of transfrontier use of armed force. Thus an incursion into the territory of another State constitutes an infringement of Art 2(4), even if it is not intended to deprive that State of part of its territory and if the invading troops are meant to withdraw immediately after completing a temporary and limited operation . . . In other words, ‘integrity’ has to be read as ‘inviolability’, proscribing any kind of forcible trespassing.16

Similarly, the reference in Article 2(4) to the purposes of the United Nations cannot be accepted as a limitation on the scope of the prohibition. The question of forcible humanitarian intervention in particular is clearly apposite here also, and in the context of its invasion of Grenada in 1983, 12 Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v Albania), Merits, Judgment of 9 April 1949, ICJ Reports (1949) 4 at 33–35. 13 Brownlie, above n 1 at 265–67. 14 ibid at 267. See also Randelzhofer, above n 1 at 123–24; Dinstein, above n 1 at 86–88; H McCoubrey and ND White, International Law and Armed Conflict (Aldershot, Ashgate, 1992) at 24–26; MN Schmitt, ‘Preemptive Strategies in International Law’ (2003) 24 Michigan Journal of International Law 513 at 521–22. TM Franck, Recourse to Force: State Action Against Threats and Armed Attacks (Cambridge, Cambridge University Press, 2002) at 12, asserted that any reading of Art 2(4) whereby it does not prohibit ‘“minor” or “temporary” invasions that stopped short of actually threatening the territorial integrity of the victim state or its independence . . . is utterly incongruent . . . with the evident intent’ behind the inclusion of the terms. 15 O Schachter, ‘International Law: The Right of States to Use Armed Force’ (1984) 82 Michigan Law Review 1620 at 1626. 16 Randelzhofer, above n 1 at 123. See also Higgins, above n 4 at 240.

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The Prohibition of the Use of Force 9 the United States had sought to argue that Article 2(4) did not prevent or prohibit the use of armed force in pursuit of objectives that are also contained within the UN Charter: ‘such values as freedom, democracy, peace’.17 Again, the travaux préparatoires demonstrate clearly that the intention behind the inclusion of this particular provision was to achieve precisely the opposite effect, strengthening the nature of the prohibition.18 Indeed, the delegate of the United States had indicated that the authors of the initial text intended to ‘state in the broadest terms an absolute allinclusive prohibition; the phrase “or in any other manner” was designed to insure that there should be no loopholes’.19 Thus, whilst most uses of force would have fallen foul of the first two elements of Article 2(4), the subsequent reference to uses of force ‘in any other manner inconsistent with the Purposes of the United Nations’ was designed to serve as a useful catch-all provision, filling any possible remaining gaps.20 After all: The paramount Purpose of the UN, according to Art. 1(1) of the Charter, is to maintain international peace and security, and to that end to prevent and remove threats to the peace, as well as to suppress acts of aggression or other breaches of the peace.21

It follows from this that Article 2(4) was generally seen as representing an absolute prohibition on the international use of force by states, accepted not only as a norm of customary international law, but also as a rule of jus cogens.22 Consequently, only those uses of force specifically permitted by the UN Charter as exceptions to the general prohibition contained in Article 2(4) (that is, military action taken either in self-defence under Article 51, or else pursuant to Security Council authorisation under Chapter VII) were—and are—lawful in terms of the jus ad bellum. It is to these exceptions to the general prohibition that we must now turn.

17 C Gray, International Law and the Use of Force (Oxford, Oxford University Press, 2000) at 26. The US statement can be found in Security Council Official Records, 2491st Meeting, 27 October 1983 at para 53. 18 Brownlie, above n 1 at 268. 19 United Nations Conference on International Organization, Documents, Vol VI (New York, United Nations, 1945) at 334–35. 20 Randelzhofer, above n 1, at 123. 21 ibid. 22 The precise relationship between the Charter-based and customary prohibitions on the use of force is not entirely free from difficulty, but neither of these assertions is controversial. See eg, Nicaragua case, at para 190; Report of the International Law Commission on the Work of its Fifty-Third Session, Commentaries on the Draft Articles on State Responsibility, UN Doc A/56/10 (2001) at 112; McCoubrey and White, above n 14 at 27–28; Gray, above n 4 at 30–33; Dinstein, above n 1 at 92, and at 99–100; Randelzhofer, above n 1 at 133–34; Schmitt, above n 14 at 525; H Duffy, The ‘War on Terror’ and the Framework of International Law (Cambridge, Cambridge University Press, 2005) at 147; O Corten, ‘The Controversies over the Customary Prohibition on the Use of Force: A Methodological Debate’ (2006) 16 European Journal of International Law 803.

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II. THE USE OF FORCE IN SELF-DEFENCE

Article 51 of the UN Charter makes explicit provision for states to use armed force in self-defence, in the following terms: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member State of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-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.

A number of issues become immediately apparent from an examination of its terms. First, it is clear that the right to self-defence as set out in Article 51 was designed to be a temporary right, existing only up until such point as the Security Council has taken those steps necessary to maintain or restore international peace and security. Granted, the limitation had posed few problems for victim states—the Security Council’s record in this regard had, after all, been somewhat less than distinguished. In fact, the paucity of Security Council actions had been such as to lead some commentators to argue that the provision had been rendered ‘almost devoid of any practical significance’.23 Secondly, and extremely controversially, Article 51 describes selfdefence as being an ‘inherent’ right. Clearly, the implication is that selfdefence existed as a legal right prior to the adoption of the UN Charter. This had resulted in a long-running debate regarding the precise scope of self-defence as outlined in Article 51. In particular, there had been significant disagreement as to whether Article 51 had subsumed entirely the pre-existing customary law right so that its terms represented the relevant rules of international law per se, or else whether the prior customary law right of states to take defensive action persisted— continuing in a parallel, but separate (and indeed, quite possibly different) form. Randelzhofer recently characterised the nature of the debate as follows: The prevailing view [that is, that Article 51 has replaced customary law] refers, above all, to the purpose of the UN Charter, that is to restrict as far as possible the use of force by the individual State . . . [and] the designation of Art. 51 of the right to self-defence as ‘inherent’ simply means that, contrary to what the 23 A Randelzhofer, ‘Article 51’ in B Simma (ed), The Charter of the United Nations: A Commentary, 2nd edn (Oxford, Oxford University Press, 2002) Vol I, 788 at 804. On the role of the Security Council under Art 51, and the requirement to report action taken in self-defence to the Security Council, etc, see eg, Gray, above n 17 at 88–96.

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wording of Art. 51 might suggest, it is also vested in States other than UN Members . . . The prevailing doctrine is opposed by the approach that regards the customary right to self-defence as not being affected by Art. 51, but rather as having only received a particular emphasis, in a declaratory manner, for the case of an armed attack.24

Irrespective of whether it is accepted that the primacy of Article 51 had become the dominant, or ‘prevailing’ view on the issue,25 it is difficult to argue that the customary rules relating to self-defence did not (and, indeed, do not) continue to exist, and to apply, in some form. After all, the dual requirements of necessity and proportionality—both accepted as limiting factors on the lawful exercise of self-defence under the UN Charter—are contained nowhere within the text of Article 51 and they can only be applicable as rules of customary international law. The fact that Article 51 fails to state explicitly that necessity and proportionality act as important limitations upon the lawful extent of self-defence certainly does not mean that the principles, long recognised as important constraints on the exercise of the customary law right, had been rendered inapplicable by operation of the UN Charter.26 This follows directly from the legal position as stated with some authority by the ICJ in the Nicaragua case, namely that Article 51 of the Charter is only meaningful on the basis that there is a ‘natural’ or ‘inherent’ right of self-defence, and it is hard to see how this can be other than of a customary nature, even if its present content has been confirmed and influenced by the Charter. Moreover the Charter, having itself recognized the existence of this right, does not go on to regulate directly all aspects of its content. For example, it does not contain any specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law. . . . It cannot therefore be held that Article 51 is a provision which ‘subsumes and supervenes’ customary international law. It rather demonstrates that in the field in question . . . customary international law continues to exist alongside treaty law. The areas governed by the two sources thus do not overlap exactly, and the rules do not have the same content.27 24

ibid at 792–93. See also Gray, above n 17 at 86–87; Arend and Beck, above n 1 at 72–73. This is by no means certain. Y Dinstein, War, Aggression and Self-Defence, 3rd edn (Cambridge, Cambridge University Press, 2001) at 165-66, stated, for example, that, ‘the more common opinion is that the customary right of self-defence is also accorded to States as a preventive measure (taken in “anticipation” of an armed attack, and not merely in response to an attack that has actually occurred)’. Christine Gray, above n 17 at 87, on the other hand, had argued that ‘Those still supporting the wide right of self-defence today discount the rejection of their position by the large majority of states in practice since 1945’. 26 Randelzhofer, above n 23 at 805. For a discussion of the principles of necessity and proportionality as applied to the use of force in self-defence, see J Gardam, Necessity, Proportionality and the Use of Force (Cambridge, Cambridge University Press, 2004) at 148–87. 27 Nicaragua case, at para 176. The Court’s approach to the question was not, however, entirely free from criticism: see eg, Randelzhofer, above n 23 at 805–806. 25

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An appreciation of this controversy is, perhaps, particularly important with respect to the question of whether states were permitted to use force in the exercise of a right of anticipatory self-defence. A. Anticipatory Self-defence Writing in 1963, Brownlie found it to be ‘generally assumed that the customary law permitted anticipatory action in face of imminent danger’.28 The 1837 incident involving the Caroline (whereby a dispute arose between the United States and United Kingdom regarding the United Kingdom’s use of force against Canadian rebels located on US territory) had, after all, resulted in the famous ‘Webster Formula’, according to which anticipatory self-defence was seen as being permissible in situations where the necessity to act against an imminent attack was ‘instant, overwhelming, and leaving no choice of means, and no moment for deliberation’.29 This statement had consistently remained the main basis on which arguments in favour of anticipatory self-defence in customary international law were based. Ian Brownlie had argued, however, that there was, in fact, little evidence of positive support for ‘preventive self-defence in the practice of the period 1920 to 1939’, whilst also warning that anticipatory self-defence was open to a number of objections in terms of both principle and policy.30 Hilaire McCoubrey and Nigel White had also suggested that the Caroline offered, at best, evidence that self-defence was possible where an attack had been launched but had yet to reach the target state, and that reliance on this case to demonstrate a general right of anticipatory self-defence in international

28 Brownlie, above n 1 at 257. See also AC Arend, ‘International Law and the Preemptive Use of Military Force’ (2003) 26 The Washington Quarterly 89 at 89, asserting that, ‘traditional international law required there to be “an imminent danger of attack” before [self-defence] would be permissible’. 29 See 29 British and Foreign State Papers 1137–138; 30 British and Foreign State Papers 195–96. The facts of the case are relatively well known to international lawyers, but were usefully summarised by Schmitt, above n 14 at 530, as follows:

. . . the Caroline case . . . involved the nineteenth century Mackenzie Rebellion in Canada against the British Crown. Some of the rebels operated from U.S. soil. Despite diplomatic entreaties by the British, the United States failed to put an end to use of its territory as a rebel sanctuary and base of operations. Therefore, in 1837 British forces mounted a small raid of approximately eighty men across the border into New York state where they seized the Caroline, a vessel used by the rebels and their supporters. They then set the ship on fire and sent it over Niagara Falls. 30 Brownlie, above n 1 at 259. In particular, he contended that: (a) it is extremely difficult to determine that an attack is certain; (b) until an attack has actually occurred, the aggressor state always has the chance to abort it; (c) the intended target state is always free to take all defensive measures short of a military response; and (d) there may be a question as to whether military action in response to an attack that has yet to occur would meet the requirement of proportionality.

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law would be ‘excessive in light of the very restrictive interpretation that can in fact be given to the Caroline incident’.31 It was widely accepted that a literal reading of Article 51, whereby selfdefence is available only ‘if an armed attack occurs’, would certainly seem to render anticipatory action unlawful. After all, such action is aimed at defending a state from an armed attack that has not yet occurred.32 Thomas Franck has argued, however, that ‘Common sense, rather than textual literalism, is often the best guide to interpretation of international legal norms’.33 By such reasoning, the position as stated in Article 51, and according to which states would have to wait for any attack to materialise on their territory before defensive action became a possibility, seems rather unrealistic. Indeed, as Rosalyn Higgins had argued: ‘in a nuclear age, common sense cannot require one to interpret an ambiguous provision in a text in a way that requires a state passively to accept its fate before it can defend itself’.34 Or, to put it another way, states ought not be required to act as ‘sitting ducks’, condemned to suffer complete or partial destruction before a forcible response became lawful.35 Franck accordingly went on to assert that, ‘no law—and certainly not Article 51—should be interpreted to compel the reductio ad absurdum that states invariably must await a first, perhaps decisive, military strike before using force to protect themselves’.36 In a similar vein, Judge Schwebel had argued in his dissenting opinion to the Nicaragua judgment that Article 51 should not be read as if to suggest that ‘Nothing in the present Charter shall impair the inherent right of . . . self-defence if, and only if, an armed attack occurs’.37 Of course, in response it could equally be argued that this is precisely what is required, and that Article 51 actually contains no ambiguity 31 McCoubrey and White, above n 14 at 92. Dinstein, above n 25 at 249, also argued that little evidence suggests Webster had in mind ‘any means of self-defence other than extraterritorial law enforcement’, and cautioned that the Caroline incident, in any case, ‘preceded the prohibition of the use of inter-state force’. Brownlie, above n 1 at 43 accordingly argued that ‘the correspondence made no difference to the legal doctrine . . . of the time. Self-defence was regarded either as synonymous with self-preservation or as a particular instance of it. . . . The statesmen of the period used self-preservation, self-defence, necessity, and necessity of self-defence as more or less interchangeable terms and the diplomatic correspondence was not intended to restrict the right of self-preservation which was in fact reaffirmed’. See also Neff, above n 1 at 241. 32 Brownlie, above n 1 at 275. 33 Franck, above n 14 at 98. 34 Higgins, above n 4 at 242. She continued: ‘And, even in the face of conventional warfare, this would also seem the only realistic interpretation of the contemporary right of selfdefence. It is the potentially devastating consequences of prohibiting self-defence unless an armed attack has already occurred that leads one to prefer this interpretation’. See also Bowett, above n 9 at 185–86, where it was argued that ‘no state can be expected to await an initial attack which, in the present state of armaments, may well destroy the state’s capacity for further resistance and so jeopardise its very existence’. 35 McCoubrey and White, above n 14 at 91. 36 Franck, above n 14 at 98. 37 Nicaragua case, above n 7, Dissenting Opinion of Judge Schwebel at para 173.

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whatsoever on the matter.38 Thus, Higgins accepted that, despite her support for a state’s right to defend itself against imminent attack, ‘as a matter of simple construction of the words alone, another conclusion might be reached’.39 Franck also conceded that a general relaxation of Article 51’s prohibitions on unilateral war-making to permit unilateral recourse to force whenever a state feels potentially threatened could lead to another reductio ad absurdam. The law cannot have intended to leave every state free to resort to military force whenever it perceived itself grievously endangered by actions of another, for that would negate any role for law.40

Hence, it is vitally important to determine whether customary international law (on the assumption that customary law did, indeed, provide for a broader right of anticipatory self-defence applicable in at least some circumstances) continued to exist alongside the relevant Charter provisions. Those commentators asserting that this was the case had argued that the terms of Article 51 did not alter the content of the pre-existing customary rule, and that it only refers to self-defence ‘if an armed attack occurs’ because that particular phrase was inserted with the specific intention of clarifying the position in the context of collective self-defence treaties, which tend to be concerned only with external attack: ‘being in this way specific it leaves the broader customary right, which is always implicitly reserved, intact’.41 Judge Schwebel, for example, had refused to accept that the terms or intent of Article 51 served to eliminate the right of self-defence under customary international law, or confined the entire scope of the concept to the express terms of Article 51.42 On the other hand, commentators such as Yoram Dinstein had argued that, if this had been the intention of the drafters of the UN Charter, the terms of Article 51 make ‘little sense’: What is the point in stating the obvious (ie that an armed attack gives rise to the right of self-defence), while omitting a reference to the ambiguous conditions of preventive war? Preventive war in self-defence (if legitimate under the Charter) would require regulation by lex scripta more acutely than a response to an armed attack, since the opportunities for abuse are incomparably greater . . . In all, is this not an appropriate case for the application of the maxim of interpretation expressio unius est exculsio alterius?43 38

Dinstein, above n 25 at 168. Higgins, above n 4 at 242. 40 Franck, above n 14 at 98. 41 Brownlie, above n 1 at 269. 42 Nicaragua case, above n 7, Dissenting Opinion of Judge Schwebel at para 173. In support of this position, Judge Schwebel also made reference to the following: CHM Waldock, ‘The Regulation of the Use of Force by Individual States in International Law’ 81 Recueil des Cours (1952-II) 451 at 496–97; Bowett, above n 9 at 182–93; MS McDougal and FP. Feliciano, Law and Minimum World Public Order (New Haven, CT, Yale University Press, 1961) at 232–41; Schachter, above n 15 at 16–34. 43 Dinstein, above n 25 at 168. 39

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Brownlie took a similar position, arguing that: [W]here the Charter has a specific provision relating to a particular legal category, to assert that this does not restrict the wider ambit of customary law relating to that category or problem is to go beyond the bounds of logic. Why have treaty provisions at all? . . . a restrictive interpretation of the provisions of the Charter relating to the use of force would be more justifiable and . . . even as a matter of ‘plain’ interpretation the permission in Article 51 is exceptional in the context of the Charter and exclusive of any customary right of self-defence.44

In light of this, he concluded that Article 51 (and hence international law) simply does not permit anticipatory self-defence, and that, ‘arguments to the contrary are either unconvincing or based on inconclusive pieces of evidence’.45 A number of commentators who, on the face of it, would seem to have been opposed to the possibility of anticipatory self-defence did, nonetheless, seem to appreciate the undesirability of the jus ad bellum requiring states to suffer the effects of an attack before permitting an armed response. The approach taken by such scholars was to continue to deny the lawfulness of anticipatory self-defence, whilst at the same time adopting a broader definition or notion of when an armed attack has occurred in the context of Article 51. McCoubrey and White had, for example, contended that: The word ‘occurs’ can be interpreted equally well to mean that an armed attack has been launched, either when the missiles leave their launch pads but have not yet crossed the frontiers of the victim state, or even earlier when the victim state has detected that the firing sequence has been initiated—to put it more bluntly, when the button has been pressed . . . it can safely be said that the armed attack has occurred once the aggressor state has clearly committed itself to the attack . . .46

Dinstein apparently took the same position, asserting a right of ‘interceptive’ self-defence, lawful in terms of Article 51, and based on the understanding that it would be ‘absurd to require that the defending State should sustain and absorb a devastating (perhaps a fatal) blow, only to prove an immaculate conception of self-defence’.47 Thus, in illustrating his position, he argued that: [Had] the Japanese carrier striking force, en route to the point from which it mounted the notorious attack on Pearl Harbor in December 1941 . . . been intercepted and sunk by the US Pacific Fleet prior to reaching its destination and before a single Japanese naval aircraft got anywhere near Hawaii . . . and the 44 Brownlie, above n 1 at 273. He went on to suggest, at 274, that the terms of Art 51 may have been much closer to customary law as it stood in 1945 than tends to be admitted. 45 ibid at 276–78. 46 McCoubrey and White, above n 14 at 91. 47 Dinstein, above n 25 at 172.

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Americans had succeeded in aborting an onslaught which in one fell swoop managed to change the balance of military power in the Pacific, it would have been preposterous to look upon the United States as answerable for inflicting an armed attack upon Japan.48

Whether this scenario truly distinguishes between (a) an armed attack that has begun but has yet to reach the target state, and (b) an armed attack which has not yet begun but which appears to be imminent is open to question, and Brownlie had previously argued that interpretations aimed at broadening the notion of when an armed attack can be said to have occurred were ‘ingenious but rather casuistic’, necessarily involving ‘delicate questions of unequivocal intention to attack and an assumption that an attack can occur, as it were, constructively’.49 That being so, it would seem preferable to accept that, irrespective of how literally one chooses to read the terms of Article 51, self-defence can be lawful in the context of an armed attack that is imminent—a position that was maintained by a number of scholars and states prior to 11 September 2001. As Sir Robert Jennings and Sir Arthur Watts explained in 1992 (in a passage worthy of lengthy quotation): The better view is probably that while anticipatory action in self-defence is normally unlawful, it is not necessarily unlawful in all circumstances, the matter depending on the facts of the situation including in particular the seriousness of the threat and the degree to which pre-emptive action is really necessary and is the only way of avoiding that serious threat; the requirements of necessity and proportionality are probably even more pressing in relation to anticipatory selfdefence than they are in other circumstances. In conditions of modern hostilities it is unreasonable for a state always to have to wait until an armed attack has begun before taking defensive action. States have in practice invoked the plea of self-defence to justify action begun to forestall what they regard as an imminent threatened attack. The development of the law, particularly in the light of more recent state practice, in the 150 years since the Caroline incident, suggests that action, even if it involves the use of armed force and the violation of another state’s territory, can be justified as self-defence under international law where (a) an armed attack is launched, or is immediately threatened, against a state’s territory or force (and probably its nationals); (b) there is an urgent necessity for defensive action against the attack; (c) there is no practicable alternative to action in selfdefence, and in particular another state or authority which has the legal powers to stop or prevent the infringement does not, or cannot, use them to that effect; (d) the action taken by way of self-defence is limited to what is necessary to stop or prevent the infringement, ie to the needs of defence; and (e) in the case of collective self-defence, the victim of an armed attack has requested assistance.50 48

ibid at 17172. Brownlie, above n 1 at 276. 50 R Jennings and A Watts (eds), Oppenheim’s International Law, Vol 1: Peace, 9th edn (London, Longman, 1996) at 421–22. 49

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As is evident from the above quotation, Jennings and Watts clearly assigned significant weight to state practice in this area. Christine Gray, on the other hand, had more recently argued that most states rejected anticipatory self-defence,51 and that, since Nicaragua in particular, they had been careful to invoke Article 51 as being the basis for their use of force: They do so even when this seems entirely implausible and to involve the stretching of Article 51 beyond all measure. . . . Either this is just ritual incantation of a magic formula, not expected to be taken seriously, or their case is implicitly that Article 51 allows a wider customary right, including anticipatory self-defence.52

As at 11 September 2001, the ICJ had avoided any clear pronouncement on the issue. In the Nicaragua case, it had stated that: In view of the circumstances in which the dispute has arisen, reliance is placed by the Parties only on the right of self-defence in the case of an armed attack which has already occurred, and the issue of the lawfulness of a response to the imminent threat of armed attack has not been raised. Accordingly the Court expresses no view on that issue.53

Clearly, then, an examination of the relevant state practice (and, in particular, the response of the international community to any such claims) is essential. Three main examples of anticipatory self-defence tended to be cited in the relevant literature: namely, the Cuban Missile Crisis of 1962; the Israeli/Arab Six-Day War of 1967; and Israel’s attack on the Iraqi ‘Osirak’ nuclear reactor in 1981.54 In the first of these, the United States imposed a 51

Gray, above n 17 at 112. ibid at 87. Nicaragua case, above n 7 at para 194. It had been suggested by some commentators that the Court’s statement in the next paragraph, whereby self-defence was said to be ‘subject to the State concerned having been the victim of an armed attack’, precluded the possibility of anticipatory action. See eg, McCoubrey and White, above n 14 at 93–94. A better view, however, would be simply to place this statement in the context of the Court’s approach as outlined in para 194. 54 Although there may have been others; Jennings and Watts, above n 50 at 422, fn 19, for example, also referred to Israel’s attack on fedayeen bases in Sinai in 1956 and the US attack on Libya in 1986. In the first of these, Israel had relied on the right of self-defence not only with respect to attacks that had already been carried out against it, but also in light of its fear that fedayeen activity was apparently about to be ‘renewed on a scale unprecedented even during the first wave of fedayeen invasion in August 1955 or during its recrudescence in the spring of 1956’. See Security Council Official Records, 749th Meeting, 30 October 1956, 8–18, at para 101 in particular. The US attack on targets in Libya had been said to be aimed at preventing further terrorist attacks, believed to be imminent. See President’s Address to the Nation on the United States Air Strike Against Libya, 14 April 1986, www.reagan.utexas.edu/ archives/speeches/1986/14186g.htm; C Greenwood, ‘International Law and the United States’ Air Operation Against Libya’ (1987) 89 West Virginia Law Review 933 at 942–45. Greenwood, ibid, at 943, also referred to the Soviet Union’s invocation of self-defence in relation to its interventions in Czechoslovakia in 1968 and Afghanistan in 1979 as apparently 52 53

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naval quarantine on Cuba, asserting that the action constituted lawful selfdefence in response to the perceived imminent threat resulting from Soviet missiles being placed on the island.55 No force was actually used by the United States, and some authors maintained that the United States did not formally rely on anticipatory self-defence in any case.56 Nonetheless, it has been argued that those discussions that took place in the Security Council at the time indicated that, in terms of the contemporary approach to the issue of anticipatory self-defence, ‘very few [states], outside the Soviet bloc, relied on a strict interpretation of Articles 2(4), 51 and 53’.57 On 5 June 1967, faced with what was generally accepted as being an inevitable armed attack, Israel launched an invasion of neighbouring Arab territories.58 Again, there was some debate as to whether or not Israel’s actions constituted an anticipatory act of self-defence. It may, for example, have been possible to argue that the blockade already imposed by Egypt amounted to an armed attack,59 whilst arguments similarly persisted as to whether Israel actually relied formally on the argument of anticipatory self-defence or not. Christine Gray, for example, maintained that it did not, and that it had relied instead on the existence of a prior armed attack.60 Thomas Franck, on the other hand, contended that such a position was difficult to accept and that, although Israel had, at last partially, based its legal justification on self-defence against aggressive acts by Egypt such as embracing ‘the theory that article 51 leaves intact a right of anticipatory self-defence’; and, at 945, to Britain’s plea of self-defence in relation to its attack on the Harib Fort in Yemen in 1964—an argument rejected by the Security Council due to any possible attacks not being sufficiently imminent. Security Council Resolution 188 (1964), 9 April 1964, UN Doc S/5650, instead condemned the action as an armed reprisal. See also the incidents referred to by Gray, above n 17 at 113–14. 55 See Presidential Proclamation 3504, 23 October 1962, www.presidency.ucsb.edu/ws/ index.php?pid=8987. 56 See Gray, above n 17 at 113, arguing that the US position had instead been based on regional peacekeeping under Chapter VIII of the UN Charter. Proclamation 3504 had also included reference to the Council of the Organization of American States (OAS)’s recommendation that member states ‘take all measures, individually and collectively, including the use of armed force, which they may deem necessary to ensure that the Government of Cuba cannot continue to receive from the Sino-Soviet powers military material and related supplies which may threaten the peace and security of the Continent and to prevent the missiles in Cuba with offensive capability from ever becoming an active threat to the peace and security of the Continent’. See also SD Murphy, Humanitarian Intervention: The United Nations in an Evolving World Order (Philadelphia, PA, University of Pennsylvania Press, 1996) at 341. 57 Franck, above n 14 at 101. See also Arend and Beck, above n 1 at 76, arguing that ‘while the discussions in the Council do not reflect a clear-cut endorsement of anticipatory selfdefense, they certainly do not indicate its rejection’. Dinstein, above n 25 at 169 had argued that the quarantine could not be brought within the terms of Article 51, despite a ‘certain threat’ to the United States. 58 See United Nations Yearbook (1967) at 174–91; Franck, above n 14 at 101–105; Dinstein, above n 25 at 173; Arend and Beck, above n 1 at 76–77. 59 See Gray, above n 17 at 112–13; M Shaw, International Law, 4th edn (Cambridge, Cambridge University Press, 1997) at 789; Franck, above n 14 at 102. 60 Gray, above n 17 at 112–13.

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the closure of the Strait of Tiran, ‘its words and actions clearly asserted a right to anticipatory self-defence against an imminent armed attack’.61 In other words, it appeared that Israel had relied upon anticipatory selfdefence as an alternative basis for its action. An examination of Israel’s submissions to the Security Council on 6 June 1967 illustrates the difficulty involved. It is certainly true that Israeli Foreign Minister Abba Eban made reference to a series of acts of sabotage launched against Israel from Syria, and described Egypt’s blockade of the Strait of Tiran and the Gulf of Aqaba as an ‘act of war’.62 He even asserted that Israel had only resorted to defensive force on the morning of 5 June 1967, ‘when Egyptian forces engaged us by air and land, bombarding the villages of Kissufim, NahalOz and Ein Hashelosha’.63 In addition, however, Mr Eban made numerous references to the approaching danger apparently faced by Israel: for example, the fact that the Egyptian President, Nasser, had ‘provocatively brought five infantry divisions and two armoured divisions up to our very gates; 80,000 men and 900 tanks were poised to move’ (emphasis added);64 that ‘the hostile threat was focussed on the southern front’ (emphasis added);65 that ‘Nearly all the Egyptian forces which had been attempting the conquest of the Yemen had been transferred to the coming assault upon Israel’ (emphasis added);66 and that Israel was accordingly ‘threatened with collective assault’ (emphasis added).67 The three main elements of the situation were therefore summarised by Israel as having been: ‘the sabotage movement; the blockade of the port; and, perhaps more imminent than anything else, this vast and purposeful encirclement movement’ (emphasis added).68 Against this backdrop, Christopher Greenwood argued that it was ‘difficult to analyse the Israeli action as lawful unless a right of anticipatory self-defence exist[ed]’.69 Franck likewise found it ‘difficult not to conclude that the Council members gave credence to this latter argument’.70 It is therefore significant that neither the Security Council nor the 61

Franck, above n 14 at 102–103. See Security Council Official Records, 1348th Meeting, 6 June 1967, UN Doc S/PV.1348 at paras 142–94. 63 ibid at para 155. Mr Eban explained that ‘When the approaching Egyptian aircraft appeared on our radar screens, soon to be followed by artillery attacks on our villages near the Gaza Strip, I instructed Mr Rafael to inform the Security Council [of the military action taken in self-defence], in accordance with Article 51 of the Charter’. See ibid at para 161. 64 ibid at para 144. 65 ibid at para 145. 66 ibid at para 147. 67 ibid at para 152. 68 ibid at para 177. 69 Greenwood, above n 54 at 943. He also made reference therein to WV O’Brien, The Conduct of Just and Limited War (New York, Praeger, 1981) at 133, where Israel’s action was described as a ‘model case for anticipatory self-defence’. 70 Franck, above n 14 at 103. 62

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General Assembly condemned Israel’s action. Granted, neither did they ‘formally embrace’ the concept of anticipatory self-defence, but most member states—on the evidence available to them at the time—apparently concluded that an armed attack was imminent, that Israel had reasonably surmised that it stood a better chance of survival if the attack were pre-empted, and that, therefore, in the circumstances, it had not acted unreasonably. This does not amount to an open-ended endorsement of a general right to anticipatory self-defense, but it does recognize that, in demonstrable circumstances of extreme necessity, anticipatory self-defense may be a legitimate exercise of a state’s right to ensure its survival.71

In June 1981, Israel launched another anticipatory strike, this time against a nuclear reactor—‘Osirak’—in its final stages of development, near Baghdad.72 It asserted that the reactor was to be used for military purposes, and that a ‘threat of nuclear obliteration was being developed against Israel by Iraq’.73 Faced with such peril, Israel was unwilling to ‘stand idly by while an irresponsible, ruthless and bellicose regime . . . acquired nuclear weapons’ and, relying on academic opinions supporting the concept of anticipatory self-defence, argued that the strike against Osirak had been an exercise of its ‘inherent and natural right to selfdefence, as understood in general international law and well within the meaning of Article 51 of the Charter of the United Nations’.74 The international response was unequivocal and Resolution 487 (1981), condemning Israel for its ‘clear violation of the Charter of the United Nations and the norms of international conduct’, was adopted unanimously by the Security Council on 19 June 1981.75 71 ibid. Dinstein, above n 25 at 173 likewise argued that Israel’s action was lawful: ‘True, no single Egyptian step, evaluated alone, may have qualified as an armed attack. But when all of the measures taken by Egypt . . . were assessed in the aggregate, it seemed to be crystal clear that Egypt was bent on an armed attack and that the sole question was not whether war would materialize but when’. In light of these circumstances, he did not feel it necessary for Israel to ‘wait idly by for the expected shattering blow . . . but was entitled to resort to selfdefence as soon as possible’. 72 See Franck, above n 14 at 105–107. 73 See Security Council Official Records, 2280th Meeting, 12 June 1981, UN Doc S/PV.2280, at para 59. 74 ibid at paras 95–100. For reiteration of the argument, see Security Council Official Records, 2288th Meeting, 19 June 1981, UN Doc S/PV.2288, at paras 78–85. It had been suggested by Dinstein, above n 25 at 169 that the legal grounds for the attack should instead have been based on the state of war that existed between the two states—a situation explicitly referred to by Israel in the Security Council debates. See Security Council Official Records, 2288th Meeting, at paras 63–75. In para 74, for example, Israel had asserted that the Council was ‘confronted with an absurd situation. Iraq claims to be at war with Israel. Indeed, it prepares for atomic war. And yet it complains to the Security Council when Israel, in self-defence, acts to avert nuclear disaster.’ 75 For discussion of the incident in the Security Council, see Security Council Official Records, 2280th–2288th Meetings, 12–19 June 1981, UN Docs S/PV.2280–S/PV/2288. The General Assembly also adopted a resolution condemning Israel for its ‘premeditated and

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Greenwood cautioned, however, that the international response should not necessarily be interpreted as a rejection of anticipatory self-defence per se by the Security Council and that the Security Council had, instead, simply rejected Israel’s argument that this particular use of force could be accommodated within the limits of the concept.76 This should not be surprising. After all, as Gray has explained, states (and indeed the Security Council) tend to avoid involvement in doctrinal debate, preferring instead to expound their own version of the relevant facts.77 In this way, the result is that ‘evidence, rather than abstract principle, seems to determine the response to each instance in which a state claims the right use force in anticipatory self-defence’.78 Having said that, Franck has concluded that: States seem willing to accept strong evidence of the imminence of an overpowering attack as tantamount to the attack itself, allowing a demonstrably threatened state to respond under Article 51 as if the attack had already occurred, or at least to treat such circumstances, when demonstrated, as mitigating the system’s judgment of the threatened state’s pre-emptive response.79

Of course, it is evident that a broad right of anticipatory self-defence would ‘replace the basic principle of the Charter—[namely] that defense against an armed attack is legitimate pending international action to restore peace—[with] a virtually unlimited concept of self-defense against all possible future dangers, subjectively assessed’.80 McCoubrey and White accordingly warned that the very real possibility of abuse may seem to make it a ‘dangerous notion to imbue with legality’.81 Other commentators, such as Higgins, did not, however, see this as being a reason in itself to deny its availability. After all, ‘in a decentralized legal order [abusive claims are] always possible; there is no avoiding the judgment that third parties will have to make on the claims in light of all the available facts’.82 On that basis, Higgins asserted that the Webster formula retained its usefulness as a tool to impose the necessary constraints on anticipatory unprecedented act of aggression in violation of the Charter of the United Nations and the norms of international conduct’. See General Assembly Resolution 36/27, 13 November 1981. 76 Greenwood, above n 54 at 943. See also Franck, above n 14 at 108; and Arend and Beck, above n 1 at 77: ‘Typically, [counter-restrictionist] delegates argued that the use of force in a pre-emptive fashion could be permissible under the Charter framework provided that it could be demonstrated that there was an imminent threat and that other means of addressing this threat had been exhausted. But Israel, these delegates contended, had not met these criteria.’ 77 Gray, above n 17 at 87–88, and at 114–15. 78 Franck, above n 14 at 107. 79 ibid. 80 Noel Dorr (Ireland), Security Council Official Records, 2283rd Meeting, 15 June 1981, UN Doc S/PV.2283 at para 27. He continued: ‘This would reduce to virtual anarchy all of the efforts made since the Second World War to restrain the arbitrary actions of States by developing a framework of universal principles and obligations to govern their relations.’ 81 McCoubrey and White, above n 14 at 94. 82 Higgins, above n 4 at 242–43.

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action, and also to assess the appropriate balance between the competing interests of international peace and national security.

B. The Definition of ‘Armed Attack’ and Self-defence against Non-state Actors The third issue of difficulty surrounding the UN Charter’s provisions is that Article 51 and Article 2(4) do not entirely correspond in their wording. Whereas Article 2(4) prohibits the unilateral use of force by states in broad terms, Article 51 is less general in that it does not permit Member States to take defensive action in response to any use of force (or, indeed, in response to a threat of force). Rather, it stipulates that self-defence is available only in response to an armed attack, and it may be that not all uses of force will reach this threshold. The questions of what represents an armed attack, and what measures would be available to states in responding to a use of force falling short of this level,83 had therefore generated a great deal of discussion. Article 51 provides no assistance in terms of determining what constitutes an armed attack—probably because it was considered to be clear enough in 1945, as comprising an attack by the armed forces of one state against another state. Yet times, and circumstances, can change. Thus, although he was rather cautious in his terms, Brownlie did seem to accept in 1963 that it was conceivable that a ‘co-ordinated and general campaign’ could be carried out by ‘powerful bands of irregulars, with obvious or easily proven complicity of the government of a state from which they operate’, and that such activity ‘would constitute an “armed attack”’.84 In 1970, Thomas Franck had raised additional concerns in this area, warning that: Insofar as one state merely encourages guerrilla movements within another, an ‘armed attack’ cannot be said to have taken place. The more subtle and indirect the encouragement, the more tenuous becomes the analogy to an ‘armed attack’ . . . Since the Charter speaks only of a right to defend against an armed attack, the international community is left to ponder what principles govern the right to retort in instances of lesser trespass.85

83 It would seem to have been generally accepted that the permitted response to a use of force falling short of an armed attack would be a resort by the victim state to countermeasures—which may be forcible, but which would be confined to the territory of the victim state, and which may not be collective in nature. See eg, McCoubrey and White, above n 14 at 89–90, and at 107–11. 84 Brownlie, above n 1 at 278–79. 85 TM Franck, ‘Who Killed Article 2(4)?’ (1970) 64 American Journal of International Law 809 at 812.

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In 1986, the ICJ removed any remaining doubt regarding the accuracy of Brownlie’s contention but, in doing so, did not necessarily allay the fears expressed by Franck. Indirect military action was the subject of the Nicaragua case,86 in which the ICJ found that support (largely in the form of weapons) had been provided by Nicaragua to rebels in Costa Rica, Honduras and El Salvador, but that the level of support in question constituted a use of force by Nicaragua, rather than an armed attack. The United States was therefore unable to act collectively with those states in self-defence against Nicaragua. Relying on the UN General Assembly’s Definition of Aggression, and in the context of customary international law, the ICJ held that an armed attack could indeed be carried out by irregular armed forces, that is, by non-state actors, in that this may represent ‘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 equate to an armed attack by the regular armed forces of a state.87 Going on to distinguish ‘the most grave forms of the use of force (those constituting an armed attack) from other less grave forms’,88 the support provided to the various rebels by Nicaragua was deemed to have fallen short of the necessary threshold. A number of problems soon became evident in the Court’s judgment, and it rapidly found itself to be the subject of stinging criticism— even from members of the Court itself.89 Judge Schwebel, for example, cautioned that the Court’s position represented ‘a prescription for overthrow of weaker governments by predatory governments while denying potential victims what in some cases may be their only hope of survival’.90 Nor did the Court offer any assistance in terms of determining the relevant gravity threshold. It was contended that the actions of non-state actors could represent an armed attack when they were equivalent in terms of gravity to the activities of regular armed forces, but no indication was provided as to the scale of force required on the part of regular forces for their activities to constitute an armed attack. Higgins thus framed the resulting difficulty in the following terms: 86

Nicaragua case, above n 7, Merits. ibid at para 195. The formula as stated had been drawn from UN General Assembly Resolution 3314 (XXIX), Definition of Aggression, 14 December 1974 at para 3(g). 88 ibid at para 191. 89 See Gray, above n 17 at 97–99, however, where she was critical of those involved for making policy arguments without adducing ‘any evidence that in state practice mere provision of weapons and logistical support in isolation had been treated as an armed attack (as opposed to unlawful intervention)’, and furthermore, without seeking to apply the same principles to US interventions. 90 Nicaragua case, above n 7, Dissenting Opinion of Judge Schwebel at para 177. As Higgins explained, critics of the judgment contended that it was ‘an encouragement for lowgrade terrorism because the state at whom it is directed cannot use force in self-defence against it’. See Higgins, above n 4 at 250–51. 87

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By adopting the unsatisfactory definition of the General Assembly Aggression Resolution, and proclaiming it customary international law, the Court appears to have selected criteria that are operationally unworkable. When a state has to decide whether it can repel incessant low-level irregular military activity, does it really have to decide whether that activity is the equivalent of an armed attack by a foreign army—and, anyway, is not any use of force by a foreign army entitled to be met by sufficient force to require it to withdraw? Or is that now in doubt also? Is the question of level of violence by regular forces not really an issue of proportionality, rather than a question of determining what is an ‘armed attack’?91

Dinstein similarly argued that, unless the scale and effects of the military action in question were so trifling as to fall below the de minimis threshold (wherever that may happen to lie), there was ‘no cause to remove smallscale armed attacks from the spectrum of armed attacks’.92 Be that as it may, and as unsatisfactory as the Court’s judgment may have been on this point, the Nicaragua case was generally accepted as accurately representing the legal position in terms of the jus ad bellum on 11 September 2001.93 Turning to the Court’s decision that an armed attack could be carried out by irregular troops (that is, by non-state actors)—even if that were held not have been the case in Nicaragua—it remains essential to consider the importance of this in the context of self-defence. The issue was not an easy one. Brownlie, for example, had stated in 1963 that ‘In so far as there is a use of force by forces controlled by a foreign state, this may be met by lawful measures of self-defence’,94 whilst Gray had indicated in 2001 that, if the irregular forces in question had been acting ‘on behalf of the state from whose territory they are operating and their actions are of such gravity as to amount to an armed attack, the situation is clear’.95 She did also accept, however, that the necessary level of state involvement had proved to be an ‘intractable issue’.96 Indeed, with considerable foresight, Brownlie had warned of the difficulties to be encountered by the ICJ in Nicaragua when cautioning that ‘delicate problems arise in the case of the state which gives military aid to an aggressor, or which gives aid to, or exercises control over, rebel groups or other irregular forces’.97 Jennings and Watts similarly stated that 91

Higgins, above n 4 at 251. Dinstein, above n 25 at 176, referring also to JL Hargrove, ‘The Nicaragua Judgment and the Future of the Law of Force and Self-Defense’ (1987) 81 American Journal of International Law 135 at 139 (where it had been argued that Art 51 ‘in no way limits itself to especially large, direct or important armed attacks’); and JL Kunz, ‘Individual and Collective Self-Defense in Article 51 of the Charter of the United Nations’ (1947) 41 American Journal of International Law 872 at 878 (which had similarly argued that ‘If “armed attack” means illegal armed attack it means, on the other hand, any illegal armed attack, even a small border incident’). 93 Gray, above n 17 at 97. 94 Brownlie, above n 1 at 372. 95 Gray, above n 17 at 99. 96 ibid. 97 Brownlie, above n 1 at 372–73. 92

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a state may be under attack from within another state’s territory, as where guns are fired across the frontier; or attackers, while carrying out hostile operations within the territory of the state, may operate from and be supplied from bases in a neighbouring state; or, even if the attackers do not have bases in a neighbouring state, they may take refuge there from the defending state’s forces; or, before any attack has occurred, the intending attackers may be organised on neighbouring territory for the purposes of a raid. In all such cases, the state under attack, or threat of attack, may be entitled to take action in self-defence . . .98 (emphasis added)

When Malcolm Shaw wrote in 1997 that ‘States may . . . adopt forceful measures in response to terrorist activities, and in certain situations actions against states sponsoring terrorism may be justifiable in the context of self-defence’,99 he gave no guidance as to what those situations may have been. Instead, he simply alluded to the difficulties caused by the fact that the relevant rules of international law had not been designed with this kind of situation in mind, ‘but rather concentrate[d] on the dangers of large-scale use of force’.100 Even more difficult for Brownlie was the issue of attacks where no state exercised control over the relevant non-state actors: In many cases of incursion by armed bands and activities by volunteers it is possible to raise the question of state responsibility as a result of complicity or negligent omission. In such cases if action is taken against the groups in selfdefence any subsequent dispute as to the legality of the action will be one between governments. It is, however, possible that no state responsibility is involved. Nationals may undertake expeditions prepared in conditions of secrecy or geographical remoteness with the result that no fault can be imputed to their state of origin. Again, inhabitants of an area for some reason not under the sovereignty of any state may undertake aggressive activities. There can be little doubt that states have a right of self-defence in such a case . . . However, the assertion must be made on the basis of principle and policy since the legal materials relating to self-defence in international law contemplate action against states only.101

Whether or not this was the case (and, in particular, whether self-defence was still contemplated only against states in 2001—if, indeed, that had been true even in 1963) requires an examination of the relevant state practice. Dinstein had argued, for example, that the Security Council’s use of the term ‘armed attack’ in relation to Portugal’s failure to prevent mercenaries from using Angolan territory as a base for operations against Congo in

98 99 100 101

Jennings and Watts, above n 50 at 419. M Shaw, above n 59 at 806. ibid. Brownlie, above n 1 at 375.

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1967 was ‘no accident’, and provided strong evidence that ‘armed attacks by non-State actors are still armed attacks, even if commenced only from— and not by—another State’.102 Terrorist attacks on states were certainly not a new phenomenon, and a considerable body of state practice in response to such attacks had built up by September 2001, largely, it must be stated, through the activities of Israel and the United States.103 Israel, in particular, had been extremely active in this respect, undertaking numerous armed operations on the territory of its neighbours in response to prior terrorist attacks. Its 1956 strikes against Fedayeen terrorists and their bases in Sinai, for example, have already been referred to above in the context of anticipatory selfdefence. The scope and extent of Israel’s claimed defensive response, however, was—at least initially—felt to be disproportionate by the majority of the Security Council.104 In contrast, the General Assembly did not condemn Israel’s actions.105 Israel had again claimed the right of self-defence in 1982, this time with respect to military strikes carried out against Palestinian Liberation Organisation (PLO) bases in Lebanon. It was contended that numerous attacks against Israel had been launched from these bases, and that the Government of Lebanon was incapable of controlling the activities of the terrorists operating from its territory.106 The result was the invasion, and occupation, of Southern Lebanon by Israeli troops; a situation that was considered wholly unacceptable by the vast majority of states in both the Security Council and the General Assembly. Thus, on 8 June 1982, the Security Council voted 14–1 in favour of a resolution condemning Israel’s actions, and demanding an end to hostilities within six hours (only the veto of the United States prevented the successful adoption of the

102 Dinstein, above n 25, at 214. He continued to assert, at 216–17, that ‘Just as Utopia is entitled to exercise self-defence against an armed attack by Arcadia, it is equally empowered to defend itself against armed bands or terrorists operating from within Arcadian territory. This is an extraordinary case demanding, and getting, an extraordinary solution in international law . . . [namely,] the exercise of self-defence . . . [which] used to be called necessity.’ 103 Antonio Cassese also cited South Africa as a particularly important player in this regard, through its military operations against SWAPO camps in Angola, and its further operations in Lesotho, Zambia and Swaziland from 1976 to 1985. See A Cassese, International Law (Oxford, Oxford University Press, 2001) at 311. Gray had also stressed the importance of Portuguese activities; see Gray, above n 17 at 99–100. A brief survey of relevant state practice is also provided in T Ruys and S Verhoeven, ‘Attacks by Private Actors and the Right of SelfDefence’ (2005) Journal of Conflict and Security Law 289 at 292–96. 104 Franck, above n 14 at 55; Security Council Official Records, 749th Meeting, 30 October 1956. 105 Franck, above n 14 at 56. 106 See Letter Dated 27 May 1982 from the Permanent Representative of Israel to the United Nations Addressed to the Secretary-General, UN Doc S/15132 (1982); Dinstein, above n 25 at 218; Franck, above n 14 at 57–59.

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resolution),107 whilst the General Assembly did succeed in adopting a resolution expressing its alarm at Israel’s act of ‘aggression’.108 A similar response greeted Israel’s 1985 attack on PLO terrorist bases in Tunis.109 The strike had been carried out in response to the murder of three Israeli citizens in Cyprus, with Israel claiming in Security Council debates that it had struck only at the PLO base, and even then, only because Tunisia had ‘knowingly offer[ed] a piece of its territory for terrorist activity against other nations . . . [and in particular] repeated armed attacks against [Israel] and against innocent civilians around the world’.110 Despite such pleas, the Security Council adopted Resolution 573, which vigorously condemned Israel’s military response as an ‘act of armed aggression perpetrated by Israel against Tunisian territory in flagrant violation of the Charter of the United Nations, international law and norms of conduct’.111 In April 1986, the United States carried out bombing raids on various military targets in Libya. The strikes were widely seen as being a response to an earlier terrorist attack on US troops in a Berlin nightclub, in which the United States asserted Libya had been involved. In seeking to provide a justification for the military strikes to members of the Security Council, the United States had asserted that: On 14 April, in exercise of the inherent right of self-defence recognized in Article 51 of the Charter of the United Nations, United States military forces executed a series of carefully planned airstrikes against terrorist-related targets in Libya. . . . United States forces struck targets that were part of Libya’s military infrastructure . . . Those are the sites used to carry out Libya’s harsh policy of international terrorism, including ongoing attacks against United States citizens and installations. This necessary and proportionate action was designed to disrupt Libya’s ability to carry out terrorist attacks and to deter future terrorist attacks by Libya.112

Clearly, this represented an articulation of claims based on Libya’s responsibility for the terrorist attack, as well as some level of anticipatory 107

Draft Resolution S/15185; see Security Council Official Records, 2377th Meeting, 8 June

1982. 108 UN General Assembly Resolution ES-7/5, 26 June 1982, adopted by 127 votes to 2, with only Israel and the United States voting against its adoption. 109 See Arend and Beck, above n 1 at 152–53. 110 See Security Council Official Records, 2615th Meeting, 4 October 1985, UN Doc S/PV.2615 at para 193. 111 UN Security Council Resolution 573 (1985), 4 October 1985. The resolution was adopted by 14 votes to none, with only the United States abstaining on the grounds that it was ‘disproportionately placing all blame for this latest round of the rising spiral of violence in the Middle East onto only one set of shoulders, while not also holding at fault those responsible for the terrorist acts which provoked it’. See Security Council Official Records, 2615th Meeting at para 250. 112 See Security Council Official Records, 2674th Meeting, 15 April 1986, UN Doc S/PV.2674, at 14–15.

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self-defence.113 Most states felt that the US air strikes had been unacceptable, although a measure of support for the US response was expressed by some states in Security Council debates (perhaps, in part, due to the international community’s rather antipathetic feelings towards Colonel Gaddafi and his ruling regime), and attempts to adopt a resolution condemning the United States for its ‘armed attack . . . in violation of the Charter of the United Nations’ failed.114 It may well be the case that most, if not all, of the acts referred to above could have been better characterised as constituting armed reprisals, rather than as lawful exercises of self-defence. Reprisals are, after all, ‘counter-measures that would be illegal if not for the prior illegal act of the State against which they are directed’.115 The difficulty with this is the widespread belief that forcible reprisals are not permitted by international law.116 Dinstein, whilst accepting that his was a minority position, had nonetheless contended that ‘armed reprisals can be a permissible form of self-defence (in response to an armed attack) under Article 51’.117 His suggestion was that the view whereby reprisals cannot constitute lawful acts of self-defence because they take place after the fact, and can therefore be seen as punitive in character, is too narrow. Instead, he argued that reprisals can just as easily be seen as future-oriented, aimed at compelling or inducing ‘a delinquent state to abide by the law in the future’,118 and can therefore be lawful. Thus, he concluded that, in the words of Oscar Schachter, ‘defensive retaliation’ could perhaps be justified.119 Derek 113

See Greenwood, above n 54. The Draft Resolution (UN Doc S/18016/Rev.1) had been supported by nine states, but failed due to the fact that the five states opposing its adoption included three of the permanent members: the United States, the United Kingdom and France. France, along with the two other states in opposition (that is, Denmark and Australia), had voted against the draft resolution because, in failing also to condemn the terrorist acts against the United States, it lacked the necessary balance. See Security Council Official Records, 2682nd Meeting, 21 April 1986, UN Doc S/PV.2682, at 26–43; McCoubrey and White, above n 14 at 116; Franck, above n 14 at 90. The General Assembly did subsequently adopt a resolution condemning the United States (GA Resolution 41/38, 20 November 1986), but only by 79 votes to 28, with 33 states abstaining and a further 18 absent. See McCoubrey and White, ibid; and Franck, ibid at 91. 115 O Schachter, ‘International Law in Theory and Practice’ (1982) 178 Recueil des Cours 9 at 168. 116 See eg, UN General Assembly Resolution 2625 (XXV), Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, 24 October 1970, providing that ‘States have a duty to refrain from acts of reprisal involving the use of force’; Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports (1996) 226 at para 46. 117 Dinstein, above n 25 at 198. 118 ibid at 199, making reference to RW Tucker, ‘Reprisals and Self-Defense: The Customary Law’ (1972) 66 American Journal of International Law 586 at 591. 119 ibid, making reference to Schachter, above n 15 at 1638. Dinstein had asserted that the 1986 US air strikes on Libya were acts of defensive armed reprisal in substance, whilst ‘No country in the world seems to have adhered more consistently to a policy of defensive armed reprisals than the State of Israel’. See ibid at 201, 203. 114

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Bowett had certainly suggested previously that there was a ‘credibility gap’ in this area of the law, and that the apparent prohibition of armed reprisals in international law was, ‘because of its divorce from actual practice, rapidly degenerating to a stage where its normative character is in question’.120 Indeed, Arend and Beck even suggested that: If one defines ‘the law’ as ‘authoritative state practice,’ and if one accords substantial weight to the practice of the ‘specially affected’ states of Israel and the United States, then counter-terror reprisals are not prohibited. Such a conclusion regarding the jus ad bellum may not be very satisfying, but it may be an accurate one.121

Such arguments failed to impress commentators such as Hilaire McCoubrey and Nigel White, however, who asserted in strident language that ‘It is not acceptable merely to emphasize the deterrent aspects of reprisals, thereby converting illegitimate acts into legitimate ones, assuming that there is a right to take anticipatory self-defence’.122 Instead, they maintained that any such activities were violations of the jus ad bellum. Subsequent state practice perhaps presented a slightly different picture. Throughout 1995 and 1996, for example, Turkey (and, indeed, Iran) had been subjected to continuing attacks by Kurdish terrorists based in Northern Iraq. Both states responded forcibly, arguing that they were acting in lawful self-defence,123 although neither state held Iraq legally responsible for the attacks. Instead, they asserted that Iraq had been unable to exercise effective authority over the relevant territory, and thereby prevent the attacks, as a result of the no-fly zone imposed by the United States and its allies in the aftermath of the 1991 Gulf War. Although Iraq complained that it had been the victim of aggression, the United Nations did not address the issue and, whilst Turkey was subjected to criticism by the Arab League, the United States did indicate its support for the military operations.124 As Franck indicated, this apparent lack of interest on the part of the international community can, at least in part, be attributed to its lack of sympathy with Saddam Hussein and his regime. At the same time, however, it could also have been seen as evidence of a growing international acceptance for proportionate military action in and 120 See DW Bowett, ‘Reprisals Involving Recourse to Armed Force’ (1972) 66 American Journal of International Law 1 at 2. 121 Arend and Beck, above n 1 at 171. 122 McCoubrey and White, above n 14 at 115. 123 It is perhaps more accurate to say that Iran was alone in relying on the doctrine of self-defence explicitly. Turkey did not make any express reference to the concept, although the inference that this was the legal basis of its actions can be fairly easily drawn from the language used in its justifications to the Security Council. See Gray, above n 17 at 104– 105. 124 See discussion in ibid at 103–105; Franck, above n 14 at 63–64; Danish Institute for International Studies (PV Jakobsen and JE Rytter (eds)), New Threats and the Use of Force (Copenhagen, DIIS, 2005) at 68.

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against those states providing ‘safe havens for the cross-border incursions of irregular forces’.125 Michael Schmitt has certainly argued that, by the end of the 1990s, the international community seemed to have become slightly ‘more tolerant of forceful responses to terrorism’.126 Thus, when the United States responded to terrorist attacks on its embassies in Nairobi and Dar-esSalaam in 1998 with military strikes on targets in Afghanistan and Sudan, the reaction was fairly equivocal.127 Indeed, much of the condemnation centred on the quality of US intelligence relating to the selection of the target in Sudan. Thus, whilst the League of Arab States was critical of the strike on Sudanese territory, it made no similar representations regarding the strikes in Afghanistan; and whereas the Group of African States, the Arab League, the Group of Islamic States and Sudan itself had requested a Security Council investigation into the attack on Sudan, no similar request was ever made regarding the attack on Afghanistan.128 Schmitt accordingly felt able to assert confidently that states would ‘countenance counterterrorist military action as long as the underlying intelligence is reliable and other viable remedies have been exhausted or would almost certainly prove fruitless’.129 In short, it can probably be concluded that there had been a considerable number of actions purportedly taken in self-defence against terrorist bases in third states, but not against the host states themselves. Even so, there was an apparent tendency on the part of victim states to blame the host states for the commission of the relevant terrorist attacks. Many—if not most—of these uses of ‘defensive’ force in response to attacks by non-state actors were condemned by other states for a variety of reasons; from a lack of host state involvement to a lack of necessity or proportionality. There was, then, no clear acceptance of a rule permitting an armed response in self-defence to attacks by non-state, terrorist actors. At the same time, such responses did not seem to be ruled out completely. Rather, whilst there may well have been a growing acceptance of such actions, the attitude of 125

Franck, above n 14 at 63. See MN Schmitt, ‘US Security Strategies: A Legal Assessment’ (2004) 27 Harvard Journal of Law and Public Policy 737 at 747. 127 The United States had stated that the action—taken in self-defence—was necessary to prevent the armed attacks from continuing. See Letter of 20 August 1998 from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, UN Doc S/1998/780. Although Iran, Iraq, Libya, Pakistan and Russia were critical of the operations, Australia, France, Germany, Japan, Spain and the United Kingdom offered the United States their support. See SD Murphy, ‘Contemporary Practice of the United States Relating to International Law’ (1999) 93 American Journal of International Law 161 at 164–65; and Schmitt, above n 126. Franck, above n 14 at 94–96 went even further, arguing that, in effect, the Sudanese and Taliban leaders were isolated in their protests, and that ‘there was no effort in the UN to argue that such recourse to force was ipso facto illegal’. 128 Murphy, above n 127; Schmitt, above n 126. 129 Schmitt, above n 126 at 747–48. 126

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the international community was relatively ad hoc in nature, with either acceptance or condemnation depending entirely upon the circumstances in terms of the selection of targets by the victim state, and the level of involvement of the ‘host’ state—or, at least, its relationship with the terrorist organisations and its willingness and/or ability to prevent such attacks from occurring.

III. SECURITY COUNCIL AUTHORISATION

Beyond the exercise of self-defence under Article 51, the only other uses of armed force contemplated by the United Nations Charter in September 2001 were those authorised by the UN organ with ‘primary responsibility for the maintenance of international peace and security’,130 that is, the Security Council acting under Chapter VII.131 The relevant procedure is— in theory, at least—not a complex one. Article 39 of the Charter provides that: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measure shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

In this way, Resolution 660 (1990), for example, saw the Security Council expressly indicate that it was acting under Articles 39 and 40 of the Charter, make clear its determination that Iraq’s invasion of Kuwait was a breach of international peace and security, demand that Iraqi forces ‘withdraw immediately and unconditionally’ from Kuwait, and call upon the two states involved to ‘begin immediately intensive negotiations’ to resolve their differences.132 Such explicit references to specific Articles of the UN Charter are, however, relatively rare and, as Gray had indicated: ‘It is clear from the practice of the Council that no formal pronouncement with an express reference to Article 39 is required for action under Chapter VII; the use of the language of Article 39 is apparently sufficient’.133 Article 41 grants the Security Council the power to go further, and to apply a range of non-forcible measures against delinquent states (such as 130

UN Charter, Art 24. For a general discussion of the Security Council’s powers under Chapter VII, see JA Frowein and N Krisch, ‘Introduction’ in B Simma (ed), The Charter of the United Nations: A Commentary, Vol I, 2nd edn (Oxford, Oxford University Press, 2002) at 702–16. 132 Security Council Resolution 660 (1990), 2 August 1990, UN Doc S/RES/660 (1990). Art 40 gives the Security Council authority to take provisional measures. See eg, JA Frowein and N Krisch, ‘Article 40’, in B Simma (ed), The Charter of the United Nations: A Commentary, Vol I, 2nd edn (Oxford, Oxford University Press, 2002) at 729–35; McCoubrey and White, above n 14 at 130–32. 133 Gray, above n 17 at 145–46. 131

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the imposition of economic sanctions, arms embargoes, or the severing of diplomatic relations, and so on) in dealing with any given situation.134 Article 42, on the other hand, permits a much more strident response: Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

It is evident that the Council possesses a considerable degree of discretion in this regard. For example, no actual act of aggression resulting in a breach of the peace is required. Instead, the Security Council is permitted to authorise the use of force in response to a mere threat to the peace. Clearly, then, anticipatory action can be authorised under Chapter VII.135 Indeed, the determination of whether any given situation constitutes either a threat to, or a breach of, international peace and security is an area in which the Council possesses considerable freedom,136 and to which it had given ‘an increasingly broad interpretation’.137 Thus, matters that are apparently internal to states were equally capable of impacting upon international peace and security, and it has even been suggested that Security Council practice had developed to the point whereby the idea of a ‘threat to the peace’ had been modified so as to be aimed primarily at internal situations. Resolutions were accordingly adopted by the Council 134 See JA Frowein and N Krisch, ‘Article 41’ in B Simma (ed), The Charter of the United Nations: A Commentary, Vol I, 2nd edn (Oxford, Oxford University Press, 2002) at 735–49; McCoubrey and White, above n 14 at 139–44. 135 See Schmitt, above n 14 at 526. 136 Indeed, Dinstein, above n 25 at 250, described the Security Council’s latitude in this respect as ‘well-nigh unlimited’, to the point whereby effectively it possesses ‘carte blanche in evaluating any given situation’. FL Kirgis, Jr, in ‘The Security Council’s First Fifty Years’ (1995) 89 American Journal of International Law 506 at 516, had contended that the Council was, to be fair, ‘the best (in fact, the only) judge of what amounts to a threat to international peace for the purposes of chapter VII’, although he did also find its apparent ‘tendency to invoke chapter VII without demonstrating what the threat to international peace is’ to be ‘[p]articularly disturbing’ (see ibid at 538). See also Gray, above n 17 at 147, where she described a ‘lack of concern with the specification of a precise legal basis for its actions . . . [as] typical of the Security Council’. 137 See Duffy, above n 22 at 170. ND White, Keeping the Peace, 2nd edn (Manchester, Manchester University Press, 1997) at 36, had indicated that it was, ‘to a large degree, a political decision’. White, ibid at 42–47, provided an excellent discussion of Security Council practice in relation to the determination of threats to the peace, breaches of the peace, and acts of aggression. See also D Sarooshi, The United Nations and the Development of Collective Security (Oxford, Oxford University Press, 1999) at 3–4; H Kelsen, The Law of the United Nations (London, Stevens and Sons, 1951) at 727; R Higgins, The Development of International Law Through the Political Organs of the United Nations (Oxford, Oxford University Press, 1963) at 266; K Wellans, ‘The UN Security Council and New Threats to the Peace: Back to the Future’ (2003) 8 Journal of Conflict and Security Law 15; Arend and Beck, above n 1 at 48; Franck, above n 14 at 40–44; McCoubrey and White, above n 14 at 128–30; Kirgis, above n 136.

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authorising the use of force in relation to ‘oppressive and racist regimes, and, in situations of anarchy, to restore civil society, order and legitimate governance’,138 in light of which, military force had been authorised in order to alleviate the difficult situations within several states, including Bosnia-Herzegovina, Somalia, Haiti, Rwanda, Albania, East Timor and Sierra Leone.139 Given the potentially significant impact that internal armed conflict, civil strife and large-scale and widespread human rights abuses can undoubtedly have—on neighbouring states in particular but, as a consequence, on international peace and security more generally— this must be seen as the correct approach, even if it was perhaps not one originally foreseen or intended by the drafters of the Charter. Despite the apparent clarity of Articles 39–42 of the Charter, the ability of the Security Council to authorise the use of force by states is not necessarily quite as straightforward as might first be thought. It has been suggested, for example, that Article 42 actually provides a somewhat risky basis on which to authorise states to use force—a problem that relates to the nature of the relationship between Articles 42 and 43. Article 43 of the Charter requires all member states to ‘make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities . . . for the purpose of maintaining peace and security’. Given that, largely as a result of the politics of the Cold War, states had singularly failed to negotiate any such special agreements regarding the provision of forces to the United Nations, it had been argued that Article 42 had effectively become ‘a dead letter’.140 Were 138 Franck, above n 14 at 42. As expressed by the International Criminal Tribunal for the Former Yugoslavia, ‘the practice of the Security Council is rich with cases of civil war or internal strife which it classified as a “threat to the peace” and dealt with under Chapter VII’. See Prosecutor v Dusko Tadic, Appeal on Jurisdiction, 2 October 1995, (1996) 35 International Legal Materials 32 at para 30. 139 For authorisations to use force with respect to Bosnia-Herzegovina, see Security Council Resolutions 770 (1992), 13 August 1992, UN Doc S/RES/770 (1992); 787 (1992), 16 November 1992, UN Doc S/RES/787 (1992); 816 (1993), 31 March 1993, UN Doc S/RES/816 (1993); 836 (1993), 4 June 1993, UN Doc S/RES/836 (1993); and 1031 (1995), 15 December 1995, UN Doc S/RES/1031 (1995). For authorisations relating to Somalia, see Resolutions 794 (1992), 3 December 1992, UN Doc S/RES 794 (1992); and 814 (1993), 26 March 1993, UN Doc S/RES/814 (1993). For authorisations relating to Haiti, see Resolutions 875 (1993), 16 October 1993, UN Doc S/RES/875 (1993); 917 (1994), 6 May 1994, UN Doc S/RES/917 (1994); 940 (1994), 31 July 1994, UN Doc S/RES/940 (1994). The Chapter VII authorisation with respect to Rwanda was contained in Resolution 929 (1994), 22 June 1994, UN Doc S/RES/929 (1994); with respect to Albania in Resolution 1101 (1997), 28 March 1997, UN Doc S/RES/1101 (1997); with respect to East Timor in Resolution 1264 (1999), 15 September 1999, UN Doc S/RES/1264 (1999) and 1272 (1999), 25 October 1999, UN Doc S/RES/1272 (1999); and with respect to Sierra Leone in Resolution 1270 (1999), 22 October 1999, UN Doc S/RES/1270 (1999). 140 Brownlie, above n 1 at 335, suggested the possibility that ‘the Security Council has no power to order enforcement measures in view of the non-implementation of Article 43’. Art 106 of the Charter certainly seemed to frame the relationship in terms of Art 42 being dependent upon Art 43, in that it made provision for transitional security arrangements, ‘Pending the coming into force of such special agreements as referred to in Article 43 . . . to

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that to be true, it would almost certainly have ‘put paid to the Charter’s vaunted collective military security system’.141 In fact, the terms of Articles 42 and 43 would seem to be rather more flexible than this. Although it may well be suggested implicitly, nothing in Article 42 (or in any of the following Articles) specifically requires such special agreements to be in place, and thereby ‘precludes states from voluntarily making armed forces available to carry out the resolutions of the Council adopted under Chapter VII’.142 Indeed, Franck has argued that, in authorising military action in Somalia in 1992 for example, the Security Council—although acting under Chapter VII in general, and without making any explicit reference to Article 42—‘followed precisely the prerequisites of Article 42’ in any case.143 McCoubrey and White had argued, along slightly different lines, that, even in the absence of any Article 43 agreements, military enforcement action through the United Nations had not been hampered significantly in that, although the Security Council was technically unable to require states to use force under the auspices of Chapter VII, it would seem to have instead ‘developed a power, based on article 39, to recommend that military measures shall be applied against states’.144 White later accepted, however, that: Whether the development of the military option is viewed as a power implied from Article 39 or 42, or both, is not of great importance, if the power is used to fulfil the purposes of the UN and is clearly formulated at the outset of the operation. What is clear at the moment is that the Security Council has not yet ‘decided’ to use military force, it has simply recommended or authorised that States, on a voluntary basis, use force in particular situations and for particular purposes.145

None of this, however, deals with the important question as to whether the Security Council has the capacity to ‘authorise’ the use of force by member states at all. The UN Charter, after all, gives the Security Council the authority in Article 42 to require states to take measures in a binding enable [the Security Council] to begin the exercise of its responsibilities under Article 42’. JA Frowein and N Krisch, ‘Article 42’ in B Simma (ed), The Charter of the United Nations: A Commentary, Vol I, 2nd edn (Oxford, Oxford University Press, 2002) at 751, stated that the failure to reach any Article 43 agreements left the envisaged system of collective security ‘incomplete in one of its most important parts’. See also BH Weston, ‘Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy’ (1991) 85 American Journal of International Law 516 at 519; Murphy, above n 7 at 110; Kirgis, above n 136 at 520; McCoubrey and White, above n 14 at 133. 141 Franck, above n 14 at 23. 142 Weston, above n 140 at 519, referring to O Schachter, ‘United Nations Law in the Gulf Conflict’ (1991) 85 American Journal of International Law 452 at 463–64, as providing a helpful (and, indeed, correct) observation in this regard. See also Franck, above n 14, at 24–27; White, above n 137 at 117; Higgins, above n 4 at 265; and Kirgis, above n 136 at 521. 143 Franck, above n 14 at 28. 144 McCoubrey and White, above n 14 at 133. See also Dinstein, above n 25 at 269. 145 White, above n 137 at 119.

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sense, rather than simply to authorise states to take measures—an approach that is clearly altogether more permissive. Consistent practice, however, pointed to the acceptance of this, especially since the Security Council, in the continuing absence of any standing military capacity under Article 43, has had no practical option but to rely on member states.146 Even within these constraints, however, the Council seems to have retained some discretion in terms of the parties capable of being authorised by it to use force. Thus, although most instances had seen authorisation granted to ad hoc groups of member states (that is, coalitions of the willing), Security Council authorisation had also been granted, when the occasion demanded, to individual member states;147 to international and/or regional organisations;148 or to the United Nations’ own peacekeeping and observer forces.149 The end result would, then, seem to have been a situation whereby the Security Council was effectively forced to franchise, or decentralise, the use force on an ad hoc basis, losing an element of control over its employment in practice.150 Of course, the very idea of collective security entails that military force should be used in the interests of the international community as a whole, and not individual states. The position as outlined was plainly problematic, then, in that community interest is furthered by the centrality accorded to the Security Council’s control over the offensive use of force. This centrality is compromised by sundering the authorization process from the enforcement mechanism, by which enforcement is delegated to individual states or a coalition of states. Such separation results in a strong potential for powerful states to use UN

146 See discussion in JA Frowein and N Krisch, ‘Article 39’, in B Simma (ed), The Charter of the United Nations: A Commentary, Vol I, 2nd edn (Oxford, Oxford University Press, 2002) at 728–29, and ‘Article 42’, above n 140 at 756–58. For a general discussion of the Security Council’s ability to delegate its powers, see Sarooshi, above n 137. 147 Such as that granted to the United Kingdom in relation to Southern Rhodesia (Resolution 221 (1966), 9 April 1966); to France in relation to Rwanda (Resolution 929, see above n 139); and to the United States in relation to Haiti (see Resolutions 875, 917 and 940, above n 139). See also White, above n 137 at 127–28. 148 Such as the authorisation granted to NATO enabling it to take military action in Bosnia in 1992. See the resolutions referred to in n 139 above; White, above n 137 at 126–27. 149 Schmitt, above n 14 at 527–28. Although the extent of forcible action available to such UN forces was traditionally limited to self-defence, the Security Council had, on occasion, clouded the issue somewhat and blurred the apparent legal distinction between peacekeeping and enforcement action. See the discussion in Gray, above n 17 at 171–83; and Frowein and Krisch, above n 140 at 756. 150 Frowein and Krisch, above n 140 at 758, refer to descriptions of this as the ‘privatization’ of collective security. See also J Lobel and M Ratner, ‘Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime’ (1999) 93 American Journal of International Law 124 at 126; Franck, above n 14 at 22; White, above n 137 at 117. The question as to whether such an ad hoc, and necessarily erratic, approach is either desirable or acceptable in terms of the original collective security ideal is beyond the scope of this study. See Sarooshi, above n 137 in particular at 142–246.

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authorizations to serve their own national interests rather than the interests of the international community as defined by the United Nations.151

It might have been thought that any potential problems arising from a loss of UN control over armed operations could be avoided, were the Security Council able to issue forces with a clear and unambiguous mandate at the outset.152 Unfortunately, problems can, and did, arise in the context of whether the Security Council had, in fact, authorised the use of force at all. Thus, the intention of the Council, or else the mandate provided by it, could be unclear—both with potentially dangerous consequences. As Jules Lobel and Michael Ratner pointed out: This ‘contracting out’ mode leaves individual states with wide discretion to use ambiguous, open-textured resolutions to exercise control over the initiation, conduct and termination of hostilities. Such states may seek to apply resolutions by the Security Council in conflict with its aims and objectives or the view of its members . . .153

Security Council resolutions are not always easy to interpret. In particular, and given that they almost always represent political compromise, they are often ambiguous and reflect the fact that, under the current voting system, it is extremely difficult to attain the Council’s approval for military action.154 That should not be seen as a problem per se—in fact, such a situation is entirely proper. As Lobel and Ratner explained: ‘That China, India, Russia and occasionally France balk at what they consider an inappropriate use of force is not cause for concern; rather, it should lead observers to conclude that the Council retains some vitality as a restraint on war making’.155 Ambiguity in terms of the text of resolutions therefore tends to indicate that sufficient consensus has not actually been reached, in light of which it would seem prudent to accept that all such resolutions should receive a narrow interpretation. After all, Security Council resolutions can have a significant impact on the sovereignty of 151

Lobel and Ratner, above n 150 at 127. White, above n 137 at 118. 153 Lobel and Ratner, above n 150 at 125. 154 It was for this reason, exacerbated as it was at the time by the political impasse generated in the Council by the Cold War, that the General Assembly is (in circumstances where the Security Council cannot discharge its mandate due to paralysis of its decision making process) also capable of authorising the use of force by member states. See the ‘Uniting for Peace’ Resolution, General Assembly Resolution 377 (V), 3 November 1950, UN Doc A/RES/377 (V). The lawfulness of such authority passing to the General Assembly had been called into question, although the issue is largely irrelevant now in any case, given the tacit agreement of the permanent members that only the Security Council should authorise the use of force, allied to changes in the political landscape which meant that the Security Council had been approaching its role with renewed vigour in any case. See the Advisory Opinion on Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), ICJ Reports (1962) 151 at 162–65; Franck, above n 14 at 31–40; Murphy, above n 7 at 109; Dinstein, above n 25 at 273–76; McCoubrey and White, above n 14 at 134–35. 155 Lobel and Ratner, above n 150 at 135. 152

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member states, and ‘limitations of sovereignty may not be lightly assumed’.156 In discussing this issue, the ICJ had therefore cautioned that: The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25 [of the UN Charter], the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council.157

Authorising member states to use armed force is clearly an exceptional, and extremely serious step for the Security Council to take. Any such authorisation should therefore be beyond doubt, and consequently there should be a ‘strong presumption against implied . . . or open-ended authorisation to use force, and in favour of a strict interpretation that limits the right to use force to the particular situation and purpose to which the authorisation was directed’.158 Nonetheless, faced with a situation in which the Security Council either could not or would not authorise the use of force explicitly in circumstances where at least some member states considered it necessary, ‘propel[led] the search for implied authorizations’.159 156 See eg, Frowein and Krisch, above n 131 at 713. In particular, it must also be remembered that resolutions adopted by the Security Council do not always reflect a common understanding, and so cannot necessarily be treated in the same way as treaties. 157 Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276, ICJ Reports (1971) 15 at 53. See also Duffy, above n 22 at 174; M Byers, ‘The Shifting Foundations of International Law: A Decade of Forceful Measures Against Iraq’ (2002) 13 European Journal of International Law 21; M Wood, ‘The Interpretation of Security Council Resolutions’ (1998) 2 Max Planck Yearbook of United Nations Law 73. 158 Duffy, above n 22 at 175. See also the relevant discussion in E Papastavridis, ‘Interpretation of Security Council Resolutions Under Chapter VII in the Aftermath of the Iraqi Crisis’ (2007) 56 International and Comparative Law Quarterly 83 at 107, where it was asserted that:

The framework of the delegation of powers in international organizations has as a consequence that the terms of a Resolution which delegates Chapter VII powers are to be interpreted narrowly. The same interpretative proposition, ie for a narrow interpretation of authorizations under Chapter VII, stems also from another source, namely from the application of the Latin maxim exceptiones sunt strictissimae interpretationes (exceptions to a rule should always be construed narrowly). 159 Lobel and Ratner, above n 150 at 130. Following an examination of practice in the area, the authors were able (tentatively) to conclude at 130–34:

(1) that while there have been occasional attempts to justify uses of force under the theory of implied authorizations, these incidents do not amount to a ‘systematic unbroken practice’ . . . that warrants a ‘gloss’ on the Charter’s requirement of explicit Security Council approval; (2) that most of these claims of implied authorization have been strongly contested; and, most important;

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Prior to the end of the Cold War, the Chapter VII activities of the Security Council had very little impact, with the most significant military operation (that is, that deployed to deal with the situation between South and North Korea) falling more neatly under the banner of collective selfdefence than that of true enforcement action.160 The number of activities authorised under Chapter VII from 1991 onwards, however, increased markedly. In most of the relevant cases prior to 2001, the Council had authorised the use of force explicitly, if somewhat euphemistically, by granting the states in question permission to resort to ‘all necessary means’.161 And yet, on occasion, the Security Council had still failed to express itself with sufficient clarity. For example, it periodically failed to assert whether a particular resolution had been adopted under Chapter VII. It will be recalled that Article 39 requires the Council to determine whether there is a threat to, or a breach of, the peace, but not necessarily to state this explicitly in any relevant resolution. It may have become standard practice for it to do so, and to specifically indicate that it was acting under Chapter VII of the Charter, but in a number of cases it has failed to do so, thereby leaving the legal basis for any pursuant military action in doubt.162 Similarly, the Council had not always been able to define the scope of its authorisations with sufficient levels of precision. Resolution 678,163 for example, had permitted those states acting in concert with the government of Kuwait not only ‘to uphold and implement Resolution 660’, but also, in extremely broad terms, to uphold and implement ‘all subsequent relevant resolutions’, as well as to ‘restore international peace and security to the area’—language that has been subjected to criticism on the basis that it could mean ‘virtually anything’.164 It has been suggested that, where doubts may have existed as to the scope of authorised military action, any such action should be limited to defence. Thus, it has been contended that it was the application of such an approach in 1991 that influenced the (3) that the difficulty of determining whether an authorization has been implied and the resulting uncertainty for world order counsel caution in adopting any such reading of Security Council actions. 160 In Security Council Resolution 83 (1950), UN Doc S/1511, 27 June 1950, it had been determined that the armed attack on South Korea by North Korea constituted a breach of the peace, and it was recommended that member states ‘furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area’. Such assistance was to take the form of a force under the unified command of the United States, rather than a UN force. See Security Council Resolution 84 (1950), UN Doc S/1588, 7 July 1950. On the authorisation of a UN peacekeeping operation in the Congo, and the United Kingdom’s military action in relation to the oil embargo on Southern Rhodesia, see eg, Frowein and Krisch, above n 140 at 751; McCoubrey and White, above n 14 at 144. 161 Duffy, above n 22 at 175. 162 Frowein and Krisch, above n 146 at 727. 163 UN Security Council Resolution 678 (1990), 29 November 1990. 164 Lobel and Ratner, above n 150 at 126.

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limitation of the coalition’s military operations against Iraq to its removal from Kuwait ‘in a mainly defensive operation’.165 Be that as it may, there is no doubt that the lack of clarity in the terms of Resolution 678 led to the subsequent difficulties in relation to the attempts by individual member states to interpret creatively the mandate contained therein (and, indeed, in later Security Council resolutions), in order to assert a continuing, implied authority to use military force against Iraq—as will be discussed in chapter three below.

165 White, above n 137 at 123. See, however, Sarooshi, above n 137 at 15, where it was asserted that there is

a presumption that where the Council authorizes the use of force by States then this represents a delegation by the Council of its Chapter VII powers and not just a reaffirmation of States’ right to use force in self-defence. . . . the only case in which a Council resolution that authorizes military action would be authorizing self-defence measures is where the resolution expressly refers to this right and does not authorize measures which could possibly exceed the scope of this right. Greenwood stated that such disagreements were ‘by no means academic, since [in the context of Resolution 678, for example] the answer has important implications for another difficult issue, namely the extent of the authorisation to use force and whether the resolution permitted the coalition to go beyond the objective of liberating Kuwait’. See C Greenwood, ‘New World Order or Old? The Invasion of Kuwait and the Rule of Law’ (1992) 55 The Modern Law Review 153 at 167.

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2 Military Action Against Afghanistan, 2001 Operation Enduring Freedom

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HE EVENTS OF 11 September 2001 are extremely well known. In brief, however, four civilian aeroplanes were hijacked in the United States by terrorists. Two of the planes were flown into the World Trade Center in New York, and one was flown into the Pentagon. The fourth crashed in the Pennsylvania countryside following a failed attempt by passengers to regain control of the aircraft. The number of resulting civilian deaths exceeded 3,000.1 International condemnation of the attacks was widespread and immediate, with numerous critical statements being made both by individual heads of state and by international organisations. On 11 September itself, for example, both the Secretary General of NATO and the North Atlantic Council issued public statements of outrage,2 as did the Secretary General of the Organisation of American States (OAS) and the OAS General Assembly.3 Further condemnation followed on 12 September,4 the date on

1 For a brief exposition of the events leading up to military action, see eg, SD Murphy, ‘Terrorist Attacks on World Trade Center and Pentagon’ (2002) 96 American Journal of International Law 237. Further information relating to the 11 September attacks and their aftermath can be found, eg, in (2001) 47 Keesing’s Record of World Events 44333, and subsequent relevant entries. 2 See ‘Statement by the Secretary General of NATO, Lord Robertson’, NATO Press Release PR/CP (2001) 121, 11 September 2001; ‘Statement by the North Atlantic Council’, NATO Press Release PR/CP (2001) 122, 11 September 2001. 3 See ‘OAS Secretary General Condemns Acts of Terrorism in United States’, OAS Press Release E-002/01, 11 September 2001; ‘Statement from the OAS General Assembly’, OAS Press Release E-005/01, 11 September 2001. 4 See eg, United Nations General Assembly Resolution 56/1 (12 September 2001), UN Doc A/Res/56/1; ‘Statement by the Euro-Atlantic Partnership Council’, NATO Press Release (2001) 123, 12 September 2001; ‘Statement by President Prodi on the attacks against the United States’, EU Press Release IP/01/1265, 12 September 2001; ASEAN Ministerial Statement on International Terrorism, 12 September 2001, www.aseansec.org/589.htm; ASEAN Secretary General’s Letter to US Secretary of State Colin Powell on Terrorist Attacks, 12 September 2001, www.aseansec.org/591.htm; Statement by Dr Abdelouahed Belkeziz,

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which the UN Security Council adopted Resolution 1368.5 Given the importance of this resolution to the discussion that will follow below, it merits quotation in full, and provided as follows: The Security Council, Reaffirming the principles and purposes of the Charter of the United Nations, Determined to combat by all means threats to international peace and security caused by terrorist acts, Recognizing the inherent right of individual or collective self-defence in accordance with the Charter, 1. Unequivocally condemns in the strongest terms the horrifying terrorist attacks which took place on 11 September 2001 in New York, Washington, DC and Pennsylvania and regards such acts, like any act of international terrorism, as a threat to international peace and security; 2. Expresses its deepest sympathy and condolences to the victims and their families and to the people and Government of the United States of America. 3. Calls on all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of these terrorist attacks and stresses that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable; 4. Calls also on the international community to redouble their efforts to prevent and suppress terrorist acts including by increased cooperation and full implementation of the relevant international anti-terrorist conventions and Security Council resolutions, in particular resolution 1269 (1999) of 19 October 1999; 5. Expresses its readiness to take all necessary steps to respond to the terrorist attacks of 11 September 2001, and to combat all forms of terrorism, in accordance with its responsibilities under the Charter of the United Nations; 6. Decides to remain seized of the matter.

Yet further condemnation followed in succeeding days,6 and within a week, the United States had ‘moved beyond a criminal law enforcement paradigm in determining how to respond to the attacks’, effectively Secretary-General of the OIC, 12 September 2001, www.cair.com/AmericanMuslims/ AntiTerrorism/IslamicStatementsAgainstTerrorism.aspx. The North Atlantic Council met again on 12 September, and agreed that if it is determined that this attack was directed from abroad against the United States, it shall be regarded as an action covered by Article 5 of the Washington Treaty, which states that an armed attack against one or more of the Allies in Europe or North America shall be considered an attack against them all. See ‘Statement by North Atlantic Council’, NATO Press Release (2001) 124, 12 September 2001. 5 UN Security Council Resolution 1368 (2001), 12 September 2001, UN Doc S/RES/1368 (2001). 6 See ASEAN Standing Committees Chairman’s Letter to US Secretary of State Colin Powell on Terrorists Attack, 13 September 2001, www.aseansec.org/590.htm; Joint Declaration by the Heads of States and Government of the European Union, the President of the European Parliament, the President of the European Commission, and the High Representative for the Common Foreign and Security Policy, 14 September 2001,

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placing itself on a war footing.7 A national emergency was proclaimed on 18 September,8 and members of the army reserve were called up.9 The US Congress also passed a joint resolution authorising President Bush to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harboured such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.10

On 28 September, the Security Council adopted Resolution 1373,11 which included in its preamble the following provisions: The Security Council, Reaffirming its resolutions 1269 (1999) of 19 October 1999 and 1368 (2001) of 12 September 2001, Reaffirming also its unequivocal condemnation of the terrorist attacks which took place in New York, Washington, DC and Pennsylvania on 11 September 2001, and expressing its determination to prevent all such acts, Reaffirming further that such acts, like any of international terrorism, constitute a threat to international peace and security, Reaffirming the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations and reiterated in resolution 1368 (2001), ... Reaffirming the principle established by the General Assembly in its declaration of October 1970 (resolution 2625 (XXV)) and reiterated by the Security Council in its resolution 1189 (1998) of 13 August 1998, namely that every State has the duty to refrain from organizing, instigating, assisting or participating in terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts . . .

Responsibility for the 11 September attacks was quickly attributed to Al-Qaeda, a terrorist organisation led by Osama bin Laden and based in http://ec.europa.eu/external_relations/news/prodi/jnt_dec_09_01.htm; Statement by General Secretariat of the League of Arab States, 17 September 2001, www.cair.com/ AmericanMuslims/AntiTerrorism/IslamicStatementsAgainstTerrorism.aspx; Communiqué of the Seventy-sixth Ordinary Session of the Central Organ of the OAU Mechanism for Conflict Prevention, Management and Resolution held at the Ambassadorial Level, 20 September 2001, reproduced in US State Department, Patterns of Global Terrorism 2001, Appendix H: Multinational Response to September 11, www.state.gov/documents/ organization/10313.pdf. 7 MN Schmitt, ‘Counter-Terrorism and the Use of Force in International Law’ in FL Borch and PS Wilson (eds), International Law Studies, Volume 79: International Law and the War on Terror (Newport, Naval War College, 2003) 7 at 12. 8 US Government Proclamation No 7463, 66 Fed Reg 48,199 (18 September 2001). 9 US Government Executive Order No 13,223, 66 Fed Reg 48,201 (18 September 2001). 10 See Authorization for Use of Military Force, Pub L No 107-40, 115 Stat 224 (18 September 2001), §2(a). 11 Resolution 1373 (2001), 28 September 2001, UN Doc S/RES/1373 (2001).

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Taliban-controlled Afghanistan.12 The same organisation had also allegedly perpetrated the terrorist attacks on the World Trade Center in 1993, the US Embassies in Kenya and Tanzania in 1998, and the USS Cole in 2000.13 US President George W Bush accordingly stated on 20 September that ‘The evidence we have gathered all points to [the attacks having been carried out by] a collection of loosely affiliated terrorist organizations known as Al Qaida’,14 going on to issue several demands to the Taliban as follows: Deliver to the United States authorities all leaders of Al Qaida who hide in your land. Release all foreign nationals, including American citizens, you have unjustly imprisoned. Protect foreign journalists, diplomats, and aid workers in your country. Close immediately and permanently every terrorist training camp in Afghanistan, and hand over every terrorist and every person in their support structure to the appropriate authorities. Give the United States full access to terrorist training camps, so we can make sure they are no longer operating.15

The demands were not met and, following a final warning on 6 October that time was ‘running out’,16 the United States and the United Kingdom launched ‘Operation Enduring Freedom’ on 7 October 2001 with a series of military attacks on Taliban and Al-Qaeda targets in Afghanistan. Despite suggestions that several alternative legal justifications could have been advanced for the strikes,17 both states relied exclusively on the right of self-defence. Thus, the United States duly informed the Security Council of the military action in the following terms: 12 Several allegations of responsibility were made very quickly, although the United Kingdom and the United States did not officially attribute responsibility for the attacks to AlQaeda until October 2001. See discussion below. Osama bin Laden initially denied any involvement in the attacks. See CNN, ‘Bin Laden says he wasn’t behind attacks’, http:// edition.cnn.com/2001/US/09/16/inv.binladen.denial/. 13 See the discussion of the terrorist attacks on the US Embassies, and the military response to them, in ch 1 above. Al-Qaeda had also claimed responsibility for three bombings in Yemen in 1992 and the attack on US special forces in Somalia in 1993. See Schmitt, above n 7 at 11. Osama bin Laden had apparently called upon ‘every Muslim who believes in God and wishes to be rewarded to comply with God’s order to kill Americans and plunder their money whenever and wherever they find it’. See UK Government, ‘Responsibility for the Terrorist Atrocities in the United States’, Press release of 4 October 2001, www.number10.gov.uk/output/page3682.asp. 14 US President, ‘Address Before a Joint Session of the Congress of the United States Response to the Terrorist Attacks of September 11’, 37 Weekly Compilation of Presidential Documents 1347. 15 ibid at 1348. 16 See ‘President’s Radio Address of 6 October 2001’, 37 Weekly Compilation of Presidential Documents 1429 at 1430. 17 In particular, it has been suggested that the operations could have been legally justified in terms of Security Council authorisation under Chapter VII; intervention at the invitation of the Northern Alliance; or else humanitarian intervention. None of these possibilities seems particularly convincing, but for a brief examination of such arguments, see M Byers, ‘Terrorism, The Use of Force and International Law After 11 September’ (2002) 51 International and Comparative Law Quarterly 401 at 401–405. The opposite—and more realistic—view, namely that ‘other justifications were not at hand’, was taken by eg, C Stahn, ‘International Law at a Crossroads? The Impact of September 11’ (2002) 62 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 183 at 211–13.

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In accordance with Article 51 of the Charter of the United Nations, I wish, on behalf of my Government, to report that the United States of America, together with other States, has initiated actions in the exercise of its inherent right of individual and collective self-defence following the armed attacks that were carried out against the United States on 11 September 2001 . . . The attacks on 11 September 2001 and the ongoing threat to the United States and its nationals posed by the Al-Qaeda organization have been made possible by the decision of the Taliban regime to allow the parts of Afghanistan that it controls to be used by this organization as a base of operation. Despite every effort by the United States and the international community, the Taliban regime has refused to change its policy. From the territory of Afghanistan, the Al-Qaeda organization continues to train and support agents of terror who attack innocent people throughout the world and target United States nationals and interests in the United States and abroad. In response to these attacks, and in accordance with the inherent right of individual and collective self-defence, United States armed forces have initiated actions designed to prevent and deter further attacks on the United States. These actions include measures against Al-Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan . . .18

The United Kingdom similarly reported to the Security Council that: In accordance with Article 51 of the Charter of the United Nations, . . . the United Kingdom of Great Britain and Northern Ireland has military assets engaged in operations against targets that we know to be involved in the operation of terror againsts the United States of America, the United Kingdom and other countries around the world, as part of a wider international effort. These forces have now been deployed in exercise of the inherent right of individual and collective self-defence, recognized in Article 51, following the terrorist outrage of 11 September, to avert the continuing threat of attacks from the same source. My Government presented information to the United Kingdom Parliament on 4 October which showed that Usama Bin Laden and his Al-Qaeda terrorist organization have the capability to execute major terrorist attacks, claimed credit for past attacks on United States targets, and have been engaged in a concerted campaign against the United States and its allies . . . This military action has been carefully planned, and is directed against Usama Bin Laden’s Al-Qaeda terrorist organization and the Taliban regime that is supporting it.19

In light of the requirements for lawful self-defence, as outlined above in chapter one, the validity of such claims depended, first, on whether the terrorist attacks of 11 September 2001 could be characterised as an armed 18 Letter dated 7 October 2001 from the Permanent Representative of the United States of America to the United Nations addressed to the President of the Security Council, UN Doc S/2001/946 (7 October 2001). 19 Letter dated 7 October 2001 from the Chargé d’affaires a.i. of the Permanent Mission of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the President of the Security Council, UN Doc S/2001/947 (7 October 2001).

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attack for the purposes of Article 51 of the UN Charter. It will be recalled, however, that Article 51 does not entirely codify the international law of self-defence and that, in order to be lawful, any such action must also satisfy the requirements imposed by customary international law, that is the use of force in self-defence by the United States and the United Kingdom must also have been both necessary and proportionate in the circumstances.20 I. WAS THERE AN ARMED ATTACK ON THE UNITED STATES?

As indicated above in chapter one, Article 51 of the UN Charter permits states to take military action in either individual or collective self-defence ‘if an armed attack occurs against a Member of the United Nations’. In the aftermath of the event, there had been suggestions that the 11 September attacks were more accurately characterised as being ‘conventional’ criminal acts under US law,21 rather than as armed attacks against the United States itself. That the attacks constituted murder, and were therefore criminal, is not in dispute. This does not, however, preclude them from also amounting to an armed attack for the purposes of selfdefence. As Christopher Greenwood has explained, the concepts of crime (on both the domestic level and on the international level) and armed attack ‘are not . . . mutually exclusive and there is no reason why they should be treated as such’.22 As a consequence, ‘Self-defence would only be unnecessary if it appeared that law enforcement authorities were highly likely to apprehend those expected to continue the terrorist campaign before they could mount further attacks. With al-Qa’ida, that was clearly not the case’.23 It has already been demonstrated, however, that exactly what type of activity constitutes an armed attack for the purposes of Article 51 is not entirely free from controversy. Greenwood, for example, has accepted that the concept is ‘generally used with reference to the use of regular armed forces by states’, but counters that ‘there is no a priori reason why the term 20 Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports (1986) 14 at para 176. 21 And possibly even as crimes against humanity under international law. See eg, C Greenwood, ‘International Law and the “War Against Terrorism”’ (2002) 78 International Affairs 301 at 305; Stahn, above n 17 at 242–48. 22 Greenwood, above n 21. See also SD Murphy, ‘Terrorism and the Concept of “Armed Attack” in Article 51 of the UN Charter’ (2002) 43 Harvard International Law Journal 41 at 49, where it is similarly contended that ‘there is no need to view the September 11 incidents as presenting a binary choice between being regarded either as a criminal act or as a use of force amounting to an armed attack. In fact, the incidents can properly be characterized as both’. 23 MN Schmitt, ‘Deconstructing October 7th: A Case Study in the Lawfulness of Counterterrorist Military Operations’ in M Schmitt and GL Beruto (eds), Terrorism and International Law: Challenges and Responses (San Remo, International Institute of Humanitarian Law, 2003) 39 at 44.

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should be so confined’.24 Having said that, there would seem to have been a significant body of legal opinion adhering to the opposite view. It will be recalled that previous claimed exercises of self-defence against terrorist attacks had certainly not met with the uniform acceptance of the international community.25 Indeed, the ICJ has subsequently held that Article 51 of the UN Charter ‘recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State’ (emphasis added).26 With respect, this is simply not the case. Article 51 does not expressly limit self-defence to the situation where one state is attacked by another. All it requires is that an armed attack has occurred. Of course, it must be accepted that the world was a very different place in 1945, and that the drafters of the Charter may well have envisaged armed attacks as emanating from states only. Nonetheless, it is noticeable that the terminology of Article 2(4), prohibiting the use of force by all ‘Members’ of the United Nations (that is, states), is not to be found in the context of self-defence, where there is no corresponding requirement that an armed attack must also have emanated from a ‘Member’. Furthermore, international law—even as it happens to be expressed in the UN Charter— is not a static system. Accordingly, ‘the need to interpret the Charter in the context of current realities . . . indicates that the right of self-defense may arise also in the case of attacks by non-state entities’.27 The better view, then, is that Thomas Franck was entirely correct when he maintained that the right of self-defence ‘is expressly accorded in response to “an armed attack” and not [in relation] to any particular kind of attacker’.28 Indeed, it was generally accepted at the time of the attacks on the United States that armed attacks could be carried out by irregular troops and 24 Greenwood, above n 21 at 307; C Greenwood, ‘International Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaida, and Iraq’ (2003) 4 San Diego Journal of International Law 7 at 16. 25 See the discussion in ch 1 above. 26 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports (2004) 135 at para 139. See further discussion of this below in ch 4. It has also been suggested by some commentators that, although Art 51 does not specifically include this requirement (nor, indeed, does Art 5 of the NATO Treaty), the condition ‘may be taken as implicit’. See eg, G Gaja, ‘In What Sense was there an “Armed Attack”?’, in The Attack on the World Trade Center: Legal Responses, European Journal of International Law Discussion Forum, www.ejil.org/forum_WTC/ny-gaja.html. Likewise, it has been asserted that the concept of self-defence ‘in principle, only permits armed reaction to foreign aggression coming from a State, not a nebulous transnational movement’. See P-M Dupuy, ‘The Law After the Destruction of the Towers’, in The Attack on the World Trade Center: Legal Responses, www.ejil.org/forum_WTC/ny-dupuy.html. 27 R Mullerson, ‘Jus ad Bellum and International Terrorism’ in FL Borch and PS Wilson (eds), International Law Studies, Volume 79: International Law and the War on Terror (Newport, Naval War College, 2003) 75 at 112. See also the reference made therein to Y Dinstein, War, Aggression and Self-Defence, 3rd edn (Cambridge, Cambridge University Press, 2001) at 192. 28 T Franck, ‘Terrorism and the Right of Self-Defense’ (2001) 95 American Journal of International Law 839 at 840. Murphy, above n 22 at 50 argued that ‘To the extent that Article 51 preserves an inherent right of self-defense, that right prior to the adoption of the UN Charter included the right to respond to acts from wherever they may come’. See also C Gray, International Law and the Use of Force, 3rd edn (Oxford, Oxford University Press, 2008) at

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other non-state actors. As outlined in chapter one, this had been made explicit in the Nicaragua case, where the ICJ held that acts of armed bands or irregular forces could amount to an armed attack where the acts of armed force are, ‘of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces’.29 It will be recalled that, in order to arrive at this conclusion, the Court had relied on the UN General Assembly’s Definition of Aggression, which includes ‘the sending by or on behalf of a state of armed bands, irregulars or mercenaries which carry out acts of armed force against another state of such gravity as to amount to the acts listed [earlier in the paragraph]’.30 Of course, using this definition to determine the existence of an armed attack is not entirely free from difficulty, in that no precise conformity exists between the notions of armed attack on the one hand, and aggression on the other. Yet further criticism of the Court’s decision in Nicaragua had persuasively argued that not only were the relevant criteria as adopted by the ICJ ‘operationally unworkable’, they were also aimed (wrongly) at the issue of what represents an armed attack in international law, rather than the issue of what would represent a proportionate response. Worthy of repetition, Rosalyn Higgins had, for example, expressed her thoughts on this thorny matter both forcefully and eloquently, in the following terms: What I find puzzling about the Court’s reasoning is this. It refers to the Assembly Resolution on the Definition of Aggression which states that an armed attack occurs if the use of force by bands or irregulars is equivalent to an armed attack by the regular forces of a state. But how much force does one need by the regular force of a state before it is an ‘armed attack’ and allows self-defence? If a division of troops rolls over the border, is the decision as to whether force can be used to repel them the level of force they are using? By adopting the unsatisfactory definition of the General Assembly Aggression Resolution, and proclaiming it customary international law, the Court appears to have selected criteria that are operationally unworkable. When a state has to decide whether it can repel incessant low-level irregular military activity, does it really have to decide whether that activity is the equivalent of an armed attack by a foreign army— and, anyway, is not any use of force by a foreign army entitled to be met by sufficient force to require it to withdraw? Or is that now in doubt also? Is the question of level of violence by regular forces not really an issue of proportionality, rather than determining what is ‘an armed attack’?31

128–32; Schmitt, above n 23 at 43; Stahn, above n 17 at 213; JJ Paust, ‘Use of Armed Force Against Terrorists in Afghanistan, Iraq, and Beyond’ (2002) 35 Cornell International Law Journal 533 at 534; JN Maogoto, ‘War on the Enemy: Self-Defence and State-Sponsored Terrorism’ (2003) Melbourne Journal of International Law 406 at 431. 29 Nicaragua case, above n 20 at para 195. 30 General Assembly Resolution 3314 (XXIX), Definition of Aggression, 14 December 1974 at Art 3(g). 31 R Higgins, Problems and Process: International Law and How We Use It (Oxford, Oxford University Press, 1994) at 251.

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Despite these misgivings, she nonetheless accepted reluctantly that this must be ‘regarded as a statement of the law as it [stood at the time]’.32 Christine Gray had likewise pointed out that the approach adopted by the Court in Nicaragua was probably justified in light of the practice of states, and of the Security Council.33 The decision did, at least, stop short of suggesting that the concepts of aggression and armed attack were the same. Thus, although there is nothing in the text of Article 51 requiring that an armed attack be carried out by a state, the ICJ decision in the Nicaragua case and, in particular, the Court’s reliance on the General Assembly’s Definition of Aggression, has resulted in the more problematic question as to the degree of state involvement that is necessary in order for the actions of irregulars, or of private non-state actors, to qualify as an armed attack and trigger the right of self-defence. It will be recalled that the General Assembly’s Definition of Aggression requires that irregular forces be sent either ‘by or on behalf of a state’. The ability to attribute responsibility for the armed attack to a state would therefore seem to be necessary. In this context, the ICJ used the relatively high threshold of ‘effective control’ in the Nicaragua case, holding that mere assistance provided by a state in terms of the provision of weapons, or of logistical or other support, was insufficient to constitute an armed attack.34 Like many other aspects of the judgment, this has also been severely criticised. Indeed, in their Dissenting Opinions, Judges Schwebel and Jennings both argued that the Court’s approach to the question was far too restrictive. Thus, Judge Schwebel expressed his belief that, ‘the Judgment of the Court on the critical question of whether aid to irregulars may be tantamount to an armed attack departs from accepted—and desirable—law’,35 arguing that the provision of ‘arms, munitions, other supplies, training, command-and-control facilities, sanctuary and lesser forms of assistance’ in fact represented ‘substantial involvement’, and should be sufficient to trigger the right of self-defence.36 Judge Jennings accepted that, although the ‘mere provision of arms cannot be said to amount to an armed attack’, such assistance could nonetheless constitute an important element in an armed attack when placed in the context of other kinds of involvement. In his opinion, for the ICJ ‘to say that the provision of arms, coupled with “logistical or other support” is not armed attack is going much too far’.37 32 And, indeed, as it stood in 2004. See Palestinian Wall Advisory Opinion, above n 26, Separate Opinion of Judge Higgins, at para 33. 33 Gray, above n 28 at 130. 34 The Court accepted that such assistance could, however, be a threat or use of force, or unlawful intervention. See Nicaragua case, para 195. Judges Schwebel and Jennings took the opposite view. 35 See Nicaragua case, above n 20, Dissenting Opinion of Judge Schwebel, 259 at para 155. 36 ibid at paras 162–71. 37 Nicaragua case, above n 20, Dissenting Opinion of Judge Jennings, 528 at 543.

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The International Criminal Tribunal for the Former Yugoslavia (ICTY) did depart from the Nicaragua criteria in 1999, opting instead for the standard of ‘overall control’, and arguing that both judicial and state practice had ‘envisaged state responsibility in circumstances where a lower degree of control than that demanded by the Nicaragua test was exercised’.38 It is important to remember in this context, however, that the issue before the Tribunal in the Tadi´c case was simply whether the particular armed conflict in question was international or non-international in character—not whether the Federal Republic of Yugoslavia was responsible in international law for any breaches of international humanitarian law that had been committed by the Bosnian Serb Army.39 Clearly, even if the ICTY’s lower threshold were to be applied, an element of state control is still, nonetheless, required, and a determination of the nature of the relationship between the irregular forces in question and, for lack of a better expression, the ‘supporting’ or ‘host’ state is therefore necessary. In the present context, the existence of a close relationship between AlQaeda and the Taliban regime would seem to be beyond doubt. At least an element of complicity on the part of the Taliban, and hence the state of Afghanistan, also seems certain. But whether the Taliban was, as a matter of fact, exercising either effective or overall control over Al-Qaeda is less evident. Indeed, it has often been suggested that the Taliban regime was rather more dependent on, and subordinate to, Al-Qaeda than vice versa.40 The existence of Taliban responsibility for the 11 September attacks, and the consequent legitimacy (or otherwise) of Afghanistan as a target for defensive measures, will be returned to below. Some commentators, however, do not insist that state responsibility must initially be demonstrated in order for an armed attack to have occurred. Instead, they have contended that well-organised terrorist groups with the means to reach across international borders to inflict significant damage on a country on an ongoing basis . . . must represent the sort of threat against which self-defence is legitimate if the doctrine is to have any practical contemporary value.41

Christopher Greenwood, for example, has argued persuasively that the 11 September attacks on the World Trade Center and the Pentagon clearly 38 Prosecutor v Tadi´ c, Judgment of Appeals Chamber, 15 July 1999, 38 International Legal Materials 1518 (1999) at para 124. 39 ibid, Separate Opinion of Judge Shahabuddeen, at para 17. For further discussion of the issue, see L Moir, The Law of Internal Armed Conflict (Cambridge, Cambridge University Press, 2002) at 49–50. 40 See eg, AC Müller, ‘Legal Issues Arising from the Armed Conflict in Afghanistan’ (2004) 4 Non-State Actors and International Law 239 at 246–52; Schmitt, above n 23 at 45–46. 41 See A Martyn, ‘The Right of Self-Defence under International Law—the Response to the Terrorist Attacks of 11 September’, Parliament of Australia Current Issues Brief No 8, 2001–02, 12 February 2002, www.aph.gov.au/library/pubs/CIB/2001-02/02cib08.htm; and Maogoto, above n 28 at 427.

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demonstrated the ability of terrorists—even if acting beyond the control or without the complicity of any state—to cause ‘death and destruction on a scale comparable with that of regular military action by a state’. In light of this, and illustrating the absence of any such requirement by reference to the Caroline case, he maintained that ‘it would be a strange formalism which regarded the right to take military action against those who caused or threatened such consequences as dependent upon whether their acts could somehow be imputed to a state’.42 Widely accepted as the locus classicus regarding self-defence in customary international law, it will be recalled that the Caroline dispute had arisen out of the activities of Canadian rebels, rather than the activities of regular, state forces. At no stage, however, was it ever suggested by the parties to the dispute (that is, the United States and the United Kingdom) that this factor had any impact on the legality of the armed response.43 In a similar vein, Jackson Nyamuya Maogoto has therefore suggested that: It may be of greater consequence to admit openly that the requirement of attribution does not play a role in the definition of ‘armed attack’ . . . One may argue that the criterion of the attribution of an ‘armed attack’ is only relevant in the context of the question towards whom the forcible response may be directed.44

Recent developments in the international order, and especially the growing importance of non-state actors, mean that such an approach is certainly appealing. It would seem perfectly reasonable to argue that the question of whether or not an armed attack has occurred, in the sense of scale and consequences, should—or, at least, could—be distinguished from the question of whether any particular state bears responsibility for that attack. Whether a state has been attacked, and who the attacked state may legitimately respond against, would accordingly be treated as two separate questions.45 In terms of the gravity of the 11 September attacks, there can be little doubt that they were (at the very least) similar in scale and effect to conventional military attacks,46 and the United States 42

Greenwood, above n 21 at 307. See also Greenwood, above n 24 at 17. Greenwood, above n 21 at 308. See also Paust, above n 28 at 535. 44 Maogoto, above n 28 at 431. Stahn, above n 17 at 215, similarly suggested that ‘the need to attribute the “armed attack” to the target state clearly remains the rule’. 45 Malcolm Shaw, for example, argued in ‘War View: Keep the Response Legal’, http://news.bbc.co.uk/hi/english/uk/newsid_1587000/1587034.stm, 9 October 2001, that the ‘assault upon the World Trade Center and upon the Pentagon in both nature and extent cannot constitute anything other than an “armed attack”’, adding that ‘more difficult to answer is the question of responsibility’. 46 Murphy, above n 22 at 47, explained that the death toll exceeded that of Pearl Harbor. Indeed, ‘to find US deaths on the same scale in a single day requires going back to the US Civil War’. P Rowe, ‘Responses to Terror: The New “War”’(2002) 3 Melbourne Journal of International Law 301 at 307, also argued that it is ‘unrealistic to argue that the methods employed on September 11 did not amount to an “armed attack”’, although he did accept that certain difficulties arose in the context of self-defence, ‘unless Afghanistan itself could, somehow, be held responsible’. 43

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certainly believed that it had been the victim of an armed attack. As indicated in chapter one, however, whether state practice prior to the September 2001 attacks supported the position whereby an armed attack could occur even without the involvement of a state is doubtful. Having to demonstrate the responsibility of another state for an attack carried out by non-state actors may indeed be a ‘strange formalism’. It would, nonetheless, seem to have been a necessary requirement of international law at the time of the Al-Qaeda attacks. Be that as it may, despite the apparently crucial requirement of state involvement, and before any determination whatsoever had been made regarding responsibility for the terrorist attacks, it will be recalled that the UN Security Council adopted Resolution 1368 on 12 September 2001,47 the Preamble to which explicitly recognised ‘the inherent right of individual or collective self-defence’. The Council has since been criticised for acting somewhat rashly in responding as it did to the 11 September attacks, and fears as to the wisdom of this course of action evidently existed even within the United Nations itself. Thus, it has been asserted that: The more experienced officials on the political side of the Secretariat . . . feared that the Security Council in adopting resolution 1368 on 12 September 2001 had acted in the emotion of the moment rather than with calm deliberation and that instead of assuming a responsible position of leadership it had in effect provided the United States with a green light to take any action it deemed appropriate. In this view, there had been virtually no consultation on the text of the resolution and in practice the Security Council had abdicated its authority, a process that had been well underway since the invasion of Kuwait by Iraq. Article 51 was being distorted and the Council was substituting sub-contracted coalitions of the willing for its own Charter-mandated responsibility for international peace and security.48

Nonetheless, the same approach was taken by the Security Council in Resolution 1373 of 28 September,49 and even those resolutions adopted during the course of subsequent military operations served to reinforce this position. Resolution 1378, for example, explicitly reaffirmed Resolutions 1368 and 1373 while, at the same time, offering support for international efforts aimed at ‘rooting out terrorism’, and ‘Condemning the Taliban for

47 See above n 5. T Ruys and S Verhoeven, ‘Attacks by Private Actors and the Right of SelfDefence’ (2005) 10 Journal of Conflict and Security Law 289 at 297, found it to be ‘remarkable’ that Resolution 1368 recognised a right to self-defence without making any reference whatsoever to possible state involvement. 48 R Zacklin, ‘The United Nations Secretariat and the Use of Force in a Unipolar World’, Hersch Lauterpacht Memorial Lectures, Lecture III, delivered at the University of Cambridge on 24 January 2008, www.lcil.cam.ac.uk/Media/lectures/pdf/2008_Hersch_Lectures/ 2008_Lecture_3.pdf. See also discussions in ch 1 above relating to potential difficulties that arise from such decentralised uses of force . 49 See above n 11.

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allowing Afghanistan to be used as a base for the export of terrorism by the Al-Qaida network and other terrorist groups and for providing safe haven to Usama Bin Laden, Al-Qaida and others associated with them’.50 Resolutions 1383 and 1386 both similarly reaffirmed previous Security Council resolutions on Afghanistan, with Resolution 1386 specifically ‘Supporting international efforts to root out terrorism, in keeping with the Charter of the United Nations, and reaffirming also . . . resolutions 1368 (2001) of 12 September 2001 and 1373 (2001) of 28 September 2001’.51 None of these resolutions explicitly authorises the use of force against Afghanistan. Of course, to the extent that Operation Enduring Freedom represented an action in self-defence, authorisation from the Security Council was not actually necessary. It might, however, reasonably be assumed from the content of these resolutions that the Security Council considered the 11 September atrocities to have constituted an armed attack on the United States, so that self-defence was indeed available. The United Kingdom’s House of Commons Foreign Affairs Committee certainly argued that: By characterising the attacks as ‘a threat to international peace and security’ and by implying that the Security Council was acting under Article 51 of the UN Charter, Resolution 1368 also gave immediate legal authorisation for military action by the United States and its allies, provided that such action was demonstrably one of self-defence against ‘armed attack’, and provided that the action was immediately reported to the Security Council.52

Unfortunately, at least for the sake of clarity, Resolution 1368 made no mention of an armed attack having occurred. Instead, paragraph 1 simply determined that the attacks represented ‘a threat to international peace and security’. The same is true of Resolution 1373. This does not necessarily mean that they cannot also have represented an armed attack for the purposes of the jus ad bellum;53 indeed, the implication that the international community believed this to be the case seems relatively clear. Greenwood, for example, has argued that the language used by the Security Council ‘could only mean’ that the 11 September attacks were

50 51

UN Doc S/RES/1378 (2001), 14 November 2001. UN Doc S/RES/1383 (2001), 6 December 2001; UN Doc S/RES/1386 (2001), 20 December

2001. 52 UK House of Commons Foreign Affairs Committee, Seventh Report, Foreign Policy Aspects of the War Against Terrorism, 12 June 2002, HC 384, at para 63. 53 As Greenwood has explained, above n 21 at 307, the invasion of Kuwait by Iraq in 1990 was considered by the Security Council to be both a threat to, and a breach of, international peace and security. At the same time, however, the right of Kuwait and its allies to act in selfdefence was explicitly reaffirmed, clearly demonstrating that the invasion was also an armed attack. A Cassese, ‘Terrorism is Also Disrupting Some Crucial Legal Categories of International Law’ (2001) 12 European Journal of International Law 993 at 996, has nonetheless described Resolution 1368 as being ‘ambiguous and contradictory’.

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considered an armed attack for the purposes of Article 51.54 The position is not entirely beyond doubt, however, and it has also been argued, to the contrary, that all these two resolutions do . . . is to ‘[r]ecogniz[e] the inherent right of individual or collective self-defence in accordance with the Charter’ in their preambles. . . . The Council did not recognize the right of self-defence to act against private actors without attribution to a state, but only generally reaffirmed the right of self-defence irrespective of context.55

With respect, and when one considers the timing of the adoption of Resolution 1368 in particular, it is extremely difficult to see quite how the content of Resolutions 1368 and 1373 can be considered irrespective of context, and removed from the paradigm of the 11 September attacks. Certainly, NATO member states considered the events of 11 September to have constituted an armed attack on the United States. The NATO Secretary General, Lord Robertson, accordingly outlined on 2 October that:56 The facts are clear and compelling. The information presented points conclusively to an Al-Qaida role in the 11 September attacks . . . . . . 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.

Taking the above factors into account, it would seem extremely difficult to insist that the understanding of the international community was that the events of 11 September 2001 did not, and—in international law—could not, amount to an armed attack upon the United States. The consequence of such a determination is that the United States (and, indeed, any other state participating in a collective response—in this case the United Kingdom) had the right to respond forcibly through the legitimate exercise of self-defence. Be that as it may, several difficult questions regarding the use of force in and against Afghanistan remain. 54 Greenwood, above n 21 at 308. See also Franck, above n 28 at 840; N Rostow, ‘Before and After: The Changed UN Response to Terrorism since September 11th’ (2001) 35 Cornell International Law Journal 475 at 481; Stahn, above n 17 at 214. H Duffy, The ‘War on Terror’ and the International Legal Framework (Cambridge, Cambridge University Press, 2005) at 190 has suggested that ‘On one view these statements . . . may have been based on assumptions as to the responsibility of Afghanistan, consistent with state responsibility being a prerequisite of the law of self-defence’. 55 See J Kammerhofer, ‘The Armed Activities Case and Non-state Actors in Self-Defence Law’ (2007) 20 Leiden Journal of International Law 89 at 99. 56 Statement by NATO Secretary General, Lord Robertson, 2 October 2001, www.nato.int/ docu/speech/2001/s011002a.htm. It should, however, be noted that NATO was apparently convinced only that the attack was directed from abroad, and that Al-Qaeda had played a role in the attacks. There is nothing to indicate whether NATO was satisfied that the attacks were legally attributable to the Taliban, and thus to the state of Afghanistan. See Maogoto, above n 28 at 431.

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II. WAS THE RESPONSE NECESSARY?

A. Was the Attack Over? The terrorist attacks against the United States occurred on 11 September 2001. The military response did not commence until 7 October 2001, that is, a full 26 days later. As Antonio Cassese has explained, traditional or ‘classic’ self-defence must be an immediate reaction to aggression; if the victim state allows time to elapse, self-defence must be replaced by action under the authority of the UN Security Council. Nor can the victim state resort to armed reprisals, which . . . are held to be contrary to international law.57

Does this delay cast any doubt over the legitimacy of the United States’ response as self-defence? If Operation Enduring Freedom is considered to have been a response to an isolated armed attack which was over, then it must be admitted that the military action against Al-Qaeda and Afghanistan certainly looks very much like an armed reprisal.58 As such, it would have represented a clear violation of international law.59 In order to qualify as a lawful exercise of 57

Cassese, above n 53, at 997–98. See EPJ Myjer and ND White, ‘The Twin Towers Attack: An Unlimited Right to Selfdefence?’ (2002) 7 Journal of Conflict and Security Law 5 at 8, where they saw ‘problems’ due to the lack of immediacy: 58

This is not the same as the Falklands war in 1982 for instance, when the British took several weeks to respond to the Argentinian invasion. The armed attack in that situation was continuing in the form of an occupation of the islands, and the UK response was continuous though somewhat ponderous. In the current crisis the attack was over and the response appeared more in the shape of punitive reprisals, actions that are generally viewed as illegal in international law. Other authors shared the same opinion. See eg, M Mandel, ‘Say What You Want, But This War is Illegal’, http://muslim-canada.org/michaelmandel.html. Franck, above n 28 at 840 argued, however, that the requirement of an immediate response ‘comes from a misunderstanding of the Caroline decision, which deals only with anticipatory self-defense’. Thus, according to Rowe, above n 46, at 310, it cannot be argued that . . . a state will, in all cases, lose its right to act in self-defence unless it responds immediately to an armed attack. In situations such as this, it may seek to pursue other strategies, such as to secure the attendance of individuals for trial, with a resort to force being an option should this strategy not succeed. Following the events of September 11 the US pursued this strategy with (at least) one of the aims being to demonstrate the responsibility of the Taliban by its failure to hand over Osama bin Laden. Martyn, above n 41, added that, in any case, the question of immediacy ‘seems to be of lesser importance in contemporary practice’, and that state practice instead tends towards the position whereby a reasonably delayed response will be considered acceptable where it was necessary to gather evidence regarding the attackers’ identity, and/or the intelligence and military force required to respond in a targeted manner. 59 See UN General Assembly Resolution 2625 (XXV), Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, 24 October 1970, providing that: ‘States have a duty to refrain

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the right to self-defence, the use of force by the United States must have been protective rather than punitive in nature: that is, it must have been necessary in order to repel an ongoing or imminent armed attack, rather than to retaliate or gain retribution for a previous attack. In practice, this is often an extremely difficult distinction to make.60 In addition, the prohibition of armed reprisals would seem to leave states in the perhaps rather undesirable (and, some would say, unrealistic) position of being unable to respond forcibly to a series of limited, and isolated, terrorist attacks in that, unless the victim state is able to respond quickly enough against an attack in progress, it will find that the armed attack as such is over, and that any forcible response runs the risk of being condemned as a forcible reprisal rather than accepted as a legitimate exercise of the right of self-defence. A number of states, including the United States, have therefore sought to rely on the ‘accumulation of events’ theory, whereby a consistent pattern of small-scale attacks can be seen as amounting to a single—and ongoing—armed attack.61 Not only would this justify the use of force in self-defence, but it could also justify a large-scale response, since proportionality is to be measured against the attack as a whole and the continuing threat facing the victim state, rather than against any of the individual incidents taken in isolation. Seen in the context of other attacks on the US Embassies in Ethiopia and Kenya in 1998, and on the USS Cole in 2000, it could perhaps be argued that the 11 September attacks were simply the latest terrorist acts in an ongoing armed attack against the United States. Michael Schmitt has accordingly argued that ‘it is most logical to treat these events as a single campaign that is ongoing, much as a campaign in traditional warfare consists of a series of related tactical operations’.62 The interval between individual attacks need not be problematic as, ‘In the same way that [a traditional armed] conflict does not end upon a tactical pause between operations, a terrorist from acts of reprisal involving the use of force’. The ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports (1996) 226 at para 46 likewise held that armed reprisals are ‘considered to be unlawful’. 60 The relationship between armed reprisals and self-defence in international law is particularly difficult and complex. Indeed, it may even be the case that armed reprisals meeting the traditional criteria as set out in the Naulilaa Arbitration, (1928) 2 Reports of International Arbitral Awards 1011 (ie the commission of a prior wrong, the exhaustion of peaceful means and the proportionality of the response to the initial wrong) will be, to an extent, tolerated by the international community. This divergence between the apparent legal norm and apparently inconsistent state practice has been described as constituting a ‘credibility gap’. See D Bowett, ‘Reprisals Involving Recourse to Armed Force’ (1972) 66 American Journal of International Law 1. For further discussion see Gray, above n 28 at 150–55, 195–98; C Greenwood, ‘International Law and the United States’ Air Operation Against Libya’ (1987) 89 West Virginia Law Review 933; and ch 1 above. 61 See eg, Gray, above n 28 at 155–56. 62 M Schmitt, ‘Bellum Americanum Revisited: US Security Strategy and the Jus ad Bellum’ (2003) 176 Military Law Review 364 at 396.

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campaign continues despite hiatuses between attacks’.63 In that case, it could be argued that the military response was legitimately designed to repel further, imminent, attacks—a perfectly lawful exercise of selfdefence.64 Even an outright rejection of the ‘accumulation of events’ theory would not necessarily prove fatal. If the 11 September attacks were considered to have been unrelated to previous terrorist attacks on US targets, it may still have been reasonable to treat them as the initiation of a new armed attack. The fact that the events in question were limited to 11 September certainly did not preclude the possibility, or even the likelihood, that other attacks on the United States would occur in due course—or, in other words, that the armed attack would continue. Indeed, it was precisely this continuing threat of armed attack that the United States reported to the Security Council it was defending itself against. As will be recalled, John Negroponte, US Ambassador to the United Nations, had explained in his communication of 7 October 2001 that: The attacks on 11 September 2001 and the ongoing threat to the United States and its nationals posed by the Al-Qa’ida organization have been made possible by the decision of the Taliban regime to allow the parts of Afghanistan that it controls to be used by this organization as a base of operation . . . In response to these attacks, and in accordance with the inherent right of individual and collective self-defence, United States armed forces have initiated actions designed to prevent and deter further attacks on the United States.65 (emphasis added)

Likewise, it will be recalled that the United Kingdom had also informed the Security Council that its armed forces were deployed ‘in exercise of the inherent right of individual and collective self-defence, recognized in Article 51, following the terrorist outrage of 11 September, to avert the continuing threat of attacks from the same source’ (emphasis added).66 The use of force in self-defence against a continuing armed attack is certainly not contrary to international law. As outlined in chapter one, and although still a matter of some delicacy, it is accepted by at least some scholars and states (and, indeed, it seems to 63 ibid. Thus, the ‘strikes against al Qaeda [were] neither anticipatory, i.e., launched in anticipation of an attack, nor punitive. Rather, they [were] defensive responses to an armed terrorist campaign that [was] currently underway. As such, their timing comport[ed] with the law of self-defense’. See also M Schmitt, ‘US Security Strategies: A Legal Assessment’ (2004) 27 Harvard Journal of Law and Public Policy 737 at 752. 64 See, for example, Paust, above n 28 at 536, where he has argued that, ‘defensive uses of armed force abroad in response to ongoing processes of attack are neither mere “preemptive” nor “reprisal” actions as such . . . the uses of force in 1999 and 2001 were not designed merely to pre-empt some independent future attack or to retaliate against an attack that had already occurred and was entirely complete’. See also Greenwood, above n 24 at 23. 65 UN Doc S/2001/946. 66 UN Doc S/2001/947.

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be the preferable view according to the current author) that states need not actually wait to be attacked in order to take defensive action. Self-defence is equally available where an armed attack is imminent.67 Of course, whether an armed attack is imminent or not can only be determined according to the intelligence available—a rather sensitive issue. The actions of states must, however, be judged against the information available to them at the time, rather than with the benefit of hindsight. The United States and the United Kingdom clearly believed that further attacks by Al-Qaeda were imminent and, as such, explicitly informed the Security Council that defensive action was being taken to prevent these from occurring. As Greenwood has argued, an imminent threat of armed attack was undeniably in existence after 11 September and the military action taken by the United States and its allies is properly seen as a forward-looking measure to prevent that threat from materializing, rather than as a backward-looking act of retaliation for what had gone before.68

Taking military action to prevent an armed attack which, although imminent, has not actually occurred yet, undoubtedly makes an evaluation of its proportionality difficult.69 It does not, however, render the use of force unlawful per se. Finally, and as also discussed above in chapter one, it should be noted that defensive action can certainly be seen as necessary where a terrorist organisation, or other non-state actor, is able to launch attacks from the territory of a state due either to the unwillingness or else the inability of the host state in question to prevent such activities. In such circumstances, however, the lawful response must be confined to defensive strikes against terrorist targets within the host state, rather than the apparatus and infrastructure of the state itself—unless, of course, the responsibility of the state itself for the armed attack can be demonstrated. It is to this question that we now return. 67 See the relevant discussion in Greenwood, above n 21 at 312, and above n 24 at 23. As indicated in ch 1, this is strictly limited, however, to the situation whereby an attack is imminent, and not just likely or possible. Whether a more expansive notion of anticipatory, or pre-emptive, self-defence exists in international law is extremely doubtful—indeed, this author does not accept that it does. See the discussion in ch 3 below, and also in Gray, above n 28 at 160–65; TM Franck, Recourse to Force (Cambridge, Cambridge University Press, 2002) at 97–108; and H McCoubrey and ND White, International Law and Armed Conflict (Aldershot, Ashgate, 1992) at 91–96. 68 See Greenwood, above n 21 at 312. WK Lietzau, ‘Combating Terrorism: The Consequences of Moving from Law Enforcement to War’ in D Wippman and M Evangelista (eds), New Wars, New Laws? Applying the Laws of War in 21st Century Conflicts (Ardsley, Transnational, 2005) 31 at 39 argued that the concept of anticipatory self-defence as applied to military action in Afghanistan, ‘requires no explanation or justification’, and that, due to the nature of terrorist activity—ie, that ‘there is no continuing attack’ necessitating immediate action in self-defence, ‘the armed response in this instance was really designed to prevent additional future terrorist attacks’. 69 See discussion of this issue below.

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B. Was the State of Afghanistan a Legitimate Target? The 11 September attacks were perpetrated by Al-Qaeda, not by Afghanistan. The Taliban representative in Pakistan had even publicly, and immediately, condemned the attacks.70 The US military response went beyond the limited targeting of Al-Qaeda in isolation, however, and extended to attacks on Taliban targets. It may well have avoided a great deal of controversy had the initial strikes been aimed at Al-Qaeda only. The likelihood must be that the Taliban would have opposed any such strikes forcefully, following which allied forces would have been perfectly entitled to extend their operations to include Taliban targets as a straightforward exercise of the right to self-defence. Thus, as was suggested by Christopher Greenwood: ‘Because the Taliban regime made it clear throughout that it would vigorously oppose any foreign forces entering its territory to root out Al-Qaida bases, it exposed its own forces to lawful attack in exercise of the right of self-defense’.71 Be that as it may, Taliban targets were attacked by coalition forces ‘even before they had the chance to resist’.72 This would seem to be rather more problematic in terms of international law, and the extent to which the action taken by the United States and United Kingdom in self-defence against Afghanistan itself was lawful therefore depended upon the extent to which Afghanistan (or the controlling Taliban regime) had been involved in the 11 September attacks. This issue has already been touched upon above, in the context of whether or not the atrocities could be said to have constituted an armed attack for the purposes of Article 51 of the UN Charter. It is the view of this author that they did. But does this necessarily mean that the state of Afghanistan was legally responsible for the attacks, and that the use of force against Taliban targets was therefore permissible in terms of the right of self-defence? It is certainly true that Security Council Resolution 1368 had called upon states to bring to justice not only the perpetrators of 70 See CNN, ‘Taliban diplomat condemns attacks’, http://archives.cnn.com/2001/ WORLD/asiapcf/central/09/11/afghan.taliban/index.html. 71 Greenwood, above n 24 at 25. See also Schmitt, above n 63 at 760. 72 Schmitt, above n 63 at 760. It has been suggested elsewhere that the position whereby only Al-Qaeda could lawfully be targeted, unless and/or until the Taliban came to their assistance, is ‘too formalistic [and that] international law does not require making this distinction’. See R Mullerson, ‘Panel I Discussion—Jus ad Bellum’ in FL Borch and PS Wilson (eds), International Law Studies, Volume 79: International Law and the War on Terror (Newport, Naval War College, 2003) 139 at 140. W Dalton, ibid, 137 at 138, had further argued that:

In order to allay the threat presented by al Qaeda it was necessary to prosecute the Taliban as well because as long as the Taliban provided safe haven to al Qaeda, al Qaeda continued to be an imminent threat to the coalition partners. So it was a matter of military necessity in applying anticipatory self-defense that action was undertaken against the Taliban. In my mind, this made the Taliban a perfectly legitimate target.

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the terrorist acts, but also their sponsors, stressing: ‘that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable’.73 As Franck has pointed out, there could have been little reasonable doubt that the Taliban regime fell within such a designation.74 Of course, deeming the Taliban regime to have been sponsors of Al-Qaeda does not necessarily equate to the threshold of involvement that would be required either by the Nicaragua case (that is, that of effective control over Al-Qaeda), or even by the Tadi´c case (that is, that of overall control over Al-Qaeda). As Jordan J Paust explained: Absent UN Security Council or regional organization authorization to use military force against a state that merely harbors terrorists or is unable to control misuse of its territory, and absent direct involvement by such state in a process of armed attack that triggers the right of self-defense against the state, the use of military force against such a state would be impermissible under the [UN] Charter.75

There is no question that the Taliban had violated its obligations under international law by allowing Al-Qaeda to operate from within Afghanistan. The UN General Assembly’s Declaration on Friendly Relations asserts in the context of the prohibition on the use of force that every state not only has the duty to ‘refrain from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State’, but also to ‘refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts when the acts . . . involve a threat or use of force’.76 It is vital to remember, however, that this interpretation refers to the use of force as prohibited by Article 2(4) of the UN Charter. The threat or use of force per se may well be a violation of Article 2(4), but it does not trigger the right of self-defence; only an armed attack does this, and there is no suggestion that the use of force and an armed attack are the same thing.77 The Taliban, and thereby the state of 73

See above n 5 at para 3. Franck, above n 28 at 841. Paust, above n 28 at 540. He continued to propound the argument that ‘unless the state is organizing, fomenting, directing, or otherwise directly participating in armed attacks by non-state terrorists, the use of military force against the state, as opposed to only the non-state terrorists, would be impermissible’ (emphasis added). See also Maogoto, above n 28 at 423, where it was contended that: ‘To use force under circumstances where the host country is merely supporting terrorists indirectly would amount to a breach of art 2(4)’. 76 See UN General Assembly Resolution 2625 (XXV), above n 59. For discussion see Greenwood, above n 21 at 313, and Cassese, above n 53 at 997. Afghanistan would also seem to have been in breach of several explicit obligations imposed by the Security Council in the wake of attacks on US Embassies in 1998. 77 See A Randelzhofer, ‘Article 51’ in B Simma (ed), The Charter of the United Nations, Vol I, 2nd edn (Oxford, Oxford University Press, 2002) 788 at 790–92. See also Stahn, above n 17 at 216–26. 74 75

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Afghanistan, may well have been responsible for the violation of several international obligations, including Article 2(4) of the UN Charter, but not all violations of international law by a state permit an armed response. The Taliban’s knowledge, and apparent tolerance, of Al-Qaeda activities on its territory—and in violation of international law—certainly meant that the United States (and those states acting collectively with it) could have responded forcibly against Al-Qaeda itself, action described by Michael Schmitt as being both ‘appropriate and legal’.78 Certainly, in light of the Taliban regime’s evident unwillingness to take suitable preventive measures, an armed defensive response on the part of the United States could reasonably have been claimed to be necessary in the circumstances. As already indicated, however, the extension of defensive military strikes to Taliban targets meant that Afghanistan’s responsibility for, or substantial involvement in, the 11 September 2001 attacks would need to be demonstrated. This was an extremely difficult exercise, and depended entirely upon the nature of the relationship between the Taliban and AlQaeda. After all, it is in practice impossible for a state to prevent all injurious acts that a person might commit against a foreign state. Accordingly, whereas the responsibility of states for . . . acts of administrative officials and members of armed forces is extensive, their responsibility for acts of private persons is limited.79

Al-Qaeda was certainly not an organ of the state, and legal responsibility for its actions did not, therefore, attach to the state of Afghanistan automatically. Instead, the actions of Al-Qaeda—as a private, non-state actor— had to be satisfactorily attributed to Afghanistan. It will be recalled that the ICJ had held in the Nicaragua case that the provision of financial or logistical support and weapons violated international law, but did not trigger state responsibility for an armed attack.80 Rather, a significant element of control on the part of the state was required. Thus, the International Law Commission’s Articles on State Responsibility,81 adopting the Nicaragua test,82 provided in Article 8 that: 78

Schmitt, above n 23 at 45. See also, eg, Paust, above n 75. See R Jennings and A Watts (eds), Oppenheim’s International Law, Vol I, 9th edn (London, Longman, 1996) at 549. They continued to assert that: ‘Their duty is to exercise due diligence to prevent internationally injurious acts on the part of private persons, and, in case such acts have nevertheless been committed, to procure satisfaction and reparation for the wronged state, as far as possible, by punishing the offenders’. The ICJ had also held that ‘it cannot be concluded from the mere fact of the control exercised by a State over its territory . . . that the State necessarily knew, or ought to have known, of any unlawful act perpetrated therein, nor yet that it necessarily knew, or should have known, the authors’. See the Corfu Channel case (United Kingdom v Albania), Judgment of 9 April 1949, ICJ Reports (1949) 4 at 18. 80 Nicaragua case, above n 20 at para 195. 81 See Annex to United Nations General Assembly Resolution 56/83, 12 December 2001, International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts (2001). 82 See J Crawford and S Olleson, ‘The Nature and Forms of International Responsibility’ in MD Evans (ed), International Law, 2nd edn (Oxford, Oxford University Press, 2006) 451 at 462. 79

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The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction and control of, that State in carrying out the conduct.

In the intervening period, however, and particularly in light of the continued and vehement criticism of various aspects of the ICJ’s Nicaragua judgment, it is possible that the precise extent of state control required had become rather more flexible. Antonio Cassese had argued, for example, that the level of involvement on the part of a state that was required in order to trigger responsibility (and hence, in the context of an armed attack, the right of self-defence for the victim state) must be seen as comprising some form of continuum, whereby the broad spectrum of situations and varying levels of state control or other involvement were all taken into account.83 This could only be possible on a case-by-case assessment, according to which: [T]he training, moving, lodging, and equipping of an insurgent or terrorist army, or simply giving sanctuary to rebels or terrorists . . . should engage the State’s responsibility for attacks by the rebel or terrorist troops. At the other end of the scale [assistance] may involve merely permitting insurgents or terrorists to sleep in disused huts in remote border areas, acquiescence which should not of itself engage the State’s responsibility for an armed attack.84

Christine Gray has admitted subsequently, however, that ‘considerable uncertainty’ continues to exist in this area of international law.85 Indeed, a number of other scholars have argued either that the nature of the relationship between the Taliban and Al-Qaeda was sufficient to meet the requirements of the UN General Assembly’s Definition of Aggression in any case,86 or else that what has been described as the ‘symbiotic relationship’ between Al-Qaeda and the Taliban meant that the leadership of Al-Qaeda did not constitute a purely non-state entity.87 The United Kingdom certainly asserted that Al-Qaeda had been able to carry out the 11 September attacks only ‘because of their close alliance with the Taliban regime, which allowed them to operate with impunity in pursuing their terrorist activity’.88 The action taken by the United States and the United Kingdom was therefore apparently based on a level of state support somewhat higher than that of Al-Qaeda simply being harboured, or else tolerated by, the 83

See A Cassese, International Law, 2nd edn (Oxford, Oxford University Press, 2005) 471. ibid at 471–72. Cassese nonetheless accepted that the area between these two extreme positions is rather ‘grey’. See also the discussion in Moir, above n 39 at 49–50. 85 Gray, above n 28 at 201. 86 Gray, ibid, refers, eg, to Byers, above n 17. 87 See Martyn, above n 41; Maogoto, above n 28 at 427. 88 UK Government, ‘Responsibility for the Terrorist Atrocities in the United States’, above n 13. 84

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Taliban.89 Neither state, however, made the formal claim that Afghanistan was in control of Al-Qaeda, and so legally responsible for the terrorist attacks.90 Peter Rowe has agreed that, based on the evidence available, it is ‘unlikely’ that the Taliban could be said to have been in effective control of Al-Qaeda.91 Having said that, he did also accept that: The responsibility for the September 11 attacks had to be laid partly at the door of the Taliban Government. There was evidence that it had encouraged the al Qaeda organisation and had developed a symbiotic relationship with it by allowing al Qaeda to ‘operate freely, including planning, training and preparing for terrorist activity’. . . . The Taliban had [also] been requested by the US to hand over named individuals to US custody. They did not do so . . . The key issue is whether these acts were sufficient to establish adequate state responsibility on the part of Afghanistan.92 89 Addressing the nation on 11 September 2001, President Bush had stated that the United States would make ‘no distinction between the terrorists who committed these acts and those who harbor them’, repeating in a speech to Congress on 20 September 2001 that ‘any nation who continues to harbor or support terrorism will be regarded by the United States as a hostile regime’. See SR Ratner, ‘Jus ad Bellum and Jus in Bello After September 11’ (2002) 96 American Journal of International Law 905 at 906, making reference to ‘Address to the Nation on the Terrorist Attacks (11 September 2001)’, 37 Weekly Compilation of Presidential Documents 1301 at 1301 (17 September 2001); and ‘Address Before a Joint Session of the Congress on the United States Response to the Terrorist Attacks of September 11 (20 September 2001)’, ibid, 1347 at 1349 (24 September 2001), respectively. As illustrated above, however, the letters to the Security Council invoking Art 51 from both the United States and United Kingdom had relied upon the continuing threat of attack. 90 Greenwood, above n 21 at 312 has accepted that it would have been difficult to produce evidence of state responsibility sufficient to satisfy the Nicaragua criteria when military action was initiated in October 2001. The same author, above n 24 at 24 also apparently accepted that ‘evidence of the relationship between Al-Qaida and Afghanistan makes it difficult to conclude that either [the Nicaragua or the Tadi´c] test had been satisfied’. Stahn, above n 17 at 215–16, however, suggested that the notification made to the Security Council by the United States did, in fact, seem to establish ‘a tripartite chain of responsibility, triggering the responsibility of Afghanistan as a state’, an approach deviating from the traditional criteria in that ‘it is essentially based on the assumption that a state may become a lawful target of measures of self-defence, wherever it allows terrorist organizations to mount operations against other states from its territory and refuses to take action required by international law to put an end to such operations’. 91 Rowe, above n 46 at 307. See also Müller, above n 40 at 245–50. Stahn, above n 17 at 219 had argued that the failure to fulfil the ‘effective control’ test of Nicaragua was ‘quite obvious’, but that this did not necessarily serve to render the military strikes against Afghanistan unlawful:

The ‘effective control’ test . . . obliges the victim of an armed attack to deliver considerable proof of the involvement of the targeted state in the attack, in order to justify the exercise of self-defence. Such proof, however, can hardly be obtained in situations in which the relations between government officials and armed groups are not transparent or where state officials and private actors are indistinguishable in their activities. It is therefore questionable whether the threshold developed in the context of the Nicaragua case applies equally in the context of combating international terrorism. 92 ibid, at 307–308, quoting UK Government, ‘Responsibility for the Terrorist Atrocities in the United States’, above n 13. And yet disagreements on the question persisted. Paust, for example, having used essentially the same assessment of the relationship between Al-Qaeda and the Taliban, was not at all convinced of Afghanistan’s responsibility. Describing the

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The position, then, was that effective control by the Taliban regime over the activities of Al-Qaeda did not appear to have been proved conclusively. Despite this failure, at least some element of complicity in terms of their interdependence, and significant levels of involvement in Al-Qaeda operations on the part of the Taliban, seemed relatively clear. Carsten Stahn, for example, had argued that, in addition to financing, training, equipping and providing operational support to Al-Qaeda, the Taliban’s role in the organisation, co-ordination and planning of Al-Qaeda military operations meant that one could ‘easily establish that the criteria of the [ICTY’s] “overall control” test were fulfilled in the case of Afghanistan’.93 To suggest that Taliban control over Al-Qaeda could be established ‘easily’ seems to go too far, and many commentators continue to doubt the veracity of such claims.94 Nonetheless, the evidence of significant state involvement as presented by the United States and United Kingdom was found to be entirely convincing by the vast majority of other states.95 Thus, decision to extend the attacks to Taliban targets as ‘highly problematic’, he argued, above n 28 at 542–43, that: From what is publicly known, the Taliban did not send bin Laden’s operatives abroad to attack the United States, control and direct bin Laden’s attacks on the United States and its nationals, knowingly finance the attacks, or otherwise directly participate in the attacks. Prior to October 7th, the United States publicly criticized the Taliban regime for merely harbouring or otherwise cooperating with bin Laden and had not even listed the Taliban regime as a ‘sponsor’ of terrorism and a ‘safe haven’ regime tolerating bin Laden’s training camps and base of operations until 1999. In fact, words such as ‘known links’, ‘sponsor’ and ‘support’ can cover a number of situations and many forms of actual sponsoring and supporting will not rise to the level of an armed attack or direct participation in an armed attack. The Taliban’s provision of safe haven to bin Laden and toleration of his terrorist training camps in areas generally controlled by the Taliban, the receipt of monies and military support from bin Laden for the Taliban’s war against the Northern Alliance, and even knowledge of past and continuing al Qaeda terroristic attacks would not constitute Taliban control of, or direct participation in, future al Qaeda attacks like the September 11th attack . . . so as to justify the use of military force against the Taliban, especially in view of the . . . Nicaragua decision. 93 Stahn, above n 17 at 225–26. He accepted that this did not render Afghanistan automatically responsible in international law, but argued that ‘the remaining gap can be closed by an application of Art 9 of the ILC Draft Articles on State Responsibility, which allows for the attribution of acts of a de facto regime to a state in situations of the partial collapse of the official state machinery, such as in Afghanistan’. 94 See Duffy, above n 54 at 54, where she referred to ‘information emerging from the years following 9/11—including from an official commission conducted in the United States [the National Commission on Terrorist Attacks Upon the United States, 22 July 2004]—casting increasing doubt on the proposition’. 95 In addition to the UN Security Council, NATO, the EU, the OAS and a significant number of individual states supported the action. Shaw, for example, stated, above n 45, that ‘governments from the US to the UK and Pakistan, including scores of others around the globe’ found the responsibility of Afghanistan to have been ‘adequately demonstrated’, whilst Cassese, above n 83 at 474, suggested that ‘practically all states’ had accepted the legitimacy of action in response to the attacks based on Art 51. Murphy, above n 1 at 248, had outlined the reaction in the following terms (references omitted):

In initiating its airstrikes against Afghanistan, the United States received support from various quarters that this military response was an appropriate exercise of the right of

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Gray has stated that ‘only Iraq directly challenged the legality of the military action’.96 Alternative bases on which to attribute the 11 September attacks to the Taliban may have existed in any case. It could, for example, have been considered that the Taliban regime, by means of its subsequent conduct, effectively adopted the actions of Al-Qaeda as its own. Although it is clear that, ‘where a state merely acknowledges the factual existence of a private individual’s conduct or condones that conduct, the attribution of that conduct to the state has no basis in traditional international law’,97 the ILC Articles on State Responsibility provide in Article 11 that conduct which is not attributable to a particular state through the operation of any of the preceding Articles ‘shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own’. Thus, in the Tehran Hostages case, although the US Embassy in Tehran had initially been seized by a group of students acting independently of the Iranian Government, the ICJ held that the decree issued by the Ayatollah Khomeini on 17 November 1979, in which he publicly endorsed the student occupation, had served to transform the legal nature of the situation created by the occupation of the Embassy and the detention of its diplomatic and consular staff as hostages. The approval given to these facts by the Ayatollah Khomeini and other organs of the Iranian State, and the decision to perpetuate them, translated continuing occupation of the Embassy and detention of the hostages into acts of that State. The militants, authors of the invasion and jailers of the hostages, had now become agents of the Iranian State for whose acts the State itself was internationally responsible.98 self-defense against an armed attack. The United Kingdom itself directly participated in airstrikes against Afghanistan. Access to airspace and facilities was provided not just by NATO allies, but also by nations such as Georgia, Oman, Pakistan, the Philippines, Qatar, Saudi Arabia, Tajikistan, Turkey and Uzbekistan. Other leading nations, such as China, Egypt, Mexico, and Russia announced support for the US campaign. The fifty-six nations of the Organization for the Islamic Conference called upon the United States not to extend its military response beyond Afghanistan, but made no criticism of military actions against that state. Several representatives at a League of Arab States meeting denounced bin Laden as seeking to wage a war against the world, and said that he falsely stated that he represented Muslims and Arabs. The twenty-one nations of the Asia-Pacific Economic Cooperation forum issued a statement ‘unequivocally’ condemning the September 11 attacks and denouncing all forms of terrorism, but remained silent on the US-led airstrikes. Australia, Canada, the Czech Republic, Germany, Italy, Japan, the Netherlands, New Zealand, Turkey, and the United Kingdom committed the use of their ground forces if and when a military deployment occurred in Afghanistan. 96 See Gray, above n 28 at 193. Cassese, above n 83 at 474, stated that the legality of the action was also challenged by Iran. 97 K Schmalenbach, ‘The Right of Self-Defence and the “War on Terrorism” One Year after September 11’ (2002) 3 German Law Journal, No 9 (1 September 2002), www.germanlawjournal. com/article.php?id=189. 98 See United States Diplomatic and Consular Staff in Tehran (United States v Iran), Judgment, ICJ Reports (1980) 3 at paras 73–74.

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It may well have been possible, then, to argue that the Taliban’s refusal to hand Osama bin Laden over to the United States, or indeed to any other suitable third state (or else to instigate an investigation and/or prosecution against him themselves) represented official endorsement of Al-Qaeda’s activities.99 It is true that the Taliban had initially requested proof of Osama bin Laden’s involvement in the attacks,100 but it was not until a US military response seemed inevitable that the Taliban finally admitted that he was being sheltered under their control, and suggested that they would be interested in a negotiated solution.101 Even so: There is . . . no evidence that the Taliban approved of the actions of al Qaeda on September 11. Nor could they perpetuate the acts of al Qaeda members in the same way as the [Iranian Government in the] Tehran Hostages Case. Nor could it be said that the Taliban ‘acknowledg[ed] and adopt[ed] the conduct in question as its own’ [as required by Article 11 of the Articles on State Responsibility].102

And yet, the situation must be viewed in the context of the Taliban’s repeated failure to comply with explicit demands from the UN Security Council that Osama bin Laden be handed over to appropriate authorities, and that all terrorist training facilities on territory under the Taliban 99

See eg, Murphy, above n 22 at 50–51. It had, for example, been suggested that:

Subsequent statements by the Taliban, apparently endorsing the terrorist acts, may further have engaged their legal responsibility even if, under pre-existing customary international law, this might not have made them responsible for an ‘armed attack’. And for these reasons, the claim to be acting in self-defence against the State of Afghanistan—and the modification of customary international law inherent within that claim—had a much better chance of securing the expressed or tacit support of a large number of other States. See Byers, above n 17 at 409. 100 See Murphy, above n 1 at 243–44. 101 ibid at 245. On 6 October 2001 the Taliban had offered to detain Osama bin Laden, and to try him in Afghanistan under Islamic Law, if the United States were to make a formal request and to supply them with adequate evidence of his involvement. See CNN, ‘US rejects Taliban offer to try bin Laden’, http://archives.cnn.com/2001/US/10/07/ret.us.taliban/ index.html. 102 Rowe, above n 46 at 308. Stahn, above n 17 at 220–21, agreed that, whilst ‘approval of the conduct of private actors may be a decisive criterion under the general law of state responsibility . . . it must be handled with the greatest care in the conduct of self-defence . . . where the acting government risks to become itself the victim of forcible countermeasures’. He asserted that whether the reaction of the Taliban to the 11 September attacks would meet the strict requirements set out in Art 11 of ILC Articles on State Responsibility was ‘questionable’. He did, however, suggest, at 222–23 (see also above n 93), that Art 9 of the ILC Articles may be relevant. It provides for responsibility where ‘the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority’, thus allowing for a multiple chain of attribution, triggering state responsibility in situations in which the unlawful conduct of non-state actors is coupled with the cumulative support, instruction, or control of irregular armed groups performing governmental functions. Accordingly, the combined application of Arts 8 and 9 of the ILC Draft Articles could entail the responsibility of the state of Afghanistan for the acts of Al Qaeda and the concurrent support of the Taliban, if it were to be established that the direction or control exercised by the Taliban was specifically linked to the events of September 11.

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control be closed.103 The Taliban’s failure to carry out these demands could certainly have been seen as ‘encouragement and assistance’ to AlQaeda, even after the attacks on US Embassies in 1999 and the USS Cole in 2000, when it was ‘at least foreseeable by the Taliban that further actions would take place which would be controlled by Osama bin Laden and his associates from bases on the territory of Afghanistan’.104 Indeed, the UN Secretary-General indicated in December 2001 that his Personal Representative had time and again exhorted the Taliban to hand over Bin Laden in compliance with [the terms of relevant Security Council resolutions], and repeatedly spelled out the consequences that were likely to ensue from their continued refusal to do so. He specifically warned them that any incident similar to those attributed to Osama bin Laden in the past would have catastrophic consequences for the Taliban and for the Afghans.105

It is difficult to argue, then, that ‘the Taliban leadership were not clearly aware of the potential implications of hosting Al Qaeda’,106 and that even if completely unaware of Al-Qaeda plans for the 11 September attacks, their failure to act in light of evidence relating to previous Al-Qaeda attacks and binding Security Council resolutions meant that they must themselves bear ‘significant responsibility under international law for 11 September’.107 Michael Schmitt has accepted that the Security Council’s demands had been made in the context of mutual assistance regarding law enforcement, and not self-defence per se. As a result, whilst non-compliance with the 103 See eg, UN Security Council Resolution 1267 (1999), 15 October 1999, UN Doc S/RES/1267 (1999), where, acting under Chapter VII, the Security Council had demanded that

the Taliban turn over Usama bin Laden without further delay to appropriate authorities in a country where he has been indicted, or to appropriate authorities in a country where he will be returned to such a country, or to appropriate authorities in a country where he will be arrested and effectively brought to justice. This demand was repeated in UNSC Resolution 1333 (2000), 19 December 2000, UN Doc S/1333/2000, which further demanded that the Taliban should act swiftly to close all camps where terrorists are trained within the territory under its control, and [called] for the confirmation of such closures by the United Nations, inter alia, through information made available to the United Nations by Member States in accordance with paragraph 19 below and through such other means as are necessary to assure compliance with this resolution. 104

Rowe, above n 46 at 309. See Report of the Secretary-General to the General Assembly and Security Council, The situation in Afghanistan and its implications for international peace and security, 6 December 2001, UN Doc A/56/681—S/2001/1157 at para 90. 106 Martyn, above n 41. 107 ibid. Rowe, above n 46 at 309, argued that ‘whilst the presence of [only] one of the factors mentioned above may not be sufficient to establish the responsibility of the state concerned . . . they do provide, in conjunction, sufficient bricks to build a case to show, at the least, legal justification for the US to act by way of self-defence against Afghanistan’. 105

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resolutions may well have strengthened the case for further action to be taken by the Security Council under Chapter VII, ‘a separate demand was required for action by a state pursuant to the right to self-defence’.108 It may nonetheless be plausible to argue that, in refusing to comply with the Security Council’s demands contrary to Article 25 of the UN Charter, the Taliban were effectively adopting the actions of Osama bin Laden and AlQaeda as their own, and that they could therefore be seen as legally responsible for future, similar actions—including the 11 September attacks. This seems a relatively difficult argument to make, or at least to make convincingly, and one is therefore left with the situation whereby the military response aimed at the Taliban, rather than Al-Qaeda, seems to have been somewhat problematic in terms of the pre-existing framework of the jus ad bellum. Christopher Greenwood has suggested, as yet another alternative, that the position of Afghanistan could be seen as being ‘analogous to that of a neutral state which allows a belligerent to mount military operations from its territory: even though it is not responsible for those operations, it exposes itself to the risk of lawful military action to put a stop to them.’109 Such lawful military action would, however, properly be limited to those enemy troops operating from the neutral state, and would not encompass the military and infrastructure of the neutral state itself.110 In any event, and despite the apparent difficulties involved in placing all aspects of Operation Enduring Freedom within the prevailing legal paradigm, it would appear that the relationship between the state of Afghanistan and Al-Qaeda—even if this was accepted as having fallen short of that required to demonstrate state responsibility—was generally considered to have been sufficient to render the former a legitimate target for military action taken in self-defence. The virtually universal support for the operation across the international community certainly provides strong support for this contention.

III. WAS THE RESPONSE PROPORTIONATE?

Not only must a state’s exercise of the right to self-defence be necessary in the particular circumstances, it must also be proportionate. The pivotal question here is, of course, ‘proportionate to what?’. It is certainly not the case that the military response had to be proportionate to the damage inflicted by the 11 September attacks in order to be lawful; this represents a fundamental, although surprisingly common, misunderstanding of the 108

Schmitt, above n 7 at 44–45. Greenwood, above n 21 at 313. 110 See eg, UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford, Oxford University Press, 2004) at 20. 109

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Was the Response Proportionate? 69 concept.111 Comparing the level of death and destruction caused by the terrorist attacks with that caused by the military response would be valuable in terms of assessing its proportionality if Operation Enduring Freedom were to be seen as an armed reprisal rather than self-defence. As has been outlined above, however, international law does not permit armed reprisals during peacetime, and the military action was never characterised as such by the participants. In contrast to armed reprisals, which can be seen as constituting punitive measures of retribution for previous violations of the law, selfdefence is forward-looking. The proportionality requirement therefore relates not to the armed attack that has taken place, but rather to the continuing threat that the use of force is designed to counter. It will be recalled that John Negroponte’s communication to the Security Council on 7 October 2001, invoking Article 51, referred not only to the attacks of 11 September 2001, but also to ‘the ongoing threat to the United States and its nationals’.112 It is against this ongoing threat that the proportionality of the response must be measured. As Greenwood has explained: That does not mean that past events are disregarded—the terrible loss of life on 11 September was all too clear an indication of the destructive power of the terrorists—but it is relevant as an aid to determining the scale of the future threat, not as its own yardstick for measuring proportionality.113

Compared with an assessment of damage already suffered, it is certainly more difficult for states to demonstrate with precision the extent of any future threat, no matter how imminent. Nonetheless, it would seem reasonable to argue that, in light of the capacity of Al-Qaeda to inflict massive harm on the United States, and given the apparent unwillingness of the Taliban government to take any steps aimed at preventing future attacks, the most effective protection of US security would have been gained by seeking to destroy the Al-Qaeda network in Afghanistan, and by removing the Taliban regime.114 Indeed, Schmitt has argued that it 111 See eg, Myjer and White, above n 58 at 8, where it was suggested that the issue of proportionality was problematic in the following terms: ‘Does an attack against a small part of the United States, albeit one with devastating consequences for the people in the area hit, justify an armed response against a whole country, with the aim not only to root out the terrorists but to destroy and remove the effective, though unrecognized, government?’. 112 See above n 18. See also the United Kingdom’s communication, above n 19. 113 Greenwood, above n 21 at 314. As Schmitt has explained, above n 23 at 42, ‘the right to self-defence is limited only by the requirement that the force used not exceed that necessary to viably defend oneself’. 114 Greenwood, above n 24 at 25 argued that: Although the effect of the United States and allied intervention in Afghanistan was to change the balance of the civil war taking place in that country and lead to the overthrow of the Taliban regime and its replacement by a new government, it is difficult to see how the intervention could have succeeded in its aims of removing the Al-Qaida bases in Afghanistan without going that far. Indeed, there would rightly have been much criticism of the United States and its allies had their intervention been accomplished while leaving the people of Afghanistan in the same plight as they were in beforehand.

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would be ‘absurd to suggest that the operations against al-Qa’ida were disproportionate’,115 and that ‘there is no doubt that to effectively combat al-Qa’ida, it was necessary to deny Afghanistan as a sanctuary for the organization’.116 Thus, the United Kingdom justified the removal of the Taliban regime as being necessary to destroy the Al-Qaeda network in Afghanistan.117 The concept of forcible regime change per se is unquestionably contrary to the current international legal framework which, based on the notion of sovereign equality, seeks to protect the political independence of all states, and prohibits outside intervention in domestic affairs.118 In contrast, regime change as a result—or perhaps even as an aim—of lawful selfdefence, rather than as the predominant aim of armed intervention, may be rather more acceptable in terms of international law, such that ‘the legality of an instrumental regime change will turn on its necessity, proportionality, and discrimination’.119 The position is far from settled, however, and Gray pointed to a slightly uneasy division on this point between the United States, which stated unequivocally its aim of replacing the Taliban with a new government, and the United Kingdom, which was much more guarded in its approach.120 Thus, the UK Ministry of Defence stated that its immediate objectives included:121

115 Schmitt, above n 23 at 44. The same author has also suggested (in somewhat more extreme terms) that: ‘Given the fanatical nature of modern terrorists, it is hard to imagine a counterterrorist strike that would be disproportionate, i.e., more forceful than necessary to end their operations. After all, many terrorists are prepared to pay the ultimate price for their beliefs.’ See Schmitt, above n 63 at 753. 116 MN Schmitt, ‘Preemptive Strategies in International Law’ (2003) 24 Michigan Journal of International Law 513 at 532. 117 This would seem to have been a careful attempt by the United Kingdom to set out its justification in a clear, and limited, fashion. See Duffy, above n 54 at 193, fn 223, where she makes reference to a local radio interview with Tony Blair on ABC, Australia, 1 October 2001, in which he had argued that ‘it’s not as if we set out with the aim of changing the Taliban regime, but if they remain in the way of achieving our objective, namely that bin Laden’s associates are yielded up, and the terror camps are closed, then the Taliban themselves become our enemy’. 118 UN Charter, Art 2; UN General Assembly Resolution 2625 (XXV), above n 59. 119 See WM Reisman, ‘Assessing Claims to Revise the Laws of War’ (2003) 97 American Journal of International Law 82 at 89–90. The same author has suggested that, by the end of the twentieth century, ‘international law had uneasily begun to accommodate itself to regime change as an exceptional lawful remedy’. See Reisman, ‘Why Regime Change is (Almost Always) a Bad Idea’ (2004) 98 American Journal of International Law 516 at 521. The Danish Institute for International Studies (PV Jakobsen and JE Rytter (eds)), New Threats and the Use of Force (Copenhagen, DIIS, 2005) at 86–97 has also concluded that, in the context of a state knowingly harbouring international terrorists, ‘If deterrence has proved useless, the forcible removal of the regime may arguably be considered lawful exceptionally, although this is controversial. ’ 120 Gray, above n 28 at 231–33. 121 See www.operations.mod.uk/veritas/faq/objectives.htm.

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Was the Response Proportionate? 71 (a) Isolating the current Taliban regime from all international support [and] (b) Unless the Taliban regime complies with the US ultimatum, taking direct action against [Osama bin Laden], the Al Qa’ida networks and the terrorist facilities in Afghanistan, and where necessary taking political and military action to fragment the present Taliban regime, including through support for Pushtoon groups opposed to the regime as well as forces in the Northern Alliance

Whatever the position, it is certainly true that the goal of overthrowing the Taliban provoked no objection from other states—this was, after all, a regime which ‘had been isolated in the international community, [. . .] had not been recognized by the UN as the legitimate government of Afghanistan and had been subjected to sanctions by the UN’.122 Measured according to the above criteria, the military action taken by the United States and the United Kingdom was not only accepted by virtually the entire international community as having been necessary, but also as having been within the acceptable limits of proportionality.123 The use of military force against both Al-Qaeda and (although slightly more problematically) Afghanistan in response to the terrorist attacks of 11 September 2001 must, accordingly, be considered to have been a valid and lawful exercise of the right to self-defence.

122 Gray, above n 28 at 232. The question may well have been rendered academic following the adoption of Security Council Resolution 1378 (2001), 14 November 2001, UN Doc S/Res/1378 (2001). The resolution expressed its support for ‘the efforts of the Afghan people to replace the Taliban regime’, and its ‘strong support for the efforts of the Afghan people to establish a new and transitional administration leading to the formation of a government’. 123 See Schmitt, above n 23 at 40, explaining that: ‘In assessing the lawfulness of the response, it is critically important to survey the international community’s reaction thereto. In “New Haven School speak,” this survey of the “normative expectations of politically relevant actors” provides an indication of where the international community judges the lines of lawfulness to lie.’

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3 Military Action Against Iraq, 2003 Operation Iraqi Freedom

T

HE BACKGROUND TO the military action taken against Iraq in March 2003 is well documented, and dates back to Iraq’s invasion of Kuwait on 2 August 1990. In brief, the United Nations Security Council responded by immediately adopting Resolution 660,1 which condemned the invasion and demanded that Iraq withdraw its forces from Kuwaiti territory immediately and unconditionally. Following Iraq’s failure to comply with this demand, an international coalition was built in order to liberate Kuwait and, subsequent to the adoption of Resolution 678 in November 1990,2 forcible action was taken to this end in January 1991.3 The content of Resolution 678 remains vitally important in the context of assessing the legality of military operations in 2003, and it provided as follows: The Security Council . . . acting under Chapter VII of the Charter, 1. Demands that Iraq comply fully with resolution 660 (1990) and all subsequent relevant resolutions . . . 2. Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the foregoing resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area. ...

Following the coalition’s successful removal of Iraqi forces from Kuwait in March 1991, the Security Council brought hostilities to a close in Resolution 686.4 In April 1991, the Council then adopted Resolution 687,5 1

UNSC Resolution 660 (1990), 2 August 1990, UN Doc S/RES/660 (1990). UNSC Resolution 678 (1990), 29 November 1990, UN Doc S/RES/678 (1990). There is an enormous amount of literature on the background to, conduct of and various other aspects of the conflict. Examples offering a number of useful insights include: P Cornish, The Conflict in Iraq 2003 (London, Palgrave MacMillan, 2004); D Malone, The International Struggle Over Iraq: Politics in the UN Security Council 1980–2005 (Oxford, Oxford University Press, 2007); and P Rogers, Iraq and the War on Terror: Oxford Research Group International Security Report 2004 (Oxford, Oxford Research Group, 2005). 4 UNSC Resolution 686 (1991), 2 March 1991, UN Doc S/RES/686 (1991). 5 UNSC Resolution 687 (1991), 3 April 1991, UN Doc S/RES.687 (1991). 2 3

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which imposed a formal ceasefire and a series of detailed obligations upon Iraq—including its submission to a programme of destruction, nonacquisition and inspection of chemical and biological weapons, longrange ballistic missiles, nuclear weapons and nuclear-weapons-usable material. Amid growing international pressure, resulting from allegations of repeated Iraqi non-cooperation with the weapons inspection regime (and hence violations of the terms of Resolution 687), and evidently reflecting a perceived US ‘push for re-invigorated activism towards Iraq . . . immediately after the September 2001 attacks’,6 the Security Council unanimously adopted Resolution 1441 in November 2002.7 Also adopted under Chapter VII of the UN Charter, the Resolution is vitally important, and merits lengthy quotation. In relevant part, it: 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 International Atomic Energy Agency (IAEA) . . . 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; and accordingly decides to set up an enhanced inspection regime with the aim of bringing to full and verified completion the disarmament process established by resolution 687 (1991) and subsequent resolutions of the Council; ... 4. Decides that false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and cooperate fully in the implementation of, this resolution shall constitute a further material breach of Iraq’s obligations and will be reported to the Council for assessment in accordance with paragraphs 11 and 12 below; ... 11. Directs the Executive Chairman of UNMOVIC and the Director-General of the IAEA to report immediately to the Council any interference by Iraq with inspection activities, as well as any failure by Iraq to comply with its disarmament obligations, including its obligations regarding inspections under this resolution; 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; 6 See AJ Bellamy, ‘International Law and the War with Iraq’ (2003) 4 Melbourne Journal of International Law 497 at 509. He asserted that, throughout 2002, the United States had ‘pressed for a UN resolution authorising the use of force if Iraq continued to breach Resolution 687’. C Gray, International Law and the Use of Force, 3rd edn (Oxford, Oxford University Press, 2008) at 355 likewise accepted that ‘Ever since 9/11 the US administration had seemed determined to expand the “war against terrorism” to cover Iraq’. 7 UNSC Resolution 1441 (2002), 8 November 2002, UN Doc S/RES/1441 (2002).

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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; 14. Decides to remain seized of the matter.

Weapons inspections continued their work in Iraq until March 2003, when widespread and deep-seated international disagreement made it abundantly clear that the Security Council would be unable to adopt a further resolution dealing with the situation. Despite the fact that Hans Blix, the Executive Chairman of the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC), was maintaining even as late as 7 March 2003 that ‘inspection work is moving on and may yield results’,8 ‘Operation Iraqi Freedom’ began with a series of military strikes on Iraqi targets on 20 March 2003. Aimed at the removal of Iraq’s ruler, Saddam Hussein, and his Ba’athist regime, and led by the United States and United Kingdom (but with a limited degree of participation by Australia and several other states), the legal basis for the action remains highly contentious.

I. WAS THE ACTION TAKEN IN SELF-DEFENCE?

It would seem to be impossible to bring Operation Iraqi Freedom within traditional notions of self-defence. In terms of a strict application of Article 51 of the UN Charter, it is abundantly clear that no armed attack attributable to Iraq had taken place. Even the apparently more expansive, customary law approach to self-defence enunciated in the Caroline case requires an armed attack to be imminent.9 As Thomas Franck has explained: UN and International Atomic Energy Agency inspectors were actively engaged in situ in an apparently unrestricted search for weapons of mass destruction (WMDs) undertaken with full authorization by the Security Council. Whatever the inspectors did or did not learn about Iraqi WMDs, nothing in their reports lends any credibility to the claim of an imminent threat of armed aggression against anyone.10 8 See H Blix, ‘Iraq, Use of Force, and Reform of the UN’, Hersch Lauterpacht Memorial Lectures, Lecture III, delivered at the University of Cambridge on 24 November 2004, www.lcil.cam.ac.uk/Media/lectures/pdf/blix_24112004.pdf. Blix further demonstrated a scepticism regarding US/UK justifications for the seemingly inevitable march towards military action, outlining that, as the number of inspections increased from November 2002 to March 2003, ‘it became clear that none of the dozens of sites visited among those proposed by intelligence services contained any “smoking guns”. This experience and our examination of various pieces of evidence alleged to prove that Iraq retained proscribed items raised doubts in our minds about the reliability of the evidence invoked by the US and UK governments.’ 9 See the relevant discussion in ch 1 above. 10 TM Franck, ‘What Happens Now? The United Nations After Iraq’ (2003) 97 American Journal of International Law 607 at 611. M Sapiro, ‘Iraq: The Shifting Sands of Pre-emptive SelfDefense’ (2003) 97 American Journal of International Law 599 at 603 agreed that the US had

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Had any imminent threat to the United States or the United Kingdom (or, indeed, to any other state with which the United States and the United Kingdom were prepared to take collective action) existed, then the right to take such military action in self-defence as was both necessary and proportionate would also have existed. This was the argument as presented by senior officials in the US Department of Defense, claiming that action in self-defence was legal and available in the context of the UN Charter ‘to nations facing an imminent threat, which Saddam clearly [represented]’.11 In reality, it was simply not possible to point to any such imminent threat. Nonetheless, several commentators have contended that anticipatory, or pre-emptive, self-defence was a legitimate justification for Operation Iraqi Freedom.12 In September 2002, still clearly influenced by the terrorist attacks of 11 September 2001, and whilst military action against Iraq was undoubtedly being contemplated, the United States set out its National Security Strategy.13 Part V of the document had provided that: 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 United States and our allies . . . . . . the United States can no longer solely rely on a reactive posture as we have done in the past. The inability to deter a potential attacker, the immediacy of today’s threats, and the magnitude of potential harm that could be caused by our adversaries’ choice of weapons, do not permit that option. We cannot let our enemies strike first. . . . 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 pre-emptively.

failed to identify any imminent threat, whilst V Lowe, ‘The Iraq Crisis: What Now?’ (2003) 52 International and Comparative Law Quarterly 859 at 865 succinctly concluded that there was ‘no arguable case’ for self-defence. 11 See J Burke and E Vulliamy, ‘War Clouds Gather as Hawks Lay Their Plans’, The Observer, 14 July 2002 at 14–15, as referred to in Bellamy, above n 6 at 512. Bellamy did go on to state, however, that the US Defense Department officials recognised it as being ‘unlikely that such an argument would be accepted by the international community’, hence the development of a doctrine of pre-emptive self-defence. 12 See eg, J Yoo, ‘International Law and the War in Iraq’ (2003) 97 American Journal of International Law 563; and R Wedgwood, ‘The Fall of Saddam Hussein: Security Council Mandates and Preemptive Self-Defense’ (2003) 97 American Journal of International Law 576. 13 The National Security Strategy of the United States of America, September 2002, www.whitehouse.gov/nsc/nss.html.

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This assertion on the part of the United States of a right to act preemptively in self-defence caused ‘considerable consternation’,14 in that it seemed clearly to exceed the limits of the jus ad bellum which—to the extent that it permits anticipatory self-defence at all—does so only in a strictly limited way, in those circumstances that had been enunciated by US Secretary of State Webster in the Caroline case.15 Perhaps anticipating such criticism, US officials had strenuously denied that what rapidly became known as the ‘Bush doctrine’ was an innovation, arguing that Webster had made a famous defence of anticipatory action over a century earlier.16 As Richard Gardner has outlined, however, such an interpretation of the Webster formula is ‘patently misleading’.17 In fact, rather than offer broad support to a concept of anticipatory self-defence, Webster had done precisely the opposite. It will be recalled that, faced with much broader British claims to lawful defensive action, Webster had strictly limited the notion of anticipatory self-defence, asserting that it was possible only where an attack was imminent. The US National Security Strategy accepted elsewhere in Part V that: For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that represent an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of pre-emption on the existence of an imminent threat—most often a visible mobilization of armies, navies, and air forces preparing to attack.

It went on, however, to argue that: ‘We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries’. Commentators such as John Yoo have therefore asserted that imminence should no longer be limited to temporal scope, but should also include factors such as the probability of an attack; the likelihood that this probability will increase, and therefore the need to take advantage of a limited window of opportunity; whether diplomatic alternatives are practical; and the magnitude of harm that could result from the threat.18 14 D Kritsiotis, ‘Arguments of Mass Confusion’ (2004) 15 European Journal of International Law 233 at 246. Whether this was an entirely novel approach on the part of the United States is perhaps open to question. See eg, WM Reisman and A Armstrong, ‘The Past and Future of the Claim of Preemptive Self-Defense’ (2006) 100 American Journal of International Law 525 at 527–31. They do accept, however, at 547, that the 2002 assertion of pre-emptive self-defence was ‘cast more broadly than . . . its predecessors’. 15 See M Bothe, ‘Terrorism and the Legality of Pre-emptive Force’ (2003) 14 European Journal of International Law 227 at 231, stating that the Caroline formula is ‘as far as pre-emptive self-defence possibly goes under current international law’; and the discussion above in ch 1. 16 See RN Gardner, ‘Neither Bush Nor the “Jurisprudes” ’ (2003) 97 American Journal of International Law 585 at 586, and making reference to a background briefing given by a senior US official on 20 September 2002. 17 ibid at 587. 18 Yoo, above n 12 at 574.

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Following an application of this ‘reformulated test’, Yoo felt able to conclude that Operation Iraqi Freedom had been a lawful exercise of the right of self-defence.19 Others have agreed that, given the evolving nature of warfare, ‘restrictive approaches to imminency run counter to the purposes animating the right of self-defense’.20 It has even been suggested (rather more extremely) by some that, ‘For all practical purposes, the UN Charter framework is dead . . . [and] the Bush doctrine of pre-emption does not violate international law because the charter framework is no longer reflected in state practice’.21 It is certainly true that traditional notions of self-defence arose long before the international community could perceive of any possible (and, indeed, combined) threat from international terrorists and weapons of mass destruction. According to some commentators, then, in order to retain any vestige of effectiveness, ‘Self-defence probably has to be an inherently relative concept—relative to the times and circumstances in which it is involved’.22 Michael Schmitt, for example, has taken a stance whereby ‘Those who urge fidelity to an outdated restrictive interpretation of imminency fail to grasp the realities of twentyfirst century conflict’,23 and has suggested instead that self-defence is (or, at least, should be) permissible provided that the military action is carried out during the ‘last possible window of opportunity in the face of an attack that was almost certainly going to occur’.24 Even so, Schmitt accepts that there was ‘little evidence . . . of an Iraqi intention to use WMD in the near future’, and that the claim of self-defence against Iraq would accordingly fail even this significantly broader notion of imminence.25 19 ibid. By far the better view, however, remains that held by the vast majority of commentators, including Franck, who argued, above n 10 at 611, that the situation as it stood in March 2003 was ‘hard to fit with any plausible theory of imminence’. 20 See eg, MN Schmitt, ‘Preemptive Strategies in International Law’ (2003) 24 Michigan Journal of International Law 513 at 534. 21 See AC Arend, ‘International Law and the Preemptive Use of Military Force’ (2003) 26 The Washington Quarterly 89 at 100–101. 22 Sir A Watts, ‘The Importance of International Law’ in M Byers (ed), The Role of Law in International Politics (Oxford, Oxford University Press, 2000) 5 at 11. 23 See MN Schmitt, ‘The Legality of Operation Iraqi Freedom in International Law’ (2004) Journal of Military Ethics 82 at 92. 24 See MN Schmitt, ‘US Security Strategies: A Legal Assessment’ (2004) 27 Harvard Journal of Law and Public Policy 737 at 755–56. See also R Sifris, ‘Operation Iraqi Freedom: United States v Iraq—The Legality of the War’ (2003) 4 Melbourne Journal of International Law 521 at 543, where it is argued that the law has ‘lagged behind reality in its conception of “imminence” ’, and, at 541–42, that:

The notion of ‘imminence’ must adequately address the dual threat of WMD and terrorism. It is highly arguable that the enormity of the devastation resulting from successfully delivered WMD, and the speed at which such weapons can be delivered, merits a weakening of the threshold of reasonable foreseeability. Perhaps, rather than being a test based on objective knowledge, the test for imminence should be based on the reasonable subjective belief of the state in question. 25

Schmitt, above n 23 at 93.

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Despite the efforts of the United States to place its 2002 National Security Strategy firmly within the corpus of accepted international law, criticism of the ‘Bush doctrine’ contained therein was both widespread and fierce, with numerous commentators having asserted that the right of self-defence claimed by it was too extensive.26 Going even beyond the controversy attaching to Part V, however, Part III of the Strategy further provided that: While the United States will constantly strive to enlist the support of the international community, we will not hesitate to act alone, if necessary, to exercise our right of self-defense by acting preemptively against such terrorists, to prevent them from doing harm against our people and our country . . .

Thomas Franck has argued that this provision was more fundamental than Part V of the Strategy, dangerously conflating the extensive right of pre-emptive self-defence claimed with the assertion that the United States itself could determine whether, and when, that right was to be exercised.27 Such an approach would mean that the United States would be ‘free to use force against any foe it perceives as a potential threat to its security, at any time of its choosing and with any means at its disposal’,28 with no apparent obligation even to seek to persuade the rest of the international community of either the veracity, or else the imminence, of any perceived threat. In effect, the United States seemed to be rejecting any meaningful international legal limitation on its right to resort to force. As commentators such as Richard Gardner warned in 2003, ‘if [the Bush doctrine] is intended to assert a right available to the United States alone, [it] is obviously unacceptable. If it is intended to assert a new legal principle of general application, its implications are so ominous as to justify universal condemnation.’29 It is, however, difficult to see just how the doctrine could possibly represent a legal principle—with no external criteria, ‘what may superficially seem to be a legal norm . . . is actually no norm at all’.30 There was little support from other states for such a doctrine in the leadup to the attacks on Iraq in 2003. Indeed, the ‘pressure put on the United 26 See eg, Gardner, above n 16; Franck, above n 10; Sapiro, above n 10; R Falk, ‘What Future for the UN Charter System of War Prevention?’ (2003) 97 American Journal of International Law 590; J Brunnée and SJ Toope, ‘The Use of Force: International Law and Iraq’ (2004) 53 International and Comparative Law Quarterly 785. 27 Franck, above n 10 at 619. 28 ibid. 29 See Gardner, above n 16 at 588. It seems to have been broadly accepted that the right was intended to be confined only to the United States (and possibly also to its allies). Indeed, universal application would permit states such as Iran and North Korea to launch preemptive attacks against the United States. See eg, A Anghie, ‘The War on Terror and Iraq in Historical Perspective’ (2005) 43 Osgoode Hall Law Journal 45 at 49; Bellamy, above n 6 at 517. For a slightly more charitable view of the apparent inequality involved, see eg, E Benvenisti, ‘The US and the Use of Force: Double-edged Hegemony and the Management of Global Emergencies’ (2004) 15 European Journal of International Law 677. 30 Brunnée and Toope, above n 26 at 792.

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States by the United Kingdom, its chief ally, to go to the Security Council is perhaps reflective of the lack of belief within the UK government in preemptive self-defence’.31 The UK Attorney General certainly seems to have indicated as much in his advice to the government of 7 March 2003, where he stated that, if the Bush doctrine means more than a right to respond proportionately to an imminent attack (and I understand that the doctrine is intended to carry that connotation) this is not a doctrine which, in my opinion, exists or is recognised in international law.32

In any case, neither the United States nor the United Kingdom (nor, indeed, Australia—the only other state to commit troops initially) relied formally on pre-emptive self-defence as the legal basis for military action against Iraq. It is true that, in the assessment of the UK Government, Iraq did constitute a ‘threat’; due both to its weapons capabilities and to the ‘violent and aggressive nature of Saddam Hussein’s regime’.33 In terms of its weapons capabilities, in particular, it had been suggested that: Iraq [had] a useable chemical and biological weapons capability . . .; [that it possessed] extended-range versions of the SCUD ballistic missile . . . capable of reaching Cyprus, Eastern Turkey, Tehran and Israel . . .; [that its] military planning specifically envisage[d] the use of chemical and biological weapons; [and that] Iraq’s military forces [were] able to use chemical and biological weapons, with command, control and logistical arrangements in place. The Iraqi military [were reportedly] able to deploy these weapons within 45 minutes of a decision to do so.34 31 See ND White and EPJ Myjer, ‘Editorial: The Use of Force Against Iraq’ (2003) 8 Journal of Conflict and Security Law 1 at 1. 32 Attorney General’s Advice on the Iraq War: Iraq: Resolution 1441, 7 March 2003 (2005) 54 International and Comparative Law Quarterly 767 at 768. It is interesting to note, however, that by 2004 the Attorney General’s position was perhaps rather less clear cut, and he seemed prepared to take a more expansive view to the notion of imminence:

The concept of what constitutes an imminent attack will develop to meet new circumstances and new threats. For example, the resolutions passed by the Security Council in the wake of 11 September 2001 recognised both that large-scale terrorist action could constitute an armed attack that will give rise to the right of self-defence and that force might, in certain circumstances, be used in self-defence against those who plan and perpetrate such acts and against those harbouring them, if that is necessary to avert further such terrorist attacks. It was on that basis that UK forces participated in military action against Al Qaeda and the Taliban in Afghanistan. It must be right that states are able to act in self-defence in circumstances where there is evidence of further imminent attacks by terrorist groups, even if there is no specific evidence of where such an attack will take place or of the precise nature of the attack. See House of Lords Debate on International Self-Defence, Speech by Attorney General, Lord Goldsmith, Hansard House of Lords Debates, vol 660, col 370, 21 April 2004. Gray, above n 6 at 215, has since cautioned that ‘Such a wide view deprives the requirement of “imminence” of any content’. But see also V Lowe, ‘“Clear and Present Danger”: Responses to Terrorism’ (2005) 54 International and Comparative Law Quarterly 185 at 191–93. 33 See Iraq’s Weapons of Mass Destruction: The Assessment of the British Government (London, HMSO, 2002), Executive Summary at para 9. 34 ibid, ch 3, at para 1.

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None of this, however, was seen by the UK Government as adding up to a situation whereby there was a direct and imminent threat to either the United Kingdom or the United States, nor indeed to any other state requesting the United States or United Kingdom to act in collective selfdefence against Iraq. Indeed, the UK’s Select Committee on Foreign Affairs saw a significant risk in seeking to justify military action against Iraq under an expanded notion of (pre-emptive) self-defence, cautioning that this could conceivably ‘be taken as legitimising the aggressive use of force by other, less law-abiding states’.35 To an extent, it can be difficult to distinguish the official legal justifications advanced for Operation Iraqi Freedom from the accompanying political rhetoric—particularly on the part of the United States, which made repeated references to self-defence and national security in the months prior to military action against Iraq. In his State of the Union Address of January 2002, for example, President Bush identified North Korea, Iran and Iraq as constituting ‘an axis of evil, arming to threaten the peace of the world’, and asserted that: Iraq continues to flaunt its hostility toward America and to support terror . . . And all nations should know: America will do what is necessary to ensure our nation’s security. We’ll be deliberate, yet time is not on our side. I will not wait on events, while dangers gather. I will not stand by, as peril draws closer and closer. The United States of America will not permit the world’s most dangerous regimes to threaten us with the world’s most destructive weapons.36

Following the adoption of Security Council Resolution 1441 in November 2002, US Ambassador John Negroponte had noted that the resolution ‘does not constrain any Member State from acting to defend itself against the threat posed by Iraq’,37 whilst President Bush had stated on 7 March 2003 that ‘we don’t really need the United Nations’ approval to act . . . When it comes to our security, we don’t need anyone’s permission’.38 On 18 March 2003, he had similarly asserted that: The danger is clear. Using chemical, biological or, one day, nuclear weapons obtained with the help of Iraq, the terrorists could fulfil their stated ambitions

35 UK Select Committee on Foreign Affairs, Second Report: Foreign Policy Aspects of the War Against Terrorism, 17 December 2002, www.publications.parliament.uk/pa/cm200203/ cmselect/cmfaff/196/19603.htm, at para 154. 36 The President’s State of the Union Address, Washington, 29 January 2002, www.whitehouse. gov/news/releases/2002/01/20020129-11.html. 37 See Security Council Official Records, 4644th Meeting, 8 November 2002, UN Doc S/PV. 4644 at 3. 38 See White and Myjer, above n 31 at 7, quoting R Cornwell, ‘The Quiet Man’, The Independent, 8 March 2003, at 3.

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and kill thousands or hundreds of thousands of innocent people in our country or any other.39

In his letter notifying the Security Council of the commencement of Operation Iraqi Freedom, John Negroponte had also included the claim that military action was necessary to ‘defend the United States and the international community from the threat posed by Iraq’.40 It is not surprising, then, that—based on such broad references, and allied with the coincidental timing of the US National Security Strategy’s publication—by the time the United States had outlined its legal position, ‘public opinion . . . had [already] come to view the Iraq war as the first application of the new “preventive war” doctrine’.41 Several scholars have also maintained that self-defence did indeed constitute the basis for attacking Iraq (at least on the part of the US).42 Nonetheless, once an adequate separation is achieved between the legal and the political justifications, it becomes clear that the right of self-defence against Iraq was not formally asserted by any of the states involved.43 As Michael Schmitt has explained: ‘Although US and British officials repeatedly claimed the need to defend themselves against Iraqi WMD, whether wielded by Iraqis or transnational terrorists, these were policy, not legal, arguments’.44 Harold Koh also concluded that ‘Although some American officials have suggested preemptive self-defense as an additional basis for the war, the core US claim rests not on that murky ground’.45 The real legal basis for Operation Iraqi Freedom must instead be found elsewhere. 39 ibid, making reference to ‘Bush Orders Saddam to Quit’, http://news.bbc.co.uk/1/hi/ world/middle_east/2857347.stm. 40 Letter dated 20 March 2003 from the Permanent Representative of the United States of America to the United Nations addressed to the President of the Security Council, UN Doc S/2003/351. Kritsiotis, above n 14 at 251, has argued that the inclusion of this passage was a ‘casual afterthought’. Had it been the formal basis for action, it is likely that it would have been much more prominent. Instead, as outlined below, Negroponte’s primary assertion was that military action had already been authorised by existing Security Council resolutions. 41 Gardner, above n 16 at 589. See also LF Damrosch and BH Oxman, ‘Editors’ Introduction’ (2003) 97 American Journal of International Law 553 at 553–54. 42 See eg, Bellamy, above n 6 at 503–504; White and Myjer, above n 31 at 6–7. 43 See Kritsiotis, above n 14 at 246–53. Nor were arguments on the basis of humanitarian, or pro-democratic, intervention made (at least not in formal legal terms), despite the perceived humanitarian benefits of Saddam Hussein’s removal. See Kritsiotis, ibid at 269–74; Brunnée and Toope, above n 26 at 802. For a brief discussion of those alternatives as possible bases of action see eg, Schmitt, above n 23 at 99–102; and Sifris, above n 24 at 544 et seq. 44 Schmitt, above n 24 at 754 45 HH Koh, ‘On American Exceptionalism’ (2003) 55 Stanford Law Review 1479 at 1521. See also Gardner, above n 16 at 588–89; Franck, above n 10 at 611; Brunnée and Toope, above n 26 at 794; Falk, above n 26 at 592; and Anghie, above n 29 at 55, where it was asserted that, while:

Iraq presents a concrete example, in all its complexities, of the National Security Strategy in action[, i]n strictly legal terms, the United States has not yet invoked or justified any of its actions by resorting to the doctrine of pre-emption. The invasion of Iraq has been explained instead as action taken pursuant to the Security Council decisions relating to Iraq.

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II. WAS THE ACTION AUTHORISED BY THE SECURITY COUNCIL?

A. Was Military Action Authorised by Resolution 1441? This question can be disposed of without too much difficulty—Security Council Resolution 1441 does not authorise the use of force, either explicitly or implicitly. It will be recalled that, in the resolution, the Security Council: 1. Decides that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687 (1991) . . .; 2. Decides . . . to afford Iraq, by this resolution, a final opportunity to comply with its disarmament obligations . . .; ... 12. Decides to convene immediately upon receipt of a report [outlining further material breach], in order to consider the situation and the need for full compliance with all of the relevant Council resolutions . . .; 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; 14. Decides to remain seized of the matter.

There is nothing in the text of the resolution to suggest that the use of force was being authorised. Granted, paragraph 13 does talk in terms of ‘serious consequences’ for Iraq should it continue to breach its obligations under other Security Council resolutions. It is, however, widely accepted that a convention exists whereby, when the Security Council is authorising the use of force, it talks (euphemistically) of ‘all necessary means’— as was the case in paragraph 2 of Resolution 678—and not merely of ‘serious consequences’.46 Furthermore, Iraq is clearly afforded a final opportunity to comply with its obligations by paragraph 2. It is true that the terms of Resolution 678 had also provided Iraq with a final opportunity to pull its forces out of Kuwait before facing authorised military action, but Resolution 678 had also provided that this final opportunity ceased on 15 January 1991. The failure of Iraq to meet this deadline accordingly rendered the coalition’s subsequent resort to force lawful automatically. No such automatic trigger is present in Resolution 1441. Instead, paragraph 12 states unequivocally that any further breach by Iraq is to be reported to, and considered by, the Security Council. 46 See eg, Schmitt, above n 23 at 84–85. Against this, however, it must be borne in mind that the President of the Security Council’s 1993 warning of ‘serious consequences’ for Iraq in light of its breach of Resolution 687 did seem to have been accepted by some as implying the use of force. See discussion below in Section II.B, and R Zacklin, ‘The United Nations Secretariat and the Use of Force in a Unipolar World’, Hersch Lauterpacht Memorial Lectures, Lecture I, delivered at the University of Cambridge, 22 January 200, at para 50, available at www.lcil.cam.ac.uk/Media/lectures/pdf/2008_Hersch_Lectures/2008_Lecture_1.pdf.

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Both the United States and the United Kingdom explicitly accepted (at least in the context of Security Council discussions) that there was no automatic right to resort to authorised force contained within the text of Resolution 1441.47 Following its adoption, John Negroponte had accordingly stated that the resolution contained ‘no “hidden triggers” and no “automaticity” with respect to the use of force’.48 Sir Jeremy Greenstock had likewise assured the other members of the Security Council that the United States and the United Kingdom had been well aware of their ‘concerns about “automaticity” and “hidden triggers” ’, affirming unambiguously that, in the opinion of the United Kingdom, there was ‘no “automaticity” in this resolution’.49 This approach was entirely in keeping with the intention of the rest of the Security Council. Thus, numerous other states had also expressed the view that there was no automatic trigger contained within Resolution 1441,50 with China, France and the Russian Federation even choosing to issue a Joint Statement in the following terms: In case of failure by Iraq to comply with its obligations, . . . [such] failure will be reported to the Security Council by the Executive Chairman of UNMOVIC or by the Director General of IAEA. It will then be for the Council to take a position on the basis of that report.51

47 See Security Council Official Records, 4644th Meeting, above n 37; White and Myjer, above n 31 at 2–3; Bellamy, above n 6 at 509–11; A Martyn, ‘Disarming Iraq under International Law’, Parliament of Australia Current Issues Brief No 9, 13 December 2002, www.aph.gov. au/library/pubs/CIB/2002-03/03cib09.htm; and P Shiner, ‘The Iraq War, International Law and the Search for Legal Accountability’, in P Shiner and A Williams (eds), The Iraq War and International Law (Oxford, Hart Publishing, 2008) 17 at 29-30. 48 See Security Council Official Records, 4644th Meeting, above n 37 at 3. 49 ibid at 4–5. 50 France, for example, welcomed the fact that, ‘all elements of automaticity have disappeared from the resolution’; Mexico praised the resolution on the ground that ‘it eliminates the concept of automaticity in the use of force in response to a serious violation without the explicit agreement of the Council’; Ireland welcomed assurances from the United States and the United Kingdom that the purpose of the resolution had been ‘to achieve disarmament through inspections, and not to establish a basis for the use of military force’; the Russian Federation confirmed that, ‘As a result of intensive negotiations, the resolution just adopted contains no provisions for the automatic use of force’; Bulgaria asserted its view that the resolution was ‘not a pretext for automatic recourse to the use of force’; Syria voted in favour of the resolution, ‘having received reassurances . . . that it would not be used as a pretext for striking against Iraq and does not constitute a basis for any automatic strikes against Iraq’; Colombia asserted that the resolution ‘is not, nor could it be at this time, a resolution to authorize the use of force’; Cameroon welcomed the fact that the resolution contained no ‘traps or automaticity’; and China concurred that the text of the resolution ‘no longer includes automaticity for authorizing the use of force’. See Security Council Official Records, 4644th Meeting, above n 37. 51 ‘Iraq—Joint Statement by the People’s Republic of China, France and the Russian Federation’, New York, 8 November 2002, www.ambafrance-uk.org/Iraq-UNSCR-1441Joint-statement-by.html.

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In the words of Thomas Franck, then: [W]hat Resolution 1441 did was to purchase unanimity for the return of the inspectors by postponing to another day, which the sponsors hoped might never be reached, the argument as to whether Resolutions 678 and 687 had authorized further enforcement at the sole discretion of one or more of the Council’s members.52

To choose to interpret Resolution 1441 as having authorised the use of force is disingenuous, and serves only to undermine the authority of the Security Council. As White and Myjer have explained: To interpret the words of a resolution in a way that is directly contrary to the consensus (which may be an agreement to disagree) underlying the resolution would undermine the council as a forum for achieving compromise. Military action undertaken with Security Council authority is only permitted when there is agreement in that body that such action is being authorized.53

B. Was Military Action Authorised as a Lawful Response to the Violation of the Ceasefire Agreement? Resolution 1441 alone could not have provided the legal basis for Operation Iraqi Freedom. It did, however, have a central role to play in the legal arguments advanced by the United States and the United Kingdom to justify their military action, that is, that the use of force had already been authorised by the Security Council thanks to a combination of its resolutions, which effectively meant that the initial authorisation to use force contained in Resolution 678 had been revived due to Iraq’s material breach of its Resolution 687 ceasefire obligations—a fact that had been confirmed by the Council in Resolution 1441. John Negroponte accordingly stated in his letter to the President of the Security Council that the military action being taken against Iraq was authorised by the Security Council ‘under existing Council resolutions, including its resolutions 678 (1990) and 687 (1991)’.54 The claim that military action had already been authorised by the Security Council is certainly much more plausible than those arguments relating to self-defence. It has been rehearsed in detail by a number

52

Franck, above n 10 at 614. White and Myjer, above n 31 at 2. See also discussion of interpretation of Security Council resolutions in ch 1 above. 54 Letter dated 20 March 2003 from the Permanent Representative of the United States of America to the United Nations addressed to the President of the Security Council, above n 40. 53

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of commentators,55 but can perhaps best be summarised by quoting the position as presented succinctly by the UK’s Attorney General, Lord Goldsmith, on 17 March 2003: Authority to use force against Iraq exists from the combined effects of [Security Council] resolutions 678, 687 and 1441. All of these resolutions were adopted under Chapter VII of the UN Charter which allows the use of force for the express purpose of restoring international peace and security: 1. In resolution 678 the Security Council authorised force against Iraq, to eject it from Kuwait and to restore peace and security in the area. 2. In resolution 687, which set out the ceasefire conditions after Operation Desert Storm, the Security Council imposed continuing obligations on Iraq to eliminate its weapons of mass destruction in order to restore international peace and security in the area. Resolution 687 suspended but did not terminate the authority to use force under resolution 678. 3. A material breach of resolution 687 revives the authority to use force under resolution 678. 4. In resolution 1441 the Security Council determined that Iraq has been and remains in material breach of resolution 687, because it has not fully complied with its obligations to disarm under that resolution. 5. The Security Council in resolution 1441 gave Iraq a ‘final opportunity to comply with its disarmament obligations’ and warned Iraq of the ‘serious consequences’ if it did not. 6. The Security Council also decided in resolution 1441 that, if Iraq failed at any time to comply with and cooperate fully in the implementation of resolution 1441, that would constitute a further material breach. 7. It is plain that Iraq has failed so to comply and therefore Iraq was at the time of resolution 1441 and continues to be in material breach. 8. Thus, the authority to use force under resolution 678 has revived and so continues today. 9. Resolution 1441 would in terms have provided that a further decision of the Security Council to sanction force was required if that had been intended. Thus, all that resolution 1441 requires is reporting to and discussion by the Security Council of Iraq’s failures, but not an express further decision to authorise force.56

It should be noted that more expansive (and significantly more guarded) advice had previously been provided by the Attorney General on 7 March 55 See eg, R Wedgwood, ‘The Fall of Saddam Hussein: Security Council Mandates and Preemptive Self-Defense’ (2003) 97 American Journal of International Law 576; WH Taft IV and TF Buchwald, ‘Preemption, Iraq, and International Law’ (2003) 97 American Journal of International Law 557; C Greenwood, ‘The Legality of Using Force Against Iraq’, Memorandum to the Select Committee on Foreign Affairs on the Legality of Using Force Against Iraq, 24 October 2002, www.publications.parliament.uk/pa/cm200203/cmselect/cmfaff/196/2102406.htm; Yoo, above n 12; Gardner, above n 16. 56 UK Attorney General (Lord Goldsmith), Legal Basis for the Use of Force Against Iraq, www.number-10.gov.uk/output/Page3287.asp; (2003) 52 International and Comparative Law Quarterly 811.

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2003.57 In the course of this earlier advice, Lord Goldsmith had openly accepted that ‘the revival argument is controversial . . . [and] is not widely accepted among academic commentators’.58 Although ultimately asserting that Security Council Resolution 1441 was capable of reviving the authorisation to use force contained within Resolution 678, he did also caution that ‘the safest legal course would be to secure the adoption of a further resolution to authorise the use of force’, with the ‘key point [being] that it should establish that the Council has concluded that Iraq has failed to take the final opportunity offered by resolution 1441’.59 With admirable candour, he even warned that: ‘there are a number of ways in which the opponents of military action might seek to bring a legal case, internationally or domestically, against the UK, members of the Government or UK military personnel. . . . We cannot be certain that they would not succeed’.60 Nonetheless, the basis of his advice of 17 March 2003 was that Iraq was clearly in further material breach of Resolution 687 and, provided that the Security Council had met to consider this (as required by the terms of Resolution 1441, and despite assurances from both states regarding the absence of any automaticity in its provisions), the United States and the United Kingdom were then free to end the ceasefire imposed by Resolution 687 unilaterally, and to resume the military action against Iraq that had originally authorised by Resolution 678. After all, as Michael Schmitt has explained: ‘under well-accepted principles of international law, a cease-fire merely places hostilities on hold; it does not terminate them. A material breach by one party justifies a resumption of hostilities by the other’.61 Article 40 of the Regulations annexed to Hague Convention IV of 1907 accordingly provides that: 57 See Attorney General’s Advice on the Iraq War: Iraq: Resolution 1441 (2005) 54 International and Comparative Law Quarterly 767. For discussion of the provision of the relevant legal advice by the Attorney General, and possible reasons for an apparent shift in his approach, see eg, P Sands, Lawless World (London, Penguin, 2005) at 188–200; Shiner, above n 47 at 34-53. Australia’s Attorney General and Department of Foreign Affairs issued similar advice: www.pm.gov.au/iraq/displayNewsContent.cfm?refx=96. Nothing comparable was published by the US Attorney General, although a detailed statement of the US legal argument, taking a similar approach, has since been published by the Legal Adviser and Assistant Legal Adviser of the US Department of State. See Taft and Buchwald, above n 55. Legal Adviser Taft had made a similar, if fairly brief, statement to the US National Association of Attorneys General in Washington DC, on 20 March 2003. See http://usinfo. state.gov/dhr/Archive/2003/Oct/09-464655.html. 58 See ‘Attorney General’s Advice on the Iraq War: Iraq: Resolution 1441’, n 57 above, at para 10. 59 ibid at para 27. 60 ibid at para 35. 61 MN Schmitt, ‘International Law and the Use of Force: Attacking Iraq’, Royal United Services Institute Journal, February 2003, vol 148, 13 at 15. See also MJ Matheson, ‘Legal Authority for the Possible Use of Force Against Iraq’ (1998) Proceedings of the 92nd Annual Meeting of the American Society of International Law at 141–42.

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Any serious violation of the armistice by one of the parties gives the other party the right of denouncing it, and even, in cases of urgency, of recommencing hostilities immediately.62

In effect, then, such arguments meant that Security Council Resolution 678 represented ‘a loaded weapon in the hands of any member nation to use whenever it determined Iraq to be in material breach of the cease-fire’.63 On the basis that Iraq had repeatedly been found to be in material breach of Resolution 687 by the Security Council, it could be argued that the right to resume hostilities attached to the coalition once more. Thus, Schmitt felt able to suggest that, although receiving relatively little attention in terms of the academic debate surrounding the legality of Operation Iraqi Freedom, ‘Paradoxically . . . [it] provides perhaps the cleanest legal justification for the resort to force against Iraq’.64 Even the UN Legal Counsel was apparently of the opinion that the authorisation contained in Resolution 678 had not been set aside by subsequent resolutions, and that ‘a sufficiently serious violation by Iraq of its obligations under 687 would withdraw the basis for the cease-fire and re-open the way to a renewed use of force’.65 In his letter of 20 March 2003 to President of the Security Council, US Ambassador Negroponte therefore stated explicitly that Resolution 687 had imposed a number of obligations upon Iraq constituting the required conditions of a ceasefire, and that ‘It has been long recognized and understood that a material breach of these obligations removes the basis of the ceasefire and revives the authority to use force under resolution 678’.66 Legal Advisers to the Australian Government had, likewise, asserted unequivocally on 12 March 2003 that: In our view, Iraq’s past and continuing material breaches of SCR 687 have negated the basis for the ‘formal cease-fire’. Iraq, by its conduct subsequent to the adoption of SCR 687, has demonstrated that it did not and does not ‘accept’ the terms of SCR 687. Consequently, the cease-fire is not effective and the authorisation for the use of force in SCR 678 is reactivated. We do not believe that the authorisation contained in SCR 678 has expired or that, coupled with SCR 687, it was confined to the limited purpose of ensuring 62 See Regulations Respecting the Laws and Customs of War on Land, Annexed to Hague Convention (IV) Respecting the Laws and Customs of War on Land, 1907, UKTS 9 (1910), Cd. 5030; reproduced in A Roberts and R Guelff (eds), Documents on the Laws of War, 3rd edn (Oxford, Oxford University Press, 2000) 67 at 80. 63 See J Lobel and M Ratner, ‘Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime’ (1999) 93 American Journal of International Law 124 at 125. 64 Schmitt, above n 61 at 14–15. He did accept, however, that relying on this as a justification for renewed military action so long after the execution of the ceasefire and implementation of a new weapons inspection regime ‘may smack of legal formalism to some’. 65 Zacklin, above n 46, Lecture I at para 45. 66 See above n 40.

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Iraq’s withdrawal from Kuwait. Nor do we believe that the Security Council has either expressly or impliedly withdrawn the authority for the use of force in SCR 678 in all circumstances. . . . The authority to use force . . . was to uphold and implement ‘all subsequent relevant resolutions and to restore international peace and security to the area’. That purpose holds as good today as it did in 1990.67

The ‘revival’ argument was not new. Indeed, it closely mirrored arguments that had been presented by the United States and United Kingdom in the context of previous attacks carried out against Iraq in 1993 and 1998, and which had apparently found some measure of favour with the United Nations itself (at least in 1993)—a factor that was referred to explicitly by Negroponte in his letter of 20 March 2003. In the first of those cases, with Iraq having withdrawn its co-operation from United Nations Special Commission (UNSCOM) inspections, and then subsequently having forcibly entered the demilitarised zone, the President of the Security Council made Statements on 8 and 11 January 1993 declaring that Iraq’s conduct was ‘an unacceptable and material breach of the relevant provisions of resolution 687’, and warning that it may result in ‘serious consequences’ for Iraq.68 Days later, and with little or no international protest, the United States, the United Kingdom and France struck against Iraqi facilities in the no-fly zones of northern Iraq. The Legal Counsel of the United Nations apparently believed that the Presidential Statements in question, whilst doing little more than linking ‘the material breach of Iraq’s obligations to serious if unspecified consequences’, had indeed revived the authorisation to use force as set out in Resolution 678.69 The UN Secretary-General, Boutros Boutros-Ghali, accordingly indicated that those states had ‘received a mandate from the Security Council, according to Resolution 678, and the cause of the raid was the violation by Iraq of Resolution 687’. He concluded that the military action conformed to ‘resolutions of the Security Council and . . . to the Charter of the United Nations’.70

67 See Memorandum of Advice on the Use of Force Against Iraq, provided by the Attorney General’s Department and the Department of Foreign Affairs and Trade, www.pm.gov.au/ iraq/displayNewsContent.cfm?refx=96, the advice having been drafted by Bill Campbell QC, First Assistant Secretary, Office of International Law in the Attorney-General’s Department, and Chris Moraitis, Senior Legal Adviser in the Department of Foreign Affairs and Trade. 68 Statement by the President of the Security Council concerning United Nations flights into Iraqi Territory, UN Doc S/25081 (1993), 8 January 1993; Note by the President of the Security Council, UN Doc S/25091 (1993), 11 January 1993. See also eg, Zacklin, above n 46 at para 50; and R Wedgwood, ‘The Enforcement of Security Council Resolution 687: The Threat of Force against Iraq’s Weapons of Mass Destruction’ (1998) 92 American Journal of International Law 724 at 727. 69 Zacklin, above n 46, at para 51. 70 See eg: Gray, above n 6 at 350; Taft and Buchwald, above n 55 at 559.

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A similar situation arose towards the end of 1997, in the context of yet more Iraqi obstruction of the UNSCOM weapons inspection programme— conduct that was again described by the Security Council as a ‘flagrant violation’ of its obligations under Resolution 687.71 The President of the Security Council again warned in a Presidential Statement of ‘serious consequences’.72 On this occasion, however, the unambiguous threat of military action by the United States (although with offers of assistance from several other member states) was enough to prompt guarantees of enhanced compliance by Iraq.73 Later in 1998, however, and with Iraq still hampering effective weapons inspections, the United States and the United Kingdom launched another series of unilateral air strikes, code-named Operation Desert Fox. The legal justification advanced on this occasion was, again, that the states involved were simply enforcing Iraqi compliance with Resolution 687, and that Iraq’s violations of the ceasefire conditions necessarily revived the authorisation to use force set out in Resolution 678.74 More particularly, the United States and United Kingdom sought to rely on two further Security Council resolutions adopted in light of continued noncooperation by Iraq. Resolution 1154 had provided that the Council: Stresses that compliance by the Government of Iraq with its obligations . . . to accord immediate, unconditional and unrestricted access to the Special Commission and the IAEA in conformity with the relevant resolutions is necessary for the implementation of resolution 687 (1991), but that any violation would have severest consequences for Iraq.75

In Resolution 1205, the Security Council: Condemns the decision by Iraq of 31 October 1998 to cease cooperation with the [UN] Special Commission as a flagrant violation of resolution 687 (1991) and other relevant resolutions.76 71

Security Council Resolution 1134 (1997), 23 October 1997, UN Doc S/RES/1134 (1997). See Statement by the President of the Security Council, 29 October 1997, UN Doc S/PRST/1997/49. 73 See eg, Wedgwood, above n 68. 74 Security Council Official Records, 3955th Meeting, 16 December 1998, UN Doc S/PV.3955. See also C Gray, ‘From Unity to Polarization: International Law and the Use of Force Against Iraq’ (2002) 13 European Journal of International Law 1 at 14–15; Bellamy, above n 6 at 504–506. Gray, ibid at 15–16, saw the UK/US position largely as having been an argument of implied authorisation, although she noted that the United States and United Kingdom did also argue on the grounds of Iraq’s breach of the ceasefire imposed by Resolution 687. 75 UNSC Resolution 1154 (1998), 2 March 1998, UN Doc S/RES/1154 (1998) at para 3. Lobel and Ratner, above n 63 at 124, have stated that, during the Security Council meeting at which Resolution 1154 was adopted, ‘no country asserted that [it] authorized the unilateral use of force, and a majority stated that additional Council authorization would be necessary before force could be used. Only after that meeting did US officials claim otherwise.’ See also Sifris, above n 24 at 529; and N Blokker, ‘Is the Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by Coalitions of the Able and Willing’ (2000) 11 European Journal of International Law 541 at 559–60. 76 UNSC Resolution 1205 (1998), 5 November 1998, UN Doc S/RES/1205 (1998) at para 1. 72

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Taken together, these provisions were said to implicitly revive the authorisation to use force contained in Resolution 678, and Britain’s Ambassador to the Security Council had therefore argued that ‘the authorization to use force given by the Security Council in 1990 may be revived if the Council decides that there has been a sufficiently serious breach of the conditions laid down by the Council for the ceasefire’.77 The Security Council did, indeed, agree that Iraq was in breach of its ceasefire obligations, but it was significantly more divided on this occasion as to whether this warranted a resumption of armed force aimed at Iraqi compliance.78 It has even been suggested subsequently that a ‘taint of opportunism’ surrounded the strikes, which ‘exacerbated the divisions within the Security Council and ushered in a prolonged period of stalemate which did not end until the final frantic months of late 2002 and early 2003’.79 The proposition that material breach of Resolution 687 by Iraq would revive the authorisation of Resolution 678 certainly did not seem to be accepted by UN Secretary-General Kofi Annan, and faced strong condemnation—rightly so, according to Christine Gray, who explained that it arrogates to individual states power that properly resides with the Security Council. It is for the Security Council to determine not only the existence of a breach of the ceasefire, but also the consequences of such a breach in cases where there is a binding ceasefire imposed by the Security Council.80

Faced with widespread criticism of yet further military operations in the Iraqi no-fly zones in 2001, it is perhaps telling that neither the United States nor the United Kingdom seemed prepared to advance implied UN authorisation as the legal basis for their action. Indeed, the United Kingdom even seemed to backtrack somewhat from its (apparent) initial position, namely, that the use of force was legally justified by a combination of Security Council Resolutions 678 and 688. In the text of Resolution 688, the Security Council: 1. Condemns the repression of the Iraqi civilian population in many parts of Iraq, including most recently in Kurdish-populated areas, the consequences of which threaten international peace and security in the region; 77 See Security Council Official Records, 3939th Meeting, 5 November 1998, UN Doc S/PV.3939. Sir Jeremy Greenstock’s apparent acceptance that it would be for the Security Council to decide on any breach by Iraq is clearly significant in the context of the 2003 attacks. 78 Only Japan and Portugal expressed any level of support for the argument. Russia and China explicitly condemned the military actions as contrary to international law, whilst France opted not to become involved as it had been in 1993. See eg, Gray, above n 74 at 15; Gray, above n 6 at 350–51; Bellamy, above n 6 at 505–506; and Taft and Buchwald, above n 55 at 559–60. 79 See Zacklin, above n 46, Lecture III, delivered on 24 January 2008 at paras 2–3. 80 Gray, above n 74 at 16. She went on to express doubts as to whether any breach of Resolution 687 by Iraq not involving the use of armed force would have justified a military response by the coalition in any case. See below for a discussion relating to the importance of recognising the Security Council’s role and position in relation to the ceasefire agreement.

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2. Demands that Iraq, as a contribution to removing the threat to international peace and security in the region, immediately end this repression . . .; 3. Insists that Iraq allow immediate access by international humanitarian organizations to all those in need of assistance in all parts of Iraq . . .; [and] ... 6. Appeals to all Member States and to all humanitarian organizations to contribute to these humanitarian relief efforts.81

The Resolution was not adopted by the Council under Chapter VII of the Charter, and there would seem to be broad agreement that it could not have provided a legal basis for the use of force against Iraq in the context of enforcing the no-fly zones. In relation to the 1993 military action in the no-fly zones, for example, Greenwood had contended that ‘Resolution 688 could not, on its own, furnish a legal basis for the [armed] intervention in Iraq’, and that it was ‘difficult to resist the conclusion that the intervening states were in practice asserting a right of humanitarian intervention of some kind’.82 In 2001, and although maintaining that Resolution 688 ‘supports the position that we have adopted’, the United Kingdom again argued primarily that it was ‘entitled to patrol the no-fly zones to prevent a grave humanitarian crisis. That is the legal justification in international law.’83 There may be some small measure of strength to the revival, or implied authorisation, argument. It will be recalled that paragraph 2 of Resolution 678 did, after all, authorise the coalition states to uphold not only Resolution 660, but ‘all subsequent relevant resolutions and to restore international peace and security in the area’, with no temporal limitation.84 Even at first glance, it will be apparent that these provisions are extremely broad—indeed, they are potentially limitless. That problems relating to their interpretation should have arisen subsequently is, then, hardly surprising. Nonetheless, the revival argument ultimately fails for a variety of reasons. First, Resolution 678 was clearly passed in response to Iraq’s invasion of Kuwait, and aimed at Kuwait’s liberation. UN Legal Counsel, for example, 81

UNSC Resolution 688 (1991), 5 April 1991, UN Doc S/RES/688 (1991). C Greenwood, ‘Is There a Right of Humanitarian Intervention?’ (1993) The World Today 34 at 36. He went on to outline the Secretary of State for Defence’s stated position that: 82

. . . neither the creation of the ‘no fly’ zones nor the action to enforce them were based on UN authorisation. [Instead, the Defence Secretary] maintained that the zones were established to meet situations of ‘severe humanitarian need’ and that the air strikes were an exercise of the right of self-defence in response to threats to allied aircraft enforcing the zones. (ibid) As the article went to press, however (ie in January–February 1993), Greenwood reported, ibid, that, ‘further actions were being taken against Iraq which appear[ed] to have been unrelated to the enforcement of the “no-fly” zones and based upon different legal grounds’. 83 Geoff Hoon, Secretary of State for Defence, Hansard House of Commons Debates, vol 363, col 625, 26 February 2001. See also Gray, above n 74 at 11–12; and Gray, above n 6 at 348–50. 84 Points made explicitly in Australia’s official justification at para 16.

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took the view that the authorisation to use force contained in Resolution 678 ‘was limited in the sense of its objective but not in time’.85 Franck similarly argued that restoring Kuwaiti sovereignty was the ‘leitmotif of Council action’: The restoration of ‘international peace and security in the area’ does not connote some expansive further mandate for contingent action against Iraq at the discretion of any individual member of the coalition of the willing. President George Bush Sr. acknowledged as much in explaining why the American military had not pursued Saddam Hussein’s defeated forces to Baghdad. They were not authorized to do so.86

Philippe Sands has pointed to further compelling confirmation that this was the case from a number of key players involved in the 1991 hostilities.87 Thus, General Colin Powell, Chairman of the US Joint Chiefs of Staff throughout Operation Desert Storm, clearly articulated that ‘UN resolution [678] made clear that the mission was only to free Kuwait’.88 Sir Peter de la Billiere, commander of British forces in the Gulf, agreed that there had been no mandate to invade Iraq, or to take the country over.89 Similarly, the British Prime Minister at the time, John Major, has stated that the Security Council provided a mandate only ‘to expel the Iraqis from Kuwait, not bring down the Iraqi regime’.90 Any decision as to the necessity and scope of any further action was, accordingly, for the Security Council to take. There are those who would argue to the contrary. Christopher Greenwood, for example, has insisted that, ‘Resolution 678 was not solely about the liberation of Kuwait and the authorisation to the coalition to use force went beyond [this] goal’.91 Likewise, Michael Schmitt has argued that Resolution 678 represented a ‘broad grant of authority’, and that, ‘in 1990–1991, the Council understood that restoring international peace and security involved much more than merely liberating Kuwait’.92 To the extent that such arguments seek to provide a basis for some ill-defined and continuing authority to use force against Iraq, however, they would appear to be on shaky ground. Subsequent Security Council resolutions indicated that the force authorised by Resolution 678 extended only to the removal of 85

Zacklin, above n 46, Lecture I at para 40. Franck, above n 10 at 612. See also Lobel and Ratner, above n 63 at 140, where it was argued that ‘The clear intent of the Security Council in 1990 was to provide authority to oust Iraq from Kuwait, not to grant a blanket license for any member state to attack Iraq to enforce inspections mandated after the war’. 87 Sands, above n 57 at 190. 88 C Powell, A Soldier’s Way (London, Hutchinson, 1995) at 490. 89 Sir Peter de la Billiere, Storm Command (London, Harper Collins, 1995) at 304. 90 John Major, in a speech to Texas A&M University, on the occasion of its 10th Anniversary Celebrations of the Liberation of Kuwait, 23 February 2001. 91 Greenwood, above n 55, at para 17. 92 Schmitt, above n 23 at 99. 86

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Iraqi forces from Kuwait,93 and that they should be read in the context of that purpose—as indeed should the broader provision of Resolution 678 itself, relating to the restoration of international peace and security.94 Paul Szasz has therefore contended that, insofar as Resolution 678 permitted the coalition to use armed force in order to ‘implement Resolution 660 (1990) and all subsequent relevant resolutions’: The phrase ‘all subsequent resolutions’ must be read in terms of the previous reference to the ‘above-mentioned resolutions’. Thus, the word ‘subsequent’ cannot mean resolutions subsequent to Resolution 678. It obviously refers, grammatically, to the resolutions that had already been referred to. Resolution 678 authorized the use of force if Iraq failed to comply with the requirements of the previously adopted resolutions. Those previous resolutions declared that Iraq withdraw from Kuwait, release hostages, and to do a variety of other things, none of which had anything to do with the inspection systems set up some five months later in April 1991 by Resolution 687.95

Second, the authorisation contained in Security Council Resolution 678 was granted specifically to those states ‘co-operating with the Government of Kuwait’. This is, admittedly, rather vague in terms of which particular states were thereby authorised to use force. What is clear, however, is that the authorisation did not attach to all or any members of the United Nations. The 1991 coalition did not exist (or, at least, it did not exist in any meaningful sense) in March 2003, and it cannot reasonably be claimed that Resolution 678 gave each of the members of that coalition an unlimited right to take action—either individually or jointly—at any time of their choosing, aimed at restoring peace and security to the area.96 If the legality of Operation Iraqi Freedom is to be based upon Iraq’s violation of the 1991 ceasefire agreement, however, then successfully identifying the parties to that agreement is vital in this respect. This is not as easy as one might have expected. Resolution 687 states unambiguously in paragraph 33 that acceptance of its terms by Iraq would create ‘a formal cease-fire . . . between Iraq and Kuwait and the Member States cooperating with Kuwait in accordance with resolution 678 (1990)’. A number of commentators have accordingly argued that, upon a breach of the ceasefire conditions by Iraq, members of 93

See discussion below of the relationship between Resolutions 686 and 687. Lobel and Ratner, above n 63 at 129. 95 PC Szasz, ‘Legal Authority for the Possible Use of Force Against Iraq’ (1998) Proceedings of the 92nd Annual Meeting of the American Society of International Law 140. He went on to argue, at 143, that Security Council Resolution 678 only authorised the use of force for a particular purpose, and ‘That particular purpose was not to impose the terms of a much-later ceasefire’. 96 Lowe, above n 10 at 866. He also rejected the proposition ‘that on “revival” any 1991 coalition member could take whatever steps it thought expedient to “restore international peace and security in the area” regardless of what other coalition members . . . and the Security Council itself, thought’. 94

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the 1991 coalition retained the right to act unilaterally in response.97 Ruth Wedgwood, for example, had previously argued (in the context of threatened US military action against Iraq in 1998) that, as the 1991 Gulf War ‘was not fought by UN standing forces acting under Article 43 of the Charter or United Nations command and control’, the original ceasefire did not really represent an agreement between Iraq and the Security Council but was, in fact, ‘a decision of coalition forces’.98 It is equally clear, however, that the ceasefire obligations as set out in Resolution 687 were imposed by the Security Council, and represented ‘an offer by the United Nations of an agreement to Iraq, which the latter accepted’.99 Formally, Resolution 687 may have constituted an agreement between Iraq and the members of the coalition acting in support of Kuwait in 1991, rather than between Iraq and the United Nations per se, but, as clearly expressed by Adam Roberts, it can be argued that the post-Charter legal order creates a presumption against the use of force by states; that the decision to resume hostilities should be in the hands of the Security Council, especially in circumstances where the legitimacy of the use of force before the cease-fire depended significantly on authorization by the Council; and that, although the cease-fire was between Iraq and the coalition which had fought against it, the Security Council had defined the terms of the cease-fire, was itself a party to it, and should determine how to respond to violations.100

Paragraph 34 of Resolution 687 provided—just as unambiguously as paragraph 33—that the Security Council had decided to remain ‘seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area’. It was not, therefore, open to members of the coalition to decide unilaterally, and 12 years after the ceasefire was imposed, whether a material breach had been committed or, if so, what the consequences of this should be. Szasz accordingly concurred that ‘as it was the Security Council who set the terms of the agreement, it should be up to the Council to determine the consequences of any violation’.101 As Jules Lobel and Michael Ratner have further elaborated: [T]he [UN] Charter’s preference for settling disputes by peaceful means and the Article 2(4) prohibition on the use of nondefensive force require that a UN authorization of force terminate when a permanent cease-fire is negotiated. 97

See eg, Schmitt, above n 23 at 98; Yoo, above n 12 at 569. Wedgwood, above n 68 at 726. She did, however, accept that such unilateralism ‘sits uncomfortably in a multilateral world’. 99 See eg, Szasz, above n 95 at 142. 100 See A Roberts, ‘International Law and the Iraq War 2003’, Memorandum to the Select Committee on Foreign Affairs, 24 June 2003, www.parliament.the-stationery-office.co.uk/pa/ cm200203/cmselect/cmfaff/405/405we20.htm at para 15. 101 Szasz, above n 95 at 142–43. 98

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Armed responses to breaches of cease-fire agreements cannot be made by individual states; a new Security Council authorization must be adopted.102

It is undeniably true that the adoption of the UN Charter in 1945 brought about a significant change in terms of the permissibility of resort to armed force: Post-Charter law holds that UN-imposed cease-fires reaffirm the basic obligation of states to refrain from using force. Therefore, a violation of the cease-fire, even a material breach, is not a ground for the other party to revive hostilities, at least short of an armed attack giving rise to [the] right of self-defense.103

Michael Schmitt seems unconvinced, and has argued that this argument ‘ignore[s] the fact that the state of war continues during a cease-fire’.104 That may well be true in the context of what might be termed ‘traditional’, interstate armed conflict, but the use of force by states following an authorisation by the Security Council acting under Chapter VII must be seen as operating within a different legal paradigm. Even on a purely practical level, the rule as presented by Lobel and Ratner can be seen as being especially necessary when the Security Council control [of the use of force under Chapter VII of the Charter] consists of authorizing member states to use force, a more decentralized approach than envisioned by the Charter’s framers. To permit authorizations to continue after a permanent cease-fire ends hostilities would allow individual states to use force indefinitely . . . particularly when the authorized states include a permanent member that could veto any Council resolution terminating the authorization.105

Schmitt, whilst maintaining that Operation Iraqi Freedom was a lawful response to the violation of the ceasefire, does not dispute that his line of argument ‘poses a difficult practical dilemma’, for the views of the Security Council on the use of force against Iraq differed dramatically in March 2003 from those of April 1991. Yet the Council, in the face of US and UK opposition, was powerless to withdraw, or even modify, either its 1990 use of force authorization or the terms of its 1991 cease-fire . . . Thus, we witnessed a use of force based on Security Council resolutions that the Council itself would not have approved had it been the sole decision-maker.106 102

Lobel and Ratner, above n 63 at 129. See also Sifris, above n 24 at 527–28. Szasz, above n 95 at 144. 104 Schmitt, above n 23 at 96. Although, in the context of possible military action against Iraq in 1998, Michael J Matheson had responded to the suggestion that ‘with the violation of the cease-fire there was again a state of war’ by asserting that this was not the position of the US State Department, which believed instead that ‘violations of a cease-fire . . . give rise to the right to use force . . . to remedy and halt the violations’. See Matheson, above n 61 at 145. 105 Lobel and Ratner, above n 63 at 145. See also their discussion of previous UN and state practice in support of the rule, ibid at 146–48, and the discussion of this issue in ch 1 above. 106 See Schmitt, above n 23 at 99. He foresees that, as a result, ‘the Security Council is likely to be very reticent about granting open-ended continuing authority to employ force’ in the future. 103

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These practical problems could have been avoided—at least in this case—by a careful reading of Security Council Resolutions 686 and 687. Resolution 686 represented a temporary ceasefire.107 The terms of this ceasefire had provided explicitly, in paragraph 4, that the authorisation to use force initially contained in paragraph 2 of Resolution 678 was to remain valid during that period of time ‘required for Iraq to comply with paragraphs 2 and 3’ of Resolution 686; that is, those obligations relating specifically to the withdrawal of Iraqi troops from Kuwait, but not regarding compliance with disarmament or Iraq’s other obligations under the ceasefire.108 In contrast, Resolution 687 contained no such provision. It was, as has been expressed by Lobel and Ratner, a ‘transformation of the temporary cessation of hostilities into a permanent cease-fire upon Iraq’s acceptance of, not compliance with, its terms’.109 Resolution 687 refers to the use of force in only one paragraph, and only then in the context of protecting Kuwait’s territorial integrity. Even in that context, force is authorised only on the part of the Security Council—not individual states; thus, it was the Security Council itself that decided to ‘guarantee the inviolability of the . . . international boundary [between Kuwait and Iraq] and to take as appropriate all necessary measures to that end in accordance with the Charter of the United Nations’.110 Furthermore, paragraph 6 of Resolution 687 provided that: . . . as soon as the Secretary-General notifies the Security Council of the completion of the deployment of the United Nations observer unit [to monitor the Khor Abdullah and a demilitarized zone], the conditions will be established for the Member States cooperating with Kuwait in accordance with resolution 678 (1990) to bring their military presence in Iraq to an end consistent with resolution 686 (1991).

The observer mission (UNIKOM) was fully deployed by 6 May 1991.111 It has therefore been argued that a comparison between the provisions of Resolutions 686 and 687 on the use of force ‘critically undermines’ the argument that Resolution 687 served only to suspend, rather than to terminate, the authorisation contained in Resolution 678, and that ‘at no 107 See UNSC Resolution 686 (1991), 2 March 1991, UN Doc S/RES/686 (1991). It has been suggested that Resolution 686 in fact represented ‘the real cease fire resolution’: see Szasz, above n 95 at 140. 108 See Lowe, above n 10 at 865; Lobel and Ratner, above n 63 at 148–49; and Szasz, above n 95 at 140. 109 Lobel and Ratner, above n 63 at 149. Iraq’s acceptance of the terms of the ceasefire can be found in the Letter from the Permanent Representative of Iraq to the Secretary-General and Security Council President, UN Doc S/22456, 6 April 1991. Phil Shiner has concurred, asserting that, ‘as the term “cease-fire” implies, once Iraq had provided official notification [of its acceptance of the terms of Resolution 687], the authorisation of Resolution 678 came to an end’. See Shiner, above n 47 at 24-25. 110 Resolution 687 (1991), above n 5 at para 4. 111 See www.un.org/Depts/dpko/missions/unikom/background.html.

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stage prior to the [2003] invasion did proponents of the “revival doctrine” face up to the problem posed by 686’.112 To argue, in light of this, that individual states could continue to take unilateral action against Iraq based on Resolution 678 in response to the violation of other obligations contained in Resolution 687 is scarcely tenable.113 The unilateral approach of the United States and the United Kingdom was, then, highly problematic.114 To reiterate, the suggestion was that: Iraq’s material breaches of the cease-fire entitled the United States, as a party to the cease-fire, unilaterally to suspend its operation. Under accepted principles of international law, the United States did not need the concurrence of other parties. Once the cease-fire was suspended, the United States could rely on Resolution 678 to use force against Iraq to implement Resolution 687 and to restore international peace and security to the area.115

It will also be recalled that unilateral action had been taken against Iraq in 1993, and threatened in 1998, both arguably vindicated by reference to Security Council resolutions and Presidential Statements articulating that Iraq was in breach of Resolution 687, and that ‘serious consequences’ would follow from this.116 Yet those were both situations in which the Security Council was (at least relatively) clearly prepared to contemplate an armed response. Granted, by referring to Iraq’s ‘material breach’ of its ceasefire obligations, and to potentially ‘serious consequences’ should further or continuing breaches of these obligations occur, the terminology of Resolution 1441 does appear to echo that of the 1993 and 1997/98 Security Council Presidential Statements. It must be recalled, however, that there was no agreement amongst Council members in either 2002 or 2003 that a renewed use of force against Iraq was either necessary or desirable. William Taft IV and Todd Buchwald may have argued that ‘a Council determination that Iraq had committed a material breach would 112 Shiner, above n 47 at 24. He noted that reference to the provisions of Resolution 686, in comparison to the terms of Resolution 687, is:

. . . absent from Professor Greenwood’s memorandum to the Foreign Affairs Select Committee of 24 October 2002 or the Foreign and Commonwealth Office’s legal advice of 8 March 2002, and absent from either the full advice of the Attorney General or his short statement to the House of Lords on 17 March 2003 . . . It is no answer to suggest, as Greenwood does, in his memorandum noted above, that Resolution 687 did not repeal 678. No one need suggest it did. However, it leaves unaddressed why 687 did not, like 686, expressly provide for a suspension of the authorisation of the use of force. 113 Lobel and Ratner, above n 63 at 149. As further evidence of the proposition, they pointed, in fn 106, to the conduct of India and China—both of which abstained in relation to Resolution 686 due to its explicit continuation of the authorisation to use force set out in Resolution 678, but which subsequently voted in favour of Resolution 687. See also Sifris, above n 24 at 528. As Szasz asserted, above n 95 at 140, ‘No other resolution coming after Resolution 686 reaffirmed Resolution 678 and the authority to use force’. 114 See Gray, above n 6 at 362–64. 115 Yoo, above n 12 at 569. 116 See above nn 68 and 72, and accompanying text; and Wedgwood, above n 68 at 726–27.

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authorize individual member states to use force to secure compliance with the Council’s resolutions. This was well understood in the negotiations leading to the adoption of Resolution 1441’,117 but this contention is as astonishing as it is untrue. Indeed, it has been demonstrated above that this is, in fact, precisely the opposite of what was understood by members of the Security Council.118 Even if it is accepted that further material breaches of Resolution 687 had occurred,119 and even if it is also accepted that this could— potentially—revive the authorisation to use force set out in Resolution 678,120 it is therefore essential to consider who was to decide both this question and what action was to be taken in response. Indeed, Franck has suggested that the Iraq crisis was less about who was right and who was wrong, and more about ‘who gets to decide what to do ’.121 As he continued: [M]ost states had ‘misunderstood’ the role assigned to them . . . They expected, or naively hoped, to be the jury to which evidence and arguments as to the fact would be presented and that, collegially, they would then make the final

117

Taft and Buchwald, above n 55 at 560. See above at III.B.1. This is a matter of some debate. Suspicions that proscribed weapons, etc, were being concealed certainly persisted—largely as a result of Iraqi conduct in relation to inspections. Nonetheless: 118 119

After the invasion and occupation of Iraq in 2003, when it had become clear that there almost certainly were no prohibited items on any of these sites, a puzzled world asked why Iraq conducted itself in ways which suggested concealment of items. From 2002 this conduct was—erroneously—taken by many as proof of concealment. See Blix, above n 8. Blix has suggested a number of possible reasons for such behaviour, namely: (a) to give the impression that Iraq may still possess weapons of mass destruction (‘a case of hanging the sign “beware of the dog” without having a dog’); (b) because Iraq did not believe that sanctions would be lifted even in the event of full co-operation with the inspection regime; and (c) because Iraq was aware that members of inspection teams could be agents of national intelligence services, capable of providing information relating to potential military targets. For a discussion of the importance of factual accuracy regarding the accusations made against Iraq, see Kritsiotis, above n 14 at 253–69. 120 Lowe, above n 10 at 865, has dismissed the suggestion that a doctrine of revival of Security Council authorisations to use force exists at all. Likewise, Bellamy has argued, above n 6 at 511, that ‘there is no precedent in the post-1945 legal order for the reactivation of Security Council resolutions’, and that supporters of the revival argument must, therefore, ‘demonstrate either that the wording of the resolutions provides continuing authority . . . or that it was the intended will of the Security Council that the resolutions be so interpreted. Neither case can be convincingly put’. Yet further, White and Myjer, above n 31 at 7, contended that the argument whereby further material breach of Resolution 687 would revive the authority to use force under Resolution 678 has no basis in those resolutions and thus no basis in law. It represents an unconvincing attempt to unlock Resolution 678 of 1990, which was the only resolution in which the council explicitly authorized necessary measures against Iraq. For a discussion of ‘continuing authority’ to use force, rather than the revival of a previous authorisation, see Roberts, above n 100. 121 Franck, above n 10 at 616.

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decision about what should be done; . . . the British and US governments took the view that, after the discourse ended, the decision would be up to them, alone.122

It is certainly true that the United States and the United Kingdom had sought to apply a degree of pressure to the Security Council in an effort to secure its authorisation to use force against Iraq. Following the adoption of Resolution 1441, for example, President Bush had stated that: America will be making only one determination: is Iraq meeting the terms of the Security Council resolution or not? The United States has agreed to discuss any material breach with the Security Council, but without jeopardizing our freedom of action to defend our country. If Iraq fails to fully comply, the United States and other nations will disarm Saddam Hussein.123

In a similarly challenging vein, on 13 February 2003, the US President had stated that: The decision is this for the United Nations: When you say something does it mean anything? You’ve got to decide, if you lay down a resolution, does it mean anything? The United Nations Security Council can now decide whether or not it has the resolve to enforce its resolutions. I’m optimistic that the UN Security Council will rise to its responsibilities, and this time ensure enforcement of what it told Saddam Hussein he must do. See, I believe when it’s all said and done, free nations will not allow the United Nations to fade into history as an ineffective, irrelevant debating society.124

The United Kingdom had also insisted that, following any report of further Iraqi non-compliance, there was a clear requirement for an immediate meeting of the Security Council to make ‘an assessment’ of the alleged breach and to consider the situation and the need for full compliance. Where the breach is so flagrant . . . the decision will have been made by the Iraqis to reject any thought of compliance. The Security Council will undoubtedly then act. It is of course possible, however, that there is credible evidence of a further material breach, but the Security Council is unable to reach a conclusion. . . . the preference of the British Government, in the event of a material breach is that there should be a second Resolution authorising military action. The faith now being placed in the Security Council by all members of the United Nations . . . requires the Council to show a corresponding level of responsibility . . . But 122

ibid. ‘Remarks by the President on the United Nations Security Council Resolution’, Washington, DC, 8 November 2002, www.whitehouse.gov/news/releases/2002/11/ 20021108-1.html. It is interesting to note that a Briefing Paper for the Australian Parliament in December 2002 had concluded that the US view, whereby ‘it would be justified in forcing Iraq to comply with the relevant UNSC resolutions if the Council itself [failed] to do so’, seemed to have no ‘tenable basis in international law’. See Martyn, above n 47. 124 See ‘Remarks by the President at Naval Station Mayport, Jacksonville, Florida’, 13 February 2003, at www.whitehouse.gov/news/releases/2003/02/20030213-3.html. 123

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we must reserve our position in the event that it does not. In any event, Saddam Hussein needs to be in no doubt of the resolve, now, of the United Nations to require him to comply. That is the reason, in paragraph 13, that the language of ‘serious consequences’ is used in the event of his non-compliance. So the discussion that will take place in the Security Council in the event of a material breach will be on the understanding that action will follow.125

As indicated in chapter one, however, an authorisation from the Security Council to use force can be extremely difficult to obtain. That is entirely as it should be. The failure of the United States and the United Kingdom to persuade their fellow member states of the necessity to resume military action against Iraq does not denote a failure on the part of the Council to meet its obligations.126 Rather, it ‘should lead observers to conclude that the Council retains some vitality as a restraint on war making’.127 After all: World order requires a Security Council that can find the proper balance between authorizing the collective use of force when there is both a compelling need and no peaceful alternative, and not succumbing to economic and political pressure by powerful nations seeking a multilateral cover for what is in essence the unilateral use of force.128

Nonetheless, faced with a Security Council refusing to sanction military action, the United States and the United Kingdom reserved the right to decide for themselves whether Iraq continued to be in material breach of its disarmament obligations, duly deciding that it was.129 The evidence for this was unclear—the UK Attorney General simply stating on 17 March that it was ‘plain’ that Iraq continued to be in material breach of Resolution 687,130 a position apparently standing in direct contrast to his advice of 7 March 2003. There, he had provided that:

125 House of Commons Debate on UNSC Resolution 1441, Opening Speech by the Secretary of State for Foreign and Commonwealth Affairs, Jack Straw, 25 November 2002, www.fco.gov.uk/en/newsroom/latest-news/?view= News&id=1550079; Hansard House of Commons Debates, vol 395, col 53. 126 Attempts to secure a second Security Council resolution ended when it became clear that France and Russia would use the veto. See Gray, above n 6 at 356–58. 127 Lobel and Ratner, above n 63 at 135. 128 ibid. 129 Gray, above n 6 at 363–64. 130 UK Attorney General, Legal Basis for the Use of Force Against Iraq, 17 March 2003, above n 56 at para 7. It is now evident that Prime Minister Tony Blair’s private secretary had communicated on 15 March 2003 ‘the Prime Minister’s unequivocal view that Iraq is in further material breach of its obligations . . . because of “false statements or omissions in the declaration submitted by Iraq pursuant to this Resolution and failure by Iraq to comply with, and co-operate fully in the implementation of, this Resolution”’. Apparently, the Prime Minister had come to this view on the basis of ‘the overall intelligence picture and of information from a wide range of other sources, including especially UNMOVIC information’. See Report of a Committee of Privy Councillors, Review of Intelligence on Weapons of Mass Destruction (The Butler Report), HC 898, 14 July 2004, www.archive2.officialdocuments.co.uk/document/deps/hc/hc898/898.pdf, at paras 384–85.

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The US . . . maintain that the act of whether Iraq is in breach is a matter of objective fact which may therefore be assessed by individual Member States. I am not aware of any other state which supports this view.131

John Negroponte simply asserted on 20 March 2003 that Iraq had ‘clearly committed additional violations’.132 On this basis, and with the United States and the United Kingdom effectively ‘acting as Judge, Jury and Lord High Executioner’ in their own case,133 it was asserted that Resolution 1441 required only that the Security Council meet and consider ‘Iraq’s failures’—and not necessarily to decide anything—before renewed military action was possible without further authorisation. This position, requiring discussion on the part of the Council, but nothing more, seems to be a clear example of reductio ad absurdam.134 Nonetheless, the United Kingdom argued strongly that, had the intention been otherwise, Resolution 1441: . . . would have provided that the Council would decide what needed to be done to restore international peace and security, not that it would consider the matter. The choice of words was deliberate; a proposal that there should be a requirement for a decision by the Council, a position maintained by several members, was not adopted. Instead the members of the Council opted for the formula that the Council must consider the matter before any action is taken.135 (emphasis added)

The UK Foreign Secretary, Jack Straw, had stated in similar terms in November 2002 that: [Resolution] 1441 does not stipulate that there has to be a second Security Council Resolution to authorise military action in the event of further material breach by Iraq. This was an alternative discussed amongst members of the P5 during the weeks of negotiation: but no draft to that effect was ever tabled nor put to the vote.136

Greenwood has accordingly argued that, since several meetings and consultations between Security Council members took place—demonstrating 131

‘Attorney General’s Advice on the Iraq War: Iraq: Resolution 1441’, above n 57 at para 9. Above n 40. 133 E McWhinney, The September 11 Terrorist Attacks and the Invasion of Iraq in Contemporary International Law (Leiden, Martinus Nijhoff, 2004) at 58. He argued that: 132

When the fact-averments by the proponent governments are linked by them to claimed legal remedies . . . and a fortiori where those asserted legal remedies are then claimed to be capable of being exercised unilaterally . . . the case for leaving any final determination on legal control action to third party, international authority—the United Nations—would seem compelling. 134 E Papastavridis, ‘Interpretation of Security Council Resolutions Under Chapter VII in the Aftermath of the Iraqi Crisis’ (2007) 56 International and Comparative Law Quarterly 83 at 116. 135 ‘Iraq: Legal Basis for the Use of Force’, Foreign and Commonwealth Office, 17 March 2003, www.fco.gov.uk/en/newsroom/latest-news/?view= News&id=1559203, at para 11. 136 House of Commons Debate on UNSC Resolution 1441, above n 125.

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the Council to be agreed that Iraq remained in material breach of its disarmament obligations, but unsure as to the steps that ought to be taken—those governments resorting to force were ‘right to conclude that they could rely on the authorization of military action in resolution 678, read together with resolutions 687 and 1441’.137 He recognised, however, that ‘others have taken a different view’.138 Those others would seem not only to be in the majority, but also to be by far the more convincing. An extremely eloquent destruction of the argument is, for example, provided by Thomas Franck, who finds it to be ‘creative, and ultimately unsustainable’.139 As Philippe Sands has explained: It is absurd to claim that the requirements in [paragraph 4 of Resolution 1441] for ‘assessment’ by the Council could be met merely by a report to, and discussion of, Iraq’s failures by the Security Council: the clear intention of the drafters is that the Council would take a decision after assessing the situation— whether Iraq had committed a breach of its obligations sufficient to justify force. Resolution 1441 is not a revival of the authorization to use force; it requires that the Council meet again and decide upon the situation in the event of an adverse report from Messrs Blix or El Baradei.140

As indicated above, the obligations set out in Resolution 687 were clearly imposed, and to be monitored, by the Security Council. In order to facilitate this scrutiny, the Security Council decided, in paragraph 34, to ‘remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area’. Thus, any further steps were reserved to the Security Council itself, and not to individual states. Resolution 1441, whilst finding that Iraq had been, and remained, in material breach of Resolution 687, had decided to provide Iraq with a ‘final opportunity to comply’ through the creation of an ‘enhanced inspection regime’. Paragraph 4 clearly stipulated that any further material breach of its obligations by Iraq was to be ‘reported to the Council for assessment in accordance with paragraphs 11 and 12’. It will be recalled that paragraph 11 required UNMOVIC and IAEA inspectors to report non-cooperation or 137 C Greenwood, ‘International Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaida and Iraq’ (2003) 4 San Diego International Law Journal 7 at 36. Schmitt, above n 23 at 97, has agreed that ‘What Resolution 1441 did not contain was a requirement to return to the Council for a use of force authorization’. 138 Greenwood, above n 137 at 36. 139 Franck, above n 10 at 611–14. Even writing in 1999, D Sarooshi, The United Nations and the Development of Collective Security (Oxford, Oxford University Press, 1999) at 180–85, had argued, at 183, that, in terms of the ability of the Security Council to delegate its powers under Chapter VII, and based on the understanding that the Council has no authority to delegate its powers under Article 39 to determine the existence or otherwise of international peace and security, ‘in the absence of a Council resolution which expressly delegates powers of military enforcement to Member States, action to enforce the terms of resolution 687, although possibly desirable, would be legally doubtful’. 140 Sands, above n 57 at 191–92.

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interference on the part of Iraq to the Security Council, following which, according to paragraph 12, the Security Council would convene immediately 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’. To suggest, then, that Resolution 1441 somehow revived the right to use force against Iraq without any further decision having been taken by the Security Council seems untenable. Schmitt has sought to remind participants in this debate that it had been the decision of individual member states, rather than the Security Council, to resort to force initially under the authorisation of Resolution 678 in 1991,141 and that this is significant as regards the military action in 2003. With respect, he seems to have missed the point somewhat. As explained above, Resolution 678 contained an automatic trigger—member states were permitted to use all necessary means against Iraq in the event of its failure to withdraw its forces from Kuwait by a specified date (that is, 15 January 1991). In stark contrast, it was clearly understood by the members of the Security Council that there was no such automatic trigger for the use of force in the context of Resolution 1441. The UN Legal Counsel therefore concluded that the precondition for any renewed use of force was that the Security Council must agree that [a violation requiring a resumption of hostilities] had taken place. This did not necessarily require a new resolution, it could, for example, take the form of a Presidential statement. The important point was that there needed to be an institutional finding of the Security Council acting as a collective organ.142

As far as the content of the finding was concerned, the Legal Counsel was of the view that the Security Council must make it clear that the violation of Resolution 687 was such that all means deemed appropriate by member states were justified in order to bring about Iraqi compliance. This assessment could not under any circumstances be left to individual member states. Since the original authorisation had been granted by the Council, its reactivation could not be left to the subjective evaluation of individual member states and their governments: A decision to resort to force in the implementation of the Council’s decisions, even when that decision relied on an authorization previously granted, had to be made unequivocally. It could not be made by inference and even less so by an individual state or a group of states purporting to act on behalf of the Council.143

No such decision was ever taken. Instead, whilst warning of ‘serious consequences [for Iraq] as a result of its continued violations’, the Security 141 142 143

Schmitt, above n 23 at 95. See Zacklin above, n 46, Lecture L at para 46. See Zacklin, above n 46, Lecture I at paras 47 and 49.

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Council decided explicitly in paragraph 14 of Resolution 1441 to ‘remain seized of the matter’. Schmitt has further suggested that it is wrong to interpret this phrase as ‘indicating that exclusive authority to mandate a response resided in the Council’, and that the term is no more than standard text appearing in many resolutions indicating that the Security Council will continue to address the situation at hand . . . Unless specifically provided, such text does not preclude actions . . . taken by States or other international organization to respond to a situation.144

The Council’s determination to retain its control over the matter should not be so readily dismissed. As Thomas Franck outlined in 1998, what the Security Council has done is occupy the field, in the absence of a direct attack on a member state by Iraq. The Security Council has authorized a combined military operation; has terminated a combined military operation; has established the terms under which various UN agency actions will occur to supervise the cease-fire, to establish the standards with which Iraq must comply; has established the means by which it may be determined whether those standards have been met . . .; and has engaged in negotiations to secure compliance. After all these actions, to now state that the United Nations has not in fact occupied the field, that there remains under . . . Resolution 678 . . . a collateral total freedom on the part of any UN member to use military force against Iraq at any point that any member considers there to have been a violation of the conditions set forth in Resolution [687], is to make a mockery of the entire system.145

This held just as true throughout 2002–03, and the better position would seem to be that expressed by Vaughan Lowe; namely that ‘the Security Council was itself actively seised of the matter at all critical times . . . [and that the UK] was quite right to press hard for a second resolution . . . explicitly authorising the use of force’.146 It is, after all, ‘telling’ that the final version of Resolution 1441 omitted that part of the original US/UK draft that had sought to authorise member states to use ‘all necessary 144

Schmitt, above n 23 at 99. See T Franck, ‘Legal Authority for the Possible Use of Force Against Iraq’ (1998) Proceedings of the 92nd Annual Meeting of the American Society of International Law 139. See MJ Matheson’s response, ibid at 141, asserting the US position that it was competent to ensure Iraq’s compliance with Security Council resolutions—although it would be ‘acceptable and useful to have the Security Council reiterate such authority’. 146 Lowe, above n 10 at 866. R Higgins, Problems and Process (Oxford, Oxford University Press, 1994) at 259 had likewise stated in authoritative terms that ‘There is no entitlement in the hands of individual members of the United Nations to enforce prior Security Council resolutions by the use of force’. See also JA Frowein and N Krisch, ‘Article 42’ in B Simma (ed), The Charter of the United Nations, Vol I, 2nd edn (Oxford, Oxford University Press, 2002) at 753, arguing that ‘in the absence of a specific decision in this regard, the use of force by States to implement SC Resolutions is unlawful, unless it can be based on independent legal grounds’. 145

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means to restore international peace and security in the area’, opting instead to talk in terms of ‘serious consequences’.147 The argument that Operation Iraqi Freedom was—through a combination of Security Council resolutions—a lawful response to material breach by Iraq of the Resolution 687 ceasefire agreement of 1991 cannot be sustained. Rather, it seeks to present acts of political expediency in legal terms. The suggestion that no further decision on the part of the Security Council was required, and that the determination of further Iraqi material breach by the United States and the United Kingdom was sufficient (provided that this was at least discussed by the Council) appears to have been little more than an attempt to circumvent the authority of the Security Council. As such, it has served to undermine the authority and credibility of the United States, the United Kingdom, and even the United Nations itself. As Lobel and Ratner have asserted most eloquently: International law, the United Nations and multilateralism require that a nation must accept the limits imposed by law as well as the power endowed by it. That the world community and the Security Council are occasionally more reluctant to use force than our policy makers would like is a restraint imposed by the international legal system. Unless we are prepared to concede that all nations have a right to use force to enforce Security Council resolutions—a result that the United States would not favor—we ought to accept the Charter’s legal regime with the clear recognition that it sometimes requires us to forgo policy options we may prefer.148

In light of the above, it can only be concluded that there was no prior authorisation by the Security Council for Operation Iraqi Freedom, and that the military action taken against Iraq in 2003 accordingly represented a clear—and extremely serious—violation of the rules of international law.

147 White and Myjer, above n 31 at 3. For some commentators, the phrase ‘serious consequences’ was felt to include, or at least to allude to, the use of armed force. Nonetheless, it is interesting that neither the UK nor the Australian Attorney General seemed to attach a great deal of significance to the term. See Bellamy, above n 6 at 502. 148 Lobel and Ratner, above n 63 at 137.

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4 Reappraising the Resort to Force? Jus ad Bellum in the Post-9/11 World

I

T HAS BEEN suggested that ‘only general wars and shocks felt in their aftermath are able to change general international law on the use of force’,1 but that

the September 11 2001 attacks, due to the character of the main victim-state and the particularly tragic nature of the events witnessed by millions on television screens . . . may have shocked the world enough to open the way to radical reappraisal through the customary process of some of the basic principles of the jus ad bellum.2

Treating the military action against Afghanistan and Iraq as part of the same, post-9/11 continuum, it now falls, then, to consider what flows from the conclusions reached in chapters two and three and, in particular, the impact that Operation Enduring Freedom and Operation Iraqi Freedom have had on the jus ad bellum.3 Taking Operation Iraqi Freedom first, to be sure, it may well have had serious implications for international relations and for the future of the United Nations.4 Much will depend, however, on the continuing attitude of the United States. After all, it will be recalled that President Bush chose to frame the issue in terms of whether the UN would ‘serve the purpose of its founding, or will it be irrelevant?’.5 The Security Council’s refusal to 1 R Mullerson, ‘Jus ad Bellum: Plus Ça Change (Le Monde) Plus C’est La Même Chose (Le Droit)’ (2002) 7 Journal of Conflict and Security Law 149 at 152. 2 ibid at 153. 3 For an interesting discussion of the philosophical, rather than normative, impact on at least the United Kingdom’s approach to international law, see C Mieville, ‘Anxiety and the Sidekick State: British International Law After Iraq’ (2005) 46 Harvard International Law Journal 441. 4 See eg, R Falk, ‘What Future for the UN Charter System of War Prevention?’ (2003) 97 American Journal of International Law 590; TJ Farer, ‘The Prospect for International Law and Order in the Wake of Iraq’ (2003) 97 American Journal of International Law 621; TM Franck, ‘What Happens Now? The United Nations After Iraq’ (2003) 97 American Journal of International Law 607; and JE Stromseth, ‘Law and Force After Iraq: A Transitional Moment’ (2003) 97 American Journal of International Law 628. 5 See President George W Bush, ‘Address to the UN General Assembly’, 38 Weekly Compilation of Presidential Documents 1529 (September 16, 2002).

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sanction military action against Iraq does not, of course, render it irrelevant; quite the opposite. Instead, it can be convincingly argued that the Council properly ‘served the purpose of its founding by its refusal to endorse recourse to a war that could not be persuasively reconciled with the UN Charter and international law’.6 As regards the controversial issue of implied authorisation to use force, it would appear that the Security Council has ‘learned lessons’ from the way in which Resolution 1441 was manipulated by the United States and the United Kingdom.7 It is now much more careful and precise in its choice of language, as evidenced by the resolutions adopted since 2006 with respect to North Korea and Iran. Thus, in 2006, following North Korea’s withdrawal from the Treaty on Non-Proliferation of Nuclear Weapons, and its subsequent testing of ballistic missiles, the Security Council adopted Resolution 1695, expressing its ‘grave concern’ at the situation.8 Although the Resolution was adopted, ‘Bearing in mind the importance of maintaining peace and stability on the Korean peninsula and in north-east Asia at large’, North Korea’s actions were not stated by the Council to represent a threat to international peace and security. Nor was the Resolution adopted under Chapter VII of the Charter. Instead, the Council asserted that it was, ‘Acting under its special responsibility for the maintenance of international peace and security’.9 Following North Korea’s subsequent nuclear test of 9 October 2006, the Council adopted Resolution 1718.10 Again expressing its concern, this time the Council explicitly determined that there was ‘a clear threat to international peace and security’. The Council duly imposed a number of sanctions upon North Korea and confirmed that, in adopting the resolution, it was acting under Chapter VII of the UN Charter—although it was also expressly stated that it was taking measures under Article 41 in particular.11 Going even further, paragraph 16 of the resolution ‘Underlines that further decisions will be required, should additional measures be necessary’. A similar approach was taken by the Security Council in response to Iran’s failure to cooperate with the IAEA regarding the proposed aims of its nuclear programme.12 On adopting Resolution 1696,13 the Council 6 See Falk, above n 4 at 590. V Lowe, ‘The Iraq Crisis: What Now?’ (2003) 52 International and Comparative Law Quarterly 859 at 867 concurred that ‘the States urging immediate armed action against Iraq were unable to persuade a majority in the Council that this was the best way of preserving international peace and security. The fact that the US and the UK were in the minority on this occasion does not necessarily indicate that the system is flawed.’ 7 C Gray, International Law and the Use of Force, 3rd edn (Oxford, Oxford University Press, 2008) at 368. 8 UNSC Resolution 1695 (2006), 15 July 2006, UN Doc S/RES/1695 (2006). 9 See discussion in Gray, above n 7 at 367. 10 UNSC Resolution 1718 (2006), 14 October 2006, UN Doc S/RES/1718 (2006). 11 A step described by Gray, above n 7 at 367, as unusual. 12 See ibid, at 368. 13 UNSC Resolution 1696 (2006), 31 July 2006, UN Doc S/RES/1696 (2006).

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stated that it was acting under Chapter VII of the Charter, ‘mindful of its primary responsibility . . . for the maintenance of international peace and security’, but stipulating that the steps outlined in the resolution had been taken under Article 40 and that, should Iran fail to take the necessary steps by 31 August 2006, appropriate measures would be adopted under Article 41. Again, the Council also explicitly stated that ‘further decisions will be required should such additional measures be necessary’.14 Resolutions 1737 and 1747 were subsequently adopted,15 imposing sanctions on Iran under Article 41. Both clearly reiterated that further decisions would be required should additional measures prove necessary in order to secure Iranian compliance, as did Resolution 1803.16 Such steps clearly seek to avoid the problems that arose as a result of the ambiguities of Resolution 1441, and make it apparent that the resort to force against Iran (and North Korea) could not be contemplated without explicit authorisation from the Council. Subsequent to the arguments aimed at reviving the rather vague and open-ended authorisation to use force contained in Resolution 678, the Security Council would also seem to have become more measured in terms of the temporal scope of any similar authorisations. Thus, although situations involving an ‘aggressor state’ have not arisen since Iraq,17 those situations in which the Council has authorised the use of force within states experiencing difficulties have tended to involve an initial and limited—although renewable—authorisation to use force.18 Examples include Resolution 1528, adopted under Chapter VII and authorising French troops supporting the UN Operation in Côte d’Ivoire (UNOCI) to use ‘all necessary means’, but only ‘for a period of 12 months from 4 April 2004’;19 and Resolution 1529,20 also adopted under Chapter VII, which authorised ‘the Member States participating in the Multinational Interim Force in Haiti to take all necessary measures to fulfil its mandate’,21 but which only authorised the Interim Force to be deployed for a period of ‘not more than three months’.22 Political fallout and an apparent increased care and precision on the part of the Security Council is one thing. Operation Iraqi Freedom has, however, had little, if any, impact on the substantive rules of the jus ad bellum. Despite the adoption of its controversial National Security Strategy, there is no 14

ibid at para 8. UNSC Resolution 1737 (2006), 27 December 2006, UN Doc S/RES/1737 (2006); UNSC Resolution 1747 (2007), 24 March 2007, UN Doc S/RES/1747 (2007). 16 UNSC Resolution 1803 (2008), 3 March 2008, UN Doc S/RES/1803 (2008). 17 Gray, above n 7 at 328. 18 See discussion of recent express Council authorisations, ibid at 327–41. 19 UNSC Resolution 1528 (2004), 27 February 2004, UN Doc S/RES/1528 (2004) at para 16. 20 UNSC Resolution 1529 (2004), 29 February 2004, UN Doc S/RES/1529 (2004). 21 ibid at para 6. 22 ibid at para 2. 15

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serious suggestion that Iraq was the first example of US pre-emptive action. The Bush doctrine was (at least in relation to Iraq) better viewed as political rhetoric, rather than as the legal justification for military action. Several states opposing the action ‘expressly rejected’ the doctrine,23 and although over 40 states offered support to the coalition, ‘it seems that none did so on the basis of the doctrine of pre-emptive self-defence’.24 Following the 2002 bomb attack in Bali, Australia had indicated a measure of support for the doctrine,25 but it did not seek to rely on it in relation to Iraq in 2003, and ‘[e]ven the UK’ sought to distance itself from such claims.26 Some authors have argued that, based on the subsequent conduct of members of the US administration, the position as expressed in the US National Security Strategy may not actually have represented an attempt to radically transform the notion of self-defence in any case. US Secretary of State, Condoleezza Rice, for example, had stated as early as October 2002 that: The number of cases in which it might be justified will always be small. It does not give a green light—to the United States or any other nation—to act first without exhausting other means, including diplomacy. Preemptive action does not come at the beginning of a long chain of effort. The threat must be very grave. And the risks of waiting must far outweigh the risks of action.27

Miriam Sapiro found it ‘reassuring’ that the doctrine was also apparently being narrowed by Department of State Legal Adviser, William Taft IV, by November 2002.28 He had argued that the Strategy simply relied upon the criteria applied to the Caroline incident and Israel’s attack upon Iraq in 1981: namely that, ‘in the face of overwhelming evidence of an imminent threat, a nation may take preemptive action to defend its nationals from unimaginable harm’.29 Gray had therefore written in 2004 that it ‘remain[ed] 23

Gray, above n 7 at 220. ibid at 221. 25 See transcript of Prime Minister John Howard’s interview with Laurie Oakes, Channel 9, 1 December 2002, www.pm.gov.au/news/interviews/2002/interview 2015.htm. Nor is any support for pre-emptive self-defence evident in Australia’s Defence Updates published in either 2005 or 2007: see www.defence.gov.au/update2005; and www.defence.gov.au/ans/ 2007/. For further discussion of Australia’s stance, and the position of several other states arguably providing evidence of a wider acceptance of pre-emptive self-defence, see WM Reisman and A Armstrong, ‘The Past and Future of the Claim of Preemptive SelfDefense’ (2006) 100 American Journal of International Law 525 at 538–40 and 544–46. 26 See Gray, above n 7 at 215, and the discussion in ch 3 above. 27 Dr Condoleezza Rice Discusses President’s National Security Strategy, Wriston Lecture, Waldorf Astoria Hotel, New York, 1 October 2002, www.whitehouse.gov/news/releases/ 2002/10/20021001-6.html. 28 M Sapiro, ‘Iraq and the Shifting Sands of Pre-emptive Self-Defense’ (2003) 97 American Journal of International Law 599 at 602. 29 WH Taft IV, ‘The Legal Basis for Preemption’, Memorandum to ASIL/CFR Roundtable, 18 November 2002, www.cfr.org/publication.php?id=5250. Sapiro, above n 28, accepted that the Memorandum is neither a formal document nor, necessarily, the view of the Bush administration. 24

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to be seen’ whether a new, and expansive doctrine of self-defence was, in fact, being advanced by the United States, believing it to be ‘possible that the USA will eventually decide not to persist in this controversial line, on the basis that its earlier doctrine of self-defence against imminent attack . . . offers it enough flexibility without provoking opposition from its allies’.30 Similarly, Jutta Brunnée and Stephen Toope had suggested that the 2002 National Security Strategy might represent the ‘high-water mark of US selfdefence rhetoric, and that the actual legal justifications for the Iraq invasion are indicative of a shifting tide’.31 Such arguments seemed to have been overly optimistic when the US published its latest National Security Strategy in 2006,32 with the claimed right to act pre-emptively in self-defence remaining at the heart of the document. Thus, Section II still insists that the United States aims to ‘Prevent attacks by terrorist networks before they occur’, while Section V reiterates that: To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-emptively in exercising our inherent right of selfdefense. The United States will not resort to force in all cases to pre-empt emerging threats. Our preference is that non-military actions succeed. And no country should ever use pre-emption as a pretext for aggression.

In the context of the non-proliferation of WMD, the 2006 National Security Strategy goes on to assert that under long-standing principles of self-defense, we do not rule out the use of force before attacks occur, even if uncertainty remains as to the time and place of the enemy’s attack. When the consequences of an attack with WMD are potentially so devastating, we cannot afford to stand idly by as grave dangers materialize. This is the principle and logic of pre-emption. The place of preemption in our national security strategy remains the same. We will always proceed deliberately, weighing the consequences of our actions. The reasons for our actions will be clear, the force measured, and the cause just.

The Strategy makes no effort to fit this policy within the existing framework of the jus ad bellum. Indeed, as Gray has noted, the apparent assurances regarding the reasons for action, the scale of the force used and the justness of the cause fail to give any specific guidance on the matter, and it is startling that, ‘Not only is there no mention of international law

30 See C Gray, International Law and the Use of Force, 2nd edn (Oxford, Oxford University Press, 2004) at 184. In 2008, however, she stated that pre-emptive self-defence was still ‘extremely problematic’: see Gray, above n 7 at 221. 31 J Brunnée and SJ Toope, ‘The Use of Force: International Law and Iraq’ (2004) 53 International and Comparative Law Quarterly 785 at 794. See also Reisman and Armstrong, above n 25 at 531–532. 32 The National Security Strategy of the United States of America, March 2006, www.whitehouse. gov/nsc/nss/2006.

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on the use of force, but also there is almost no reference to the UN in the 2006 Strategy’.33 This stands in marked contrast to the European Security Strategy, adopted by the European Union in December 2003.34 The Strategy asserted that ‘Large-scale aggression against any Member State is now improbable’, and that Europe instead faces threats from terrorism, the proliferation of WMD, regional conflicts, state failure and organised crime.35 In meeting those threats, the Strategy insisted that Europe is: . . . committed to upholding and developing International Law. The fundamental framework for international relations is the United Nations Charter. The United Nations Security Council has the primary responsibility fore the maintenance of international peace and security. Strengthening the United Nations, equipping it to fulfil its responsibilities and to act effectively, is a European priority.36

In one rather opaque sentence, it is accepted that ‘It is a condition of a rulebased international order that law evolves in response to developments such as proliferation, terrorism and global warming’,37 but, as Gray has clearly indicated, there is nothing in the EU Strategy to suggest that European states were prepared to accept, or to adopt, a doctrine of preemptive self-defence. The European Security Strategy accordingly provides ‘a clear indication that the doctrine of pre-emption is not generally accepted international law’.38 Yet further evidence that this is the case is to be found in the Report of the High-Level Panel on Threats, Challenges and Change, created by the UN Secretary-General in order to ‘assess current threats to international peace and security; to evaluate how our existing policies and institutions have done in addressing those threats; and to make recommendations for strengthening the United Nations so that it can provide collective security for all in the twenty-first century’.39 The Panel accepted that, whilst Article 51 of the UN Charter is expressed in restrictive terms, a broader right to anticipatory self-defence exists under customary law: 33 See C Gray, ‘The Bush Doctrine Revisited: The 2006 National Security Strategy of the USA’ (2006) 5 Chinese Journal of International Law 555 at 563. It has been suggested elsewhere, however, that the 2006 Strategy apparently moderates the original expansive claims of the United States, placing ‘much more emphasis on alternatives to military pre-emption and reliance on multilateral solutions’. See Reisman and Armstrong, above n 25 at 531–32. 34 EU, ‘A Secure Europe in a Better World’: European Security Strategy, 12 December 2003, http://ue.eu.int/uedocs/cmsUpload/78367.pdf. 35 ibid at 3–5. 36 ibid at 9. 37 ibid at 10. 38 Gray, above n 33 at 565. 39 Report of the High-Level Panel on Threats, Challenges and Change, ‘A More Secure World: Our Shared Responsibility’, UN Doc A/59/565, 2 December 2004, www.un.org/ secureworld/, Note by the Secretary-General at para 3.

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[A] threatened State, according to long established international law, can take military action as long as the threatened attack is imminent, no other means would deflect it and the action is proportionate. The problem arises where the threat in question is not imminent but still claimed to be real: for example the acquisition, with allegedly hostile intent, of nuclear weapons-making capability.40

Asking whether a state could, ‘without going to the Security Council, claim in these circumstances the right to act . . . not just . . . against an imminent or proximate threat[,] but . . . against a non-imminent or nonproximate one’,41 the Panel answered in the negative, clearly rejecting the position as stated in the US National Security Strategy, and asserting that any action would be for the Security Council to take.42 Gray has, however, complained that the High-Level Panel presented the position regarding self-defence against imminent attack as being straightforward—‘either disingenuously or ignorantly’—whereas its statement on the issue is ‘actually extremely controversial’.43 Nonetheless, the UN Secretary-General took a broadly similar position in his 2005 Report, ‘In Larger Freedom’.44 Referring to the disagreement between states as to whether they had the right to use force to ‘defend themselves against imminent threats . . . [or] against latent or non-imminent threats’, he indicated that: Imminent threats are fully covered by Article 51, which safeguards the inherent right of sovereign States to defend themselves against armed attack. Lawyers have long recognized that this covers an imminent attack as well as one that has already happened. Where threats are not imminent but latent, the Charter gives full authority to the Security Council to use military force, including preventively, to preserve international peace and security.45

The World Summit Outcome Document, also adopted in 2005, was rather more equivocal in its treatment of the issue, simply asserting somewhat cryptically that, ‘the relevant provisions of the Charter are sufficient to

40

ibid at 54, para 188. ibid at 54, para 189. 42 Perhaps unsurprisingly, the Panel’s assertion found little favour with the United States. See ‘US Reactions to UN Secretary-General’s High-Level Panel Report’ in JR Crook (ed), ‘Contemporary Practice of the United States relating to International Law’ (2005) 99 American Journal of International Law 479 at 494–95. 43 See C Gray, ‘A Crisis of Legitimacy for the UN Collective Security System?’ (2007) 56 International and Comparative Law Quarterly 157 at 160. 44 Report of the Secretary-General, ‘In Larger Freedom: Towards Development, Security and Human Rights for All’, UN Doc A/59/2005, 21 March 2005, www.un.org/largerfreedom/. As Gray, above n 43, has indicated, his approach is slightly different from that of the High-Level Panel ‘in that he does not suggest that a wider customary law right of self-defence has been preserved, but rather that Article 51 should be widely interpreted’; an approach described by Gray as ‘marginally less controversial’. 45 ‘In Larger Freedom’, ibid at 33 paras 124–25. 41

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address the full range of threats to international peace and security’.46 Whilst this may have stopped short of openly accepting even the possibility of anticipatory self-defence,47 it certainly demonstrated that there was precious little acceptance of a doctrine going even further. The United Kingdom (along with a small number of other states) has made more recent statements indicating that debate on the issue is still ongoing. In 2006, for example, the UK Secretary of State for Defence asked whether ‘the concept of imminence—ie the circumstances when a state can act in self-defence without waiting for an attack—is sufficiently welldeveloped to take account of the new threats faced’.48 Whatever this says (if anything) about the UK’s legal position, it does not represent a clear statement in favour of pre-emptive self-defence, which remains contrary to international law. Indeed, Reisman and Armstrong have even suggested that, ‘the claimed right of preemptive self-defense may be subsiding into a right to initiate the use of force in ongoing overt conflicts, without awaiting a specific provocation’, although they accept that, even under these more limited circumstances, ‘claims of preemptive selfdefense would involve uses of force in an ever-widening arena, and [that] any possible gain in the restoration of minimum order will have been secured at the cost of a geographical extension of the conflict’.49 Furthermore, ‘all such claims are clearly incompatible with conceptions of the legal use of force in self-defense as understood by the International Court of Justice in its recent decisions’.50 It will be recalled that all formal attempts to base the use of force against Iraq in international law rested squarely on Security Council authorisation under Chapter VII, clearly seeking to bring it within existing parameters for the resort to force. The argument was fatally flawed, and it impressed neither the rest of the international community, nor UN Secretary-General Kofi Annan, who declared the action a violation of the UN Charter.51 Operation Iraqi Freedom was not lawful. Of course, international law is 46 See UNGA Resolution 60/1, World Summit Outcome, UN Doc A/RES/60/1, 24 October 2005 at 22 para 79. 47 Indeed, Gray has asserted that it is reflective of ongoing and deep divisions between states as to the scope of lawful self-defence. See Gray, above n 43 at 163. 48 Address by John Reid to the Royal United Services Institute for Defence and Security Studies, 3 April 2006, as referred to in Gray, above n 33 at 567, where she also outlines recent statements by Japan and Russia at 567–68. See also the speech by the UK Attorney General on 21 April 2004 (Hansard House of Lords Debates, vol 660, col 370), apparently advocating a broader notion of imminence, and accompanying discussion in ch 3 above at n 32. 49 Reisman and Armstrong, above n 25 at 548. 50 ibid. 51 See ‘Iraq War Illegal, says Annan’, 16 September 2004, http://news.bbc.co.uk/1/hi/ world/middle_east/3661134.stm. See also ND White and EPJ Myjer, ‘Editorial: The Use of Force Against Iraq’ (2003) 8 Journal of Conflict and Security Law 1 at 8, where it is argued that ‘The fact that the same minority of states that seek to justify the . . . interventions [against Iraq] argue for the emergence of a new rule of interpretation is sufficient to show that such arguments are self-serving, and are not accepted by the majority of states’.

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based on what states say and what states do, and it is true that apparent abrogation from its rules can result in the evolution of new rules. As Tom Farer has explained: Because every action by a consequential state for which it claims legitimacy will produce prescriptive implications beyond its peculiar facts, it will generate a modification of the principal norm if other consequential states follow suit (or even declare a readiness to) when the appropriate occasion arises.52

Violations, however, do not easily change international law in the face of consistent and widespread opposition. Such opposition existed in this case, and so it must be that the pre-existing jus ad bellum remained unchanged as a result of the coalition’s violation. As Anne-Marie Slaughter has suggested, ‘The coalition’s decision to use force without a second Security Council resolution cannot stand as a precedent for future action; rather, it was a mistake that should lead us back to genuine multilateralism’.53 The use of force against Afghanistan was much less controversial for most states, with international support for Operation Enduring Freedom being almost universal.54 Its impact on the jus ad bellum, however, may be much more significant, in that previous state practice may well not have supported such a response. It will be recalled that a small number of states, including the United States, had previously argued that self-defence against terrorist attacks (that is, striking against terrorist targets within the host state) was lawful.55 ‘Self-defence’ in these situations, however, tended to look very much like armed reprisals, and international reaction was mixed at best. When, for example, Israel responded to terrorist attacks by Arab groups operating from within Lebanon by attacking Beirut airport in 52

Farer, above n 4 at 623. A-M Slaughter, ‘The Use of Force in Iraq: Illegal and Illegitimate’ (2004) Proceedings of the 98th Annual Meeting of the American Society of International Law 262 at 262. R Falk, ‘The Iraq War and the Future of International Law’, ibid at 263, concurred: 53

Recourse to war against Iraq in March 2003 on the facts and allegations that existed at the time is regarded around the world as so flagrantly at odds with international law and the UN Charter as generally understood to have little or no weight as a legal precedent. It is better understood as a prominent instance of a violation of the core obligation of the UN Charter, as embodied in Article 2(4). He did go on to suggest at 266, however, that the grave threats posed by the sort of mega-terrorist attacks of 9/11 do justify stretching the right of self-defense to validate uses of force, as necessary, to remove threats associated with nonstate actors when the territorial government is unable or unwilling to address the situation decisively and with due urgency. The Afghanistan War, with qualifications, arguably fits within such an expanded notion of self-defense. 54 Despite the difficulties involved in demonstrating Afghanistan’s responsibility for the Al-Qaeda attacks, only Iraq (and possibly Iran) opposed the action. See discussion in ch 2 above. 55 See A Cassese, ‘Terrorism is Also Disrupting Some Crucial Legal Categories of International Law’ (2001) 12 European Journal of International Law 993 at 996; Gray, above n 7 at 195–98.

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1968, claiming to be exercising its right of self-defence, it was condemned unanimously by the Security Council.56 In contrast, however, when the United States responded to Al-Qaeda’s attacks on US embassies in Kenya and Tanzania in 1998 by striking targets in Afghanistan and Sudan, the international response was much more equivocal.57 Even those states refusing to condemn such actions, however, had tended not to support selfdefence as the legal basis (or, at least, they tended not to do so explicitly). Their reaction may have demonstrated a degree of tolerance and sympathy, but not necessarily an acceptance of formal legal justifications.58 Widespread acceptance of the legality of action against Afghanistan has therefore led some commentators to claim that it ‘dramatically altered this legal framework’,59 and that the customary limits of self-defence have accordingly been extended. Terrorist attacks can now be treated as analogous to attacks by a state, allowing an armed response against the territory of a state ‘harbouring’ the terrorists,60 or, even more extremely, ‘regardless of any link between them and a particular State’.61 This position disregards the Nicaragua judgment, which is not necessarily a problem per se—international law can, after all, evolve. But whether Operation Enduring Freedom has had (or will have) such long-term implications remains unclear. Gray, for example, has argued that the level of support shown for Operation Enduring Freedom ‘could constitute instant customary international law and an authoritative reinterpretation of the UN Charter, however radical the alteration from many States’ prior conception of the right to self-defence’.62 But Antonio Cassese has disagreed, arguing that, whilst there seemed to be widespread convergence towards a new notion of self-defence, this was ‘to a large extent motivated by the emotional reaction to the horrific terrorist action of 11 September, [and] may not amount to the consistent practice and opinio juris required for a customary change’.63 It is important, then, to consider relevant developments in international law subsequent to Operation Enduring Freedom, in order to assess its 56 UNSC Resolution 262 (1968), 31 December 1968. See also: Gray, above n 7 at 195; and RA Falk, ‘The Beirut Raid and the International Law of Retaliation’ (1969) 63 American Journal of International Law 415. 57 See eg, SD Murphy, ‘Contemporary Practice of the United States relating to International Law’ (1999) 93 American Journal of International Law 161; Gray, above n 7 at 197. 58 Gray, above n 7 at 196–98. 59 See eg, Cassese, above n 55 at 996. 60 ibid at 997. 61 See G Guillaume, ‘Terrorism and International Law’ (2004) 53 International and Comparative Law Quarterly 537 at 546. 62 C Gray, ‘The Use of Force and the International Legal Order’ in MD Evans (ed), International Law, 2nd edn (Oxford, Oxford University Press, 2006) 589 at 602. 63 See A Cassese, International Law, 2nd edn (Oxford, Oxford University Press, 2005) at 475. See also Guillaume, above n 61 at 547, where it was argued that ‘this evolution would amount to such a radical change in international law that it would require clearer practice and a more constant opinio juris’.

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impact on the framework of jus ad bellum and, in particular, the rather thorny questions of what represents an armed attack (including the degree of state involvement necessary), and the extent to which self-defence may be available against non-state actors in general. Any such developments can perhaps best be seen through an examination of the jurisprudence of the ICJ in relation to uses of force, as well as an examination of more recent state practice invoking the right to self-defence and the reaction of the international community to such claims.

I. INTERNATIONAL COURT OF JUSTICE JURISPRUDENCE

A. The Oil Platforms Case On 6 November 2003, the ICJ issued its judgment in the Case Concerning Oil Platforms,64 a dispute that had arisen out of two attacks on US-flagged shipping in the context of the Iran–Iraq War. In the first, on 16 October 1987, a Kuwaiti tanker, Sea Isle City, reflagged to the United States, suffered a missile strike near Kuwait harbour. Attributing the strike to Iran, the United States attacked Iranian offshore oil production installations on 19 October 1987, destroying two Iranian oil platforms. In the second, on 14 April 1988, the American warship USS Samuel B Roberts struck a mine in international waters near Bahrain. Four days later, on 18 April 1988, the United States—again attributing responsibility for the attack to Iran—destroyed two further Iranian oil complexes.65 Basing its claim on ‘a series of unlawful armed attacks by Iranian forces against the United States, including laying mines in international waters for the purpose of sinking or damaging United States flag ships, and firing on United States aircraft without provocation’, both strikes by the United States were claimed to be a lawful exercise of the right to self-defence.66 The Court proceeded on the basis that in order to establish that it was legally justified in attacking the Iranian platforms in exercise of the right of individual self-defence, the United States has to show that attacks had been made upon it for which Iran was responsible; and that those attacks were of such a nature as to be qualified as ‘armed attacks’ within

64 Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America), Judgment, 6 November 2003, ICJ Reports (2003) 161. 65 ibid at paras 25–26. 66 ibid at paras 48 and 67. The US position had been set out in its Letter of 19 October 1987 from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, UN Doc S/19219 (19 October 1987); and its Letter of 18 April 1988 from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, UN Doc S/19791 (18 April 1988).

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the meaning of that expression in Article 51 of the United Nations Charter, and as understood in customary law on the use of force.67

It found that the United States had failed to discharge this burden of proof in either case.68 As far as the law relating to self-defence is concerned, the judgment itself largely confined itself to restating the position as outlined previously by the Court in the Nicaragua case. There were, however, a number of interesting passages in relation to the substantive question of what constitutes an armed attack. Thus, the Court stated that ‘it is necessary to distinguish “the most grave forms of the use of force (those constituting an armed attack) from other less grave forms” ’,69 deciding that—even if they had been clearly attributable to Iran—the alleged attacks on the United States did not represent ‘a “most grave” form of the use of force’, and did not, therefore, constitute an armed attack.70 The Court refused to rule out ‘the possibility that the mining of a single military vessel might be sufficient to bring into play the “inherent right of self-defence” ’, but held that, ‘in view of all the circumstances’, the mining of the USS Samuel B Roberts did not amount to an armed attack on the United States by Iran.71 In essence, and going beyond a requirement to demonstrate adequately the source of an attack, the Court seemed to be suggesting that an attack must reach a certain level of gravity before the target state is entitled to respond in self-defence. At first sight, this may seem to be a perfectly reasonable application of the Court’s position as stated in Nicaragua. What must be remembered, however, is that in the Nicaragua case the Court was discussing Article 3(g) of the UN General Assembly’s 1974 Definition of Aggression, in the context of an armed attack by irregular forces. It will be recalled that Article 3(g) of the Definition provides that aggression includes: 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. 67

ibid at para 51. ibid at paras 61 and 72. 69 ibid at para 51, quoting the Nicaragua case at para 191. 70 ibid at para 64. 71 ibid at para 72. Further discussion as to whether such a view is consistent with the previous law, and whether attacks on merchant shipping can trigger the right to self-defence (something that the Court alluded to in its judgment at para 64), in light of the UNGA 1974 Definition of Aggression, can be found in, eg, D Raab, ‘“Armed Attack” after the Oil Platforms Case’ (2004) 17 Leiden Journal of International Law 719 at 726–30; L von Carlowitz, ‘Interpreting Self-Defence Restrictively: The World Court in the Oil Platforms Case’ (2005) 23 Sicherheit und Frieden 79 at 86; and N Ochoa-Ruiz and E Salamanca-Aguado, ‘Exploring the Limits of International Law Relating to the Use of Force in Self-Defence’ (2005) 16 European Journal of International Law 499 at 513. 68

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In other words, the Nicaragua judgment indicated that the acts of irregular forces can amount to an armed attack where they are ‘of such gravity as to amount to . . . an actual armed attack conducted by regular forces’.72 The Oil Platforms case was not concerned with such attacks. Rather, the United States was alleging that armed attacks had been carried out by Iran through its conventional, or regular, armed forces. The gravity of the attacks should accordingly have been important in terms of the proportionality of any response, but not in terms of whether an armed attack had taken place. The Court’s apparent extension of the gravity requirement to all attacks upon a state was, then, not necessarily in line with existing international law.73 The United States was, not surprisingly, extremely critical of the Court’s decision, and William Taft IV, asserted that statements by the Court in the Nicaragua case are focused on the distinction between direct uses of force by a State’s regular armed forces and indirect uses of force, such as the use of force through the sending of armed bands or through the supply of weapons. The gravity of an attack, these statements suggest, is relevant only in determining whether non-conventional or indirect uses of force qualify as ‘an actual armed attack conducted by regular forces.’ Other than with its reference to a ‘frontier incident’ (presumably an isolated instance in which border forces may be acting without authority), the Court was not suggesting that a particular level of gravity is required before a direct attack, involving the use of deadly force by a State’s regular armed forces, will qualify as an armed attack. There is certainly nothing in the Court’s discussion in Nicaragua implying that missile and mine attacks on naval and commercial vessels are anything less than an armed attack. In sum, there is no support in international law or practice for the suggestion that missile and mine attacks carried out by a State’s regular armed forces on civilian or military targets of another State do not trigger a right of self-defense. For its part, if the United States is attacked with deadly force by the military

72 See Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports (1986) 14 at para 195. The reasoning of the Court on this issue has been the subject of fierce criticism; see the discussion above in chs 1 and 2. 73 See Raab, above n 71 at 724–25, where he is critical of the Court for having given ‘no explanation, legal or otherwise, for extending the reasoning of the Nicaragua Case (and the UNGA Definition of Aggression) in this way’, adding that ‘there is substantial academic support for the view that “gravity” is irrelevant to the question of whether there has been an armed attack by regular military forces’. See also R Higgins, Problems and Process: International Law and How We Use It (Oxford, Oxford University Press, 1994) at 250-51; Ochoa-Ruiz and Salamanca-Aguado, above n 71 at 513; A Laursen, ‘The Judgment by the International Court of Justice in the Oil Platforms Case’ (2004) 73 Nordic Journal of International Law 135 at 153–60; R Wedgwood, ‘The ICJ Advisory Opinion on the Israeli Security Fence and the Limits of Self-Defense’ (2005) 99 American Journal of International Law 52 at 57.

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personnel of another State, it reserves its inherent right preserved by the UN Charter to defend itself and its citizens.74

Taft’s position has been criticised by Christine Gray, who has argued that his ‘implausible empirical claim has not been borne out since the Nicaragua case’: The counter-argument could be made that the presumption should always be against the use of force and in favour of peaceful settlement. If there is no gravity requirement for an armed attack and self-defence, then an inter-state conflict could arise out of minor cross-border incidents or other minor uses of force.75

As has already been argued, however, such arguments would seem better suited to the proportionality requirement, rather than the issue of whether an armed attack has occurred or not. Indeed, a group of international legal experts based in the United Kingdom recently asserted that: An armed attack means any use of armed force, and does not need to cross some threshold of intensity. Any requirement that a use of force must attain a certain gravity . . . is relevant only in so far as the minor nature of an attack is prima facie evidence of absence of intention to attack or honest mistake. It may also be relevant to the issues of necessity and proportionality.76

Only when the initial attack had been carried out by irregular troops, or non-state actors, was the scale of the attack seen as being relevant.77 Nonetheless, subsequent case-law from the Eritrea/Ethiopia Claims Commission seems to have reaffirmed yet again the requirement for the use of force to have reached a certain level of gravity before self-defence is possible, even in relation to military activity by regular armed forces.78 74 WH Taft IV, ‘Self-Defense and the Oil Platforms Decision’ (2004) 29 Yale Journal of International Law 295, partially reproduced in SD Murphy (ed), ‘Contemporary Practice of the United States Relating to International Law: US Reaction to ICJ Judgment in Iranian Oil Platforms Case’ (2004) 98 American Journal of International Law 597 at 599. Taft also suggested that, from a policy position, the requirement of a certain gravity for armed attacks would be extremely damaging, in that it would:

make the use of force more rather than less likely, because it would encourage States to engage in a series of small-scale military attacks, in the hope that they could do so without being subject to defensive responses. Moreover, if States were required to wait until attacks reached a high level of gravity before responding with force, their eventual response would likely be much greater, making it more difficult to prevent disputes from escalating into full-scale military conflicts. 75

Gray, above n 7 at 148. ‘The Chatham House Principles of International Law on the Use of Force in SelfDefence’ (2006) 55 International and Comparative Law Quarterly 963 at 966. 77 ibid at 969–71. 78 See ‘Eritrea Ethiopia Claims Commission Partial Award: Jus Ad Bellum, Ethiopia’s Claims 1–8’, 19 December 2005 (2006) 45 International Legal Materials 430. The Claims Commission stated unequivocally in para 11 that ‘Localized border encounters between small infantry units, even those involving the loss of life, do not constitute an armed attack for the purposes of the Charter’, going on to hold in para 12 that, since the relevant incidents were ‘geographically limited clashes between small Eritrean and Ethiopian patrols along a 76

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Equally controversial was the apparent (and novel) suggestion by the Court that an armed attack requires an element of intent on the part of the attacking state to hit a specific target. Thus, in paragraph 64, the Court was evidently influenced by the fact that the Sea Isle City was in Kuwaiti waters at the time of the attack on it, and that a Silkworm missile fired from (it is alleged) more than 100 km away could not have been aimed at the specific vessel, but simply programmed to hit some target in Kuwaiti waters. . . . [Nor was there any] evidence that the minelaying alleged to have been carried out by the Iran Ajr, at a time when Iran was at war with Iraq, was aimed specifically at the United States; and similarly it has not been established that the mine struck by the Bridgeton was laid with the specific intention of harming that ship, or other United States vessels.

This reasoning has also been strongly criticised. Dominic Raab, for example, has argued that ‘there is nothing in the customary definition of “armed attack” requiring intention or any other mental condition on the part of a state in order for an unlawful use of force by that state to constitute an “armed attack”’.79 William Taft IV, meanwhile, framed his criticism in the following terms: The Court’s statements might be read to suggest that military attacks on a State or its vessels do not trigger a right of self-defense as long as the attacks are not aimed specifically at the particular State or its vessels but rather are carried out indiscriminately. Such a proposition, however, is not supported by international law, and it would undermine, rather than maintain, international peace and security. States have a right of self-defense so that they can protect their national security and deter attacks against them, concerns that are implicated just as much when States are subjected to indiscriminate attacks as when they are subjected to targeted attacks. A requirement of specific intent would also encourage intentionally indiscriminate attacks, since no victim would have the right to defend against them. International law, however, does not give such favourable treatment to indiscriminate attacks. Indeed, a number of international agreements expressly prohibit indiscriminate attacks even in situations in which the use of force in question would otherwise be lawful . . . The United States accepts—as it believes all States do—the need under international law to observe the principle of distinction in the use of force. If another State violates this principle and attacks the United States by unlawfully using indiscriminate force, the United States, like any State, is legally entitled to defend itself and its citizens.80 remote, unmarked, and disputed border’, it was ‘satisfied that these relatively minor incidents were not of a magnitude to constitute an armed attack by either State against the other within the meaning of Article 51 of the UN Charter’. See also Gray, above n 7 at 148. 79 Raab, above n 71 at 728. See also JA Green, ‘Self-Defence: A State of Mind for States?’ (2008) 55 Netherlands International Law Review 181 at 201–206; and Ochoa-Ruiz and Salamanca-Aguado, above n 71 at 514. 80 Above n 74 at 599.

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Gray has again found this argument rather unconvincing, ‘especially given the prohibitions on indiscriminate attacks in international humanitarian law’.81 She does not expand, however, on the precise nature of the relationship between this humanitarian law norm (prima facie applicable in the context of an ongoing armed conflict) and the rules relating to selfdefence (prima facie applicable in relation to an initial attack).82 It may well be possible to link this aspect to the customary law requirement of necessity, in that, had Iraq been the intended target of the Iranian attacks, and not the United States, then it could not have been necessary for the United States to take defensive action. This would not, of course, have absolved Iran from its responsibility under international humanitarian law for launching indiscriminate attacks during its conflict with Iraq. Gray has gone on to argue that, in any case, it is unclear whether the Court was seeking to establish a rule of general application, or whether its statement on the intent requirement should instead be ‘limited to the particular and unusual facts of the case where there was US involvement in a conflict between two other states’.83 At any rate, the ICJ provided only a ‘brief and rather obscure discussion of a difficult issue’.84 The Court also had reason to address the ‘accumulation of events’ theory, whereby a number of small-scale attacks can be treated cumulatively as amounting to a single, and ongoing, armed attack.85 In its official notifications to the Security Council, and indeed before the Court itself, the United States had argued that the attack on the Sea Isle City was merely ‘the latest in a series of such missile attacks against United States flag and other non-belligerent vessels in Kuwaiti waters’, and that these actions were, ‘moreover, only the latest in a series of unlawful armed attacks by Iranian forces against the United States’.86 Similarly, the mining of the USS Samuel B Roberts was linked by the United States to ‘a series of offensive attacks and provocations Iranian naval forces have taken against neutral

81

Gray, above n 7 at 146. For an excellent discussion of this relationship, see C Greenwood, ‘The Relationship between Ius ad Bellum and Ius in Bello’ (1983) Review of International Studies 221. Greenwood argued that the two regimes are capable of complementary application, and that the jus in bello does not automatically displace the jus ad bellum once hostilities are in progress. There is, however, a sizeable body of opinion of the opposite view. Thus, in the context of belligerent occupation, see eg, I Scobbie, ‘Smoke, Mirrors and Killer Whales: the International Court’s Opinion on the Israeli Barrier Wall’ (2004) 5 German Law Journal 1107 at 1130–31; and G Abi-Saab (Counsel for Palestine), Oral Pleadings in the Advisory Opinion on the Legal Consequences on the Construction of a Wall in the Occupied Palestinian Territory, CR2004/1, 44, arguing that ‘Once an armed conflict is brought into being, the jus in bello (or international humanitarian law) comes into play, as the lex specialis governing the ensuing situation regardless of the rules of the jus ad bellum’. See the relevant discussion below. 83 Gray, above n 7 at 146. 84 ibid at 145. 85 See discussion in ch 2 above. 86 Oil Platforms case, above n 64 at para 62. 82

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shipping in the international waters of the Persian Gulf’.87 The United States did not, however, rely exclusively on the ‘accumulation of events’ theory, arguing in both cases that the individual attacks on Sea Isle City and USS Samuel B Roberts constituted armed attacks regardless, and that their place in a series of attacks on the United States by Iran simply ‘added to the gravity of the specific attacks, reinforced the necessity of action in self-defense, and helped to shape the appropriate response’.88 Nevertheless, the Court chose to frame the issue in the following terms: On the hypothesis that all the incidents complained of are to be attributed to Iran, . . . the question is whether [the attack on the Sea Isle City], either in itself or in combination with the rest of the ‘series of . . . attacks’ cited by the United States can be categorized as an ‘armed attack’ on the United States justifying selfdefense.89 (Emphasis added.)

It duly held that, ‘Even taken cumulatively, these incidents do not seem to the Court to constitute an armed attack on the United States’ (emphasis added).90 Thus, although the Court did not accept that there had been an armed attack on the facts of the case, it did appear to accept that an armed attack through the cumulative effect of several smaller attacks was a theoretical possibility. Whilst not perhaps an entirely novel development (the Court had, rather ambiguously, suggested the same thing in the Nicaragua case),91 commentators have noted the significance of its approach in Oil Platforms, especially given that the UN Security Council has tended to view the possibility somewhat sceptically.92 To be fair, the Council has avoided any doctrinal statement on the precise scope of self-defence, preferring (inevitably) to address the matter on a case-by-case, factual basis.93 As commentators have also pointed out, the Court remained resolutely silent on a number of potentially difficult related questions,

87 ibid at para 72. It should be noted, however, that, in the context of an argument relating to accumulation of events, ‘No attacks on United States-flagged vessels (as distinct from United States-owned vessels), additional to those cited as justification for the earlier attacks on the Reshadat platforms [were] brought to the Court’s attention, other than the mining of the USS Samuel B. Roberts itself’. 88 ibid at paras 62 and 72. Gray, above n 7 at 145, saw this as the United States ‘trying to address the argument that a single episode could not be serious enough to amount to an armed attack and that its response was disproportionate’. 89 ibid at para 64. 90 ibid. 91 Nicaragua case, above n 72 at para 231. There the Court had held that a lack of evidence made it difficult to determine whether a number of Nicaraguan incursions into Honduras and Costa Rica could be considered ‘as amounting, singly or collectively, to an armed attack’ (emphasis added). 92 See eg Raab, above n 71 at 732; Laursen, above n 73 at 153–55; Green, above n 79, at 381–82. 93 Gray, above n 7 at 155.

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such as the number of minor attacks required to constitute an armed attack sufficient to trigger the right of self-defence.94 Beyond the issue of what constitutes an armed attack, the ICJ also took the opportunity to re-confirm the twin customary law requirements of necessity and proportionality,95 as well as the existence of what some have seen as an additional requirement regarding the nature of the target struck in self-defence; namely, that the target must be a legitimate military target under international humanitarian law. In its Nuclear Weapons Advisory Opinion, the Court had stated that, in order to be lawful, a use of force in self-defence must not only be proportionate, but must ‘also meet the requirements of the law applicable in armed conflicts which comprise in particular the principles and rules of humanitarian law’.96 Working, then, on the basis that the United States had to show ‘that its actions were necessary and proportional to the armed attack made on it, and that the platforms were a legitimate military target open to attack in the exercise of self-defence’,97 the Court in Oil Platforms found that, on the facts of the case, the criterion had not been fulfilled: The Court is not sufficiently convinced that the evidence available supports the contentions of the United States as to the significance of the military presence and activity on the Reshadat oil platforms; and it notes that no such evidence is offered in respect of the Salman and Nasr complexes . . . . . . the United States forces attacked the R-4 platform as a ‘target of opportunity’, not one previously identified as an appropriate military target.98

There was nothing either in the pre-existing jurisprudence, or else in the accepted rules of customary international law, to suggest that this factor existed as an additional requirement. The judgment has, then, been criticised for its apparent incorporation of an element of the jus in bello into 94 Laursen, above n 73 at 155; Green, above n 79 at 382. It has also been suggested by von Carlowitz, above n 71 at 87 fn 69, that whilst some commentators see the Oil Platforms case as affirming the accumulation of events theory in principle, ‘the Court’s language should . . . be interpreted more neutrally’. The basis for this assertion in light of the approach evidently taken by the Court remains unclear. Gray, above n 7 at 146, states that the Court left the issue open, whilst also accepting at 156 that the Court ‘apparently contemplated the possibility of an “accumulation of events” module of armed attack’. It is true, however, that this was not discussed in any detail by the Court. 95 Although its discussion of these aspects was not free from difficulty. Necessity is discussed below. For an examination of its treatment of the proportionality issue (where it found in para 77, on the facts of the case, that the US action in response to the attack on Sea Isle City might have been proportionate had an armed attack been committed by Iran, but that the military response to the mining of USS Samuel B Roberts had been disproportionate), see eg, Raab, above n 71 at 734; Ochoa-Ruiz and Salamanca-Aguado, above n 71 at 520–21; von Carlowitz, above n 71 at 88; Laursen, above n 73 at 152–53; and ‘US Reaction to ICJ Judgment in Iranian Oil Platforms Case’, above n 74 at 600. 96 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 8 July 1996, ICJ Reports (1996) 226 at para 42. 97 Oil Platforms case, above n 64 at para 51. 98 ibid at para 76.

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the jus ad bellum.99 To be fair, whether the Court was really confirming the nature of the target as an additional, free-standing requirement for lawful self-defence action remains unclear. Although that may well be a reasonable implication from paragraph 51 of the judgment, paragraph 74 of the judgment would seem to present an equally plausible alternative interpretation, whereby the Court was simply incorporating this requirement into the concept of necessity. Thus, it was asserted that the lawfulness of action taken in self-defence depended on the observance of the necessity and proportionality criteria, and that ‘One aspect of these criteria is the nature of the target of the force used avowedly in self-defence’.100 It is certainly difficult to see how an attack on a non-military objective could reasonably represent action that is necessary in terms of self-defence. Nor, of course, should states be able to escape responsibility for violations of international humanitarian law on the basis that their actions were taken in the context of lawful self-defence.101 Going further in terms of necessity, the Court found that: In this connection, the Court notes that there is no evidence that the United States complained to Iran of the military activities of the platforms, in the same way as it complained repeatedly of minelaying and attacks on neutral shipping, which does not suggest that the targeting of the platforms was seen as a necessary act.102

This statement was also strongly criticised by the United States, arguing that: Although the import of this language is unclear, it might be read to suggest that self-defense may be directed only against targets that have been the subject of specific prior complaints by the defending State. There is, however, no basis for such a requirement in either international law or practice. The condition of ‘necessity’, rather, requires that no reasonable alternative means of redress are available . . . An additional requirement whereby a defending State would have to specifically complain about particular targets would be impractical and would substantially undermine the right of self-defense. When responding in selfdefense to an armed attack, there will often be insufficient time in which to make complaints about potential targets. More significantly, it would be unrealistic to require a nation that is engaged in self-defense to signal precise targeting information to the attacker and thereby allow the attacker either to remove its military resources in order to undermine the effectiveness of the defensive use of force or, worse, to reinforce the target. . . . While it may be appropriate in 99 See eg, Green, above n 79 at 380–81. More neutral discussions can be found in von Carlowitz, above n 71 at 87–88; Laursen, above n 73 at 151–52; and Ochoa-Ruiz and SalamancaAguado, above n 71 at 517–18. 100 Oil Platforms case, above n 64 at para 74. 101 Scobbie, above n 82 at 1130. 102 Oil Platforms case, above n 64 at para 76.

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particular situations to provide some notice as part of an effort to reduce casualties, there is no requirement in international law that a State lodge complaints about the use of particular facilities by an attacker in order to the necessity requirements that apply where an attacker cannot reasonably be persuaded, by means short of the use of force, to cease its armed attacks.103

This seems partly to elide into the question of immediacy between the initial attack and the defensive action, and indeed the broader question of the very nature of self-defence—questions that the Court sidestepped entirely.104 None of the above constitutes a significant development of the law relating to self-defence by the ICJ. Nor does the substance of the judgment seem to demonstrate that the law had been influenced particularly by the military action against Afghanistan and Iraq. Most commentators saw the judgment as serving to reaffirm a restrictive interpretation of the jus ad bellum. Nevertheless, it can be argued convincingly that the Court itself had been influenced by recent US (and UK) military action. This seems clear from the Court’s apparent determination to address the lawfulness of the United States’ use of force against Iran in a case that, quite simply, did not require a detailed discussion of the law relating to self-defence. Indeed, it has been suggested by Andreas Laursen that the Court ‘insisted on expressing its opinion on the US actions in relation to the international law on the use of force even if it had to get at this problem through the back door’.105 Without providing a detailed account and analysis of the Court’s approach, it is sufficient to note that the case essentially turned on whether, by attacking the oil platforms, the United States had impeded Iran’s freedom of commerce, violating Article X(1) of the 1955 Treaty of Amity, Economic Relations and Consular Rights between the two states. The United States denied that this was the case, but argued that its actions could be justified regardless under Article XX(1)(d) of the Treaty, which permitted action aimed at protecting ‘the essential security interests’ of the states parties in accordance with the rules regulating self-defence. The Court found that there had been no violation of Article X(1) by the United 103 ‘US Reaction to ICJ Judgment in Iranian Oil Platforms Case’, above n 64 at 600. Gray has again argued, above n 7 at 152 fn 161, that it is unclear whether the Court was ‘laying down a mandatory requirement for all self-defence’, or whether this related to the particular facts of the case. Raab, above n 71 at 734, was also unhappy in that, in relation to this aspect of its finding, it would have been helpful had the Court indicated other options available to the state concerned but, despite holding the attacks to be unnecessary, ‘the Court gave no consideration to what other options the United States might have had to meet the danger to US shipping’. 104 See eg, Ochoa-Ruiz and Salamanca-Aguado, above n 71 at 518–20; von Carlowitz, above n 71 at 87–88; Gray, above n 7 at 153. 105 See Laursen, above n 73 at 160. Raab, above n 71 at 734, also felt that the Court ‘went out of its way to address the legal issues arising in relation to the US claim to be exercising the right of self-defence’.

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States in this case. Controversially, however, it did not make this finding until after it had decided that the US military action was not a lawful exercise of the right to self-defence, and that Article XX(1)(d) of the Treaty did not, therefore, provide the United States with a defence to any breach. Clearly, the Court seems to have dealt with the issues in what can only be described as a rather unorthodox order. The Court is, of course, free to determine for itself the order in which it deals with those matters before it,106 but had it examined the issue of whether there was a violation of Article X of the treaty first, and found that there was not, there would have been no need to subsequently assess the question of the use of force against Iran in the context of Article XX, and the law relating to selfdefence more generally. Instead, the Court determined that ‘particular considerations’ militated in favour of the opposite approach: . . . it is clear that the original dispute between the Parties related to the legality of the actions of the United States, in the light of international law on the use of force . . . Furthermore, as the United States itself recognizes in its Rejoinder, ‘The selfdefense issues presented in this case raise matters of the highest importance to all members of the international community’, and both Parties are agreed as to the importance of the implications of the case in the field of the use of force . . .107

There seems little doubt that the original dispute was, indeed, centred on the use of force by the United States. Nonetheless, the Court’s decision to ‘put the cart before the horse’ in this respect has been the subject of criticism, both from commentators and from members of the Court itself. Jörg Kammerhofer, for example, has argued that the case represented ‘a struggle to make more of a simple commercial treaty case’, suspecting that Iran had, in fact, ‘searched for a way to have the Respondent’s acts in 1987–8 declared a breach of international law, despite the United States 106 Indeed, in its oral pleadings, the United States had explicitly accepted that ‘the order in which the Court decides to address the two key elements of its legal analysis—freedom of commerce and navigation under Article X on the one hand, measures necessary to protect essential security interests under Article XX on the other—is a matter for the discretion of the Court’. See CR/2003/12 at 6. See also Green, above n 79 at 372, where it is accepted that the Court has the freedom to determine the order in which it examines any issues before it, and that ‘There is not a specific legal requirement that the Court establishes a breach of a provision before turning to a possible defence, although this is surely good practice’. 107 Oil Platforms case, above n 64 at paras 37–38. For the detailed reasoning of the Court, see paras 35–38. The Court also decided on the basis that its previous approach in the Nicaragua case, whereby a determination of the breach or otherwise of a similar treaty was made before addressing possible exceptions to its substantive obligations, had not been ‘dictated by the economy of the Treaty; it was rather an instance of the Court’s “freedom to select the ground upon which it will base its judgment” (Application of the Convention of 1902 Governing the Guardianship of Infants, Judgment, ICJ Reports 1958, p 62)’. For more discussion of the Court’s reasoning and methodology on this issue, see eg, Green, above n 79, in particular at 370–77; J Kammerhofer, ‘Oil’s Well that Ends Well? Critical Comments on the Merits Judgement in the Oil Platforms Case’ (2004) 17 Leiden Journal of International Law 695; Raab, above n 71 at 721–23; and Laursen, above n 73 at 143–50.

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having earlier withdrawn its declaration on “compulsory” jurisdiction’.108 Political motivation on the part of Iran (and, indeed, the United States) aside,109 in terms of the actual judgment itself, von Carlowitz has further argued that the Court’s finding ‘practically constitutes an obiter dictum by which the Court expressed an argument that was not a ground for the decision’: The Court thus actively seized the opportunity to say something on the general international law on the use of force. Only this can explain why significant parts of the judgment deal with issues that were not strictly necessary for the outcome of the case from a technical legal perspective.110

It would seem difficult to avoid the conclusion that the Court was driven by policy (if not political) considerations, leading it to decide that— irrespective of the strict necessity of such an approach—it would be desirable to consider the international rules regulating self-defence. Thus, whilst entirely persuaded by the ‘technical reasons advanced in the Judgment’, Judge Simma approached the case expressly from ‘the viewpoint of legal policy and political relevance’.111 He therefore welcomed the fact ‘that the Court has taken the opportunity . . . to state its view on the legal limits on the use of force at a moment when these limits find themselves under the greatest stress’.112 Going further, and placing the approach of the Court squarely within the context of the concurrent political debate, he argued that: Everybody will be aware of the current crisis of the United Nations system of maintenance of peace and security, of which Articles 2(4) and 51 are cornerstones. We currently find ourselves at the outset of an extremely controversial debate on the further viability of the limits on unilateral military force established by the United Nations Charter. In this debate, ‘supplied’ with a case allowing it to do so, the Court ought to take every opportunity to secure that the voice of the law of the Charter rise above the current cacophony. After all, the International Court of Justice is not an isolated arbitral tribunal or some regional institution but the principal judicial organ of the United Nations. What we cannot but see outside the courtroom is that, more and more, legal justification of use of force within the system of the United Nations Charter is discarded even as a fig leaf, while an increasing number of writers appear to prepare for the outright funeral of international legal limitations on the use of force. If such voices are an indication of the direction in which legal-political discourse on use of force not authorized by the Charter might move, do we need more to realize 108

Kammerhofer, above n 107 at 717. Kammerhofer also suggested, ibid, that the US counter-claim ‘seems to have been a way of protesting against the whole case, rather than a serious claim, because the administration knew that the harder it argued for a narrow construction of Article X(1), the more likely was their counter-case to fail’. 110 See von Carlowitz, above n 71 at 82. 111 Oil Platforms case, above n 64, Separate Opinion of Judge Simma at para 3. 112 ibid at Introduction. 109

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that for the Court to speak up as clearly and comprehensively as possible on that issue is never more urgent than today?113

As Raab stated, then, ‘Overall, one is left with the impression that the approach of Judge Simma, and perhaps that of some of the other judges, was coloured to some degree by events more recent than those before the Court’;114 and not least because the case involved the United States—the very state largely held responsible for sparking the debate regarding uses of force outside the UN Charter framework.115 Several judges were not prepared to submit to this approach, and were instead fiercely critical of the Court’s consequent methods. Judge Higgins, for example, stated firmly and unequivocally that: ‘Invocations of the “original dispute” and “importance” of subject-matter cannot serve to transform a contingent defence into a subject-matter that is “desirable” to deal with in the text of the Judgment and in the dispositif.’116 Judge Kooijmans similarly believed it to be unprecedented in the history of both [the Permanent Court of International Justice and the ICJ] for a claim against a Respondent to be rejected while earlier in the same paragraph the Respondent is found to have acted unlawfully even though that finding is not—and is not said to be—determinative or even relevant for the dismissal of the claim. This novum can be seen as setting a precedent which in my view is a highly hazardous one since it raises questions about the scope of a judgment of the Court, eg, with regard to its res judicata character.117

Of course, international law (and thus, it could be argued by extension, the ICJ) does not operate in a political vacuum, and several commentators have contended that there was a pressing need to rein in any possible widening of the right to resort to force. In that respect, however, the judgment has also been criticised—this time as a missed opportunity, not going far enough in its criticism of the United States.118 Judges Simma and Elaraby were of the same view. Thus, Judge Simma perceived an element of ‘half-heartedness’ in the Court’s consideration of the use of force, and criticised the Court for not having the courage to re-confirm the principles of the UN Charter and customary law on the use of force ‘at a time when 113

ibid at para 6. Raab, above n 71 at 723. 115 Kammerhofer, above n 107 at 717. 116 Oil Platforms case, above n 64, Separate Opinion of Judge Higgins at para 23. See also the Separate Opinion of Judge Parra-Aranguren, who stated in para 14 that there were ‘strong considerations in favour of not’ addressing Art XX(1)(d) of the Treaty, ie, the arguments relating to self-defence. He believed instead that the Court should have considered breach of Art X first, and that, on finding there was no breach by the United States, ‘That is the end of the story’. Likewise, see the Separate Opinions of Judges Buergenthal and Owada. 117 Oil Platforms case, Separate Opinion of Judge Kooijmans, at para 3. See his detailed critique at paras 17–35. 118 See eg, Ochoa-Ruiz and Salamanca-Aguado, above n 71 at 515. 114

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such a reconfirmation is called for with the greatest urgency’.119 In failing to state unambiguously that the United States had violated Article 2(4) of the UN Charter by taking military action that was not of a ‘defensive nature’,120 the judgment was, then, ‘an exercise in inappropriate selfrestraint’.121 As far as Judge Elaraby was concerned, the principal question for the Court was whether it is legally acceptable that a State escape its international responsibility for the consequences of a deliberate attack by advancing: (a) a defence based on a clause in a commercial treaty; or, alternatively, by (b) invoking the right of self-defence under Article 51 in the absence of the conditions established by the United Nations Charter and customary international law . . .

Bearing in mind that the judgment had been drafted ‘at a time when the rule of law [was being] confronted with great challenges in various parts of the globe’, Judge Elaraby also found the language used by the Court to be ‘very restrained’, and a missed opportunity. He believed that the actions of the United States had actually represented armed reprisals, and that ‘The international community was entitled to expect that the ICJ, on an issue as important as the prohibition of the use of force, would seize the opportunity to clarify and enhance the prohibition’.122 Even Judge Kooijmans, in his otherwise critical assessment of the Court’s approach, stated (perhaps rather ambiguously) that: It is not my intention to criticize the Court for the fact that it decided to deal in depth with the lawfulness of the actions against the platforms under Article XX, paragraph 1(d). Nor do I seriously doubt the Court’s wisdom in taking up this issue first and considering only at a later stage the main issue of a violation of Article X, paragraph 1, although with hindsight it can be said that that would have been the more logical and, therefore, the more desirable approach. But pure logic does not always provide the most desirable solution.123

Be that as it may, and whilst it may have been ‘especially necessary in 2003 for a group of most highly respected international lawyers [to restate the orthodox view of the jus ad bellum], any lawyer worth her salt would balk . . . at their making this statement in a judgement’ that did not require such consideration.124 119

Oil Platforms case, Separate Opinion of Judge Simma para 6. ibid at para 16. 121 ibid at para 6. 122 Dissenting Opinion of Judge Elaraby at paras 1.1–1.2. 123 Separate Opinion of Judge Kooijmans at para 30. He had also stated, at para 62, that it was ‘hard to avoid the impression that in reality a punitive intent [on the part of the United States] prevailed’, clearly suggesting that, in his opinion, the US military action looked more like armed reprisals than self-defence. 124 Kammerhofer, above n 107 at 717–18. 120

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B. The Palestinian Wall Advisory Opinion In July 2004, the ICJ again had reason to examine the rules regulating the use of force in self-defence, this time in the context of Israel’s building of a wall, or ‘continuous security fence’,125 in the Occupied Palestinian Territory, including territory in and around East Jerusalem. Israel had claimed that the construction of a barrier was necessary to protect itself from repeated terrorist attacks being launched from the West Bank, and that it was accordingly ‘consistent with Article 51 of the Charter of the United Nations, its inherent right to self-defence and Security Council resolutions 1368 (2001) and 1373 (2001)’.126 In what has been described variously as being both ‘unsatisfactory’,127 and ‘the most disappointing aspect of the judgment’,128 the Court’s treatment of the issue was extremely brief, holding in the single paragraph of the Opinion devoted to the subject that: Article 51 of the [UN] 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. 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 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. Consequently, the Court concludes that Article 51 of the Charter has no relevance in this case.129

The members of the Court were not, however, completely united on this point. Thus, whilst not voting against the relevant section of the dispositif (on the grounds that non-forcible measures such as the construction of a wall do not really fall within the concept of self-defence, and that—even if they did—the necessity and proportionality of the wall, and in particular its route, had not been demonstrated), Judge Higgins, for example, did not agree with ‘all that the Court has to say on the question of the law of

125 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, ICJ Reports (2004) 3 at para 80. For further detail on the scope of construction, see paras 79–85. 126 ibid at para 138. 127 See SD Murphy, ‘Self-Defense and the Israeli Wall Advisory Opinion: An Ipse Dixit from the Court?’ (2005) 99 American Journal of International Law 62 at 62. 128 S Breau, ‘Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: Advisory Opinion, 9 July 2004’ (2005) 54 International and Comparative Law Quarterly 1003 at 1007. 129 Palestinian Wall Advisory Opinion, above n 125 at para 139.

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self-defence’.130 Referring to the Court’s treatment of Article 51, she argued that ‘nothing in the text of Article 51 . . . stipulates that self-defence is available only when an armed attack is made by a State. That qualification is rather a result of the Court so determining in [the Nicaragua case]’.131 It will be recalled that in Nicaragua the Court held that military action by irregular troops could only constitute an armed attack if the irregulars had been sent by or on behalf of the state and was of sufficient gravity to have been considered an armed attack had it been carried out by regular armed forces, according to the UN General Assembly’s Definition of Aggression.132 Judge Higgins was reluctantly prepared to accept that Nicaragua represented the current state of international law, but remained unconvinced by the wisdom of such a position. Judges Kooijmans and Buergenthal were equally reticent. Judge Kooijmans understood Security Council Resolutions 1368 and 1373 as recognising the right of states to take action in self-defence without requiring that the armed attack must have come from another state: The Security Council called acts of international terrorism, without any further qualification, a threat to international peace and security which authorizes it to act under Chapter VII of the Charter. And it actually did so in resolution 1373 without ascribing these acts of terrorism to a particular State. This is the completely new element in these resolutions. This new element is not excluded by the terms of Article 51 since this conditions the exercise of the inherent right of self-defence on a previous armed attack without saying that this armed attack must come from another State even if this has been the generally accepted interpretation for more than 50 years. The Court has regrettably by-passed this new element, the legal implications of which cannot as yet be assessed but which marks undeniably a new approach to the concept of self-defence.133

Judge Buergenthal also found the Court’s stated position to be ‘legally dubious’,134 and reiterated the argument that the right to self-defence in Article 51 of the UN Charter is neither limited to, nor dependent upon, armed attack by another state. He argued that Security Council Resolutions 1368 and 1373 not only characterised international terrorism as being a threat to international peace and security, but also reaffirmed the right to self-defence in that context. As he concluded:

130

Separate Opinion of Judge Higgins at para 33. ibid. See the relevant discussions in chs 1 and 2 above. 133 See Palestinian Wall Advisory Opinion, above n 125, Separate Opinion of Judge Kooijmans at para 35. On the basis that the armed attacks complained of by Israel had come from within territory under its control, and that they were accordingly not acts of international terrorism as contemplated by Resolutions 1368 and 1373, Judge Kooijmans did, however, agree with the Court’s opinion that Art 51 could not be invoked by Israel. See para 36 of his Separate Opinion. 134 ibid, Declaration of Judge Buergenthal at para 5. 131 132

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In neither of these resolutions did the Security Council limit their application to terrorist attacks by State actors only, nor was an assumption to that effect implicit in these resolutions. In fact, the contrary appears to have been the case.135

The Court’s pronouncement could, in fairness, be seen as ambiguous on this point. It does not, after all, say in explicit terms that the right of selfdefence can be invoked under Article 51 only in the event of an armed attack by another state.136 Nonetheless, Israel had made it abundantly clear that it considered its exercise of self-defence to relate to the activities of non-state actors, whilst some of the judges were clearly of the opinion that such an interpretation was what the Court had, in reality, intended. Thus, ‘Assuming that these views were made known to the Court in the course of the Court’s deliberations, as would normally be the case, the Court understood how its language was going to be interpreted and nevertheless chose to adopt that interpretation’.137 Since Operation Enduring Freedom in 2001 (if not earlier), the availability of self-defence against attacks by non-state actors had been a controversial question. As Christian Tams suggests, then, Israel’s claim to be acting in self-defence in this case ‘could have raised a host of intricate issues’.138 The Court opted instead to rely on a somewhat superficial reading of Article 51. Given the extent and significance of the debate on self-defence against non-state actors, the Court really ought to have discussed the issue in significantly more detail before boldly reasserting a traditionally restrictive position. In light of this, Tams has accordingly complained that, ‘As it stands, the majority’s reliance on the “state attack argument” remains a mere assertion’.139 There was, in fact, a much stronger ground on which to dispose of Israel’s self-defence claim; namely that self-defence was not available to 135 ibid at para 6. See also Wedgwood, above n 73 at 58, who argued that a reading of Art 51 allowing self-defence only against armed attack by another state would be ‘inconsistent with the language of Article 51, and the current state of international law’; I Scobbie, ‘Words My Mother Never Taught Me—“In Defense of the International Court”’ (2005) 99 American Journal of International Law 76 at 80–81. 136 See eg, Murphy, above n 127 at 63; Gray, above n 7 at 135. 137 See Murphy, above n 127 at 63. M Shaw, International Law, 6th edn (Cambridge, Cambridge University Press, 2008) at 1135 had asserted that the Court’s pronouncement ‘cannot be read to mean that self-defence does not exist with regard to an attack by a nonstate entity emanating from a territory outside of the control of the target state’; whilst Gray, above n 7 at 135, has maintained that the Court, in fact, ‘avoided any pronouncement on the possibility of self-defence against an armed attack by non-state actors’, going on to argue at 136 that this could still be ‘interpreted as leaving open the possibility . . . in situations like those contemplated in Security Council Resolutions 1368 and 1373 and as avoiding taking a position on the issue of principle’. Even then, she stated at 202 that the Court ‘clearly adopted a restrictive interpretation’ of those resolutions. 138 See CJ Tams, ‘Light Treatment of a Complex Problem: The Law of Self-Defence in the Wall Case’ (2006) 16 European Journal of International Law 963 at 973. 139 ibid. Murphy, above n 127 at 63, has likewise argued that ‘the Court apparently expects others to accept an important interpretation of the law and facts simply because the Court says it is so’.

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Israel since the use(s) of force to which it was responding had emanated from occupied territory. Even this contention, however, failed to persuade Judges Higgins and Buergenthal. Judge Higgins, for example, expressed her feelings in the following terms: 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 others to be applicable. This is formalism of an unevenhanded sort. The question is surely where responsibility lies for the sending of groups and persons who act against Israeli civilians and the cumulative severity of such action.140

As Iain Scobbie has pointed out, in making this argument Judge Higgins was guilty of conflating an occupying power’s right to protect its citizens with actions taken in self-defence.141 Leaving aside the thorny question of the extent to which Israel could be said to be exercising effective authority over territory from which it was being subjected to continual terrorist attacks,142 there is no doubt that it was entitled to take steps to protect its own civilians in the Occupied Territories from such attacks. Even so, ‘An elision between legitimate security concerns and self-defence . . . should be rejected, and the proper paradigm employed in Israel’s relationship with the Palestinian population of the Occupied Palestinian Territory . . . Public order should be maintained primarily by police action rather than resort to military force.’143 To put it another way, Israel’s right to take action aimed at preventing terrorist attacks was actually governed by those rules of international humanitarian law relating to belligerent occupation, and

140 See Palestinian Wall Advisory Opinion, above n 125, Separate Opinion of Judge Higgins at para 34. See also Declaration of Judge Buergenthal at para 5 where he argued that:

. . . 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 selfdefence against such attacks, provided the measures it takes are otherwise consistent with the legitimate exercise of that right. 141

Scobbie, above n 82 at 1128. As well as other questions such as why, on the facts, the threat faced by Israel had no international aspect, originating as it did wholly from within territory under its control. It could reasonably have been argued, after all, that the 11 September 2001 attacks had originated in the United States. See Murphy, above n 127 at 68–69. Murphy, in fact, offered a strong critique of the ICJ’s approach to, and use of, the relevant facts throughout. 143 Scobbie, above n 82 at 1131. The same author did, however, rather ambiguously also argue at 1130 that ‘to claim that the law designed to restrain the exercise of force does not apply when force is being exercised . . . surely cannot be correct’. See also Tams, above n 138 at 968–70. 142

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not by the jus ad bellum.144 As counsel for Palestine, Georges Abi-Saab, had noted during the oral pleadings, it would represent an ‘impermissible confusion’ to recognise a right of self-defence as existing alongside the lex specialis provisions of the jus in bello.145 Ultimately, the Court was probably correct to hold that the construction of the Wall was not justified in terms of self-defence. Nonetheless, that it chose to do so in a passage that is ‘startling in its brevity’,146 essentially providing confirmation of a restrictive notion of self-defence and Article 51 (particularly in the context of attacks by non-state actors), but with no detailed discussion demonstrating even a cursory engagement with the ongoing legal debate in this area, was as illustrative of its determination to reassert the traditional limits on the right of states to resort to force as it was disappointing. Indeed, Sean Murphy has cautioned that the upshot of the Court’s present jurisprudence appears to be that under the UN Charter, (1) a state may provide weapons, logistical support and safe haven to a terrorist group; (2) that group may then inflict violence of any level of gravity on another state, even with weapons of mass destruction; (3) the second state has no right to respond in self-defense against the first state because the first state’s provision of such assistance is not an ‘armed attack’ within the meaning of Article 51; and (4) the second state has no right to respond in self-defense against the terrorist group because its conduct cannot be imputed to the first state, absent a showing that the first state ‘sent’ the terrorist group on its mission. Such a legal construct, if intended, seems unlikely to endure.147

C. The Armed Activities Case In December 2005, the ICJ issued its most recent judgment containing a discussion of issues relating to the jus ad bellum—this time in the context of military action taken by Uganda against the Democratic Republic of Congo (DRC).148 Without providing a detailed background to this complex case, 144 In particular, Art 43 of the 1907 Hague Regulations, which provides that the occupying power ‘shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety’; and Art 64 of 1949 Geneva Convention IV, which outlines the occupying power’s right to ‘maintain the orderly government of the territory, and to ensure the security of the Occupying Power’. See also Shaw, above n 137 at 1135. The ‘Chatham House Principles of International Law on the Use of Force in Self-Defence’, above n 76 at 966, have since asserted that an armed attack is ‘an attack directed from outside territory controlled by the State’, as has the report by the Danish Institute for International Studies (PV Jakobsen and JE Rytter (eds)), New Threats and the Use of Force (Copenhagen, DIIS, 2005) at 85. 145 CR 2004/1, at 44. See also the discussion in I Canor, ‘When Jus ad Bellum Meets Jus in Bello: The Occupier’s Right of Self-Defence against Terrorism Stemming from Occupied Territories’ (2006) 19 Leiden Journal of International Law 129; and Scobbie, above n 135 at 81–84. 146 Murphy, above n 127 at 62. 147 ibid at 66. 148 See Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment of 19 December 2005 (Armed Activities case), www.icj-cij.org/ docket/files/116/10455.pdf.

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it suffices to note that, in the relevant parts, the DRC had asked the Court to declare Uganda responsible for a violation of the international rules prohibiting the use of force and aggression. Uganda claimed its actions against the DRC to have been a legitimate exercise of its right to selfdefence, arguing that this had been triggered by DRC support for the activities of the Allied Democratic Forces (ADF), a group of irregular forces allegedly responsible for a number of armed attacks against Uganda. It also made the alternative argument in its counter-claim that the DRC had been clearly unable to control the entirety of its territory, and thus to prevent the insurgent attacks upon Uganda.149 It will be apparent, then, that the Armed Activities case presented the Court with its first opportunity to discuss selfdefence squarely in the context of Article 51. It also provided the Court with an opportunity to revisit its Nicaragua judgment in light of any post9/11 developments, and to consider in particular the thorny question of self-defence against non-state actors. The Court chose not to. Instead, rigidly restating and applying its reasoning from the Nicaragua case, it accepted that numerous attacks had taken place, but found that Uganda had failed to prove the necessary involvement of the DRC in ADF activities: 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 . . .150

The circumstances required for Uganda to exercise its right of self-defence against the DRC were not, therefore, found to be present. Expressly seeking to avoid the issue, the judgment continued to state that: ‘Accordingly, the Court has no need to respond to the contentions of the Parties as to whether and under what conditions contemporary international law provides for a right of self-defence against large-scale attacks by irregular forces’.151 This seems more than a little contradictory—the Court had already decided in unambiguous terms that Uganda’s military action fell beyond the scope of 149 For a brief account of the background to the case and the myriad complex legal issues raised, see PN Okowa, ‘Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda)’ (2006) 55 International and Comparative Law Quarterly 742 at 742–46; J Kammerhofer, ‘The Armed Activities Case and Non-state Actors in Self-Defence Law’ (2007) 20 Leiden Journal of International Law 89 at 89-93. Kammerhofer, ibid at 92, doubted whether ‘anybody would be able to clarify such extraordinarily murky situations’. 150 Armed Activities case, above n 148 at para 146. In relation to Uganda’s first counterclaim, the Court also held that, throughout the relevant period, Zaire (the former incarnation of the DRC) had been unable to control the activities of rebel groups in the border region between the DRC and Uganda, but that the absence of action against anti-Ugandan rebels was not ‘tantamount to “tolerating” or “acquiescing” in their activities’—even if this lower standard were sufficient to trigger attribution, and hence constitute either unlawful intervention in or else an armed attack against Uganda. See Armed Activities case, at paras 300–301; Gray, above n 7 at 80. 151 Armed Activities case, above n 148 at para 147.

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self-defence under the Charter because the ADF attacks could not be attributed to the DRC, thus apparently answering the question in any case. In terms of the relevant arguments advanced by the parties, Uganda had submitted that armed attacks by armed bands whose existence is tolerated by the territorial sovereign generate legal responsibility and therefore constitute armed attacks for the purpose of Article 51. And thus, there is a separate, a super-added standard of responsibility, according to which a failure to control the activities of armed bands, creates a susceptibility to action in self-defence . . .152

Counsel for the DRC responded that: L’assimilation d’une simple tolérance du souverain territorial à l’égard de bandes armées présentes sur son territoire à un acte agression va clairement à l’encontre des principes les mieux établis dans le domaine. Cette position, qui consiste à abaisser considérablement le seuil requis pour que l’on puisse parler d’agression, ne peut évidemment trouver aucun appui dans l’arrêt Nicaragua.153

As Judge Kooijmans stated in his Separate Opinion, by drawing the conclusion that the ADF had not been sent by or on behalf of the DRC in the context of Article 3(g) of the UN General Assembly’s Definition of Aggression, the Court not only reinforced its Nicaragua judgment, it also implicitly rejected Uganda’s argument that the mere tolerance of armed groups by a state triggers a right of self-defence.154 Having said that, it must be remembered that the case centred on the issue of force used by Uganda against the DRC itself—hence the importance of attribution. Had Uganda’s use of force been limited to ADF targets within the DRC, the controversial question of self-defence against non-state actors within another state, rather than against (or also against) host state targets, would have required the Court’s attention.155 The Court has been criticised for its approach, and especially in light of the rather ambiguous statements contained in its Palestinian Wall Advisory Opinion. Stephen Mathias, for example, felt that further discussion by the 152 Counsel for Uganda (Professor Ian Brownlie), Armed Activities Oral Pleadings, CR 2005/7 at 30 para 80. 153 ‘To assimilate mere tolerance by the territorial sovereign of armed groups on its territory with an armed attack clearly runs counter to the most established principles in such matters. That position, which consists in considerably lowering the threshold required for the establishment of aggression, obviously finds no support in the Nicaragua Judgment’: Counsel for the DRC (Professor Pierre Klein), Armed Activities Oral Pleadings, CR 2005/12 at 26 para 6. 154 See Armed Activities case, above n 147, Separate Opinion of Judge Kooijmans at para 22. 155 KN Trapp, ‘Back to Basics: Necessity, Proportionality, and the Right of Self-Defence Against Non-State Terrorist Actors’ (2007) 56 International and Comparative Law Quarterly 141 at 142–45; Gray, above n 7 at 134. It is, of course, possible to argue that the use of force against non-state targets within a state still represents a violation of the host state’s territorial integrity, and must accordingly be considered a use of force against the state per se. See eg, Kammerhofer, above n 149 at 105.

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Court of the issue ‘would have been welcome’,156 whilst Phoebe Okowa saw the Court’s failure to adequately address the issue of self-defence against non-state actors as ‘a matter of profound regret’.157 A number of the members of the ICJ expressed similar disappointment. Thus, Judge Kooijmans lamented that the Court refrains from taking a position with regard to the question whether the threshold set out in the Nicaragua Judgment is still in conformity with contemporary international law in spite of the fact that the threshold has been subject to increasingly severe criticism ever since it was established in 1986. The Court thus has missed the chance to fine-tune the position it took 20 years ago in spite of the explicit invitation by one of the Parties to do so.158

Judge Simma agreed, arguing that: the Court should have taken the opportunity presented by the present case to clarify the state of the law on a highly controversial matter which is marked by great controversy and confusion—not the least because it was the Court itself that has substantially contributed to the confusion by its Nicaragua Judgment of two decades ago.159

He went on to suggest that a restrictive reading of Article 51 might well have reflected the state, or rather the prevailing interpretation, of the international law on self-defence for a long time. However, in the light of more recent developments not only in State practice but also with regard to accompanying opinio juris, it ought urgently to be reconsidered, also by the Court. As is well known, these developments were triggered by the terrorist attacks of September 11, in the wake of which claims that Article 51 also covers defensive measures against terrorist groups have been received far more favourably by the international community . . .160

The Court itself may have failed to engage in a detailed discussion of the subject, but both Judges Kooijmans and Simma were much less cautious. Thus, even accepting that the failure of a state to control the activities of armed bands on its territory ‘cannot in itself be attributed to the territorial 156 S Mathias, ‘The 2005 Judicial Activity of the International Court of Justice’ (2006) 100 American Journal of International Law 629 at 639–40. 157 Okowa, above n 149 at 752. 158 See Armed Activities case, above n 148, Separate Opinion of Judge Kooijmans at para 25. 159 Armed Activities case, above n 148, Separate Opinion of Judge Simma at para 8. 160 ibid at para 11. See also Dissenting Opinion of Judge Kateka at para 13, where it was said to be accepted that actions by irregulars could constitute an armed attack. In going on to quote Christine Gray’s assertion that controversy centres not on this assertion per se, but rather ‘on the degree of state involvement that is necessary to make the actions attributable to the state and to justify action in self-defence’, Judge Kateka, appointed ad hoc by Uganda, asserted that:

Given the controversy that still persists, I am of the view that the Court should have taken the opportunity to clarify the question of the use of force in self-defence. This is more so in view of the fact that irregular forces lie at the heart of the dispute between the Parties in this case.

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State as an unlawful act’,161 Judge Kooijmans felt that this did not necessarily mean that the victim state would be unable to resort to self-defence under Article 51. He saw the judgment as asking only whether Uganda could lawfully resort to force against the DRC, deciding that a lack of attribution meant that it could not: By doing so, the Court does not answer the question as to the kind of action a victim State is entitled to take if the armed operation by irregulars, ‘because of its scale and effects, would have been classified as an armed attack . . . had it been carried out by regular armed forces’ . . . but no involvement of the ‘host government’ can be proved.162

Judge Kooijmans felt that this unreasonably restricted the operation of Article 51 to situations where one state was attacked by another—an interpretation that he had clearly rejected in the Palestinian Wall Advisory Opinion. Relying once again on the references to self-defence in Security Council Resolutions 1368 and 1373, he continued: If the activities of armed bands present on a State’s territory cannot be attributed to that State, the victim State is not the object of an armed attack by it. But if the attacks by the irregulars would, because of their scale and effects, have had to be classified as an armed attack had they been carried out by regular armed forces, there is nothing in the language of Article 51 of the Charter that prevents the victim State from exercising its inherent right of self-defence.163

Judge Simma essentially agreed with the arguments as advanced by Judge Koijmans, submitting that, if armed attacks have been carried out by irregular forces from territory over which the government is unable to exercise authority, ‘these activities are still armed attacks even if they cannot be attributed to the territorial State, and, further, . . . it “would be unreasonable to deny the attacked State the right to self-defence merely because there is no attacker State and the Charter does not require so”’.164 Be that as it may, through a faithful application of Nicaragua, this is precisely what the Court did. Indeed, Kammerhofer has argued that Kooijmans and Simma were evidently displaying ‘a political motivation for a future change in the law, rather than reasoning to show how and by what means the law has changed’, and that ‘their individual opinions do not substantiate their alternative view’.165 161

Armed Activities case, above n 148, Separate Opinion of Judge Kooijmans at para 26. ibid. 163 ibid at para 29. He refused to accept, however, that Uganda’s use of force remained within the customary limits of self-defence (in particular as regards its lack of proportionality), and therefore accepted the Court’s conclusion that Uganda had violated Art 2(4) of the UN Charter. See paras 33–35. 164 See Armed Activities case, above n 148, Separate Opinion of Judge Simma at para 12. Simma went on, in paras 13–14, to agree with Judge Kooijmans—and the Court—that Uganda’s action went beyond the lawful limits of self-defence and represented a grave violation of Art 2(4). 165 Kammerhofer, above n 149 at 113. 162

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Finally, the Court again seemed to leave open the possibility that an accumulation of small-scale attacks could constitute an armed attack for the purposes of self-defence, stating in paragraph 146 of the judgment that ‘even if this series of deplorable attacks could be regarded as cumulative in character, they still remain non-attributable to the DRC’ (emphasis added).166 Nor did the Court take a clear position on the question of anticipatory self-defence. Whilst the issue had ‘permeated the justifications put forward by Uganda’,167 Uganda had maintained in its pleadings that its actions were taken in response to armed attacks that had already taken place. The Court apparently found this position dubious, noting in particular that Operation Safe Haven, the military activities complained of by the DRC, seemed to be largely preventive in nature, aimed at protecting Uganda’s ‘legitimate security interests’.168 Indeed, of the five objectives listed in the Ugandan High Command document, only one actually dealt with attacks that had previously occurred. The Court’s attitude might be seen by some as having indicated a narrow view of self-defence, precluding anticipatory or pre-emptive action. Nonetheless, despite being faced with Uganda’s clearly stated position, the Court opted not to comment on the broader issue.169

II. STATE PRACTICE

A. Israeli Military Operations in Lebanon and Syria Following the 11 September 2001 attacks on the United States, and the subsequent international efforts against terrorism, Israel has been particularly keen to claim the right to act in self-defence against non-state, terrorist actors—and, in particular, against Hezbollah and Islamic Jihad. Thus, Israel has made numerous claims to be acting in self-defence against Hezbollah in Lebanese territory. At the same time, however, it has been careful to assert that Hezbollah was not only being harboured by Lebanon 166

See Gray, above n 7 at 156. Okowa, above n 149 at 749. See Armed Activities case, above n 147 at para 109. The stated aims of Uganda had been: ‘1. To deny the Sudan opportunity to use the territory of the DRC to destabilize Uganda; 2. To enable UPDF neutralize Uganda dissident groups which have been receiving assistance from the Government of the DRC and the Sudan; 3. To ensure that the political and administrative vacuum, and instability caused by the fighting between the rebels and the Congolese Army and its allies do not adversely affect the security of Uganda; 4. To prevent the genocidal elements, namely, the Interahamwe, and ex-FAR, which have been launching attacks on the people of Uganda from the DRC, from continuing to do so; 5. To be in position to safeguard the territory integrity of Uganda against irresponsible threats of invasion from certain forces.’ 169 ibid at para 143. See also Okowa, above n 149 at 749; Gray, above n 7 at 133, 164 and 216. 167 168

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(and Syria), but that it was also receiving active support from those states (as well as from Iran).170 In its Letter to the UN Secretary-General of 11 April 2002,171 for example, Israel claimed that Hezbollah was responsible for continued attacks on Israel and, explicitly reserving its right to act in self-defence in accordance with the UN Charter, appealed to the international community and the Security Council to act immediately to bring pressure to bear on the Governments that support and encourage Hizbollah—specifically the Governments of Syria, Lebanon and Iran, without whose financial, political and logistical support, including the supply of weapons to Hizbollah gunmen, these attacks would not be possible. This is precisely the type of State support for terrorism that Security Council resolution 1373 (2001) is intended to prevent and which these Governments have clearly signalled their intention to continue in violation of that resolution.

Lebanon and Syria were accordingly held responsible for Hezbollah’s attacks by Israel,172 so that, as Christine Gray has indicated, Israel ‘did not expressly claim a right to act against non-state actors in the absence of territorial state involvement’;173 a position providing no real departure from the Nicaragua test. In October 2003, and following a terrorist attack in Haifa, Israel extended its military operations beyond Lebanon, launching an attack on Syrian territory.174 The alleged perpetrators of the terrorist attack had been Islamic Jihad, and Israel’s target was an Islamic Jihad terrorist base north west of Damascus. Israel accused Syria of complicity in the attack through the provision of ‘encouragement, safe harbour, training facilities and logistical support’ for the terrorists,175 and sought to place the debate squarely within the context of Security Council Resolution 1373 and measures against international terrorism. Indeed, it argued that ‘For Syria to ask for a Council debate [on the issue] is comparable only to the Taliban calling for such a debate’.176 At the same time, Israel was again careful to stress that its action had been aimed at the terrorist base rather than Syria itself, explicitly stating that its ‘measured defensive response to the 170

See Gray, above n 7 at 234–36. See Letter dated 10 April 2002 from the Chargé d’Affaires a.i. of the Permanent Mission of Israel to the United Nations addressed to the Secretary-General, UN Doc A/56/913-S/ 2002/374. 172 See eg, Letter dated 5 September 2002 from the Permanent Representative of Israel to the United Nations addressed to the Secretary-General, UN Doc A/56/1032-S/2002/986; Letter dated 27 January 2003 from the Permanent Representative of Israel to the United Nations addressed to the Secretary-General, UN Doc A/57/717-S/2003/96; Identical Letters dated 11 August 2003 from the Permanent Representative of Israel to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc A/57/857-S/2003/806. 173 Gray, above n 7 at 235. 174 See discussion in Trapp, above n 155 at 152–53; Gray, above n 7 at 236–37. 175 See Security Council Official Records, 4836th Meeting, 5 October 2003, UN Doc S/PV.4836 (2003) at 5–6. Iran was also implicated. 176 ibid. at 6. 171

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horrific suicide bombings against a terrorist training facility in Syria is a clear act of self-defence in accordance with Article 51 of the Charter’.177 Following complaints from both Syria and Lebanon that Israel’s military action represented an act of aggression,178 the Security Council did discuss the issue, with virtually all member states condemning the initial Haifa terrorist attack, but being equally critical of Israel’s response. Pakistan, for example, asserted that the Israeli attack had failed to meet the ‘strict requirements set out in the Charter with regard to the use of force’, and that, therefore, ‘in legal . . . terms it is clearly a violation of the Charter’.179 Spain, China, France, Bulgaria, Chile, Mexico and Cameroon all agreed that the Israeli attack was a violation of international law.180 The United Kingdom and Germany, choosing to make no express reference to international law per se, instead described Israel’s action as ‘unacceptable’.181 Only the United States seemed less prepared to criticise Israel, insisting that Syria was ‘on the wrong side in the war on terrorism’, and that it ought to ‘stop harbouring and supporting the groups that perpetrate terrorist acts such as the one that occurred in Haifa’.182 Little can be drawn from this in terms of the perceived legality of attacks on terrorists in third states, as most members of the Council chose to place the issue in the broader context of the Middle East peace process and any possible impact that Israel’s actions might have had on a sustainable solution and the ‘Road Map’. As might have been expected, no state provided a clear statement regarding the jus ad bellum issues. Cassese has contended that the episode seems to ‘confirm a decrease in international disapprobation of pre-emptive self-defence against terrorism’,183 although the precise basis for such an assertion in light of the almost universal condemnation of Israel’s action remains unclear. Israel took further action against Hezbollah in 2006, following an attack on Israeli forces from Lebanon, during which eight Israeli soldiers were killed and two abducted.184 Israel responded with massive force, explicitly invoking the right to act in self-defence against Hezbollah (that is, again limiting its right to action against the non-state actors, rather than against the state of Lebanon itself). In a letter to both the UN Secretary-General 177

ibid at 7. Letter dated 5 October 2003 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the President of the Security Council, UN Doc S/2003/939; Letter dated 5 October 2003 from the Permanent Representative of Lebanon to the United Nations addressed to the President of the Security Council, UN Doc S/2003/943. 179 Security Council Official Records, 4836th Meeting, above n 175 at 8. 180 ibid at 9–11 and 13. Mexico and Guinea characterised Israel’s response as an armed reprisal. 181 ibid at 9, 10. 182 ibid at at 14. 183 Cassese, above n 63 at 475. 184 See Trapp, above n 155 at 153–55; Gray, above n 7 at 237–44. 178

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and the President of the Security Council, Israel had characterised the attack as ‘a clear declaration of war’, and reserved ‘the right to act in accordance with Article 51 of the Charter of the United Nations and exercise its right of self-defence’.185 At the same time, Israel was, as usual, careful to assert that ‘Responsibility for this belligerent act of war lies with the Government of Lebanon, from whose territory these acts have been launched into Israel’.186 Clearly, then, Israel was still not arguing that selfdefence was possible against non-state actors absent the involvement (and responsibility) of the host state. The Israeli response met with significant (although not universal) criticism, primarily for its apparent lack of proportionality.187 Nonetheless, most members of the Security Council did seem to accept that Israel had the right to take defensive action in the circumstances. Argentina, for example, stated clearly that ‘Israel has the right to defend itself against foreign attack’,188 whilst the United Kingdom asserted that ‘Israel has every right to act in self-defence’.189 The Council also stressed that Lebanon had a responsibility to exercise effective control over its territory and thereby prevent further Hezbollah attacks on Israel, a combination which has been seen by some commentators as ‘a recognition that defensive force in foreign territory against non-State actors is sometimes necessary given the host 185 See Identical Letters dated 12 July 2006 from the Permanent Representative of Israel to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc A/60/937-S/2006/515. Lebanon denied that it was responsible for the attack, insisting that it had been unaware of the incident and did not endorse it. See Security Council Official Records, 5489th Meeting, 14 July 2006, UN Doc S/PV.5489 at 4. 186 ibid. Israel continued to assert that responsibility also lay with Iran and Syria, both of which ‘support[ed] and embrace[d] those who carried out this attack’. Nonetheless, Israel maintained that its response was concentrated carefully, ‘mainly on Hizbollah strongholds, positions and infrastructure’. See UN Doc S/PV.5489 at 6. 187 Russia saw Israel’s use of force as ‘disproportionate and inappropriate’ (UN Doc S/PV.5489 at 7). Argentina characterised it as ‘excessive’, and as a ‘collective punishment’ (ibid at 9). See also remarks by China, ibid at 11; Japan, ibid at 12; Congo, ibid at 13; Tanzania, ibid at 13; Peru, ibid at 14; Slovakia, ibid at 15; Greece, ibid at 17; France, ibid at 17; and Qatar, Security Council Official Records, 5493rd Meeting, 21 July 2006, UN Doc S/PV.5493, at 14. The United Kingdom did not expressly characterise the Israeli response as disproportionate, although it did caution (UN Doc S/PV.5489 at 12) that Israel must ‘exercise restraint and ensure that its actions are proportionate and measured, conform to international law and avoid civilian death and suffering. Disproportionate action will only escalate an already dangerous situation.’ A similar position was taken by Denmark, ibid at 15. The UN SecretaryGeneral condemned Israel’s response as ‘excessive’ (Security Council Official Records, 5492nd Meeting, 20 July 2006, UN Doc S/PV.5492 at 3), and as causing ‘death and suffering on a wholly unacceptable scale’ (Security Council Official Records, 5498th Meeting, 30 July 2006, UN Doc S/PV.5498 at 3). The United States made no comment regarding the proportionality or otherwise of the Israeli action. 188 UN Doc S/PV.5489 at 9. 189 ibid at 12. See also the statements by Peru, ibid at 14; Denmark, ibid at 15; Slovakia, ibid at 16, and UN Doc S/PV.5493 at 19; Greece, UN Doc S/PV.5489 at 17; France, ibid at 17; and the United States, UN Doc S/PV.5493 at 17. The Secretary-General also explicitly recognised the right of Israel to take defensive action under Art 51. See eg, UN Doc S/PV.5492 at 3; and UN Doc S/PV.5498 at 3.

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State’s failure . . . to prevent its territory from being used as a base for terrorist operation’.190

B. Russian Military Operations in Georgia In August 2002, Russia allegedly took military action on Georgian territory against Chechen rebels based in the Pankisi Gorge—an area over which the Georgian Government was apparently unable to exercise effective authority. Thus, on 4 August, Georgian border guards claimed that they had been the victims of bombardment by Russian fighter planes returning home from Chechnya, whilst on 23 August, and following what was claimed to be the fifth bombing raid on Georgia in a month, Georgia accused Russia of aggression.191 On both occasions, Russia denied responsibility for any attacks on Georgian territory, and so the alleged practice does not necessarily point to any perceived shift in international law. It must be noted, however, that the 23 August attacks had been independently verified by Organization for Security and Co-operation in Europe (OSCE) observers, and that Russia had also asserted that it might seek authorisation from the United Nations in order to carry out military strikes against Chechen rebels in the Pankisi Gorge.192 Both before and after the alleged air strikes, however, Russia had made a number of statements asserting its right to use force in self-defence against Chechen rebels in Georgia.193 In a letter to the UN SecretaryGeneral in July 2002, for example, Russia had complained that ‘armed attempts to penetrate the territory of the Russian Federation’ had been carried out by ‘Chechen fighters and international terrorists’ operating from bases in Georgia.194 On the basis that Georgia was either unable or unwilling to take the necessary steps to prevent such terrorist incursions into Russian territory, contrary to the obligations contained in Security Council Resolution 1373, Russia insisted that ‘responsibility for the consequences of the armed incursion by bands into the territory of the Russian Federation lies fully with the Georgian side’.195 Russia therefore stated that, unless the Georgian authorities were able to take suitable action, it reserved ‘the right to act in accordance with Article 51 of the Charter of the United Nations, which lays down every Member State’s 190

Trapp, above n 155 at 154–55. (2002) 48 Keesing’s Record of World Events at 44951–52. 192 ibid. 193 See Trapp, above n 155 at 153. 194 See Letter dated 31 July 2002 from the Chargé d’affaires a.i. of the Permanent Mission of the Russian Federation to the United Nations addressed to the Secretary-General, UN Doc A/57/ 269-S/2002/854. 195 ibid. 191

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inalienable right of individual or collective self-defence’.196 Clearly, then, the Russian Federation believed that the use of force in self-defence against non-state actors was possible in circumstances where their activities were tolerated, or else could not be prevented, by the host state. The United States, in particular, was apparently not prepared to accept these assertions regarding the right to self-defence on the part of Russia. Indeed, the US Department of State issued a statement in clear support of Georgia’s territorial integrity, and insisting that the United States would oppose any ‘unilateral military action by Russia inside Georgia’.197 Even accepting that Georgia had been unable to exercise control over the relevant territory, the United States loudly condemned the alleged Russian operations in Georgia, and contended that bombings had been carried out ‘under the guise of antiterrorist operations’.198 As Gray has argued, this certainly seems to provide clear evidence that the United States had been claiming a right for itself that it was not prepared to permit others to exercise in a similar way. She has gone on to contend, rather persuasively, that this ‘reluctance by the USA to acknowledge the right of another state to invoke self-defence against terrorism, even in a neighbouring state, and even where it may legitimately claim to have a strong case, seems to make it more difficult to claim that the events of 9/11 and the response have established a new customary rule’.199

C. Ethiopian Military Operations in Somalia In late 2006, Ethiopian forces were deployed in Somalia—apparently in an exercise of self-defence and as part of the ongoing ‘war against terror’.200 Indeed, although there was very little clarity regarding the precise legal 196 See Letter dated 11 September 2002 from the Permanent Representative of the Russian Federation to the United Nations addressed to the Secretary-General, UN Doc S/2002/1012; ‘Putin Warns of Self-Defence Strikes’, http://news.bbc.co.uk/1/hi/world/europe/ 2252056.stm, 11 September 2002. See also (2002) 48 Keesing’s Record of World Events 44998, outlining President Putin’s belief that, in addition to Chechen rebels, Georgia was harbouring individuals responsible for planning the 9/11 attacks on the United States, and his determination that, should Georgia fail to take concrete steps preventing further terrorist attacks on Russia, ‘Russia will take appropriate measures to counteract the terrorist threat, in strict accordance with international law’. 197 (2002) 48 Keesing’s Record of World Events 44998. 198 See Gray, above n 7 at 230–31; ‘US rebukes Russia over Bombing’, http://news.bbc.co.uk/1/hi/world/europe/2214995.stm, 25 August 2002; and ‘Georgia accuses Russia of “barbarism”’, http://news.bbc.co.uk/1/hi/world/europe/2218978.stm, 27 August 2002. Indeed, the United States had provided Georgia with substantial assistance in its efforts to exercise control over its territory and prevent further terrorist attacks. See (2002) 48 Keesing’s Record of World Events 44630, 44662, 44686, and 44810. 199 Gray, above n 7 at 231. 200 The situation in Somalia was extremely complex. See discussion in Gray, above n 7 at 244–52.

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basis for Ethiopia’s use of force, the Ethiopian Prime Minister had made an official statement asserting that it had ‘taken self-defensive measures and started counter-attacking the aggressive extremist forces of the Islamic Courts and foreign terrorist groups’.201 There was no suggestion that the Somali government was responsible for any armed attacks on Ethiopia. In fact, Ethiopia’s action seemed closer to protecting the interim Somali Government from internal opposition than to protecting Ethiopia itself, and it has been suggested that a stronger basis for the use of force would, in fact, have been ‘intervention at the invitation of the legitimate (though ineffective) government supported by the UN, in response to prior foreign intervention as set out in the UN reports’.202 The international community offered very little in terms of a response to the situation.203 Certainly, there was no detailed consideration of the lawfulness of Ethiopia’s action, or its claim to be acting in self-defence. The United States seemed to be in tacit support,204 but the United Nations took an entirely equivocal (or, perhaps more accurately, took no) position; neither the Security Council nor the Secretary-General offered any indication of whether they viewed Ethiopia’s use of force as coming within the Charter paradigm. The African Union initially appeared to accept Ethiopia’s right to act in self-defence, but swiftly altered its position to one calling for a ceasefire and the withdrawal of Ethiopian and other foreign armed forces.205 It has been argued by some commentators that the lack of any outright condemnation, either by members of the Security Council or from the rest of the international community, could in some way be interpreted as tacit, or implicit, approval of Ethiopia’s actions.206 On balance, however, the view whereby ‘the failure of the states involved adequately 201 Security Council Official Records, 5614th Meeting, 26 December 2006, UN Doc S/PV.5614 at 3. A similar position was taken in a letter to The Guardian by the Ethiopian Ambassador to the UK, Berhanu Kebede. See Gray, above n 7 at 248, referring to ‘Ethiopia Only Acted to Defend Itself’, The Guardian, 9 January 2007 at 29, where it had been stated that ‘Ethiopia went into Somalia for reasons of self-defence’. 202 Gray, above n 7 at 250–51. 203 ibid at 251–52. 204 ibid at 249; ZW Yihdego, ‘Ethiopia’s Military Action Against the Union of Islamic Courts and Others in Somalia: Some Legal Implications’ (2007) 56 International and Comparative Law Quarterly 666 at 672. See, however, M Plaut, ‘Ethiopia in Somalia: One Year On’, http://news.bbc.co.uk/1/hi/world/africa/7155868.stm, where it was stated that the United States had initially opposed the invasion, with US Assistant Secretary of State Jendayi Frazer insisting that, ‘We urged the Ethiopian military not to go into Somalia’. 205 Gray, above n 7 at 251. The initial, and more sympathetic, view had been expressed by P Mazimhaka, an AU Deputy Commissioner, on 26 December 2006. See X Rice, ‘Retreat fails to quell fears of long war in Horn of Africa’, The Guardian, 27 December 2006 at 25. Whether this was done in an official capacity remains unclear (see Gray, above n 7 at 248 fn 291), and the next day the more equivocal position was expressed in the Joint Communiqué: AU, League of Arab States and IGAD on the Current Situation in Somalia, 27 December 2006. See www.dgroups.org/groups/CoOL/docs/Somalia_AU-Joint_ Communique_271206.doc?ois=no. 206 Yihdego, above n 204 at 673.

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to explain their actions in legal terms and the reluctance of other states to enter into legal debate in the Security Council or elsewhere makes assessment difficult’207 seems much more accurate. III. A REAPPRAISAL

Adopted in 2006, the ‘Chatham House Principles of International Law on the Use of Force in Self-Defence’ confidently assert that: The right of States to defend themselves against ongoing attacks, even by private groups of non-state actors, is not generally questioned. . . . the right to use force in self-defence is an inherent right and is not dependent upon any prior breach of international law by the State in the territory of which defensive force is used. Thus, where a State is unable or unwilling to assert control over a terrorist organization located in its territory, the State which is a victim of the terrorist attacks would, as a last resort, be permitted to act in self-defence against the terrorist organization in the State in which it is located.208

This does not, of course, deal with the situation of a military response against state targets, rather than a more limited exercise of self-defence against the non-state actors themselves. Indeed, the Chatham House experts admitted that ‘What is questioned is the right to take action against the State that is the presumed source of such attacks, since it must be conceded that an attack against a non-state actor within a State will inevitably constitute the use of force on the territorial State’.209 Furthermore, the position espoused by the Chatham House Principles may seem rather difficult to reconcile with the current state of international law as enunciated by the ICJ, which time and time again has chosen to reiterate the Nicaragua principles. By choosing to consider selfdefence against non-state actors in the context of Article 3(g) of the UN General Assembly’s Definition of Aggression, the ICJ has indicated that the right is not confined to those situations where the conditions set out in either Article 8 or 11 of the Articles on State Responsibility are met. Instead, the possibility of lawful self-defence must also exist where a state has been substantially involved in the actions of non-state actors. The Court, however, has consistently taken an extremely narrow approach to the concept of substantial involvement and, whilst the Court’s position has regularly been attacked, any dissent has tended to focus on the precise extent of state involvement required in order for an armed attack to have occurred—not whether state involvement is required per se.210 207

Gray, above n 7 at 244. ‘The Chatham House Principles of International Law on the Use of Force in SelfDefence’, above n 76 at 970. 209 ibid. 210 T Ruys and S Verhoeven, ‘Attacks by Private Actors and the Right of Self-Defence’ (2005) 10 Journal of Conflict & Security Law 289 at 303. 208

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Following the attacks of 11 September 2001 and the subsequent military response, however, even this latter requirement has been questioned. Thus, when the ICJ apparently stated in the Palestinian Wall Advisory Opinion that an armed attack must be imputable to a state—certainly a higher threshold than that of ‘substantial involvement’—several commentators considered this ‘a remarkable statement’, inconsistent with both the Nicaragua case and state practice.211 Resolution 1368 had, after all, clearly implied that the 9/11 attacks triggered the right of self-defence even although, at the time of the resolution’s adoption, the Security Council was almost completely unaware of who was responsible.212 Of course, it may well be that a desire to limit, or at least to prevent any radical expansion of, the doctrine of self-defence was precisely the reason that the ICJ chose to frame its advisory opinion in these terms. Nonetheless, prior to the Armed Activities case, arguments that Operation Enduring Freedom had in some way altered customary international law, loosening the constraints on self-defence against non-state actors, were relatively common. Michael Schmitt, for example, had argued that: What is normatively significant is that [the] outpouring of support for Operation Enduring Freedom occurred in spite of the fact that the Taliban depended more on al Qaeda . . . than vice versa. No evidence of support even beginning to approach the Military and Paramilitary Activities level existed. State practice has unambiguously signaled a lower threshold above which the international community will characterize support of terrorism as an armed attack. What remains unclear is the precise level of support that meets the threshold.213

Ronli Sifris had similarly suggested that the rules relating to state responsibility for an armed attack had undergone a rapid change, and that: In the current world order, it seems that for a state to be held responsible for a terrorist attack, it is no longer necessary to show a level of active support for terrorist activities; passive support will suffice. Therefore, the “Bush theory”— 211

ibid at 304–305. See also Tams, above n 138 at 978. See relevant discussion in ch 2 above; N Rostow, ‘Before and After: The Changed UN Response to Terrorism since September 11th’ (2001) 35 Cornell International Law Journal 475 at 481. 213 MN Schmitt, ‘US Security Strategies: A Legal Assessment’ (2004) 27 Harvard Journal of Law and Public Policy 737 at 762. See also MN Schmitt ‘The Legality of Operation Iraqi Freedom under International Law’ (2004) Journal of Military Ethics 82 at 88, where he had argued that ‘the attack against the Taliban and the response thereto were . . . watershed events for the law surrounding lawful responses to State support of terrorism. Without any doubt, the degree of support necessary to constitute an armed attack has dropped precipitously’. In terms of the necessary level of support, Schmitt suggested in ‘The Sixteenth Waldemar A Solf Lecture in International Law: Bellum Americanum Revisited: US Security Strategy and the Jus ad Bellum’ (2003) 176 Military Law Review 364 at 400, that ‘Arguably, we now have an international jus ad bellum equivalent of criminal law’s doctrine of “accomplice liability” ’. Ruys and Verhoeven, above n 210 at 314–17, similarly suggest a threshold of ‘aiding and abetting’—a term with specific meaning in international criminal law. 212

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that the mere harbouring of terrorists is sufficient to render a state responsible for the activities if terrorists—is probably now supported by international law.214

Some scholars were even less circumspect in their assertions. Olivier Corten, for example, referring to the dominant role played in the development of customary law by the practice of major states, argued that custom is capable of extremely rapid change and that the military action taken against Afghanistan ‘immediately rendered obsolete the conception according to which a military action against another state could be launched only if it could be demonstrated that it had participated in a substantial manner in an armed attack’.215 It is certainly true that state practice now tends towards accepting the possibility of self-defence absent the attribution (in terms of state responsibility) of the conduct of non-state actors to the host state itself. A strict requirement to demonstrate imputability would, after all, severely limit the ability of target states to take defensive action. Nonetheless, state practice also tends to demonstrate that a certain level of support and involvement on the part of a state is required—and consistently asserted.216 The better view, then, would seem to be that the question of state responsibility, in the sense of attribution of the armed attack to a state, is relevant to the question of against whom defensive action may lawfully be 214 R Sifris, ‘Operation Iraqi Freedom: United States v Iraq—The Legality of the War’ (2003) 4 Melbourne Journal of International Law 521 at 534. There are numerous other instances. See eg, D Hovell, ‘Chinks in the Armour: International Law, Terrorism and the Use of Force’ (2004) 27 University of New South Wales Law Journal 398 at 414, where it was asserted that:

Support for the war against Afghanistan, coupled with heightened concern about terrorism worldwide, leads to the conclusion that a modification of customary international law can be said to have occurred. Support for the legality of the action against Afghanistan was demonstrated by a wide number of states. Only a limited number of states expressed their opposition, or reservations, to the use of force in these circumstances. This is a clear example of international law developing in response to contemporary threats to international society, to the point where necessary and proportionate force may legitimately be used in self-defence against a state which knowingly harbours terrorist groups following a terrorist attack of the scale of an armed attack. Christian Henderson in ‘The Bush Doctrine: From Theory to Practice’ (2004) 9 Journal of Conflict and Security Law 3 at 5, similarly contended that ‘customary law appears to have been modified in that the right of self-defence now includes military responses against states which actively support or willingly harbour terrorist groups who have carried out an “armed attack” against the responding state and who have planned more for the future’ (emphasis added). Ruys and Verhoeven, above n 210 at 319, likewise suggested that ‘shifts in state practice, security doctrines and legal literature seem to support a loosening of the conditions’ for self-defence against non-state actors, whilst cautioning that ‘The exact nature of these conditions nevertheless continue to be governed by a great amount of uncertainty’. See also J Gardam, Necessity, Proportionality and the Use of Force by States (Cambridge, Cambridge University Press, 2004) at 145. 215 O Corten, ‘The Controversies over the Customary Prohibition on the Use of Force: A Methodological Debate’ (2006) 16 European Journal of International Law 803 at 810. 216 See Ruys and Verhoeven, above n 210 at 313–14.

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taken, rather than the question of whether an armed attack has been carried out against the victim state.217 In that respect, the relationship between Al-Qaeda and the Taliban was entirely novel in the context of an international legal system predicated on the superiority of states, and the presumed subordination of non-state actors to the host state. Never before had the situation arisen in which the government of a state had apparently been inferior to, or dependent upon, a terrorist organisation within its territory. The 11 September 2001 attacks were therefore difficult—if not impossible—to assess within the prevailing rules regarding state involvement and control. In light of this, and given that Article 51 does not expressly rule out self-defence against attacks by non-state actors, combined with the apparent acceptance of such action in Resolutions 1368 and 1373, it was not surprising—indeed, perhaps it was absolutely essential—that the international community should be prepared to lower, or even abandon, the threshold of state control in cases where the scale of a terrorist attack rose to such heights.218 Ruys and Verhoeven framed the inherent difficulty in the following terms: The dilemma is clear. On the one hand, it can not be accepted that states must simply undergo private attacks without having the right to defend themselves by using force against the home bases of these groups and their accomplices. It cannot be the Charter’s intention that the authors and architects of state-sponsored terrorism should evade all deterrence and prospect of punishment if the fiction is that states are not involved and only their agents are deemed responsible for the terrorism. On the other hand state sovereignty is and remains one of the basic pillars of international law and order and should not be lightly violated.219

Article 51 of the UN Charter may well have been drafted in the context, and with the intention, of dealing with armed attacks carried out by one state on another, as reflected in the Nicaragua case, but the international order has moved on somewhat from this state-centric approach to international law. One of the most important developments has undoubtedly been the emergence of non-state actors, not necessarily controlled by any one state, capable of launching large-scale attacks abroad. Indeed, perhaps the main impact of 9/11 is that it clearly demonstrated the difficulties involved in maintaining such a state-centric view of international society, and of international law. If the concept of self-defence is to retain any modern value, states must be permitted to defend themselves against such attacks. Thus, Vaughan Lowe has suggested that the position ‘cannot be seriously doubted. Self-defence is an inherent right; and the right exists whenever one is attacked, whether by a State army or by an 217 See eg, JN Maogoto, ‘War on the Enemy: Self-Defence and State-Sponsored Terrorism’ (2003) 4 Melbourne Journal of International Law 406 at 431. 218 See eg, AC Müller, ‘Legal Issues Arising from the Armed Conflict in Afghanistan’ (2004) 4 Non-State Actors and International Law 239 at 246–52. 219 Ruys and Verhoeven, above n 210 at 310.

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individual terrorist.’220 To argue that states are, instead, condemned to suffer simply because state control over, or substantial involvement in, the activities of terrorist organisations cannot be demonstrated adequately seems both unrealistic and unfair. It certainly ‘lacks correspondence with the realities of international politics and, more importantly, cannot explain states’ overwhelming approval of the US action in Afghanistan’.221 The latest edition of the Commentary on the Charter of the United Nations therefore takes the view that the position as consistently advocated by the ICJ is ‘much too sweeping’: Otherwise, it would lead to the result that States were not sufficiently protected by Art. 51 of the Charter against force committed by other States in an indirect manner, thus eroding the very purpose of this rule. If, for example, a State knows that a private group is willing to commit acts of military force against another State and places its territory at the disposal of this group to train its members and to offer them a safe haven after they have committed these acts and additionally provides them with weapons and logistical support, it is hardly to be understood why this should be a lesser participation in the acts of the group than the mere sending of it. It is not adequate to exclude generally certain types of supporting terrorism from being qualified as ‘substantial involvement’ and consequently ‘armed attack’. Decisive is, to what extent State support has enabled private groups to commit acts of military force which, committed by a State, have to be qualified as ‘armed attack’.222

Both common sense and realpolitik dictate that military action against non-state actors in a situation where the host state is either unable or unwilling to take preventive action may well be necessary, in that there is no reasonable or effective alternative to the use of force. Indeed, it may even be the case that the inability or unwillingness of a host state to take effective measures against non-state actors operating from within its territory is now seen as tantamount to the level of involvement required to render military action against the non-state actors lawful.223 According to such a position, there is no debate as to legality of the military action against Al-Qaeda. Whether military action against the host state itself would be necessary in such circumstances is, however, another question. 220 See V Lowe, International Law (Oxford, Oxford University Press, 2007) at 278. He illustrates the point by continuing to contend that ‘No-one doubts that in September 2001 the United States would have been entitled to shoot down the aircraft flying towards the World Trade Centre, if that was the only way of stopping the suicidal terrorist attacks.’ 221 See G Simpson, Great Powers and Outlaw States (Cambridge, Cambridge University Press, 2004) at 334. 222 See A Randelzhofer, ‘Article 51’ in B Simma (ed), The Charter of the United Nations: A Commentary, Vol 1, 2nd edn (Oxford, Oxford University Press, 2002) 788 at 801. 223 Müllerson, above n 1 at 180, had also argued that ‘The necessity to use military force in self-defence against terrorist attacks shows that the dividing line drawn, for example, by the International Court of Justice in the Nicaragua case between armed attacks and “less grave forms” of use of force, is not any more, if it ever was, tenable.’ See also Y Dinstein, War, Aggression and Self-Defence, 4th edn (Cambridge, Cambridge University Press, 2005) at 193–96, and 219.

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After all, in the absence of effective control or substantial involvement, the host state itself has not committed an armed attack on the victim state. In failing to prevent or address the activities of non-state actors on its own territory—and ultimately an armed attack on the victim state, the host state is certainly responsible for a violation of its customary law duty to protect foreign states from acts involving the use of force as outlined in UN General Assembly Resolution 2625. It is not, however, responsible for an armed attack and, accordingly, it cannot be the lawful target of military action taken in self-defence—unless it actively resists measures taken against the non-state actors based in its territory.224 Even where that is not the case, however, and despite the recent rise to prominence of non-state actors, the world remains divided up into states. All non-state actors are therefore based in some state or other, and apparently lawful military action against such groups will impact upon the territorial integrity of the state in which they are based—a prima facie breach of international law. Such wrongfulness can be precluded. As Rein Müllerson has noted, and reflecting Article 25 of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts: If a state in the territory and from the territory of which terrorists operate is unable to put an end to their activities, but the state itself is not supporting or condoning such activities, military responses of other states in the territory of that state without its consent may be justified as a state of necessity.225

This seems an entirely sensible position, and yet cannot provide an answer to the difficulties inherent in the military response to 9/11 in terms of its extension beyond Al-Qaeda to include the Taliban. Does, then, Operation Enduring Freedom represented a turning point for the jus ad bellum as far as the need for imputability of an armed attack to a state is concerned? Writing before subsequent ICJ decisions relating to the question of self-defence, Carsten Stahn had argued that Operation Enduring Freedom ‘clearly revealed that the law of self-defence cannot stand still at the level of Nicaragua. The “effective control” test, developed by the ICJ in 1986, provides a useful tool to deal with the traditional cases of state-sponsored terrorism. But it does not adequately address new forms of terrorism, emerging from largely independent private actors.’226 He therefore suggested that the military action taken in Afghanistan could either be justified according to the ‘effective control’ test—a position that seems difficult to support in light of the facts—or, alternatively, ‘a step towards the establishment of a right to self-defence against states harbouring terrorists’.227 224

See eg, Müllerson, above n 1 at 174. ibid. See also Trapp, above n 155 at 146–47. C Stahn, ‘International Law at a Crossroads? The Impact of September 11’ (2002) Zeitschrift fır ausländisches öffentliches Recht und Völkerrecht 183 at 226–27. 227 ibid at 227. He did suggest, however, at 227–28, that it would be wise for one to be cautious in accepting the latter too early. 225 226

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This would seem to require a departure from the jus ad bellum as outlined by the ICJ. Both of its contentious cases concerning the exercise of self-defence against non-state actors (that is, the Nicaragua case and the Armed Activities case) concerned military action directed not only—or indeed, not even—against the non-state actors themselves. Rather, defensive force had been aimed ‘equally (if not exclusively) . . . at the State from whose territory the non-State actors operated’.228 As Kimberley Trapp has indicated: It seems far less incredible that the Court required the armed attacks mounted by non-State actors be attributable to the State in whose territory defensive force was being used when one considers that the territorial State was itself the subject of defensive measures.229

Thus, more recent jurisprudence has concerned action against government targets rather than non-state actors, whereas most subsequent invocations of the right of self-defence in response to terrorist attacks have asserted the right only as against the non-state actors themselves, whilst also attempting to illustrate the support or involvement of the host state. In light of this, it seems fair to say that, although recent developments may well serve to underline the availability of self-defence against non-state actors responsible for an armed attack where the state from whose territory the attack is launched is either unable or unwilling to take the necessary preventive measures, they probably do not support the development of a general rule permitting self-defence against a host state harbouring terrorists, but not involved in their activities to a greater extent. To that end, Operation Enduring Freedom ‘remains the only case in which the international community accepted a State’s right to use force in self-defence against both non-State terrorist actors and the State from whose territory such terrorist actors operated’.230 Two things seem particularly important in assessing the response to 9/11, and its possible impact on the jus ad bellum: the nature of the terrorist attacks and the character of the states involved. In light of these factors, the broad international acceptance of Operation Enduring Freedom can probably best be seen as having represented an ad hoc consensus arising out of the particular circumstances—a phenomenon that Steven Ratner has called the ‘Eiffel Tower Factor’. Referring to the nature of the attacks, he asserted that: It is simply unimaginable that France, Russia, China, or India, each of which spars with the United States on numerous foreign policy issues, would have responded otherwise had Al-Qaeda crashed planes into the Eiffel Tower, the 228 229 230

Trapp, above n 155 at 142. ibid. ibid at 152.

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Kremlin, the Forbidden City, or the Taj Mahal. In such a situation, the view of state responsibility proffered by the ICJ, the ICTY, and the ILC—and by many international lawyers—becomes, in effect, instantly anachronistic as a limitation on self-defense. Indeed, the Eiffel Tower phenomenon might well discount the effect of law completely. States reacted as they did on the basis of emotion and empathy.231

In terms of the character of the states involved, attention must be paid to what, in some ways, is the special status of both Afghanistan and the United States. It is difficult to refute the idea that the attitude of the international community towards the Taliban regime in Afghanistan made Operation Enduring Freedom acceptable, and even desirable.232 After all, unless this is true, as Gerry Simpson has indicated, ‘The illegality thesis . . . has a difficult job explaining why, if the US action in Afghanistan was so obviously unlawful, the vast majority of states supported it.’233 He provides an extremely convincing answer through the assertion that ‘outlaw status made [Afghanistan] particularly susceptible to armed attack by a coalition acting in the name of the international community. Certain states, pre-designated as outlaws, lack the immunities available to other states in warding off the possibility of armed intervention.’234 This would seem to require an abandonment of one of the fundamental tenets of the international legal system—the doctrine of sovereign equality. Simpson suggests, however, that this is nothing new, in that international law has always known ‘outlaw states’ (such as Afghanistan) as well as ‘Great Powers’ (such as the United States), and that both are subject to a slightly different set of normative restraints. Accordingly, ‘The right to selfdefence must now be understood as a norm that applies unequally . . . [whereby] the United States’ right to use force in self-defence is wider and more inflated than that of [say,] India’s [or, indeed, Afghanistan’s or 231 SR Ratner, ‘Jus ad Bellum and Jus in Bello After September 11’ (2002) 96 American Journal of International Law 905 at 919. He accepted that there are, however, limits to its operation, in that the phenomenon would not similarly excuse violations of the jus in bello. 232 MN Schmitt, ‘Counter-Terrorism and the Use of Force in International Law’, in FL Borch and PS Wilson (eds) International Law and the War on Terror, International Law Studies Volume 79 (Newport, Naval War College, 2003) 7 at 69. The Taliban regime had, after all, been recognised as the de jure government of Afghanistan by only three states: Saudi Arabia, the United Arab Emirates and Pakistan. Stahn, above n 226 at 228, concurred that:

. . . the broad international support for the military action against Afghanistan has been the result of particular circumstances, such as the continuous and grave breach of previous Chapter VII resolutions by the Taliban regime and the close links between the Taliban and Al Qaeda. These unusual circumstances distinguish the case of Afghanistan from most other counter-terror operations and make it difficult to view the widespread support for Operation “Enduring Freedom” as a general approval of the theory that a state is free to use unilateral force against another state, which fails to prevent terrorist activities emanating from its territory. 233 234

Simpson, above n 221 at 335. ibid at 340. See the broader discussion of this issue,ibid at 339–48.

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Iraq’s]’.235 Some commentators have therefore suggested that events in recent years represent a return to an imperial international order; a concrete demonstration of traditional (or perhaps, rather, historic) notions of the civilising nature of international law whereby powerful, law-abiding states are effectively free to take forcible action against non-democratic, ‘rogue’ states in order to transform the latter and improve international security.236 Thus, Michael Schmitt has also argued that ‘relevant factors in assessing the lawfulness of a response against a state sponsor [of terrorism] include . . . the extent to which the state is perceived as generally lawabiding and legitimate or not; . . . and the severity of the acts committed by the terrorist group with which the state has chosen to associate itself’.237 Simpson has argued, then, that any expanded notion of self-defence might be seen as an aspect of legalised hegemony rather than as a ‘generalisable rule of conduct in international relations’.238 Whilst Antonio Cassese suggested that there had been the birth of customary law whereby, almost overnight, states came to ‘assimilate a terrorist attack by a terrorist organization to an armed aggression by a state, entitling the victim state to resort to individual self-defence’,239 Simpson preferred to argue that what states have, in fact, assimilated is ‘a modified version of legalised hegemony and not a universalisable norm of self-defence’.240 Again, however, it is likely that these developments were influenced by the particular circumstances of the 11 September 2001 attacks. Despite the evident distaste felt for Saddam Hussein’s regime, international support for action against Iraq was far less widespread. Whether any broad acceptance of a civilising mission for international law existed even by 2003 therefore seems doubtful, and ‘The suspicion remains that this “instant custom” will dissolve as quickly as it appeared when an expansive right to self-defence is claimed by, say, India or Indonesia.’241 This applies to the doctrine of pre-emptive self-defence just as much as it applies to the use of force in self-defence against terrorists and those states harbouring them— it will be recalled that the United Kingdom had warned against justifying 235

ibid at 337. See eg, A Anghie, ‘The War on Terror and Iraq in Historical Perspective’ (2005) 43 Osgoode Hall Law Journal 45. It is interesting to note that George W Bush had characterised the ‘global war on terrorism’ in such terms. See ‘Address Before a Joint Session of the Congress on the United States Response to the Terrorist Attacks of September 11’, 20 September 2001, 37 Weekly Compilation of Presidential Documents 1347 at 1349. where he stated that ‘This is not . . . just America’s fight. And what is at stake is not just America’s freedom. This is the world’s fight. This is civilization’s fight. This is the fight of all those who believe in progress and pluralism, tolerance and freedom.’ 237 Schmitt, above n 232 at 69–70. He has argued elsewhere that ‘The fact that the Taliban were internationally ostracized made striking them even more palatable.’ See Schmitt, ‘The Legality of Operation Iraqi Freedom under International Law’, above n 213 at 88. 238 Simpson, above n 221 at 336. 239 Cassese, above n 55 at 996–97. 240 Simpson, above n 221 at 338. See his broader discussion of the issue, ibid at 331–39. 241 ibid at 335–36. 236

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military action against Iraq on the basis of an expanded doctrine of preemptive self-defence, highlighting the ‘serious risk that this will be taken as legitimising the aggressive use of force by other, less law-abiding states’.242 Similarly, it has been convincingly argued that, ‘A broad definition of “armed attack”, including occasions where states are simply harbouring terrorists, would too readily justify the robust use of military force [and] . . . set dangerous precedents’.243 It may therefore be dangerous, or premature, to conclude that any enduring change in international law has occurred. Future state practice will reveal more, and the limits of jus ad bellum may yet face sterner examinations. As Ratner recalled, ‘Concern for precedent does affect governmental attitudes about some aspects of jus ad bellum . . . [but] it did not exert much pull on the United States with respect to [Afghanistan]’.244 To this could be added, ‘. . . or Iraq’. Contrary to some suggestions, the UN Charter paradigm regulating the use of force is not dead.245 As the ICJ stated clearly in the Nicaragua case, even repeated acts in apparent ‘violation’ of Article 2(4) do not signal the demise of that particular provision, in that the opinio juris of states has consistently pointed to the continuing acceptance and validity of the law.246 That seems to hold as true today as it did in 1986. As Simpson has asserted, however, ‘while the classic or traditional norms of collective security and self-defence will continue to operate on the plane of sovereign equality, the unequal sovereignty regime will predominate wherever there are either Great Powers or outlaw states involved’.247 His analysis serves to remind— indeed, to caution—us that, irrespective of how strictly the limitations imposed by the jus ad bellum may be applied, international law is ultimately unable to prevent powerful states from using force where they perceive it to be necessary, and are determined to do so. It was ever thus. 242 UK Select Committee on Foreign Affairs, Second Report: Foreign Policy Aspects of the War Against Terrorism, 17 December 2002, www.publications.parliament.uk/pa/cm200203/ cmselect/cmfaff/196/19603.htm at para 154. 243 See Maogoto, above n 217 at 438. The present author sees ‘harbouring’ as something more active, implying a measure of support, or tolerance, of the terrorists’ activities, and would prefer to frame the warning in terms of permitting a defensive response where, despite the best efforts of a ‘host state’, terrorists are present in, and able to operate from, its territory. As Christopher Greenwood has warned, ‘we do not want to give credence to a theory that as soon as any state has a group of terrorists which have operated from its territory, it exposes itself to armed attack. That very broad brush approach opens up the most horrific possibilities because at some time or other virtually every state however hard it tried otherwise, had ended up with terrorists operating from its territory’. See ‘Panel I Discussion—Jus ad Bellum’, in FL Borch and PS Wilson (eds) International Law and the War on Terror, International Law Studies Volume 79 (Newport, Naval War College, 2003) at 145. 244 Ratner, above n 231 at 917. 245 See eg, AC Arend, ‘International Law and the Preemptive Use of Military Force’ (2003) 26 The Washington Quarterly 89 at 101. 246 Nicaragua case, above n 72, at paras 186–88. 247 Simpson, above n 221 at 350–51.

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Select Bibliography MONOGRAPHS AND EDITED COLLECTIONS Arend, AC and Beck, RJ, International Law and the Use of Force (New York, Routledge, 1993). Bowett, DW, Self-Defence in International Law (Manchester, Manchester University Press, 1958). Brierly, JL, The Law of Nations, 6th edn (Humphrey Waldock (ed)) (Oxford, Oxford University Press, 1963). Brownlie, I, International Law and the Use of Force by States (Oxford, Oxford University Press, 1963). Byers, Michael (ed.), The Role of Law in International Politics (Oxford University Press, Oxford, 2000). Cassese, A, International Law (Oxford, Oxford University Press, 2001). —— International Law, 2nd edn (Oxford, Oxford University Press, 2005). Cornish, P, The Conflict in Iraq 2003 (London, Palgrave MacMillan, 2004). de la Billiere, P, Storm Command (London, Harper Collins, 1995). Dinstein, Y, War, Aggression and Self-Defence, 3rd edn (Cambridge, Cambridge University Press, 2001). —— War, Aggression and Self-Defence, 4th edn (Cambridge, Cambridge University Press, 2005). Duffy, H, The ‘War on Terror’ and the International Legal Framework (Cambridge, Cambridge University Press, 2005). Evans, Malcolm D. (ed.), International Law, 2nd edition (Oxford University Press, Oxford, 2006). Franck, TM, Recourse to Force. State Action Against Threats and Armed Attacks (Cambridge, Cambridge University Press, 2002). Gardam, J, Necessity, Proportionality and the Use of Force (Cambridge, Cambridge University Press, 2004). Gray, C, International Law and the Use of Force (Oxford, Oxford University Press, 2000). —— International Law and the Use of Force, 2nd edn (Oxford, Oxford University Press, 2004). —— International Law and the Use of Force, 3rd edn (Oxford, Oxford University Press, 2008). Green, LC, The Contemporary Law of Armed Conflict, 3rd edn (Manchester, Manchester University Press, 2008). Higgins, R, The Development of International Law Through the Political Organs of the United Nations (Oxford, Oxford University Press, 1963). —— Problems and Process: International Law and How We Use It (Oxford, Oxford University Press, 1994).

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Jennings, R and Watts, A, Oppenheim’s International Law, Vol 1: Peace, 9th edn (London, Longman, 1996). Joyner, Christopher C. (ed.), The United Nations and International Law (Cambridge University Press, Cambridge, 1997). —— International Law in the 21st Century (Lanham, Rowman and Littlefield, 2005). Kelsen, H, The Law of the United Nations (London, Stevens and Sons, 1951). Lowe, V, International Law (Oxford, Oxford University Press, 2007). Malone, D, The International Struggle Over Iraq: Politics in the UN Security Council 1980–2005 (Oxford, Oxford University Press, 2007). Maogoto, JN, Battling Terrorism: Legal Perspectives on the Use of Force and the War on Terror (Aldershot, Ashgate, 2005). McCoubrey, H and White, ND, International Law and Armed Conflict (Aldershot, Ashgate, 1992). McDougal, MS and Feliciano, FP, Law and Minimum World Public Order (New Haven, CT, Yale University Press, 1961). McGoldrick, D, From ‘9–11’ to the Iraq War 2003: International Law in an Age of Complexity (Oxford, Hart Publishing, 2004). McWhinney, E, The September 11 Terrorist Attacks and the Invasion of Iraq in Contemporary International Law (Leiden, Martinus Nijhoff, 2004). Moir, L, The Law of Internal Armed Conflict (Cambridge, Cambridge University Press, 2002). Murphy, SD, Humanitarian Intervention: The United Nations in an Evolving World Order (Philadelphia, PA, University of Pennsylvania Press, 1996). Neff, SC, War and the Law of Nations: A General History (Cambridge, Cambridge University Press, 2005). Nincic, D, The Problem of Sovereignty in the Charter and in the Practice of the United Nations (The Hague, Martinus Nijhoff, 1970). O’Brien, WV, The Conduct of Just and Limited War (New York, Praeger, 1981). O’Connell, DP, International Law, 2nd edn (London, Stevens and Sons, 1975). Powell, C, A Soldier’s Way (London, Hutchinson, 1995). Roberts, A & Guelff, R (eds.), Documents on the Laws of War, 3rd edn (Oxford, Oxford University Press, 2000). Rogers, P, Iraq and the War on Terror: Oxford Research Group International Security Report 2004 (Oxford, Oxford Research Group, 2005). Sands, P, Lawless World (London, Penguin, 2005). Sarooshi, D, The United Nations and the Development of Collective Security (Oxford, Oxford University Press, 1999). Schmitt, Michael N & Beruto, Gian Luca (eds.), Terrorism and International Law: Challenges and Responses (International Institute of Humanitarian Law, San Remo, 2003). Shaw, M, International Law, 4th edn (Cambridge, Cambridge University Press, 1997). —— International Law, 6th edn (Cambridge, Cambridge University Press, 2008). Shiner, Phil and Williams, Andrew (eds), The Iraq War and International Law (Hart Publishing, Oxford, 2008). Simma, Bruno (ed), The Charter of the United Nations: A Commentary, 2nd edition (Oxford University Press, Oxford, 2002). Simpson, G, Great Powers and Outlaw States (Cambridge, Cambridge University Press, 2004).

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Articles, etc

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Stone, J, Aggression and World Order (London, Stevens and Sons, 1958). UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford, Oxford University Press, 2004). White, ND, Keeping the Peace, 2nd edn (Manchester, Manchester University Press, 1997). Wippman, David and Evangelista, Matthew (eds.), New Wars, New Laws? Applying the Laws of War in 21st Century Conflicts (Transnational, Ardsley, 2005).

ARTICLES, ETC Anghie, A, ‘The War on Terror and Iraq in Historical Perspective’ (2005) 43 Osgoode Hall Law Journal 45. Arend, AC, ‘International Law and the Preemptive Use of Military Force’ (2003) 26 The Washington Quarterly 89. Bellamy, AJ, ‘International Law and the War with Iraq’ (2003) 4 Melbourne Journal of International Law 497. Benvenisti, E, ‘The US and the Use of Force: Double-edged Hegemony and the Management of Global Emergencies’ (2004) 15 European Journal of International Law 677. Blix, H, ‘Iraq, Use of Force, and Reform of the UN’, Hersch Lauterpacht Memorial Lectures, Lecture III, delivered at the University of Cambridge on 24 November 2004,