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During the first part of the nineteenth century, an anti-British insurrection was taking place in
Canada. At the time, Canada was under British rule while the United States and Great Britain
were in a state of peace. There was, however, a ship owned by U.S. nationals, the ​Caroline,​ that
was allegedly providing assistance to the rebels in Canada. On the night of December 29, 1837,
while the ship was moored on the U.S. side of the Niagara River, British troops crossed the river,
boarded the ship, killed several U.S. nationals, set the ship on fire, and sent the vessel over
Niagara Falls. The British claimed that they were acting in self-defense, but after some heated
ex- changes with Secretary of State Daniel Webster, the British government ultimately
apologized. Nonetheless, over the course of diplomatic communications . between the Americans
and the British, two criteria for permissible self-defense—including preemptive
self-defense—were articulated: necessity and proportionality.
Second, the state using force in self-defense would be obliged to respond in a manner
proportionate to the threat. In making the argument to the British, Webster explained that, in
order for Canada’s action to be permissible, it would be necessary to prove that “the local
authorities of Canada, even supposing the necessity of the moment authorized them to enter the
territories of the United States at all, did nothing unreasonable or excessive; since the act,
justified by the necessity of self-defense, must be limited by that necessity, and kept clearly
within it[2] .
Under Article 2(4) of the charter, states were to “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 . In the charter, there
were only two explicit exceptions to this prohibition: force authorized by the Security Council
and force in self-defense. Under Article 39, the council is empowered to determine if there is a
“threat to the peace, breach of the peace, or act of aggression.” If the Security Council so
determines, it can authorize the use of force against the offending state under Article 42 .
The critical provision relating to the other exception, self-defense, is Article 51, which provides
in part :

Nothing in the present Charter shall impair the inherent right of individual or collective
self-defense if an armed attack occurs against a Member of the United Nations, until the Security
Council has taken measures 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
Although the basic contours of Article 51 seem straightforward, its effect on the customary right
of anticipatory self-defense is unclear. If one reviews the scholarly literature on this provision,
writers seem to be divided into two camps. On one hand, some commentators—“restrictionists”
we might call them—claim that the intent of Article 51 was explicitly to limit the use of force in
self-defense to those circumstances in which an armed attack has actually occurred. Under this
logic, it would be unlawful to engage in any kind of preemptive actions. A would-be victim
would first have to become an actual victim before it would be able to use military force in self
defense. Even though Article 51 refers to an “inherent right” of self defense, restrictionists would
argue that, under the charter, that inherent right could now be exercised only following a clear,
armed attack.
Other scholars, however, would reject this interpretation. These “counter- restrictionists” would
claim that the intent of the charter was not to restrict the preexisting customary right of
anticipatory self-defense. Although the arguments of specific counter-restrictionists vary, a
typical counter-restrictionist claim would be that the reference in Article 51 to an “inherent right”
indicates that the charter’s framers intended for a continuation of the broad pre–UN Charter
customary right of anticipatory self-defense. The occurrence of an “armed attack” was just one
circumstance that would empower the aggrieved state to act in self-defense. As the U.S. judge on
the International Court of Justice (ICJ), Stephen Schwebel, noted in his dissent in ​Nicaragua v.
U.S.,​ Article 51 does not say “if, and only if, an armed attack occurs.”[3] It does not explicitly
limit the exercise of self-defense to only the circumstance in which an armed attack has occurred.
During the Cuban missile crisis, the United States made a number of formal legal arguments in
support of the institution of a “defensive quarantine” in advance of any actual Soviet or Cuban
use of force . The delegate from Ghana, for example, asked, “Are there grounds for the argument
that such action is justified in exercise of the inherent right of self-defense? Can it be contended
that there was, in the words of a former American Secretary of State whose reputation as a jurist
in this field is widely accepted, ‘a necessity of self-defense, instant, overwhelming, leaving no
choice of means and no moment for deliberation’?”[4] Then, he responded to these questions:
“My delegation does not think so, for as I have said earlier, incontrovertible proof is not yet
available as to the offensive character of military developments in Cuba. Nor can it be argued
that the threat was of such a nature as to warrant action on the scale so far taken, prior to a
reference to this Council.”[5] In essence, the delegate was accepting the notion that anticipatory
self-defense would be permissible if the criterion of necessity were met. In this case, he
concluded that that requirement was not met. in essence, the delegate was accepting the notion
that anticipatory self-defense would be permissible if the criterion of necessity were met. In this
case, he concluded that that requirement was not met.
 Israel used force in 1981 against Iraq and destroyed an Iraqi reactor that Israel claimed would be
producing nuclear weapons–grade material for the purpose of constructing nuclear weapons that
would be used against Israel . Israeli ambassador Yehuda Blum asserted that “Israel was
exercising its inherent and natural right of self-defense, as understood in general international
law and well within the meaning of Article 51 of the [UN] Charter[6] . A number of delegations
spoke against Israel, with several taking a restrictionist approach to Article 51, including Syria,
Guyana, Pakistan, Spain, and Yugoslavia .Yet, other states that argued against Israel’s action
took a counter-restrictionist approach. They supported the lawfulness of anticipatory self-defense
but believed that Israel had failed to meet the necessity requirement. The Sierra Leonean
delegate, for example, claimed that “the plea of self-defence is untenable where no armed attack
has taken place ​or is imminent[7] .
Quoting from Webster’s letter in the ​Caroline ​case, he explained that “[a]s for the principle of
self-defence, it has long been accepted that, for it to be invoked or justified, the necessity for
action must be instant, overwhelming and leaving no choice of means and no moment for
deliberation[8].” “The Israeli action,” he continued, “was carried out in pursuance of policies
long considered and prepared and was plainly an act of aggression.[9]” Similarly, the British
representative to the Security Council, Sir Anthony Parsons, explained, “It has been argued that
the Israeli attack was an act of self-defence. But it was not a response to an armed attack on
Israel by Iraq. There was no instant or overwhelming necessity for self-defence. Nor can it be
justified as a forcible measure of self-protection. The Israeli intervention amounted to a use of
force which cannot find a place in international law or in the Charter and which violated the
sovereignty of Iraq.[10]” Delegates from Uganda, Niger, and Malaysia tended to take a similar
approach. Interestingly enough, the U.S. ambassador to the UN, Jeane Kirkpatrick, while
speaking against the Israeli action, did not explicitly rely upon the doctrine of anticipatory
self-defense. Although the Security Council ended up censuring Israel for its action, the most
notable aspect of this debate was the willingness to engage in a discussion of the concept of
preemptive self defense. Even though there was no clear consensus in support of the doctrine,
there did seem to be greater support than in previous cases provided that the ​Caroline c​ riteria are
met.
During 2002 bush administration specifically claim that “ [w]e must adapt the concept of
imminent threat to the capabilities and objectives of today’s adversaries.” It argues that “[t]he
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.” In other words, the administration is con- tending that, because of the new
threat posed by weapons of mass destruction (WMD) and terrorists, the old requirement of
necessity may not always make sense. By the time imminent WMD use has been established, it
may be too late to take any kind of successful preemptive action. Although traditional
international law would not require certainty regarding time and place, it would suggest near
certainty. If an attack is imminent, it is nearly certain that the attack will occur. Given this
conclusion, many scholars would be tempted to say that the Bush doctrine is clearly at variance
with international law, but is this necessarily the case? The preceding discussion presupposes
two things about the nature of in- ternational law. First, it assumes that the threat posed by WMD
and terror- ism are similar to the threats to use force that existed as the law relating to
anticipatory self-defense was developing historically. Second, the discussion assumes that the
UN Charter framework for the recourse to force consti- tutes the existing legal paradigm .
As international law relating to the recourse to force developed over the centuries and culminated
in the UN Charter, the main purpose of the law was to address conventional threats posed by
conventional actors: states. Both WMD and terrorism pose threats unanticipated by traditional
international law. When the charter was adopted in 1945, its framers sought to prevent the types
of conflict that had precipitated World War II circumstances in which regular armies engaged in
clear, overt acts of aggression against other states. As a consequence, Article 2(4) prohibits the
threat and use of force by states against states, and Article 51 acknowledges a state’s inherent
right of self-defense if an armed attack occurs. Even if UN Charter provisions are understood in
light of customary international law allowing anticipatory self-defense, the charter’s focus is still
on states using force the conventional way. Neither WMD nor terrorist actors were envisioned in
this framework
Footnotes on Bush Doctrine

Terrorism, although certainly not a recent phenomenon, was not addressed in traditional
international law relating to the recourse to force. Prior to the twentieth century, customary
international law dealt with state actors. Even major multilateral treaties that related to
use-of-force issues, such as the League of Nations Covenant, the Kellogg-Briand Pact of 1928,
as well as the UN Charter, addressed their provisions only to states. It is precisely in this lacuna
in international law that the problem lies. WMD and terrorism can strike at states in ways that
customary international law did not address.- ​Footnotes.

Respondent
the Soviet action in Czechoslovakia (1948); the North Korean invasion of South Korea (1950);
U.S. actions in Guatemala (1954); the Israeli, French, and British invasion of Egypt (1956); the
Soviet invasion of Hungary (1956); the U.S.-sponsored Bay of Pigs invasion (1961); the Indian
invasion of Goa (1961); the U.S. invasion of the Dominican Republic (1965); the Warsaw Pact
invasion of Czechoslovakia (1968); the Arab action in the 1973 Six-Day War; North Vietnamese
actions against South Vietnam (1960–1975); the Vietnamese invasion of Kampuchea (1979); the
Soviet invasion of Afghanistan (1979); the Tanzanian invasion of Uganda (1979); the Argentine
invasion of the Falklands (1982); the U.S. invasion of Grenada (1983); the U.S. invasion of
Panama (1989); the Iraqi attack on Kuwait (1990); and the NATO/U.S. actions against
Yugoslavia in the Kosovo situation (1999)[11].One could add to this list numerous acts of
intervention in domestic conflict, covert actions, and other uses of force that tend to fall below
the radar screen of the international community. In short, states—including the most powerful
states have used force in violation of the basic UN Charter paradigm. state practice simply does
not support the proposition that the rule of the UN Charter can be said to be a rule of customary
international law[12].
So many states have used force with such regularity in so wide a variety of situations,” Professor
Michael Glennon echoes, “that it can no longer be said that any customary norm of state practice
constrains the use of force[13] “
Although I would argue that there is customary prohibition on the use of force for pure territorial
annexation, as witnessed by the international community’s reaction to the Iraqi invasion of
Kuwait in 1990, such minimal prohibition is a far way from the broad language of the charter
prohibition contained in Article 2(4). For all practical purposes, the UN Charter framework is
international law because the charter framework is no longer reflected in state practice

Applicant/ Respondent( from in the Nicaragua case…)

Self-defence under Article 51 of the UN Charter can be triggered by a state when an armed
attack has occurred on its territory. However, Article 51 does not clearly state what kind of
attacks would be sufficient to activate it. To this end, ICJ has played a major role in defining
‘armed attack’ under Article 51. In the Nicaragua case​, ​ICJ stated that not all kind of attacks can
be considered as armed attack under Article 51. Attacks that allow victim states to use force
should be of sufficient gravity.[14] The ICJ also explained that armed attacks can be of two
types: most grave form of attacks and less grave forms of attacks[15]. The ICJ followed this
approach in the Oil Platform case in 2003, [16] stating again that only ‘gravest form of attacks’
can be considered as an armed attack able to trigger Article 51. The ICJ also found that attacks
must also have the ‘specific intention of harming’.[17] Consequently, only grave armed attacks
have the power to trigger Article 51 .

Respondent/Applicant
Furthermore, although a grave armed attack would be necessary for a victim state to trigger
Article 51, it is not a sufficient condition to use force in another state’s territory. The sufficient
condition is attribution. Thus, the victim state should be able to acceptably attribute the
responsibility of armed attack to a state before using force on its territory. In fact, in international
law on the use of force, attribution is key. Attribution is easy when there is a conventional style
of armed attack. However, it becomes complicated when the attacks are carried out by non-state
actors like terrorist groups, armed bands and irregular armed forces.
Beyond attribution, there are four limitations to self-defence, namely, immediacy, necessity,
proportionality, and temporality[18] . which are the core principles of self-defence. Therefore,
self-defence is not an absolute right. Under immediacy, the victim state should take armed action
immediately after the armed attacks have occurred or attacks are underway in case of
anticipatory self-defence. A state cannot use force several months after actual attacks. However,
before taking any action, the victim state should assess the necessity of using force. The victim
state should use force only if all options for peaceful resolution of the conflict have been
exhausted and force is the last available option[19]. In doing so, the victim state should maintain
the link with the limitation of immediacy. Thus, while evaluation of necessity is essential, it
should be well balanced with the limitation of immediacy. Once force is used, the victim state
must ensure that the action taken is proportionate to the armed attack it has suffered on its
territory. States may use force legitimately but their actions should always be ‘proportionate, in
nature and degree’, to the armed attack[20] .

Does the following paragraph speak non state actors specifically​?

The attack on the US homeland on 11 September 2001 and the rise of Al-Qaeda’s transnational
jihad changed the way international law looked at the problem of terrorism. Terrorism, which
was considered as a national criminal law issue, suddenly found an international character. While
a separate legal framework was created to deal with international terrorism[21] . law on the use
of force, as highlighted earlier, went through a sea change

Applicant

During the ​travaux préparatoires o​ f the UN Charter, when delegates from some Western
countries like the US and the United Kingdom (UK) conveyed their intention to include
preemptive self-defence under Article 51[22], a majority of states, particularly the
representatives of Third World countries, strongly opposed this move, which they saw as
imperialism in disguise .
First, as explained earlier, the UN Charter was drafted in the backdrop of the end of World War
II. No state, particularly the West and its allies, wanted to go through the horror that had been
just witnessed. The message was clear: the use of force, which was the reason to start the two
world wars, should not only be legally prohibited but also closely monitored and resisted.
Second, the post-UN Charter period saw numerous countries gaining independence from their
colonial masters. These colonies wanted to resist any opportunity of Western countries and their
allies to repeat the imperial history.
Respondent
Third and most importantly, terrorism prior to 9/11 was seen as a national criminal law problem
not because countries never suffered from terrorism but because terrorist activities in those times
were mostly home grown. For instance, the UK went through a long struggle with Irish
Republican Army (IRA). Similarly, secular rulers in Egypt, Libya and Jordan suffered from
home-grown jihadists movements in the 1970s and 1980s and Israel had to face the PLO since
1969. Before the rise of Al- Qaeda’s transnational jihad, terrorism was limited to national
boundaries and states were able to handle terrorist acts within their national criminal law
framework. Israel was an exception as the PLO had footholds in multiple Arab countries, and so
was India after the rise of Lashkar-e- Taiba (LeT) and Pakistan-led armed insurgency in Kashmir
from 1987 onwards. Finally, the terrorist activities of the 1970s and 1980s were not as
sophisticated as Al-Qaeda’s transnational jihad. With the massive rise of technology, the
boundaries of terrorism have blurred. The sophisticated weapons terrorists now possess and the
technological advancement they have achieved have enhanced their attacking capacity around
the world. Such high level of terrorist acts needs contemporary rules to tackle them
As the character of terrorism changed in the middle of the 1990s, the response from the states
also experienced significant refurbishing. In August 1998 when the US responded to the twin
terrorist attacks on its embassies in Kenya and Tanzania by attacking training camps in
Afghanistan and a pharmaceutical plant in Sudan, the response from the states was not as rigid as
it used to be a decade before in a similar context[23] .
This lenient attitude of states against the US on this occasion became permanent in just a few
years.

Immediately after 9/11, the UNSC passed Resolution 1373, which is perhaps the first legal
document allowing a collective action against terrorism[24].Other resolutions like 1368[25]and
1189[26] also supported the concept of self-defence against terrorism. Since then, as
international terrorism has grown by leaps and bounds, the measures to combat it have also
expanded drastically
While the law expanded after 9/11, it did not change overnight. As discussed earlier, states
started displaying some flexibility on the use of force before 9/11 after the twin US Embassy
attacks.
Respondent
(Yet, 9/11 was the triggering factor. The biggest change 9/11 brought in law was the universal
recognition that if terrorist groups or non-state actors mount attacks on states, the victim states
can now freely exercise their right to self-defence under Article 51, even if, as we shall see later,
no state has supported or assisted the terrorist groups to mount attacks on the victim states[27] .)-
expand it to form a separate entire new document

The language of Article 51 is silent on who could mount an armed attack. At no point does it
suggest that self-defence is available only against states .
Applican
To this end, UNGA has stated that ‘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’ shall qualify
as an act of aggression [28]. The ICJ adopted the same definition in its landmark Nicaragua
case[29] in 1986 . followed by a similar assertion in DRC v. Uganda. Further, Judge Higgins, the
then sitting judge of ICJ, in her separate opinion in the Israel wall case also affirmed that states
could use force against non-state actors under Article 51 [30].

Since the rise of Al-Qaeda and its transnational jihad in the mid- 1990s, the dynamics of
terrorism changed significantly. The boundaries of terrorism are not limited anymore to one
country, and thus cannot be dealt through the criminal law prism alone . Scholars assert that
states have a responsibility to protect their citizens from terrorist attacks. ​If the host state from
which terrorists are launching attacks on the victim state is neither willing to cooperate nor
taking any measures to stop the attacks, then the victim ‘State must have the right to use force in
self-defence[31] . Professor Christian Tams, an expert on this subject, also suggests that since
9/11 state practice in international law has been accommodating the use of force against
terrorists[32] . The International Law Commission has also established that the conduct of
terrorist groups could be attributed to a state under certain circumstances as described by it in the
Responsibility of States for Internationally Wrongful Acts, 2001[33] .- ​Respondent
As a matter of fact, this position was established by ICJ long back in 1949 in the Corfu Island
case. In this case, ICJ, accepting the concept of duty of vigilance, opined that every state has an
obligation not to allow knowingly its territory to be used for acts contrary to the rights of other
states[34] - ​Respondent.

Unfortunately, between Corfu Island and 9/11, states largely ignored ICJ’s verdict, partly
because the threat from terrorism was not as severe as now and partly because national criminal
law was very much capable of dealing with terrorism .
International legal experts now argue that in case of terrorist attacks, victim states can use force
on states hosting terrorists, without claiming attribution, under the following four
conditions[35]and that satisfaction of any condition alone would be sufficient to trigger
self-defence under Article 51

The first condition is that the state actively and openly supports terrorist groups. The case of the
use of force is fairly straightforward here. Second, academicians and legal experts have proposed
lately that in case the host state is either unable or unwilling or both to tackle the terrorist
organisations operating on its territory and neither willing to help the victim state, the attribution
criterion is not required. The victim state can launch counter-attacks on terrorist camps located
inside the territory of the host state . The classic example of this argument is the Syrian case
vis-à-vis the Islamic State. Although the Paris attacks in November 2015 cannot be attributed to
Syria, scholars admitted that unable–unwilling formulae could be applied in this case, as the
Assad government was unable to defeat ISIS. Also, Iraq, citing its inability to counter ISIS,
officially asked help from the US[36] .
To this end, Professor Trapp has rightly suggested that if the use of defensive force is targeted
only at the non-state actors responsible for armed attacks and not on the host country’s forces,
government properties and installations, then the use of force would be considered as legitimate,
provided that other criteria for self-defence, that is, necessity, proportionality, immediacy and
temporality, are adequately met[37] .- ​Applicant- so we would prove basically against the
mantle of both.

The third condition is that the host state ‘effectively controls’ the operations of the terrorist
group. In such a situation, acts of terrorist groups shall be attributed to the host state[38]. The
International Criminal Tribunal for Yugoslavia (ICTY) clarifies that when a state exercises
‘overall control of a group as a whole’, then the actions of that group can be attributed to that
state[39]. It ‘concluded that the dynamics and hierarchy within (sufficiently) organized groups
would make their activities attributable to the state if they stood under its overall
control[40].’This also mirrors International Law Commission’s Articles on State Responsibilities
that :
the conduct of a person or group of persons shall be considered an act of a State under
international law if the person or group of persons is in fact acting on the instructions of, or
under the direction or control of, that State in carrying out the conduct.[41]

Respondent
Fourth, a state does not control the operations of terrorist groups but effectively controls the
territory on which terrorist groups operate and takes no action against them. In this regard, the
European Court of Human Rights (ECHR) established clarity while stating that if a state
effectively controls a territory, all acts of commission and omission should be accredited to that
state[42]. International law also requires states to apprehend, prosecute and punish terrorist
groups operating in their territories and attacking other states. The International Law
Commission, in its report published in 2014, stated that states have an obligation to take
necessary actions against terrorist groups operating in their territory and harming other
states[43]. The Convention for the Suppression of Unlawful Seizure of Aircraft[44] and UNSC
Resolution 2178 (2014)[45] have taken the same stand .
As stressed earlier, one can safely assume that in the case any of the four possibilities is satisfied,
the victim state has the right to use force inside the territory of the host state. However, if
self-defence is activated by the victim state as the result of any of the four possibilities, the
victim state will also have to satisfy the restrictions of self-defence in order to legally justify its
action. These limitations, sufficiently explained earlier, are immediacy, necessity, proportionality
and temporality. The UN Secretary-General, in 2004, in a high-level panel report also observed
that ‘a threatened State, according to long established international law, can take military action
as long as the threatened attack is imminent [46].
A close analysis of all major cases in the decade that followed 9/11 suggests that states have
always looked for a legal justification before resorting to force against terrorists. For instance,
the 2001 North Atlantic Treaty Organization ​(​NATO) military action in Afghanistan was backed
by UNSC Resolutions 1368 and 1373[47]; the 2003 invasion of Iraq by the US and its allies,
though widely criticised, was legally justified by the ‘material breach’ of the UNSC Resolution
678[48] and supported by UNSC Resolution 1441[49];and the counter-terrorism action by the
US against ISIS in Iraq in 2014 was officially requested by the Iraqi government[50].
The 34-day war between Israel and Hezbollah in the summer of 2006 was the result of
Hezbollah’s non-stop firing of rockets and mortars along the Israeli border, the killing of three
Israeli soldiers and the abduction of two. It is well known that the Israeli response was massive.
Under Article 51 of the Charter, Israel was justified to defend itself against the armed attacks. In
fact, at the time Israel launched its offensive in Lebanon, no state rejected Israel’s self-defence
claim, even though the actions of Hezbollah could not be attributed to Lebanon. It was clear that
there was an armed attack on the Israeli territory, Israel satisfied three of the four possibilities set
out in the previous section and the action was immediate, temporal and necessary. Yet, the Israeli
action was widely criticised. The criticism was not about whether Israel’s self-defence rights
were legitimate but on the disproportionate nature of the action of Israel on the civilian
population of Lebanon.- ​Applicant​- ​harm done to civilians negates the civilian action

Israel’s indiscriminate response targeted government properties, hospital, public buildings and
airport in its attempt to flush out Hezbollah. ‘The response (also) involved the destruction of
military and civilian infrastructures located hundreds of miles away from the area of
(confrontation)[51].’By the end of the 34 days, the total casualty on the Lebanon side surpassed
1,400, the majority being civilians. Despite the law being on the Israeli side, the criticism was
strong. The then UN Secretary-General Kofi Annan stated that ‘Israel’s disproportionate use of
force and collective punishment of the Lebanese people must stop[52].’ The Security Council,
after witnessing the disproportionality of Israel’s response, immediately moved a ceasefire
resolution, which was only blocked by the US veto. A resolution was eventually passed in
August 2006 setting out the ceasefire terms [53].
Interceptive self-defense (or as Dienstein called it ​incipient s​ elf defense)[54] stands for a
retaliatory strike to an attack which is imminent and unavoidable with purpose of preventing the
consequences of an offensive already in motion. Although it requires clear and convincing
evidence, as necessary to avoid greater harm, the use of force outside the limits of the Charter in
that case is lawful and justified [55].- ​Respondent/Applicant both on the presence of sufficient
evidence
The distinction between preemption and prevention is made by refer- ence to the notion of an
immediate threat. The right to preempt is an extension of the right of self-defense, if, and only if,
it is indisputably the case that there is an imminent threat of an unprovoked aggression.
Prevention, on the other hand, involves action in response to some putative future rather than
immediate threat[56]. In brief, if interceptive strike is carried out to prevent an attack from being
success- fully concluded, then the preventive self-defense is designed to prevent an attack from
being launched in the first place[57]. ​Lex scripta​and close observation by the Security Council
could help achieve the legality of the preventive self-defense, as suggested by Professor
Dienstein [58],
On 15 September 2002 George W. Bush presented a new National Security Strategy of the
United States.[59] Following previous promises of the US President (e.g. putting state sponsors
of terror on notice, as "any nation that continues to harbor or support terrorism will be regarded
by the United States as a hostile regime"), [60] NSS expressed ideas which later became known
as the "Bush Doctrine." Realizing that preemptive self-defense has more chances to be approved
by the world community than the preventive one, creators of the "Bush Doctrine" tried to expand
the definition of preemptive attacks to include preventive strikes.

Respondent

Airforce had been using new offensive technology in the present century . Air bombing are
becoming more and more effective instrument in the fight against the terrorists. The US has used
this technology very frequently in the tribal areas of Pakistan because drones are considered
highly effective machines to strike targets that keep shifting their positions. Also, owing to the
harsh terrain and other factors, drones have been used in this region to kill the high value targets.
It has been argued that drones are highly effective in killing the terrorist operatives in
unapproachable regions without causing heavy civilian casualties. US Defense Secretary, Leon
Panetta has argued that “drones are remarkably precise and limited in terms of collateral damage,
and were the only game in town in term of trying to disrupt the Al-Qaeda leadership” [61]. A
similar argument has been presented by the former CIA Director Michael Hayden. He asserted
that “the drone strikes have made regions like Pakistan’s Federally Administrative Tribal Area
(FATA) neither safe nor a haven for Al-Qaeda and its affiliated networks” [62]. In addition, the
chief counter terrorism advisor to President Obama, John Brennan has insisted that “targeted
strikes are wise, ethical and necessary given the realities of attacking terrorist operatives in
remote or inaccessible regions”
US claimed that the strikes were very effective to degrade and damage the organizational
capacity of the terrorist groups. They argued that these strikes brought pressure on the members
of terrorist group that would begin to splintering, lose workforce and finally collapse. According
to the intelligence reports the terrorist scattered and moved to the tribal areas of Pakistan due to
the drone strikes [63].
Intervention" is very vague term in international law. We are told that "intervention is a right;
that it is a crime; that is the rule; that it is the exception; that it is never permissible at all [64]".
Intervention may be anything from a speech of Lord Palmerstone's in the House of Commons to
the partition of Poland [65]. This remark is really sufficient to indicate that there is an element of
chronic vagueness attached to the term 'intervention
Abatement Theory:
Another reason advanced on occasion in justification of intervention is the
" abatement" of an international nuisance. It could be argued that this was
one of the reasons cited in the United states in 1898 in partial justification
of armed action in Cuba. The argument was actually utilized by Japan in
1932 in defense of the invasion and conquest of Manchuria. It was also
brought forward .
The abatement theory holds that when conditions in the territory of a neighboring state border on
anarchy, with concurrent inability of the constituted authorities (if they still exist at the time) to
restore order and to prevent a spilling over of the disturbance into one's own territory, then one
has a duty to intervene—quite likely by armed force—to restore order along one's frontiers and
to end the chaos next door[66]. If no selfish aims are involved in the intervention in question, if
no territorial aggrandizement or other gain is contemplated or realized, then it is difficult, in
many instances, to deny a moral right, based on self-defense or self- preservation, to violate the
ban on intervention for the sake of abating the nuisance at one's doorstep.

(Article 2 (4) of the United Nations Charter prohibits the threat or use of force in international
relations, a prohibition that is accepted as customary international law[67]. However, at the San
Francisco Conference (1945) middle-level states were unwilling to give up their ‘inherent’ right
to use force in self-defence.) - ​not needed.
The requirement of imminence, on the other hand, signifies the temporal facet of self-defence.
Traditionally, pleas of self-defence are only accepted when the lethal response of the defendant
is immediate, directly following the untoward threats or acts of the aggressor. A time lag
between the illegal threat or act and the response usually undermines the validity of self-defence
claims[68].

Time lag- dicey factor from both sides

As Fletcher notes:
The requirement of ​imminence m ​ eans that the time for the use of force will brook no delay. The
defender cannot wait any longer. This requirement distinguishes self-defence from the illegal use
of force in two temporally related ways. A preemptive strike against a feared aggressor is illegal
force used too soon; and retaliation against a successful aggressor is illegal force used too late.
Legitimate self-defence must be neither too soon nor too late[69]. In this case the the strike was
in time .
Firstly, the implications of discarding the element of imminence appear to be much graver at the
international level, because warfare, be it defensive or offensive, by its very nature results in the
killing of large numbers of people, irrespective of age, sex, nationality or political belief. Unlike
private killings, warfare often results in far-reaching destruction of human life, environment,
culture, and property. Inevitably, it further causes the death of civilians and those who are not
directly the sources of the illegal threats. Since one of the most important requirements of
self-defence is that defensive lethal force must be directed to the source of danger, the
non-discriminatory feature of warfare renders the tasks of preventing state aggression and clearly
defining its exceptions more pressing.
The Bush Doctrine presents the existence of "terrorist groups" and "rogue states," armed with
"modern weaponry," as the primary reason for the United States' opposition to the traditional
bounds of the self-defence doctrine. (This approach, however, essentially reiterates the main
premises of the ​realist school, w ​ hich presumes that in a decentralized, anarchic international
society, where there is no global police force or compulsory jurisdiction, self-help remains
critical for state conduct. Therefore, armed force may not only be used in cases of self-defence,
but also for the vindication of rights, correction of unjust wrongs, and for humanitarian reasons
[70].
Criminal law aims to protect human life at all costs; thus, private force may only be inflicted
after the exhaustion of all possible non-violent alternatives. Self-defence, therefore, naturally has
a social dimension. As Kremnitzer points out, through the act of self-defence, the individual is
not only protecting his personal autonomy, but his action also has an impact upon the legal and
social order[71]:
By virtue of his action, the law-breaker has become an enemy of the law in the broad sense of the
word. When his victim employs self-defence to resist him, he is serving as the representative and
defender of society, the public order and the legal system (since his action is meant to neutralize
the violation of law created by the illegal act). Self-defence in such a situation is not only
justified, it is in effect, an ​"an acte de police," s​ ince the authority charged with enforcing the law
would not - had it been present at the time - have acted differently from the person employing it,
and his act thus serves the public's interest in the deterrence and prevention of crime[72] .) - ​will
only use this if limit permits
Security is also a critical concept in Locke's state theory. Locke regarded the state of nature as a
"state of perfect equality" where "there... [was] no superiority or jurisdiction of one over
another.[73]However, violence gave rise to the state and the institution of punishment.' [74] By
disturbing the peace and safety of the community, the wrongdoer posed danger to mankind
against whom institutional measures had to be applied. According to Locke, only lawful
authorities could be the legitimate agent of force except in cases where there was no chance to
appeal to the common superior for relief:-- ​No need i believe
[B]because the law, which was made for my preservation, where it cannot interpose to secure my
life from present force, which, if lost, is capable of no reparation, permits me my own defence
and the right of war, a liberty to kill the aggressor, because the aggressor allows not time to
appeal to our common judge, nor the decision of the law, for remedy in a case where the
mischief may be irreparable[75].
Again, Hobbes assumed that the "social contract" was concluded by man for self-preservation. In
the state of nature, he argued, "every man will, and may lawfully rely on his own strength and
art, for caution against all other men."[76] Furthermore, nature had made men so equal in the
faculties of body and mind that even "the weakest has strength enough to kill the strongest, either
by secret machination, or by confederacy with others, that are in the same danger with
himself[77]. Therefore, the key solution to the problem of violence lied in the urgent task of
establishing a sovereign power, namely the ​Leviathan, i​ n front of whom men had to stand in awe
and be tied together in security by the fear of punishment[78]. The legitimacy of this sovereign
power would last as long as it provided security to its subjects. Consequently, to Hobbes, the use
of private force could be used only when ​Leviathan f​ ailed to provide protection[79].
The distortion of the self-defence doctrine may therefore legitimize the notion of private
punishment by providing a "licence to kill" where the actor subjectively believes (or claims to
have believed) that deadly force is necessary to repel the threat, even if objectively the
anticipated attack is not imminent. In addition, the phenomena of dominance, exploitation,
abuse, violence and ensuing helplessness, or other detrimental mental conditions, are not peculiar
to battered women. Such circumstances do affect the members of other vulnerable groups,
including the members of ethnic, religious and linguistic minorities, homosexuals[80], children,
and the disabled in their daily environments where all forms of authority can, in one way or
another, be exercised. The elimination of the imminence rule would be of no help other than
curing the symptoms without removing the root causes of the problem .
The concept of imminence cannot merely be relaxed with respect to battered women's
self-defence claims, because the law must be applied equally to those under analogous
circumstances, which might finally render the right of self-defence meaningless. The newly
formulated syndromes, including the old age syndrome, battered children syndrome, the battered
husband syndrome[81], the holocaust syndrome, the battered person syndrome, the Vietnam War
syndrome, and the premenstrual syndrome, which mushroomed after the introduction of the
battered woman syndrome, indicate the danger in breaking down the traditional contours of the
self-defence doctrine[82] .- ​No need I believe
The key terms in 2(4) are "territorial integrity" and "political independence." The threat or use of
force against either of these sovereign values is prohibited. What did these terms mean to the
drafters of the UN Charter in San Francisco in 1945 . The Australian delegates, who took the
lead in proposing and drafting Article 2(4), certainly did not rely on Webster’s Dictionary for the
meaning of the key terms. The only defensible source of meaning of those terms was the
meaning that they had acquired in international diplomatic history. All the delegates at San
Francisco those who proposed and those who ratified the draft of Article 2(4)—knew or can be
charged with knowing the meaning of these crucial terms as their meaning has come down
through the history of international treaties and other instruments.- ​give me some footnotes to
this paragraph
Treaties of Guaranty
One of the earliest uses of the terms we are investigating occurred in the Treaty of Paris of 30
March 1856, among Great Britain, Austria, France, Prussia, Russia, Sardinia, and Turkey:- our
states aren’t party to it- how can we take them down- ​find out whether meanings of words in
treaties are binding/persuasive on non signatories

Respondent- on not violation of territorial integrity

Article VII. Their Majesties engage, each on his part, to respect the Independence and the
Territorial Integrity of the Ottoman Empire; Guarantee in common the strict observance of that
engagement; and will, in consequence, consider any act tending to its violation as a question of
general interest[83].
Clearly this treaty constitutes an important gloss upon the term "territorial integrity." The parties
obviously had in mind a guarantee of the preservation of the Ottoman Empire, thus indicating
that if other states attempted to take away portions of that Empire the signatories might react in
concert against such an attempt. Hence the notion of "territorial integrity" begins to take on a
meaning equivalent to ​preventing the permanent loss of a portion of one’s territory. U ​ nder such
a meaning, the Israeli raid upon the Iraqi nuclear reactor in 1981 would ​not b​ e a use of force
against Iraq's territorial integrity, because Israel neither attempted to take nor succeeded in
permanently taking away any portion of lraq's territory[84] ​.Same analogy should be applied in
this case.
The question then arises whether the later language of the Charter alters the meaning of
"territorial integrity" or "political independence" by the inclusion of the term "force against."
Some limited light may be thrown upon this question by examining treaty language in treaties
concluded in the 1930s and 1940s.
The notion of using the phrase ''territorial integrity and political in- dependence" as the object of
a prepositional phrase "force against" or its equivalent seems to have first come into use in 1931
and 1932 in a series of bilateral treaties concluded by the U.S.S.R. and other powers. These were
all non-aggression treaties, differing in wording. The treaties with Afghanistan and France refer
only to territorial integrity, so these may be considered first:
The non-aggression pact between Afghanistan and the U.S.S.R. of 24 June, 1931, Article 3,
reads in part:

The Contracting Parties shall not tolerate and shall prevent in their territory the organizations and
activities of groups of persons and the activities of private persons that might be prejudicial to
the other Contracting Party or prepare the overthrow of its form of government or make an
attempt on the ​integrity of its territory ​or proceed to the mobilization or recruitment of armed
forces to be used against it [85].

I didnot understand this part

There can be further work on this side too.

mazia
The US Government formed a coalition according to the provisions of the UN Security Council
Resolution that was passed on September 28, 2001 (1373, 2001).However, it has been observed
that the US government in its war against terrorism has gone to such an extreme that it has
forgotten the established rules and norms that command the mutual relations of the nations and
states in the civilized world[86]. It has been reported that following the doctrine of “might is
right”, the US government has demoralized the nations and has challenged the states’
sovereignty across the globe.

Applicant
The state sovereignty based on the Treaty of Westphalia of 1648 suggests non- intervention of
the nation-states in the internal matters of the others [87]. However, the multilateral treaties in
the aftermath of the WWII and the growing role of United Nations in the world politics have
made a great impact on the concept of sovereignty. At the outset, it seems that the international
obligations have taken the central position and the state sovereignty has lost its primacy. But, the
evidence suggests that the state sovereignty was respected to a great extent during the cold war
period. However, in the post-cold war era, the concept of sovereignty puts much emphasis on the
human security. Unfortunately, the state sovereignty has been challenged in the name of
safeguarding human security in several cases. Quite often, the counterterrorism campaigns have
dishonored the territorial boundaries of the sovereign states. This is a violation of the
international law and the concept of state sovereignty [88].

Applicant

The PEW global attitude survey 2014 presents a clear picture and the sentiments of the people of
Pakistan [89]. In this survey the question asked was that whether or not the drone strikes kill too
many innocent peoples. The results demonstrate that 67 percent of the people say yes, 9 percent
said no and 24 percent of the respondents said they don’t know. This shows the response of the
people of Pakistan that they believe that these drone strikes mostly kill innocent people instead
of the HVTs. In response to a question asking if these strikes were made without the approval of
Pakistani government, 41 percent respondents agreed, 23 percent disagreed and the 36 percent
said they don’t know.- ​authority was there about it in the OC memo
Although Pakistan was an important ally in the war on terror, and it faced more economic and
human loss in this war, but the US started the drone attacks in Pakistani Tribal region that
created more troubles for Pakistan to muster and maintain domestic support for the war. After
Pakistan’s joining this war on terror, the terrorists started targeting Pakistan civil areas. Due to
these attacks and the violation of the Pakistan’s sovereignty, People of Pakistan think that this
war was not their’s but was the war of the US that had been imposed on them. They also think
that they suffered more by joining this war. All the political parties and especially the religious
parties and groups have the strong resentment against these drone attacks. According to the
public opinion poll by the international agencies most of the Pakistani people have not only
disliked these attacks and the violation of the sovereignty of Pakistan but also protested again
and again against these attacks[90]. Not only the general people but also the elected democratic
government in Pakistan has passed many resolutions in the assembly against these drone attacks
and have also threatened that they have the option to withdraw from this war. The present
government in Pakistan passed the unanimous resolution from the National Assembly against
these drones which cause the death of innocent civilians. The current government of the Pakistan
Tehreek-i-Insaf in the province of Khyber Pakhtunkhwa not only protested against these drone
attacks but also stopped the NATO supply to the Afghanistan through the route of the KPK.
(The US-led NATO forces attacked the Pakistani border posts on Saturday, November 26, 2011.
The planes of the forces entered 2.5 kilometers inside the territory of Pakistan in the border area
of Salala in the Baizi subdivision of Mohmand Agency of Federally Administrated Tribal Area
(FATA). The forces entered at 2 pm local time of Pakistan and started firing by the NATO
Apache helicopter from the Afghan territory on the two border check posts of Pakistan, the
“Boulder” and the “Volcano”. In this hostile incident the forces not only violated the sovereignty
of Pakistan by entering in the Pakistani territory but also killed 24 Pakistani soldiers including
two officers. In addition, thirteen soldiers were badly wounded. The attack was a clear violation
of the sovereignty of Pakistan. The Pakistani government protested against this violation of
Pakistan’s territory and the killing of the Pakistani soldiers.
During the US-led NATO forces attack through the gunship helicopter, the Pakistan army
protested and demanded to stop the firing and violation of the sovereignty of Pakistan. But the
NATO forces continued firing. The air strikers were aiming at a point that was 1.6 kilometer
deep in the territory of Pakistan. The strikes continued for 2 hours that reflects it was not an error
in judgment or the failure of the communication between the two sides. There was a border
communication center. Equally, there were ‘mutually agreed mechanisms for operations close to
the borders’ between the allies. But, the Pakistani forces were not informed about the operation
at all [91]. This was absolutely a blind and sudden operation against the Pakistan army.) ​NO
NEED I BELIEVE
Evidence shows that there was a great controversy among the three parties i.e., Pakistan, the US
and NATO forces regarding the incident of the Salala. Pakistan considered this act as an
aggressive attitude of the US and the ​severe violation of the sovereignty of Pakistan​. The US
took the stance that firing was initiated from the Pakistani side and the act of the US was only on
the base of self-defense. On that day the NATO forces launched an operation against the
terrorists in a village Maya near the Pak- Afghanistan border. So, there were divergent
perspectives on the event. NATO expressed regret over the incident and acknowledged its
mistake. The US government had also untaken its deepest condolence. President Barack Husain
Obama also called the attack a ‘tragedy’[92]. US was however reluctant to offer its unconditional
apology on this incident and the Obama administration only wanted that condolence was
sufficient to move on. The US did not agree to form a Joint investigation team and tried to
underestimate the matter.- ​Can this be placed on both sides?
The incident of the Salala not only violated the sovereignty of Pakistan, but also killed Pakistani
soldiers. The people, government, and the army demonstrated great displeasure. All the stake
holders were on the same page and considered this event as a straight forward violation of the
sovereignty of Pakistan. Soon after the attack Pakistan responded and made it clear that this type
of incident would not be tolerated again. Soon after the incident, Prime Minister Gilani called an
urgent meeting of the Cabinet’s Defense Committee and discussed the issue. The Army Chief
General Pervez Kiyani also convened a meeting of senior officers. It was announced by the army
that this type of incident would not be acceptable in future. Equally, it was decided that a strong
signal should be given to the US and NATO forces. It was also decided that the NATO supply
routes should be blocked. Equally, all the political parties and the masses protested against the
terrible incident and demanded blockage of the NATO supply line through the territory of
Pakistan.- ​ Please provide with some authorities
Article 4 (1), buttressed by Article 1(1) of the Convention- ​CCPHR​, states that: ‘every person
has the right to have his life respected’ and that no one shall be arbitrarily deprived of their
life[93]. It is a fundamental right of which the enjoyment of all other human rights is contingent
upon[94]. The court has also stated in the case of the "​Street Children”​ that the right to life
entails the right to be free from impediments which hinder or prevent enjoyment of a dignified
existence[95].
Normally every state is deemed to possess independence and 'sovereignty' over its subjects and
its affairs within its territorial limits . it is probably more accurate today to say that the
sovereignty of a state means the residuum of power which it possess within the confines laid
down by international law . 'Sovereignty' is the possession of supreme power unlimited by any
other state resulting in autonomy within a state and independence in relation to other states .
One of the oldest duties of states, enshrined both in customary international law and in numerous
multilateral conventions, is the basic obligation of a state to abstain from intervention in the
internal and external affairs of any other state or in the relations between other states[96].
Applicant- for any reason whatsoever
In 1966 the General Assembly of the United Nations resolved that, no state has the right to
intervene, directly or indirectly, ​for any reason whatever in the internal or external affairs of any
other state. Consequently armed intervention and all other forms of interference or attempted
threats against the personality of the state or against its political, economic or cultural elements
are condemned [97].
Dictatorial interference in the affairs of another sovereign state is known as intervention. It
means interference has got to be dictatorial in order to constitute intervention. If it is not
dictatorial, it does not amount to intervention.​ - ​authorities​?

There are two views on the meaning of this word "intervene" as used in Article 2 (7) of the UN
Charter. One view is that it must be interpreted in the technical sense of international law to
mean "dictatorial interference". The other view is that it is ordinary interference and it has been
argued that only the Security Council has the capacity to act with legal effect, and hence to
"interfere dictatorially" in the affairs of a state; action by any other organ, since it can not have
direct legal effect, can not amount to "dictatorial interference" [98].- ​Useful from which side?
Did not understand.
The last type of compulsive method is intervention. Being a compulsive method intervention
must involve the use of force or compulsion by a state or states not party to the controversy.
Intervention must mean the use of force or compulsion or dictatorial interference by a Third
State. Intervention as a compulsive method always contains the element of dictates. Hence
intervention on invitation can not be equated to intervention as a compulsive method.
Intervention as a compulsive method is a kind of external intervention and may not be properly
in operation in a case where the disputing parties are not two "states" but simply two sections of
the same state.
(Montesquieu in his seminal work, ​The Spirit of the Laws, c​ ame to a similar conclusion:
With individuals the right of natural defence does not imply a necessity of attacking. Instead of
attacking they need only have recourse to proper tribunals. They cannot therefore exercise this
right of defence but in sudden cases, when immediate death would be the consequence of waiting
for the assistance of the law [99].)-​ is it necessary? I don’t think so.

Applicant- only if limit permits

Blackstone's authoritative ​Commentaries on the Laws of England ​confirms this position:

This right of natural defence does not imply a right of attacking: for, instead of attacking one
another for injuries past or impending, men need only have recourse to the proper tribunals
ofjustice. They cannot therefore legally exercise this right of preventive defence, but in sudden
and violent cases; when certain and immediate suffering would be the consequence of waiting
for the assistance of the law. Wherefore, to excuse homicide by the plea of self-defence, it must
appear that the slayer had no other possible means of escaping from his assailant[100].
The imminence rule, therefore, not only confirms the force monopoly held by the state, but it
also aims to prevent putative defenders from taking innocent lives on the basis of their subjective
and speculative reasoning. The importance of letting no man be his own judge and the need for
an objective body to settle the disputes between individuals was noticed by influential jurists
and philosophers. Locke, for instance, noted that:
[I]t is unreasonable for men to be judges in their own cases, that self-love will make men partial
to themselves and their friends, and, on the other side, that ill-nature, passion, and revenge will
carry them too far in punishing others, and hence nothing but confusion and disorder will follow;
and that therefore God has certainly appointed government to restrain he partiality and violence
of men [101] .
Grotius also recognized the importance of an objective body in resolving disputes between
conflicting parties:
It is... much more consistent with moral standards, and more conducive to the peace of
individuals, that a matter be judicially investigated by one who has no personal interest in it, than
that individuals, too often having only their own interests in view, should seek by their own
hands to obtain that which they consider right [102].
The imminence rule, in this context, prevents the superfluous use of lethal force by requiring
individuals to retreat or exhaust all viable non-violent responses to counter an incipient threat
before it matures into an imminent risk. This prevents the abuse of the self-defence doctrine and
reaffirms the role of the state whose monopoly on the use of force only cedes when it cannot
provide protection to putative victims.
Returning to Robinson's scenario, it should be reiterated that the dilemma is presented within the
narrow frame of mutiny or death, excluding other possible alternatives. Firstly, since the crew
determines the slow but inevitable leak, they may simply inform the police about the definite risk
they face. This would bring the legitimate state intervention into play. Naturally, as the state is
not bound by the imminence rule it may use preventive force, if necessary, to protect the lives of
the sailors[103].Secondly, it appears that the captain acts imprudently for refusing the crew's
demands to cancel the perilous journey during which the incipient threat would certainly ripen
into an inevitable danger. The crew, therefore, faces ​an already immediate ​threat to their lives
and liberties, which, if state protection is not available, entitles the crew to use a proportionate
amount of force to take control of the vessel. The existence of the temporal requirement,
therefore, does not necessarily mean that individuals must await death like "sitting ducks"; on the
contrary, one of its main functions is to press individuals to take prudent steps before
prematurely resorting to deadly force
 ​ pplicant- repettition
A
The temporal requirement is closely connected with the notions of necessity and proportionality;
that is, imminence provides an objective yardstick against which the necessity of private force
can be measured and the interests of the putative aggressor and defender can be balanced.
Indeed, absent an imminent threat, it is not only difficult to judge to a degree of certainty that the
anticipated harm would have ever occurred (necessity), but also whether the defendant could
have avoided the lethal threat without employing any force, or just enough force to repel the
threat (proportionality) until the state steps to the forefront to contain the situation. Since
defensive action is meant to protect a vital interest of the defendant, such as his life, liberty, or
physical integrity, the imminence rule enables the adjudicator to assess whether such an interest
was ​actually t​ hreatened and whether a ​just balance b​ etween the harm inflicted and the good
preserved was properly struck by the defendant
In other words, the imminence rule, by requiring the would-be victim to seek non-violent
alternatives to deal with the perceived threat, ensures that lethal force is only invoked against
threats that are present or likely to materialize, and that the defensive force is employed within a
concrete scenario where the notion of proportionality can appropriately be appraised. This point
is of particular relevance for battered women cases, where the majority of abuse victims face a
certain level of violence that does not meet the threshold of death or bodily harm to justify the
use of lethal force. Indeed, except for extreme cases (​such as the well-known ​Norman
[104]​case), - ellaborate please​"the fact that a battered woman has been assaulted on many
occasions in the past but has ​not ​been killed might suggest that she is unlikely to be killed by her
partner in the future[105].From this perspective, the temporal requirement is inseparably
interconnected with the elements of necessity and proportionality, and its relaxation would
adversely affect the whole matrix of the self-defence doctrine.
Of equal significance, the temporal requirement ensures that the deadly action, carried out under
the flag of self-defence, has been a preventive measure, rather than an act of retaliation. In
criminal law, actors frequently establish their own justice through vengeance, and in order to
escape punishment they usually hide behind the shield of self-defence[106].' In a successful
self-defence case, however, the focus must shift from past to future violence; that is, from
retaliation, if that was the real motive, to an argument of defending oneself from an imminent
threat. This, Fletcher notes, "is the standard manoeuvre in battered-wife cases. In view of her
prior abuse, the wife arguably has reason to fear renewed violence. Killing the husband while he
is asleep then comes into focus as an arguably legitimate defensive response rather than an
illegitimate act of vengeance for past wrongs .
This view, however, fails to notice the political rationale of the self- defence doctrine. It is
important to emphasize that the battered woman's self- defence claim cannot be based upon the
notion ​of just desert. I​ ndeed, even if the death of the abuser might satisfy the common sense of
moral justice, if the lethal strike does not fall within the confines of the self-defence doctrine, it
cannot be regarded as an act ​of justification[107]. ​As noted above, self-defence is neither a
punitive measure nor an act of law enforcement; it is rather a measure of last resort to fend off an
illegal attack in the absence of state protection. Moreover, a valid self-defence claim requires the
intent of the defendant to be defensive as well[108], that is, a fatal act must not have been
motivated by the aggressor's past misdemeanour[109].If the theory of self-defence was built
upon the notions of punishment and just desert, this would merely open the doors for vigilantism
against suspected offenders[110]. In centralized legal orders, criminal punishment is a
prerogative of legitimate state power. In Fletcher's language, "criminal punishment is the most
elementary and obvious expression of the state's sovereign power[111]." The battered woman, as
a result, may only justify her killing by showing that she was in imminent danger of being killed
or seriously injured, and that the employment of deadly force was the only alternative to ward off
the threat involved[112]. Therefore, no matter how much one is inclined to consider the killing
of the abusing partner as "just," the criminal procedure must go beyond the luring trap of
"desert," and establish whether or not the elements of the offence/defence are satisfied.

I dont think there’s any need to assert justfification v. self defence in the present cas​e- t​here’s no
contention regarding it.
This point is also decisive for the theory of justification and excuse: an outwardly wrongful act
might be excused or justified by society, which consequently may exclude the actor from
criminal liability. Although both defences are based on the absence of the requisite ​mens rea, ​a
necessary condition for culpability, their theoretical bases are fundamentally different. A
successful defence ofjustification renders an otherwise criminal conduct legal, because the
exceptional circumstances under which an ostensibly wrongdoing was committed negate
criminal liability. An excuse defence, on the other hand, recognizes the illegal character of the
act, yet posits a lack of culpability due to the actor's incapacity for criminal condemnation[113].
In this context, the Canadian Law Reform Commission notes that:
Despite their common fundamental nature, duress, self- defence and necessity [should be] kept
separate ... [because] ​the distinction is based on moral differences between the three defences....
In self-defence the accused seeks protection against aggression and in so doing promotes a value
supported by the law. In duress, he avoids harm wrongfully threatened to him but does so at the
expense of an innocent third party or by contravention of the law and therefore does not promote
a value supported by the law. In necessity he may sometimes promote a value supported by the
law and contravene the letter of the law to secure some greater good (e.g. an unlicensed motorist
drives an emergency case to hospital to save life); at other times he may fail to promote such a
value but may avoid harm to himself at the expense of an innocent person or of contravention of
the law (e.g. a shipwrecked sailor saves himself by repelling another from a plank sufficient to
carry one[114] .
The difference between justification and excuse plays a significant role in determining the rights
and obligations of the third parties as well; i.e., when the actor is merely excused, this does not
affect others' right to resist or assist the wrongful actor, for excuses are personal to the actor. A
justified act, however, not only deprives the wrongful actor of the right to resist, but it also
enables, if not encourages, the third parties to assist the justified actor[115]. More importantly, a
justified act, in contrast to an excused act, may be ​modelled ​by other members of society[116].
Hence, while the employment of fatal force has been one of the gravest threats posed against the
social order[117], societies have found it an ​acceptable ​form of behaviour, if performed within
the legal contours of self-defence. Defensive force, in other words, may serve as guidance for
human behaviour that can be performed by other individuals under analogous circumstances.
Applicant

Nobel Peace Prize Lecture, former U.S. President Jimmy Carter also underlined such danger:
"Today there are at least eight nuclear powers on earth, and three of them are threatening to their
neighbours in areas of great international tension. For powerful countries to adopt a principle of
preventive war may well set an example that can have catastrophic consequences [118].
he United States, on the other hand, never faced an actual attack, nor was in a position to
reasonably b​ elieve that Iraq posed an imminent threat against it. Neither can the mental
conditions of the battered woman be applied to the United States, for national self-defence is
governed by objective standards. Indeed, the right to national self-defence requires credible proof
that lethal force is directed at an actual[119] or imminent danger where no other alternative
exists. The International Court of Justice (ICJ) confirms this strict approach in the case of ​Oil
Platforms[120]:
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 the meaning of that expression in Article 51 of the United
Nations Charter, and as understood in customary law on the use of force. The United States must
also 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 exercise of self defence
[121].
The United States' attempt to broaden the scope of self-defence and employ unilateral force as a
means of achieving national policy objectives well precedes the September 11 attacks. For
instance, almost three decades ago, ​Reagan's "peace through strength" doctrine sought to include
covert U.S. military activities in support of anti-communist insurgents within the self- defence
doctrine. The United States' doctrine to support "freedom fighters" was tested in Afghanistan,
Ethiopia, Cambodia, Nicaragua and Angola. President Reagan [122].justified such a policy as
follows:
Our mission is to nourish and defend freedom and democracy, and to communicate these ideals
everywhere we can. We must not break faith with those who are risking their lives - on every
continent, from Afghanistan [123] to Nicaragua to defy Soviet-supported aggression and secure
rights which have been ours from birth.... Support for freedom fighters is self- defence [124]
The Reagan Doctrine, however, received a blatant rejection by the ICJ in ​the Nicaragua
case[125]. However, before the International Court of Justice's ruling, the Reagan
Administration withdrew from the court's compulsory jurisdiction, which constituted a radical
departure from the long-standing U.S. tradition of supporting international adjudication[126].
Indeed, while the United States has called upon the ICJ many times in the past, it questioned the
authority of the court as it appeared that the United States was likely to lose[127]. The rationale
of the United States' withdrawal from the proceedings is worth quoting:
Much of the evidence that would establish Nicaragua's aggression against its neighbours is of a
highly sensitive intelligence character​. We will not risk U.S. national security by presenting such
sensitive material in public or before a Court that includes two judges from Warsaw Pact
nations•... ​The right of a state to defend itself or to participate in collective self-defence against
aggression is an inherent sovereign right that cannot be compromised by an in appropriate
proceeding before the World Court[128] .- ​ Respondent
Currently, there are deep divisions among states as to the exact contours of the legal framework
governing the use of force. Yet it is important to note that the majority of the international
community does not accept the concept of anticipatory self-defence, let alone the vaguely
formulated ​preventive war d​ octrine. In other words, there has been no significant indication that
a new customary rule is evolving regarding this matter. Significantly, the stance of the ICJ has
essentially remained the same since the September 11 attacks. In fact, in its decisions and
advisory opinions, the ICJ avoided giving explicit opinions as to the legality ​of preventive
force[129]. ​In the ​Wall a​ dvisory opinion, the ICJ, making reference to its ​Nicaragua d​ ecision
and the U.N. Declaration on Friendly Relations, preserved its strict reading of Article 51[130].
- Applicant
In February 2003, Annan appointed a panel of eminent experts to assess common threats to
collective security and the appropriateness of the unilateral use of force. The resultant report on
Threats, Challenges and Change announced that although international law does not prohibit
anticipatory military action taken against an imminent threat[131], the main question arises
where the threat is not imminent but claimed to be real. The report clearly stated that:
[I]f there are good arguments for preventive military action, with good evidence to support them,
they should be put to the Security Council, which can authorize such action if it chooses to. If it
does not so choose, there will be, by definition, time to pursue other strategies, including
persuasion, negotiation, deterrence and containment - and to visit again the military option.... For
those impatient with such a response, the answer must be that, in a world full of perceived
potential threats, the risk to the global order and the norm of non- intervention on which it
continues to be based is simply too great for the legality of unilateral preventive action, as
distinct from collectively endorsed action, to be accepted. Allowing one to so act is to allow all. .
..We do not favour the rewriting or reinterpretation of Article 51[132].
(A U.N. World Summit, held in September 2005, considered the controversial issue of whether
the current collective security system should be modified. It was unambiguously underlined
that"the relevant provisions of the Charter are sufficient to address the full range of threats to
international peace and security[133].' Similarly, "the authority of the Security Council to
mandate coercive action to maintain and restore international peace and security" was reaffirmed
[134].) _ ​irrelevant
The main rationale of the temporal requirement, common to both criminal and international law,
lies in the legitimate purpose of preventing unnecessary killings. Self-defence is ​a justified u​ sage
of deadly force against a present or imminent aggression; i.e. it is not an entitlement to cause
irrevocable harm whenever the defendant subjectively believes in the necessity of lethal action to
prevent a​ n anticipated threat that might ripen into a real threat sometime in the future.
Furthermore, the requirement of imminence may not merely be regarded as a "proxy" for
establishing necessity; in contrast, imminence, necessity and proportionality are closely
connected to one another and are meant to ensure that the private force is only resorted to when
national/international authorities are not in a position to prevent an illegal aggression, and that
the defensive lethal force is not abused or used for other motives rather than for defensive
purposes. By requiring the would-be victim to take alternative measures to deal with an incipient
threat, the imminence rule also ensures that a just balance is struck between the rights of the
aggressor and defender.

[1] Letter from Mr. Webster to Lord Ashburton, August 6, 1842, cited in Lori F. Damrosch et al.,
International Law: Cases and Materials (​ 2001), p. 923
[2] Letter from Mr. Webster to Mr. Fox, April 24, 1841, cited in Damrosch et al., ​International
Law: Cases and Materials (​ 2001)

[3] ​Case Concerning Military and Paramilitary Activities in and against Nicaragua (​ ​Nicaragua
v. U.S.)​ , Merits, International Court of Justice (judgment of June 27, 1986), (dissent of Judge
Schwebel )
[4] Mr. Quaison-Sackey, UN Doc. no. S/PV.1024:51 (1962).
[5] Ibid.

[6] Yehuda Blum, UN Doc. no. S/PV.2280, June 12, 1981, p. 16.
[7] Mr. Koroma, UN Doc. no. S/PV.2283:56 (1981)
[8] ibid
[9] Ibid
[10] Sir Anthony Parsons, UN Doc. no. S/PV.2282:42 (1981)

[11] Arend and Beck, ​International Law and the Use of Force​, pp. 182–183
[12] A. Mark Weisburd, ​Use of Force: The Practice of States since World War II (​ Pennsylvania
State Univ. Press, 1997), p. 315.
[13] Michael Glennon, “The Fog of Law: Self Defense, Inherence and Incoherence in Article 51
of the United Nations Charter,” ​Harvard Journal of Law and Public Policy 2​ 5 (2002): 539, 554.
[14] Military and Paramilitary Activities in and against Nicaragua (Nicaragua vs United States),
‘Merits’, n. 9, para 191
[15] Ibid., para 249.
[16] Case concerning Oil Platforms (Islamic Republic of Iran v. United States of America),
November 2003.
[17] Ibid., para 64
[18] judith Gardam, ​Necessity, Proportionality and the Use of Force by States​, New York:
Cambridge University Press, 2006, pp. 138-143; Christian Tams, ‘The Use of Force against
Terorrists’, ​The European Journal of International Law, V​ ol. 20, No. 2, 2
[19] Gardam, ​Necessity, Proportionality and the Use of Force by States,​ n. 16, p. 141.
[20] R. Higgins, ​The Development of International Law through the Political Organs of the
United Nations​, Oxford: Oxford University Press, 1963, p. 201. Also, see Case concerning Oil
Platforms (Islamic Republic of Iran v. United States of America), n. 14, p. 12.
[21] After 9/11, ‘the Security Council toughened up its position as the enforcer of 1373,
accepting a report by its committee’ (known as Counter-Terrorism Committee) and later creating
a Counter-Terrorism Committee Executive Directorate (CTED) in 2004. See Conor Gearty,
Liberty and Security​, Cambridge: Polity Press, 2013, p. 31
[22] Leo Van den hole, ‘Anticipatory Self-defence under International Law’, ​American
University International Law Review,​ Vol. 19, No. 1, 2003, p. 78

[23] Gray, ​International Law and Use of Force,​ n. 21, p. 197

[24] While Resolution 1373 was the first legal document which allowed a collective action
against terrorism, the first legal document to deal with the subject of terrorism was UNSC
Resolution 1189, which was passed in 1998 after the twin US Embassy bombings in Dar es
Salaam and Nairobi. Resolution 1189 was, nevertheless, limited in its scope as it only criticised
the twin US Embassy bombings
[25] UNSC Resolution 1368, 12 September 2001
[26] UNSC Resolution 1189, 13 August 1998.
[27] UNSC Resolution 1368 and UNSC Resolution 1373
[28] Article 3(g), Definition of Aggression, UNGA
[29] Nicaragua case, para 195.
[30] Judge Higgins, Separate Opinion, Israeli wall case, 2004, para 33
[31] Kretzmer, ‘The Inherent Right to Self-defence and Proportionality in Jus Ad Bellum’, n. 33,
p. 246.
[32] Tams, ‘The Use of Force against Terrorists’, n. 16, p. 378.
[33] Articles 8–11, International Law Commission Articles on Responsibility of States for
Internationally Wrongful Acts, 2001.
[34] Corfu Island case, 1949, para 38
[35] Tarcisio Gazzini, ​The Changing Rules on the Use of Force in International Law​,
Manchester: Manchester University Press, 2005, p.
[36] ‘Iraq Formally Asks US to Launch Air Strikes against Rebels’, ​BBC,​ 18 June 2014,
available at http://www.bbc.co.uk/news/world-middle- east-27905849, accessed on 16 December
2016
[37] Kimberley Trapp, ‘The Use of Force against Terrorists: A Reply to Christian Tams’, ​The
European Journal of International Law​, Vol. 20, No. 4, 2010, p. 1052.
[38] Lindsay Moir, ‘Action against Host States of Terrorist Groups’, in Weller (ed.), ​The Oxford
Handbook of the Use of Force in International Law​, n. 40, pp. 722–23.
[39] ICTY, Prosecutor v. Tadi , ILM 38, 1999, para 90.
[40] Ibid.
[41]Article 8, International Law Commission Articles on Responsibility of States for
Internationally Wrongful Acts, 2001.
.

[42] Al-Skeini and Others v. United Kingdom, ECHR, 2011.

[43] International Law Commission, ​The Obligation to Extradite or Prosecute​, Final Report,
United Nations, 2014, pp. 7–8.
[44] Article 7, Convention for the Suppression of Unlawful Seizure of Aircraft, 16 December
1970.
[45] UNSC Resolution 2178, 24 September 2014, available at
http://www.un.org/en/sc/ctc/docs/2015/SCR%202178_2014_EN.pdf., accessed on 31 March
2017.
[46] UN, ​A More Secure World: Our Shared Responsibility​, Report of the High level Panel on
Threats, Challenges and Change, 2004, para 188.
[47] B. Smith, ‘The Legal Basis for the Invasion of Afghanistan’, 26 February 2010, available at
researchbriefings.files.parliament.uk/documents/ SN05340/SN05340.pdf, accessed on 31 march
2017.
[48] UNSC Resolution 678, 29 November 1990, available at https://
documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/575/28/
IMG/NR057528.pdf?OpenElement, accessed on 31 march 2017.
[49] UNSC Resolution 1441, 8 November 2002, available at
https://www.un.org/Depts/unmovic/documents/1441.pdf, accessed on 31 march 2017
[50] ‘Iraq Formally Asks US to Launch Airstrikes against Rebels’, n. 43.
[51] Enzo Cannizzaro, ‘Contextualizing Proportinality: Jus ad Bellum and Jus in Bello in the
Lebanese War’, ​International Review of the Red Cross,​ Vol. 88, No. 864, December 2006, p.
784.
[52] ‘Annan Proposes Package of Actions to Staunch Bloodshed in Lebanon’, 20 July 2006,
available at http://www.un.org/apps/news/story. asp?NewsID=19259#.WLYPoxLyho4, accessed
on 31 March 2017.
[53] UNSC Resolution 1701, 11 August 2006, available at
https://www.un.org/press/en/2006/sc8808.doc.htm. accessed on 31 march 2017.
[54] Ellen O'Connell, ​The Myth of Preemptive Self-Defense (​ Washington: The American Society
of International Law Task Force Papers, 2002), p. 11.
.
[56] Chris Brown, "Self-Defense in an Imperfect World", 17 ​Ethics & InternationalAffairs
(2003), <www.cceia.org/resources/joumal/17 1/roundtable/851.html> (28.5.2019).
[57] Stephen C. Neff, ​War and the Law of Nations:A General History ​(Cambridge University
Press, 2005), p. 127
[58] Yoram Dinstein, ​War, Aggression, and Self-Defence ​(Cambridge University Press, 2005), p.
185
[59] The National Security Strategy of the United States of America,
<www.whitehouse.gov/nsc/nss.html> (4.6.2019).
[60] Ben. N. Dunlap, "State Failure and the Use of Force in the Age of Global Terror", 27 ​Boston
College International and Comparative Law Review ​(2004),
<www.bc.edu/schools/law/lawreviews/metaelements/journals/bciclr/27_2/09_FMS.htm>
(5.5.2019).
[61] CNN. (2009, 05 18). US airstrikes called “very effective”’,. Retrieved from
http://articles.cnn.com/2009-05-18/politics/cia.pakistan.airstrikes_1_qaeda-
pakistani-airstrikes?_s=PM:POLITICS

[62] Ibid.
[63] Khan, S. (2009, July 30). US Drone Attacks Destabilizing Pakistan: Winning Hearts and
Minds Has failed. Retrieved from IslamOnline.net:
http://www.islamonline.net/servlet/Satellite?c=Article_C&pagename=Zone-
English-Muslim_Affairs%2FMAELayout&cid=1248187501549
[64] S. K. Mukherjee; A New Outlook for Int. Law (1964), p.99
[65] Winfiekl; "The History of Intervention in Internal Law", in British Yearbook of Int Law
(1922- 23), p.130.
[66] G. V. Glahn; op. cit, p.169.

[67] ​Brownlie’s Principles of Public International Law,​ Oxford Uni- versity Press, 8th ed.,
chapter 33.
[68] ​See B​ ELINDA MORRISSEY, WHEN WOMEN KILL: QUESTIONS OF AGENCY AND
SUBJECTivrrY 73 (Maureen McNeil et al. eds., Routledge 2003).
​ EORGE P.FLETCHER,BASIC CONCEPTS OF CRIMINAL LAW 135(1998).
[69] ​See G
[70] ​See E ​ DWARD HALLETr CARR, THE TWENTY YEARS' CRISIS, 1919-1939: AN
INTRODUCTION TO THE STUDY OF INTERNATIONAL RELATIONS 86-88 (Harper &
Row 1946) (1939); CHRISTOPHER C. JOYNER, INTERNATIONAL LAW IN THE 21ST

[71] Mordechai Kremnitzer, ​Proportionalityand the PsychoticAggressor: Another View, ​18 ISR.
L. REv. 178, 189 (1983).
[72] ​Id. a​ t 190.
[73] OHN LOCKE, THE SECOND TREATISE OF GOVERNMENT 4-6 (C.B. Macpherson ed.,
Hackett Publishing Co. Inc., 1980) (1690).
[74] ​Id. a​ t 7.
[75] ​Id. a​ t 13.
[76] 108. THOMAS HOBBES, LEVIATHAN: OR, THE MATTER, FORME & POWER OF A
COMMONWEALTH, ECcLEsIASTIcAL AND CIVL 115 (A.R. Waller ed., Cambridge
University Press 1904);Kinji
Akashi,​Hobbes'sRelevancetotheModemLawofNations,2​ J.HIST.INT'LL.199 (2000).
[77] HOBBES, ​supra n​ ote 108, at 115.

[78] ​Id.
[79] To Hobbes, right of self-defence was a natural right which could not be relinquished by any
Covenant: "In the making of a Common-wealth, every man giveth away the right of defending
another; but not of defending himself." ​Id. a​ t 156, 224.
[80] Allyson M. Lunny, ​Provocationand 'Homosexual' Advance: Masculinised Subjects as
Threat,MasculinisedSubjects UnderThreat,1​ 2 Soc. LEGAL STUD. 311, 312 (2003)
[81] Richard Jackson Harris & Cynthia A. Cook,​AttributionsaboutSpouseAbuse: It MattersWho
theBatterersandVictims Are, ​30 SEx ROLES 553 (1994).
​ erner v State, 711 S.W.2d 639,649 (Tex. Crim. App. 1986)
[82] ​See W
[83] State Papers (Eng.), vol. XLVI, at 18.
[84] See Anthony D’Amato, ​Israel’s Air Strike Against the Osiraq Reactor: A Retrospective,​ 10
Temple Int’l & Comp. L.J. 259 (1996).

[85] 157 ​L.N.T.S. ​No. 3611, 371

[86] Yusuf,M. (2009). Rational Institutional Design, Perverse Incentives, and the US- Pakistan
Partnership in post-9/11. Defence against Terrorism Review, 02(01), 15- 30.
[87] Benoist, A. D. (1999). what is Sovereignity? from" Quest-ceque la souverainete"
[88] Tondon, L. (2005). International Law. Lahore: Mansoor Book House.
[89] PEW. (2014). PEW Reseach Center Global Attitude and trends. Retrieved from
http://www.pewglobal.org/2014/08/27/a-less-gloomy-mood-in-pakistan/pg-2014-
08-27-pakistan-13/
[90]
[91] Pirzada, D. M. (2011, December 1). ‘Nightmare at Salala'. Islamabad, Pakistan: The
Express Tribune
[92] Panetta, L. (2011, December 02). Dawn. Interview of Leon Panetta, . Islamabad, pakistan:
Dawn.
[93] Convention, Article 4(1)
[94] ​Case of the Pueblo Bello Massacre ​Merits, Reparations and Costs, IACtHR Series C No.
140 (31 January 2006), 120
[95] ​Case of the "Street Children” (Villagran-Morales et al.) v. Guatemala​, IACtHR, IACtHR
Series C No 63 (19 November 1999), [144-146]
[96] G.V. Glahn; Law Among Nations(2​nd ed). 1970 , p.162 . This is recognised in arts 1 and 3
of the Draft Declaration on the Rights and Duties of States adopted in 1949 by the UN Int. Law
Commission.
[97] D.P. O’Connell.int.law(2​nd​ ed) ,vol 1, 1970 . p.299
[98] D. P. O'Connel; op. cit, pp.298-99
[99] BARON DE MONMESQUIEU & JEAN JACQUES ROUSsEAU, THE SPIRTOFLAWS
62 (Robert Maynard Mutchins ed., Encyclopedia Brittanica 1952)
[100] 2 WILIM BLACKSTONE, COMMENTARIEs ON THE LAWS OF ENGLAND 145 (5th
ed., Cavendish Publishing Limited, The Glass House, 2001).

[101] JOHN LOCKE, THE SECOND TREATISE OF GOVERNMENT 4-6 (C.B. Macpherson
ed., Hackett Publishing Co. Inc., 1980) (1690).
[102] HUGOGROTItuS,TheLAWOFWARANDPEACE44(FrancisW.Kelseytrans.,1925) (1625),
available at h​ ttp://www.lonang.comlexlibris/grotius/gro-100.htm. From this perspective,
positivist understanding rooted the binding force of international law in the consent of sovereign
nations, an analogy based on the private law of contract. ​See ​Kennedy, ​supra n​ ote 19, at 113;
Anthony Carty, ​Critical International Law: Recent Trends in the Theory of International Law, 2​
EuR. J. INT'L L. 66, 73 (1991).
​ hitley R. F. Kaufman, ​Self-Defense, Imminence, and the Battered Woman, 1​ 0 NEW
[103] ​See W
CPiM. L. REv. 342, 351 (2007).

[104] State v. Norman, 378 S.E. 2d 8 (N.C. 1989)

[105] ​See H​ olly Maguigan, ​Battered Women and Self-Defense: Myths andMisconceptions in
CurrentReform Proposals,1​ 40 U. PA. L. REv. 379, at 397-99(1991); Nourse, ​supra n​ ote 41, at
1253; FIONA LEVERICK, KILLING INSELF-DEFENCE 91 (Andrew Ashworth ed., 2006).
[106] ​See J​ ames Q. Whitman, ​Between Self-Defense and Vengeance/between Social Contrac
tand Monopoly of Violence, 3​ 9 TULSA L. REV. 901, 902 (2004).
[107] ​See 1​ GEORGE P. FLETCHER, THE GRAMMAR OF CRIMINAL LAW: AMERICAN,
COMPARATIVE, AND INTERNATIONAL 14 (2007).

[108] ​See T ​ HOMAS AQUINAS, POLITICAL WRITINGS 263-64 (R.W. Dyson ed., trans.,
Cambridge University Press 2002).
[109] ​See 1​ GEORGE P. FLETCHER, THE GRAMMAR OF CRIMINAL LAW: AMERICAN,
COMPARATIVE, AND INTERNATIONAL 14 (2007).
[110] s​ee ​George P. Fletcher, ​Self-Defense as a Justification for Punishment, ​12 CARDOZO L.
REV. 859, 865 (1991).
[111] George P. Fletcher, ​Fall and Rise of Criminal Theory, ​1BUFF. CRIM. L. REV. 275,287
(1998).
[112] John W. Roberts, ​Between the Heat of Passion and Cold Blood: Battered Woman's
Syndrome as an Excuse for Self-Defence in Non-Confrontational Homicides, 2​ 7 LAW &
PSYCHOL.REv. 135,136(2003)
[113] ​See P ​ eter D. W. Heberling, ​Justification:The Impact of the Model Penal Code on Statutory
Reform, 7​ 5 COLuM. L. REv. 914, 916 (1975).
[114] Canadian Law Reform Commission, ​Criminal Law the General Part:Liability and
Defences ​90-91 (Ottowa: Working Paper 29 1982)
[115] ​See G ​ eorge P. Fletcher, ​The Right and the Reasonable, ​98 HARV. L. REv. 949, 954
(1985).
[116] ​See J​ . M. Coady, ​Morality and the Law, ​1 U. BRIT. COLUM. L. REv. 442, 442 (1959).
[117] HANS KELSEN, PURE THEORY OF LAW 335 (Max Knight trans., University of
California Press 1967) (1934).

[118] Jimmy Carter, Nobel Peace Prize Speech (Dec. 10, 2002),
http://news.bbc.co.uk/l/hi/world/americas/2562301.stm.
[119] Nico Krisch, ​MoreEqualthan the Rest? Hierarchy,Equality and U.S. Predominance in
International Law, in ​UNITED STATES HEGEMONY AND THEFOUNDATIONS
OFINTERNATIONAL
[120] Oil Platforms (Iran v. U.S.), 2003 I.C.J.161.
[121] ​Id. a​ t 51.
[122] Pete Du Pont, ​Freedom, Foreign Policy, and Public Opinion: A Strategy for Fostering
Democracy, 1​ 1 FLETCHER F. WORLD AFF. 207, 207-08 (1987).
[123] ​See M ​ arcelo G. Kohen, ​The Use of Force by the United States after the End of the Cold
War,and its Impact on InternationalLaw, in U ​ NrrED STATES HEGEMONY AND THE
FOUNDATIONS OF INTERNATIONAL LAW,
[124] President Ronald Reagan, State of the Union Address, (Feb. 6, 1985) ​in D ​ u Pont, supra
note 163, at 210; ​seealso ​Charles Krauthammer, ​The Reagan Doctrine,T ​ tME,
June24,2001,​availableat​http:/lwww.time.comltime/magazinelarticle/0,9171,141478,00.html.
[125] ​See M ​ arcelo G. Kohen, ​The Use of Force by the United States after the End of the Cold
War,and its Impact on International Law, in u​ nited STATES HEGEMONY AND THE
FOUNDATIONS OF INTERNATIONAL LAW
[126] ​See M ​ ichael J. Glennon, ​Protecting the Court's Institutional Interests: Why Not the
MarburyApproach?,8​ 1 AM. J. INT'LL. 121, 125 (1987).
[127] ​See A​ bram Chayes, ​Nicaragua, the United States, and the World Court,8​ 5 COLUM. L.
REV. 1445, 1447 (1985).
[128] .S. WITHDRAWL FROM THE PROCEEDINGS INITIATED BY NICARAGUA IN
THE ICJ - INTERNATIONAL COURT OF JUSTICE - TRANSCRIPT (Jan. 18, 1985) in DEP'T
ST. BULL. March 1985, ​available at
http://findarticles.conp/articles/mi_mlO79/isv85/ai_3659121/pg_2
​ hristine Gray, ​The Bush Doctrine Revisited: .The 2006 National Security Strategy of
[129] ​See C
the USA, ​5 CHINESE J. INT'L L. 555, 563 (2006).
[130] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, 2004 I.C.J. 136, at 87-88 (July 2004), ​availableat h​ ttp://www.icj-
cij.org/docket/files/l31/167l.pdf,

[131] The Secretary-General, ​Note by the Secretary-General on the Follow-up to the Outcome of
the Millennium Summit, ​188, ​delivered to the General Assembly, ​U.N. Cov.A/59/565, (Dec. 2,
2004), ​availableat​http://www.un.orglsecureworld/report.pdf.
[132] ​Ibid.
[133] GENERAL ASSEMBLY, RESOLUTIONS AND DECISIONS ADOPTED BY THE
GENERAL ASSEMBLY 15 (2003)
[134] High-Level Plenary Meeting, Sept. 14-16,2005, ​2005 World Summit Outcome,​79

Things to do

1. Most of the cases on such incidents are decided by self defence. Find cases whether
territorial sovereignty has been used as a yardstick. For eg- air strikes did take place but it
was allowed/ negated on sovereignty only, without discussing self defense- ARSIWA
Commentry use.
2. Use a few more other treaties like VLCT, Additional Protocol etc. see the moot
proposition. A variety of them would help us.
3. Use of UN Resolutions
 4. Second issue to be researched further upon. WE have some in OC, but less here. WE
have to balance both the issues.\
5. Can we find two cases- one where civilian deaths were justified because of terrorism
eradication and another where it wasn’t.
6. Can media news and such sources be held to be credible?
7. Violation of treaties of humanitarian grounds in second issue by Respondent.
8. Exceptions or defences that can be claimed by means of facts or case laws by respondent.

Please go through the OC, we can avoid repetition and also we can save time by not researching
on topics found even earlier.

For the second issue-

We need quite a great deal of research yet.

NEXT BATCH

Introduction

PRINCIPLES OF INTERNATIONAL LAW ON SELF-DEFENCE

The Charter of the United Nations prohibits the use of force against another state except where
the Security Council has authorised the use of force to maintain or restore international peace
and security; and where a state is exercising its inherent right of individual or collective
self-defence recognised by Article 51 of the Charter[1].

The principles set out below are intended to provide a clear statement of international law
regarding the inherent right of self-defence.

All the principles need to be read together.

Even in a case where a state is legally entitled to use force, there may be reasons of prudence and
principle not to exercise that right.

1. ​ he law on self-defence encompasses more than the right to use force in response to an
T
ongoing​ attack.

Article 51 preserves the right to use force in self-defence “if an armed attack occurs”, until the
Council has taken the necessary measures. On one view, the right is confined to circumstances in
which an actual armed attack has commenced.[2] But the view that states have a right to act in
self-defence in order to avert the threat of an ​imminent a​ ttack - often referred to as ‘anticipatory
self-defence’[3] - is widely, though not universally, accepted.[4] It is unrealistic in practice to
suppose that self-defence must in all cases await an actual attack.

The difference between these two schools of thought should not be overstated: many of those in
the first school take the view that an attack has commenced when there are active preparations at
an advanced stage, if there is the requisite intent and capability; and many of those in the other
school require not dissimilar conditions before force in self-defence may lawfully be used in
respect of an imminent attack. Further, those who deny the right of anticipatory self-defence may
accept that a completed attack is sufficient to trigger a right to respond in anticipation of another
attack[5].

The requirements set out in the ​Caroline case[6] must be met in relation to a threatened attack. A
threatened attack must be ‘imminent’ and this requirement rules out any claim to use force to
prevent a threat emerging[7]. Force may be used in self-defence only when it is necessary to do
so, and the force used must be proportionate.

2. ​ orce may be used in self-defence only in relation to an ‘​ ​armed attack’​ ​whether

F
imminent or ongoing.​
 · The ‘armed attack’ may include not only an attack against a state’s territory, but also
against emanations of the state such as embassies and armed forces.
· Force in self-defence may be used only when: the attack consists of the threat or use of
force (not mere economic coercion, for example); when the attacker has the intention and
the capability to attack; and the attack is directed from outside territory controlled by the
state.
· In the case of a threatened attack, there must be an actual threat of an attack against the
defending state itself.

The inherent right of self-defence recognised in Article 51 of the Charter of the United Nations
“if an armed attack occurs” forms an exception to the general prohibition against the use of force
under Article 2(4).

For the purpose of Article 51, an armed attack includes not only an attack against the territory of
the State, including its airspace and territorial sea, but also attacks directed against emanations of
the State, such as its armed forces or embassies abroad. An armed attack may also include, in
certain circumstances, attacks against private citizens abroad or civil ships and airliners.[8] An
‘armed attack’ therefore is an intentional intervention in or against another state without that
state’s consent or subsequent acquiescence, which is not legally justified.

An armed attack involves the use of armed force and not mere economic damage. Economic
damage, for example, by way of trade suspension, or by use of a computer virus designed to
paralyse the financial operations of a state’s stock exchange or to disable the technology used to
control water resources, may have a devastating impact on the victim state but the principles
governing the right to use force in self-defence are confined to a ​military attack. A purely
‘economic’ attack might however give rise to the right of self-defence if it were the precursor to
an imminent armed attack.

An armed attack means any use of armed force, and does not need to cross some threshold of
intensity.[9] Any requirement that a use of force must attain a certain gravity and that frontier
incidents, for example, are excluded 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. In the case of attacks by non-State actors,
however, different considerations may come into play (see section 6 below).

The term ‘armed attack’ requires the attacker to have the intention to attack. In the ​Oil Platforms
Case the ICJ made reference to this requirement when it inquired into the question whether the
US was able to prove that certain of Iran’s actions were “specifically aimed” at the US or that
Iran had “the specific intention” of harming US vessels[10]. But to the extent that this may be
read as suggesting that military attacks on a state or its vessels do not trigger a right of
self-defence as long as the attacks are not aimed specifically at the particular state or its vessels
but rather are carried out indiscriminately, this part of the ICJ’s ruling in ​Oil Platforms has been
criticised as not supported by international law.

An armed attack is an attack directed from outside territory controlled by the State. In its
Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory[11] ​the ICJ’s observations may be read as reflecting the obvious point that
unless an attack is directed from outside territory under the control of the defending state the
question of self-defence in the sense of Article 51 does not normally arise.
In the case of a threatened attack, there must be an actual threat of an attack against the
defending state itself, whether directed against that state or by an indiscriminate attack.This is an
aspect of the criterion of necessity. It addresses the question whether it is necessary for the target
state to take action.

3. Force may be used in self-defence only when this is n​ ecessary to bring an attack to an end, or
to avert an imminent attack. ​There must be no practical alternative to the proposed use of force
that is likely to be effective in ending or averting the attack.

The criterion of necessity is fundamental to the law of self-defence[12]. Force in self-defence

may be used only when it is necessary to end or avert an attack. Thus, all peaceful means of
ending or averting the attack must have been exhausted or be unavailable. As such there should
be no practical non-military alternative to the proposed course of action that would be likely to
be effective in averting the threat or bringing an end to an attack. Necessity is a threshold, and
the criterion of imminence can be seen to be an aspect of it, inasmuch as it requires that there be
no time to pursue non-forcible measures with a reasonable chance of averting or stopping the
attack.

Necessity is also a limit to the use of force in self-defence in that it restricts the response to the
elimination of the attack and is thus linked to the criterion of proportionality. The defensive
measure must be limited to what is ​necessary​ to avert the on-going attack or bring it to an end.

In applying the test of necessity, reference may be made to the means available to the state under
attack; the kinds of forces and the level of armament to hand[13] will be relevant to the nature
and intensity of response that it would be reasonable to expect, as well as the realistic
possibilities of resorting to non-military means in the circumstances.[14]
 4. A state may use force in self-defence against a threatened attack only if that attack is
‘imminent’.

There is a risk of abuse of the doctrine of anticipatory self-defence, and it needs to be applied in
good faith and on the basis of sound evidence. But the criterion of imminence must be
interpreted so as to take into account current kinds of threat and it must be applied having regard
to the particular circumstances of each case. The criterion of imminence is closely related to the
requirement of necessity.
· Force may be used only when any further delay would result in an inability by the
threatened state effectively to defend against or avert the attack against it.
· In assessing the imminence of the attack, reference may be made to the gravity of the
attack, the capability of the attacker, and the nature of the threat, for example if the attack
is likely to come without warning.
· Force may be used only on a proper factual basis and after a good faith assessment of
the facts.

The concept of ‘imminence’ reflects the ​Caroline formulation of ‘instant, overwhelming, leaving
no choice of means, and no moment for deliberation’. In the context of contemporary threats
imminence cannot be construed by reference to a temporal criterion only, but must reflect the
wider circumstances of the threat.

There must exist a circumstance of irreversible emergency. Whether the attack is ‘imminent’
depends upon the nature of the threat and the possibility of dealing effectively with it at any
given stage. Factors that may be taken into account include: the gravity of the threatened attack –
whether what is threatened is a catastrophic use of WMD; capability - for example, whether the
relevant state or terrorist organisation is in possession of WMD, or merely of material or
component parts to be used in its manufacture; and the nature of the attack – including the
possible risks of making a wrong assessment of the danger. Other factors may also be relevant,
such as the geographical situation of the victim state, and the past record of attacks by the state
concerned.

The criterion of imminence requires that it is believed that any further delay in countering the
intended attack will result in the inability of the defending state effectively to defend itself
against the attack. In this sense, necessity will determine imminence: it must be necessary to act
before it is too late. There is a question as to whether ‘imminence’ is a separate criterion in its
own right, or simply part of the criterion of ‘necessity’ properly understood. As an additional
criterion however it serves to place added emphasis on the fact that a forcible response in these
circumstances lies at the limits of an already exceptional legal category, and therefore requires a
correspondingly high level of justification.
To the extent that a doctrine of ‘pre-emption’ encompasses a right to respond to threats which
have not yet crystallized but which might materialise at some time in the future, such a doctrine
(sometimes called ‘preventive defence’) has no basis in international law. A fatal flaw in the
so-called doctrine of prevention is that it excludes by definition any possibility of an ​ex post
facto judgment of lawfulness by the very fact that it aims to deal in advance with threats that
have not yet materialised.

Each case will necessarily turn on its own facts. A forceful action to disrupt a terrorist act being
prepared in another state might, depending upon the circumstances, be legitimate; force to attack
a person who may in the future contemplate such activity is not. While the possession of WMD
without a hostile intent to launch an attack does not in itself give rise to a right of self-defence,
the difficulty of determining intent and the catastrophic consequences of making an error will be
relevant factors in any determination of ‘imminence’ made by another state.

The determination of ‘imminence’ is in the first place for the relevant state to make, but it must
be made in good faith and on grounds which are capable of objective assessment. Insofar as this
can reasonably be achieved, the evidence should be publicly demonstrable. Some kinds of
evidence cannot be reasonably produced, whether because of the nature or source, or because it
is the product of interpretation of many small pieces of information. But evidence is fundamental
to accountability, and accountability to the rule of law. The more far-reaching, and the more
irreversible its external actions, the more a state should accept (internally as well as externally)
the burden of showing that its actions were justifiable on the facts. And there should be proper
internal procedures for the assessment of intelligence and appropriate procedural safeguards.

5. The exercise of the right of self-defence must comply with the criterion of
‘proportionality’.
· The force used, taken as a whole, must not be excessive in relation to the need to avert
or bring the attack to an end.
· The physical and economic consequences of the force used must not be excessive in
relation to the harm expected from the attack.

In the ​Caroline formulation, the principle of proportionality was stated to require “nothing
unreasonable or excessive, since the act, justified by the necessity of self-defence, must be
limited by that necessity, and kept clearly within it.”
The ICJ has confirmed that it is a well-established rule of customary international law that a use
of force in self-defence must be “proportional to the armed attack and necessary to respond to
it.” [15]

This requires that the level of force used is not greater than that necessary to end the attack or
remove the threat. As such it is another way of looking at the requirement of necessity.

The proportionality requirement has been said to mean in addition that the physical and
economic consequences of the force used must not be excessive in relation to the harm expected
from the attack[16]. But because the right of self-defence does not allow the use of force to
‘punish’ an aggressor, proportionality should not be thought to refer to parity between a response
and the harm already suffered from an attack, as this could either turn the concept of self-defence
into a justification for retributive force, or limit the use of force to less than what is necessary to
repel the attack.

The force used must take into account the self-defence operation “as a whole”. It does not relate
to specific incidents of targeting (which is a matter for international humanitarian law). Thus, in
the ​Oil Platforms Case, the ICJ stated that in assessing proportionality, it “could not close its
eyes to the scale of the whole operation”[17].

6​. A
​ rticle 51 is not confined to self-defence in response to attacks by states. The right of
self-defence applies also to attacks by​ ​non-state actors.
· In such a case the attack must be large scale.
· If the right of self-defence in such a case is to be exercised in the territory of another
state, it must be evident that that state is unable or unwilling to deal with the non-state
actors itself, and that it is necessary to use force from outside to deal with the threat in
circumstances where the consent of the territorial state cannot be obtained[18].
· Force in self-defence directed against the government of the state in which the attacker
is found may be justified only in so far as it is necessary to avert or end the attack, but not
otherwise.

There is no reason to limit a state’s right to protect itself to an attack by another state. The right
of self-defence is a right to use force to avert an attack. The source of the attack, whether a state
or a non-state actor, is irrelevant to the existence of the right. The ICJ ​Wall ​Advisory Opinion
should not be read as suggesting that the use of force in self-defence is not permissible unless the
armed attack is by a state.[19] There is nothing in the text of Article 51 to demand, or even to
suggest, such a limitation.[20]
This conclusion is supported by reference to the ​Caroline case; the criteria in ​Caroline ​were
enunciated in the context of a marauding armed band, not orthodox state-to-state conflict.

State practice in this field, including the recent practice of the Security Council, gives no support
to the restriction of self-defence to action against armed attacks imputable to a state; indeed there
is state practice the other way. The action against Al Qaeda in Afghanistan in October 2001
(which was widely supported by states) was action in self-defence of anticipated imminent
terrorist attacks from Al Qaeda, not from the Taliban. It was necessary to attack certain elements
of the Taliban, in order to pre-empt attacks from Al Qaeda. Security Council resolutions
1368(2001) and 1373(2001) support the view that self-defence is available to avert large-scale
terrorist attacks such as those on New York and Washington on 11 September 2001.[21] So too
do the invocations by NATO and the OAS of their respective mutual defence obligations

The right of states to defend themselves against ongoing attacks, even by private groups of
non-state actors, is not generally questioned. 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. It may be that the state is not responsible for the acts of the terrorists, but it is responsible
for any failure to take reasonable steps to prevent the use of its territory as a base for attacks on
other states. Its inability to discharge the duty does not relieve it of the duty. But 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 organisation 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 organisation in the state in which it is located[22].

The same criteria for the use of force in self-defence against attacks by states are to be used in
the case of attacks by non-state actors, but particular considerations are relevant.

The attack or imminent attack by non-state actors must be large-scale.[23]

For action in self-defence to be ‘necessary’, it must first be clear that measures of

law-enforcement would not be sufficient. To show the necessity of action against the territory of
another state not directly responsible for the acts of the non-state group requires, ​inter alia,​ the
demonstration that there is no other means of meeting the attack and that this way will do so.
Terrorist organisations are not easily rooted out by foreign armed forces.
Where, therefore, the attack is not ongoing but imminent, the territorial state is entitled to
proceed in its own way against the group on its territory. In this context, the requirement of
‘imminence’ means that action in self-defence by another state may not be taken save for the
most compelling emergency.
7. The principles regarding the right of self-defence form only a part of the international
regulation of the use of force.
· ​Measures taken in the exercise of the right of self-defence must be reported
immediately to the Security Council. The Council retains the right and responsibility
to authorise collective military action to deal with actual or latent threats.
· ​Any military action must conform with the rules of international humanitarian law
governing the conduct of hostilities.

Responses to questionnaire

“There are few more important questions in international law than the proper
limits of the right of self-defence”​ [24]

A questionnaire was completed by the international lawyers and international relations scholars
in the United Kingdom who are listed below. This paper sets out their individual responses.
The responses were written for the purpose of this questionnaire alone and do not necessarily
reflect the totality of the writers’ views.

Contents

Q1. What is an ‘armed attack’ for the purposes of Article 51? p

.
1
4

Q2. Does the right of self-defence relate only to an attack from another State, or does it p
also relate to attacks from non-state actors, eg a terrorist group, and if so, .
 Under what conditions? 2
0

Q3. Must there be an actual armed attack before the right of self-defence comes into play? p
.
3
3

Q4. If the use of force in self-defence is permissible in relation to anticipated armed

attacks, what does the criterion of ‘imminence’ mean, particularly in relation to current
threats? What evidence need there be of a threat of an imminent armed attack before the
use of force in self-defence is justifiable? p
.
3
9

Q5. What does the criterion of ‘proportionality’ mean? p

.
5
2

Q6. What does the criterion of ‘necessity’ mean? p

.
5
7

Q7. Is it permissible to use force in self-defence against a terrorist grouping within

another State although that State may not be unwilling, but simply unable, to deal with a
terrorist organisation itself? p
.
6
2

Note
Issues which are not covered by this study include: the use of force authorised by the Security
Council; the use of force in collective self-defence; the use of force to avert an overwhelming
humanitarian catastrophe/humanitarian intervention; use of force with the consent of the state
concerned; and the use of force to rescue nationals abroad where the territorial state is unable or
unwilling to do so.

Question 1: What is an ‘armed attack’ for the purposes of Article 51?

Daniel Bethlehem

The jurisprudence of the International Court of Justice (ICJ) in the Nicaragua ​Case​[25]​, ​Oil
Platforms C ​ ase​[26],​ ​NATO (Provisional Measures)[​ 27] and the Wall ​Advisory Opinion[28]
suggests a requirement that the term “armed attack” be construed to mean an armed attack on a
significant scale across international boundaries which takes the form of a continuous assault
rather than an accumulation of individual attacks each of which in isolation is of lower intensity
than the accumulated whole.

In my view, this appreciation of the concept of armed attack is problematic as it does not
accurately reflect the nature of many attacks with which States are faced and to which they,
ideally with a UN Security Council ​imprimatur​, may be compelled to respond. In my view,
“armed attack” should be construed to mean any use of armed force. Such an interpretation
would bring the scope and application of Article 51 into line with Article 2(4) of the UN Charter.
The appropriate principles to limit the scale of any response to an armed attack are the principles
of necessity and proportionality, not a complex and unsustainable definition of the concept of
“armed attack”.

James Gow

Aside from a traditional approach involving the formal armed forces of one state against another,
it is impossible to say. Otherwise, dual use technology, in the broadest sense, might mean that
almost anything could constitute an armed attack for the purposes of Article 51 of the Charter of
the United Nations. The better approach, though not easy, might be to try to establish that which
might not be covered. A middle ground test case might be anthrax in the mail, or attacks on
computer infrastructure, such as computer viruses. More radically, could a Kosovo-like assault
on a population group constitute an armed attack on others such as NATO, because their
security, one way or another, was being jeopardised?

Christopher Greenwood

The term “armed attack” is plainly confined to the use of armed force and does not include
economic coercion. To my great regret the ICJ seems wedded (see ​Nicaragua a​ nd ​Oil Platforms
Cases) to the notion that not every use of force against a state constitutes an armed attack,
suggesting that there has to be some threshold of intensity which is crossed before violence
becomes an “armed attack”. This has never made any practical or logical sense but the world
appears to be stuck with it. The only consolation is that in the ​Oil Platforms Case the ICJ
appeared to set the threshold quite low – mining of a single warship might constitute
self-defence.

A related question is against whom the attack has to be directed. It seems to be common ground
that an armed attack on the territory of a state (whether inhabited or not, whether metropolitan or
colonial), or its armed forces or embassies abroad is an armed attack on the state but doubt exists
about attacks on merchant ships, civil airliners or private citizens abroad. My own view is that
attacks on merchant ships were treated by several states (not just the ‘usual suspects’) as an
armed attack on the state of the flag during the Iran-Iraq war and that this is right. The same
principle can presumably be extended to civil aircraft. Nationals abroad are more of a problem
but if they are attacked because of their nationality or in order to exert pressure on the state, I
think that amounts to an armed attack on the state itself. It would be odd (to say the least) if
force could be used to protect uninhabited rocks but not hundreds of one’s people – population,
after all, being one of the inherent criteria of statehood.

Vaughan Lowe

An ‘armed attack’ is an intentional, forcible and coercive intervention in another state without
that state’s prior or retrospective consent or subsequent acquiescence, which is not justified as an
exercise of the right of self-defence or as an intervention for humanitarian purposes, and which
has as its aim the imposition of the will of the attacker upon some part of the territory of the
other state or upon some aspect of the policy of the other state.
I think that it is necessary to distinguish ‘attacks’ from simple violations of sovereignty, of the
kind that might be inflicted by an aircraft straying into airspace without authorisation. An attack
must be intentional. Moreover, it must involve the threat or use of force. Those elements seem
to me to be implicit in the concept of an attack. The reference to the aim for which force is
threatened or used seems to me to be necessary in order to distinguish an attack from a broader
category of cross-frontier violence. I think that a private person shooting across a frontier for
personal reasons – a murder – is a crime but not an attack on the state wherein the victim is
located. But I do not think that all attacks are necessarily attacks by, or imputable to, states. It is
therefore necessary to have a criterion other than the identity of the attacker to take such episodes
out of the category of ‘attacks’. That is what this reference to the aim does. The definition of the
necessary aim is intended to locate the intention in the area of public action, so that an attack
must necessarily involve some challenge to the authority of the target state.

I do not think that the attack need be particularly large in scale. A few soldiers sent over the
border would suffice, though, on the other hand, a few shots from a border patrol could be
classed as a border incident, and not an attack, because there is no intention of imposing the will
of the attacker upon some part of the territory of the other state or upon some aspect of the policy
of the other state.

The attack is an “armed attack” if it involves the threat or use of potentially lethal force.
Throwing stones across the border would not ordinarily amount to an attack, though it might if
the stones were used in such a manner that they were capable of inflicting death and were
intended to do so.

The attack is an attack by a state if that state is responsible as a matter of international law for
that attack. As mentioned above, I do not think that all attacks emanate from states. The World
Trade Centre attack was an attack, regardless of whether or not it was imputable to any state.

Sir Adam Roberts

The whole issue of exactly which forms of action can be understood as being encompassed in the
notion of “armed attack” is notoriously difficult. That is a principal reason why the UN Charter
accords the UN Security Council a broad degree of discretion about the circumstances in which
it can take action.

Where states consider that there is a necessity to use force in circumstances that go beyond
self-defence in an ​actual armed attack, it is generally desirable to seek and obtain multilateral
authorisation. The United Nations Security Council is the only body in the world with the
undisputed legal right to authorise forcible measures against sovereign states pre-emptively.

Philippe Sands

The right of self-defence encompasses a right to use force in anticipation of an actual armed
attack, where there is an imminent threat.

Malcolm Shaw

There are several issues worth noting here. First, the concept of “armed attack” is clearly
differentiated from that of aggression in the UN Charter, but has been left somewhat confused
since the ​Nicaragua Case held that the provision of weapons or logistical or other support to
rebels conducting an attack would not of itself amount to an armed attack but might amount to
intervention in the affairs of another state or a “threat or use of force”[29]. The distinction
between the use of force and armed attack in such circumstances is rather thin, especially if the
provision of the assistance in question is critical with regard to the existence and scale of
operations by the “rebels” (as termed by the Court) and thus impacts upon the legitimation of the
response by the state attacked. This distinction in practice is also unlikely to be convincing for a
state who is subject to rebel attack and who will find it difficult not to seek to interdict the supply
of weapons etc.. Accordingly, the notion of armed attack within the context of justifying
recourse to force in self-defence should be understood as including actions which contribute
significantly to the attack itself. Of course, this must be interpreted in the light of the
circumstances and in the light of the other criteria with regard to self-defence.

Secondly, the Court seems also to have adopted a ​de minimis approach to armed attack[30]. This,
again, must be treated with some care since an attack may assume different dimensions in the
light of the political or psychological circumstances of the moment. What in one context may
seem relatively insignificant, may in others assume considerable importance prompting the need
to respond in self-defence.

This links with the third point, the question as to when an armed attack actually starts. There is
clearly some overlap here with “imminent” attack, but there may be circumstances where the
events immediately preceding the opening of fire may need to be seen simply as part of the
precipitated attack. An armed attack may in reality commence with an insignificant military
movement into an area of little interest, for example, in a desert, which is intended to confuse
and deceive prior to the main movement of forces. What is a state that correctly interprets the
initial move to conclude as to recourse to force in self-defence? As technology develops, so this
notion needs to be interpreted in that light, so that, for example, the “locking on” of missile radar
on to a plane may in some circumstances witness an imminent attack, while in others it may be
seen itself as the start of that attack. Similarly, certain cyberspace attacks may be seen as
initiating an armed attack. The test in this situation will in reality revolve around whether the
attacking state has clearly on the best available evidence committed itself to an armed attack[31].

Fourthly, at the other end of Article 51 “armed attack” is the linguistic debate as to whether
armed attack is restricted to aggression against a state alone. This is the position adopted by
many French scholars on the basis of the French text which differs from the English language
text of the provision. This impacts on responses to terrorism issues (see below).

Gerry Simpson

Traditionally, the concept of an “armed attack” was understood to involve a cross-border use of
military force by one state against another. Those who drafted the UN Charter had in mind a
particular paradigm: the German invasion of Poland in 1939. In other words, the UN Charter was
designed to prevent or forestall or confront a repeat of the last war, the Second World War. This
may account for its lack of precision and guidance in relation to unconventional uses of force
since then. Of course, the ​Nicaragua d​ ecision provided an occasionally helpful, sometimes
tautological, elaboration of the ​jus ad bellum.​ The majority held that the term “armed attack”
could encompass the sending of armed groups by one state into the territory of another state
providing this action reached the gravity of an ordinary “armed attack”.

Colin Warbrick

An armed attack is the use of military force by one state against the territory or quasi-territorial
entities of another state or against the armed forces of the other states outside the latter's territory
(I leave out of account here the question of attacks on a state's nationals), of such a magnitude to
be more than a "mere frontier incident" [​Nicaragua, para 195]. "Attack" must be understood to
include the launching of an attack against the territory of the other state as well as the actual use
of force within that territory, e.g. a missile attack begins when the missiles are launched; when a
fleet leaves port or a squadron its airbase, en route to the territory to be attacked or when ground
troops begin their movement towards the target state. It is a military assessment that the attack
has started (and it may have done in legal terms, even if the attack could be called off before
there were any incursion into the territory of the target state). So, even if the view were taken that
the attack on Israel did not commence with the closure of Tiran[32], the movement of
considerable Egyptian forces across Sinai towards Israel was an "attack", even though the
progress of the forces might have been halted before they reached Israel's territory.

Also, depending on the facts, an "attack" may be a campaign against a state rather than a single
event, so that the mere fact that one episode in the campaign has come to an end does not mean
that the campaign of armed attack has terminated. The right of self-defence persists during the
campaign. Kuwait was subject to an armed attack by Iraq from 2 August 1990 until about the
end of February 1991 and the right of self-defence continued throughout this period. Equally, an
attack continues so long as the self-defending state is taking steps to use defensive force to bring
the effects of the attack to an end (e.g. in the Falklands conflict).

Nicholas Wheeler

There is no definition of the key terms “armed attack”, “inherent right” or “self-defence” in
Article 51; the assumption being that these terms would be interpreted by the political organs of
the UN, especially the Security Council. In customary international law, an armed attack has
been understood as a large-scale, cross-border aggression. The effect of a literal reading of the
phrase ‘if an armed attack occurs’ is that a state must wait until the armed attack has actually
commenced and that any relaxation of that requirement, such that a state could exercise force
before the armed attack has actually commenced, is a misreading of the narrow limits of Article
51.

Sir Michael Wood[33]

Any unlawful attack (actual or imminent) using armed force by one state against the territory,
embassies, nationals, ships etc. of another state is an armed attack for the purposes of Article 51.
Large-scale terrorist attacks may also be included (see response to question 2).

To the extent that the ICJ has suggested that lesser uses of force are not an armed attack the
Court was misguided. There is no sound basis for suggesting that the armed attack must have
reached some particular level of gravity. Dicta in ​Oil Platforms may exacerbate the problem left
by ​Nicaragua​, which appeared at least to be limited to indirect armed attacks.

Question 2: Does the right of self-defence relate only to an attack from another state, or does it
also relate to attacks from non-state actors, e.g. a terrorist group, and if so, under what
conditions?

Sir Franklin Berman

When the focus is directed at the response to an actual armed attack, there seems no reason to
limit the right of self-defence to an attack ​by another state (presumably this is what the question
means, i.e. it looks to the person of the attacker rather than the geographical origin of the attack).
There is nothing in the text of Article 51 to demand, or even to suggest, such a reading, and logic
would be decisively against it. Granted a similar ‘attack’, why should a state’s legal capacity to
protect itself depend on the identity of the attacker? To the extent that the ICJ may be thought to
have suggested something different in the ​Wall Advisory Opinion, this should be disapproved.
The criteria which emerged following the ​Caroline[34] incident were enunciated in the context
of a marauding armed band, not orthodox state-to-state conflict. The ​necessity and
proportionality criteria are perfectly capable of adapting themselves to the foreseeable variety of
possible cases; other limitations are covered under question 7 below.

There is no particular reason why a state, confronted with a genuine question of imminence (see
under question 4 below), should first have to enter into an investigation of the extent to which the
particular attack was ‘attributable’ (e.g. in the state responsibility sense) to the state from the
territory of which the attack emanated, or represented a conscious policy decision at the highest
level, etc., before its entitlement to an immediate protective response comes into play.
Questions of that kind are by no means negligible, and in some cases may take a primary
position; in others, they may be more relevant to the second move – or to a longer-term strategy
– than to the immediate response.

Daniel Bethlehem
In the light of the ​Wall Advisory Opinion, there is some doubt as to whether the right of
self-defence relates to attacks by non-state actors. Although the Court sought to limit the scope
of its analysis to the Israel-Palestine situation, it is evident from the Separate Opinions of Judges
Kooijmans and Higgins that the Court’s thinking went beyond the case before them and
challenged the appreciation which informed Security Council Resolutions 1368 (2001) and 1373
(2001).

It is evident, however, from the ​Nicaragua Judgment, that the Court acknowledges the existence
of a right of self-defence against non-state actors if they receive state support. This is consistent
with the Security Council’s appreciation in respect of Afghanistan.

In my view, if the law is to be credible, a right of self-defence must be acknowledged against

non-state actors conducting themselves from foreign territory in circumstances in which they use
or threaten force illegally and the State on whose territory they are based (a) actively supports the
group, or (b) takes no effective action to forestall the use or threat of force by the group, or (c) is
unable to take effective action to forestall the use or threat of force by the group. Once again, the
appropriate principles to limit the scale of any response to an armed attack are the principles of
necessity and proportionality.

James Gow

Only if one disregards UN Security Council resolutions 1368 and 1373, as well as the extensive
support for the approach taken by the US in response to the attacks of 11 September 2001.

Christopher Greenwood

In my view, it can definitely stem from a terrorist group or other non-state actor. To the extent
that the ICJ suggested the contrary in the ​Wall A ​ dvisory Opinion, it was just wrong and its
approach is manifestly at odds with state practice in the aftermath of the attacks of 11 September
2001. The text of Article 51 does not contain anything to suggest that an armed attack must
emanate from a state. The ​Caroline incident was all about attacks by non-state actors. Most
laymen would think international lawyers were mad if they believed that there was no right of
self-defence against terrorist attack. Nor am I in the least persuaded by the argument based on
the French text. True the French text of Article 51 uses the term “​aggression armée​”, a​ nd
“​aggression​” is also the term used in Article 39 but (a) the French Government apparently
accepted during the debates on the definition of aggression that aggression in Article 39 was not
the same concept as ​aggression armée in Article 51; and (b) the English, Chinese and Spanish
texts of the Charter use different terms for Articles 39 and 51.

In my opinion, if the use of force by a terrorist group reaches the level of intensity needed for it
to be classed as an armed attack if it had been carried out by a state, then it is to be treated as an
armed attack for Article 51 purposes. That was the almost universal reaction to the attacks of 11
September 2001 amongst governments and international bodies[35].

Of course, the above analysis does not imply that there is then a right for the state attacked to use
force against another state or in the territory of another state. I thought it was lawful to do so in
Afghanistan in 2001 because of the scale of Afghan support for ​Al-Qaeda but such action would
only be justified in exceptional circumstances.

Vaughan Lowe

The right of self-defence is a right to use force to avert an attack. The source of the attack,
whether a state or a non-state actor, is irrelevant to the existence of the right. No-one is obliged
by international law passively to accept an attack. The character of the source does, however,
affect the measures that can be taken in response. Broadly, if the threat of the attack is made by a
state, a response against that state within the bounds of proportionality, as set out following the
Caroline ​incident, is lawful. If the threat emanates from a non-state actor, no forcible action in
self-defence is lawful if the state in which the actor is located is able and willing to take
reasonable measures to nullify the threat.

Much of the concern with the responsibility for attacks seems to me to stem from the mistaken
belief that force can only be used outside the territory of a state against an attacker if the attack
emanates from another state that is thereby in breach of international law. That seems to me to
be wrong. Force may be used to avert a threat because no-one, and no state, is obliged by law
passively to suffer the delivery of an attack. That is what it means to say that the right is
‘inherent’. Defensive force is in no sense dependent upon the attack being a violation of
international law.

If the attack does come from another state, the principles of necessity and proportionality as
defined following the ​Caroline incident will clearly apply. I think that they apply also if the
attack comes from someone other than a state. In the latter case, however, it would be an
unjustified violation of the sovereignty of the state from which the attack emanates if defensive
force were used in circumstances where that state was able and willing to take effective action
that would neutralise the attack.

Sir Adam Roberts

Although there are hazards in doing so, there is a strong case for recognising openly that a major
terrorist attack, and/or sustained terrorist campaign, can constitute an “armed attack”.

In the wake of the events of the previous day, UN Security Council Resolution 1368 of 12
September 2001 was right to recognise ‘the inherent right of individual or collective self-defence
in accordance with the Charter’. However, this does not settle the matter entirely, as in that case
there was already significant evidence of a degree of responsibility of a state (Afghanistan) for
the terrorist attacks. This leaves open the question of terrorist attacks in cases where there is a
lack of clear evidence connecting them to a state.

On this key distinction (between terrorist attacks where there is clear evidence connecting them
to a state, and where there is not), Albrecht Randelzhofer writes with a surprising degree of
certainty:

Acts of terrorism committed by private groups or organizations as such are not armed
attacks in the meaning of Art. 51 of the UN Charter. But if large scale acts of terrorism of
private groups are attributable to a state, they are armed attack in the sense of Art 51.[36]

The logic of this view is a little hard to follow. It might conceivably suggest that states do not
have a right of self-defence against pirates, ‘barbarians’, or armed gangs if they have no known
connection with a particular state. Yet in actual cases the right of states to defend themselves
against ongoing attacks, even by private groups, is not generally questioned. What ​is questioned
is the right to take action against the state that is the presumed source of such attacks, as distinct
from taking action against the on-going attack itself.

Going back to the original Charter text and to the first principles, Article 51 would appear to be
open to a broader interpretation than that of Randelzhofer. Article 51 specifies neither that an
armed attack has to be by a state, nor that it has to assume a conventional form.
On this matter, I cannot agree with a key part of the ICJ’s reasoning in the ​Wall Advisory
Opinion of 2004​. The ICJ Opinion discusses Article 51 in only two paragraphs; paragraph 138
and paragraph 139. In the latter of these, after quoting from Article 51, the ICJ Advisory Opinion
continues:

“Article 51 of the Charter thus recognizes the existence of an inherent right of

self-defence in the case of armed attack by one State against another State.”[37]

The ‘thus’ in that sentence is misleading: the Charter is not specific on the point that armed
attack has to be ‘by one State’. The ICJ Opinion’s paragraph 139 continues:

“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.”[38]

It is surprising that the ICJ, in the only discussion of Article 51 in the entire Advisory Opinion,
did not explain and justify a conclusion that seems, on the face of it, hard to square with the
language of the Charter. On this specific point, i.e. regarding the scope of Article 51, the
dissenting Declaration made by Judge Thomas Buergenthal is much more persuasive.

In what it says about Article 51, the ICJ’s ​Wall ​Advisory Opinion is likely to reinforce concerns
that the ICJ is not as rigorous as it should be; and also that it is not knowledgeable about security
issues, and has failed to understand the basic fact that states have for centuries been concerned
about possible attacks by non-state entities as well as by other states.[39]

There are undeniably some difficulties in the position I have advanced here – namely that major
terrorist attacks, whether or not they are clearly linked to a particular state, may constitute
“armed attack” and therefore, by implication, may justify a military response. Most of the
difficulties relate to the consequences that flow from such a position, as the following four
considerations suggest:

1. It is not always possible to be sure from whence an attack came, or which (if
any) state or states bear responsibility for it.
 2. The exact nature of a state’s responsibility for a terrorist attack may be complex
and debatable. Is a state responsible when it tried, but ineffectually, to stop
activites within its borders? Or when a small faction of the government has got
out of hand and encouraged activities of which the rest of the government
disapproves?
3. Even if a victim state is fairly sure which state is responsible for the attack, the
evidence that can be presented in public at the time may be incomplete; and it
may be unconvincing to third parties. Thus the Libyan responsibility for the
Berlin discotheque bombing in 1986 was formally established only in 2003/4, in a
court case in Berlin. The US has of course taken military action against Libya
already in 1986, and at the time there was some international scepticism about
whether Libya was responsible, as well as about the efficacy of bombing as a
response.
4. The historical record of wars against alleged sources of terrorism is not strong.
Cases that give grounds for doubt about any kind of blanket approval of military
action in purported response to terrorist attacks include Serbia 1914, Lebanon
1982, and Iraq 2003.

These four considerations need to be explicitly recognised. The conclusion to be drawn from
them is that if (as I believe it should be) the concept of “armed attack” is accepted as
encompassing certain types or patterns of terrorist attacks, then that should not be taken as an
automatic licence to respond militarily. Any argument for military action needs to be made
carefully in each case. Moreover, precisely because of the debatable character of the use of force
in such cases, a multilateral response would be likely to command more legitimacy than a purely
unilateral one.

As to whether an attack originating in occupied territory can constitute an “armed attack”, the
core issue here is whether, when an attack emanates from an occupied territory under its control,
and takes place on the territory of the occupying power, it can constitute “armed attack”. On this
question, too, I consider that the case for a positive answer is strong.

Here it is again necessary to refer to the ICJ’s above-quoted paragraph 139 of the Wall ​Advisory
Opinion. On this particular question the Court’s logic again appears flawed.

It is true that the suicide bombings with which Israel has been faced in recent years appears to
have originated in the West Bank and Gaza, and that these territories have a special status, with
much or all of them under Israeli occupation. This case is therefore significantly different from
the assault on the USA of 11 September 2001, on which there was evidence that it originated in a
foreign sovereign state. However, it is questionable to suggest or imply that there can be no right
of self-defence against an attack that originates in territory in which Israel is deemed to exercise
control.

In most circumstances the existence of a right of self-defence is accepted. For example, if an

attack originates within a state, that state would in principle be seen as entitled in international
law to take action against those launching such an attack: that is part of its prerogative as a
sovereign state. Similarly, if an attack originates outside a state, i.e. in the territory of another
state, then the attacked state would in principle be seen to be within its rights in taking action
against it. All this raises the question as to whether the status of occupied territory is so special
and unique that the right of the occupying power to self-defence is in some way significantly
more restricted that the rights of governments in other situations. It is not clear that there is any
such restriction in international law.

A further issue arises, which the ICJ did not discuss: whether at all relevant times the areas of the
West Bank and Gaza under the control of the Palestinian National Authority should be deemed
to be occupied territory. It is odd that the ICJ simply assumed that Israel exercises control over
the whole of the West Bank and Gaza. It did not even consider the possibility that in certain
areas of these territories its control was limited. The Palestinian National Authority is not even
mentioned in the Advisory Opinion.

In conclusion, there is a strong case for asserting that terrorist actions by a non-state entity,
originating in occupied territory or in a territory under a type of administration that does not
constitute a fully recognised state, and aimed at the occupying power, can constitute “armed
attack”. Further, such actions can at least in certain circumstances bring into play the right of
self-defence. However, there is a need for extreme caution about how that right is exercised.

Philippe Sands

In my opinion, the right to exercise self-defence relates not only to an attack from another state
but also to attacks from non-state actors. That point seems to me to be relatively clear, following
the determination by the United Nations Security Council that the inherent right to self defence
may be exercised in relation to terrorist acts[40]. In this regard, I regret the language adopted by
the ICJ in its ​Wall Advisory Opinion of 2004​. ​This part of the Opinion fails to take into account
developments across the world, in particular a rise of non-state organisations which are
committed to terrorist activities, an increase in the number of “failed states”, and the dangers
posed by the proliferation of weapons of mass destruction.
Malcolm Shaw

Although certain French writers[41] have argued that Article 51 concerns only responses to
aggression against another state and despite one reading of paragraph 139 of the ​Wall Advisory
Opinion​, I think it clear that the right of self-defence operates with regard to attacks from
non-state actors such as terrorist groups. Security Council resolutions 1368 and 1373 can only be
interpreted in this light. Practice is also replete with example of terrorist groups being directly
targeted. Of course, the context is critical. An attack by one state upon persons suspected of
terrorist involvement in that state but present in a neighbouring state would constitute
aggression/use of force where the latter is acting in accordance with normal international norms
of non-intervention (e.g. IRA activists in Ireland or ETA activists in France). However, if the
state subjected to the action is unable or unwilling to take measures against the terrorists, who
are preparing further activities to be visited upon the target state, then action may be taken within
the context of self-defence. Examples may include Southern Lebanon up to 1982 or Afghanistan
in 2001.

Again, circumstances are key and the legitimacy of the action will depend upon the dangers
posed by the terrorists and the failure of the state in which they are located to take appropriate
action to restrain attacks upon the target state. The evolution of more and more devastating
weaponry and the phenomena of rogue and failed states are both highly relevant in this context.

Gerry Simpson- Important- ​where did he say this?

The phrase “from another state” carries, at least, four possible meanings.
● A use of force by one state against another using conventional forces, such as in the case
of the Iraqi invasion of Kuwait in 1990;
● A use of force by one state, deploying armed groups or armed bands to carry out
cross-border raids, against another, such as was the situation outlined in the ICJ’s
Nicaragua ​Case;
● A terrorist attack against one state planned, initiated and launched from the territory of
another state that either supports or harbours the terrorist group, such as the case of the
attacks of 11 September 2001 launched against the United States by groups (​Al-Qaeda​)
believed to be operating from inside (and with the knowledge and/or support of the ​de
facto g​ overnment of) Afghanistan;
 ● A terrorist attack against one state planned, initiated and launched from the territory of
another state without that state’s approval or in the face of that state’s active (but
ineffective) opposition.

The first two cases give rise to a right to use force in self-defence. The third is a little trickier.
Something would depend on the gravity of the incident in question (it would have to be
analogous to the use of military force by a state (​Nicaragua)​ ). But there is a further problem. The
attack on America on September 11​th​, 2001 may have reached the level of an armed attack but
the ​responsibility o​ f the state of Afghanistan for that attack creates a different set of difficulties.
The 2001 ILC Articles on State Responsibility[42] offer some help but these were not intended
to cover the question of self-defence. The ICJ gave a restrictive view of this case when it found
that there was "no clear evidence of the United States having actually exercised such a degree of
control in all fields as to justify treating the contras as acting on its behalf".[43]

In the fourth case, I would argue that there is no right under international law to use force in
self-defence.

Colin Warbrick

The reactions of states to the events of 11 September 2001 suggest that an operation by a
non-state actor of sufficient magnitude to constitute an armed attack were it carried out by a state
will be regarded as an event giving rise to a right of self-defence[44]. However, caution needs to
be exercised in assessing the consequences of this proposition, in particular, what precisely it
means for the exercise of self-defensive force by the victim state on the territory of other states,
since there will be no "territory" of the actual attacker. This is to accept that, since an "armed
attack" can come from a non-state actor, the notion of "attack" should embrace the same
extensions ​mutatis mutandis as those alluded to above with respect to attacks by states. But the
hard question remains: against what targets may self-defensive force be used in the event of an
armed attack by a non-state actor? (See my response to question 7, below).

Nicholas Wheeler

This question was posed starkly by the US response to the terrorist attacks on 11 September
2001. A non-state terrorist group attacked the USA, but the counter-attack was directed against
the territory of Afghanistan that had provided a safe haven for ​Al-Qaeda​. The UN Security
Council in Resolutions 1368, 1373 and 1378 recognised the right of self-defence to respond to
attacks of this kind. Here, the Security Council recognised that large-scale terrorist attacks could
constitute an “armed attack” that gives rise to a right of self-defence. The US claimed that it was
acting in self-defence in taking action against the Taliban and ​Al-Qaeda​, with military action
being undertaken to defend the United States against potential future attacks of the kind
experienced in New York and Washington DC. The threat of future attacks, in the light of past
attacks, justifying the claim that the USA acted pursuant to a right of self-defence.

Critics of the legality of the war in Afghanistan argue that the terrorist attacks on 11 September
2001 fail to meet the requirement of an “armed attack” because this is restricted to the use of
force by states, and requires, in the words of the 1974 General Assembly’s Definition of
Aggression[45], activity analogous to large-scale cross-border attacks.[46]

Set against this, the drafters of the UN Charter did not envisage non-state violence on the scale of
the events of 11 September 2001, and it is necessary for interpretations of Article 51 to evolve to
meet the challenges posed by groups like ​Al-Qaeda.​ The resolutions adopted by the Council in
the immediate aftermath of the 11 September attacks provide strong support for a new custom
that supports a right of self-defence against states that are believed to have harboured groups
who have committed attacks – and crucially, are preparing further attacks - against the territory
of the state claiming the right of self-defence. What is left unclear here is whether this right to
self-defence extends to anticipatory action against terrorist groups – and their state sponsors -
before they have launched an attack. For example, could the US, believing there to be an
imminent threat from ​Al-Qaeda,​ have reasonably claimed a right of self-defence in attacking
terrorist bases in Afghanistan on 10 September, 2001?

Sir Michael Wood

States may act in self-defence in the face of a large-scale terrorist attack (actual or imminent)
where the usual requirements for self-defence are met (necessity, proportionality). State
practice, including the practice of the Security Council, strongly supports this position. The right
of self-defence applies if the attack comes or is directed “from” outside the state exercising the
right, though it may be perpetrated by non-state actors. This appears to be the underlying
​ dvisory Opinion​.
rationale of the ICJ in the ​Wall A

The ICJ dealt (at paragraphs 138 and 139 of the ​Wall ​Advisory Opinion) with Israel’s argument
that “the construction of the Barrier is consistent with Article 51 of the Charter of the United
Nations, its inherent right of self-defence and Security Council resolutions 1368 (2001) and 1373
(2001)”. Its treatment of this matter was subject to criticisms by Judges Higgins (paragraphs 33
to 36 of her Separate Opinion), Kooijmans (paragraphs 35 and 36 of his Separate Opinion) and
Buergenthal (paragraphs 4 to 6 of his Declaration).

The Court’s analysis is succinct. After citing the first sentence of Article 51 it states, without
any intervening argument, that “Article 51 of the Charter thus recognises the existence of an
inherent right of self-defence in the case of an armed attack by[47] one state against another
state”. It then “also notes that Israel exercises control over the Occupied Palestinian Territory”
and that the threat originates within, and not outside, that territory. The situation is thus different
from that contemplated by resolutions 1368 and 1373.

It is difficult to know what to make of this, and in particular to deduce what the Court would
have done if the situation had not been different from that contemplated in resolutions 1368
(2001) and 1373 (2001). The criticisms of Judges Higgins, Kooijmans and Buergenthal are
persuasive. In particular:

(a) it seems doubtful whether non-forcible measures fall within self-defence under Article
51: see the Separate Opinion of Judge Higgins at paragraph 35;[48]

(b) there is no basis in the wording of Article 51 for the Court’s restriction (if such
restriction was indeed intended) to an armed attack ​by a state.​ Insofar as the ​Nicaragua
Case is authority for this[49], it is not widely accepted[50]. It is curious that the Court
did not cite the ​Nicaragua J​ udgment. Judge Buergenthal agrees with Judge Higgins on
this, and as Judge Kooijmans said, at paragraph 35 of his Opinion, it is really beside the
point;

(c) as Judge Kooijmans suggests, the real explanation for the Court’s approach to Article
51 in this case may be that the attack came from the Palestinian Occupied Territory.
Judges Higgins[51] and Buergenthal[52] do not appear to accept this, considering that it
was wrong to exclude self-defence for this reason since the Palestinian Occupied
Territory was not part of Israel.

Eick says the following about the ​Wall​ Advisory Opinion on this point:

The ICJ first states that Article 51 of the UN Charter recognizes the right of self-defence where
there is an armed attack by a ​state against another state; the Court then however turns to
resolutions 1368 (2001) and 1373 (2001) of the UN Security Council, which precisely do not
require an attack by a state for the exercise of the right of self-defence. If Israel could not call
upon a right of self-defence, then this was because – otherwise than was foreseen in resolutions
1368 (2001) and 1373 (2001) – the terrorist threat did not come from outside the territory
controlled itself by the state that was attacked.[53]

This is surely convincing. It seems that the Court was merely reflecting the obvious point that
unless an attack on a state is directed from outside that state’s territory the question of
self-defence does not arise. For example, the NATO decision of 12 September 2001 was to the
effect that if it was determined that the attacks of 11 September were directed from abroad
against the USA they should be regarded as actions covered by Article 5 of the North Atlantic
Treaty[54]. On the facts it was questionable whether the Palestinian Occupied Territory should
be assimilated to the territory of Israel for these purposes.

Turning to state practice in this field, including the recent practice of the Security Council, I can
see no support for a restriction of self-defence to defence against armed attacks imputable to a
state, and considerable state practice the other way. The action against ​Al-Qaeda in Afghanistan
in October 2001 (which was widely supported and scarcely opposed by states) was action in
self-defence of anticipated imminent terrorist attacks from ​Al-Qaeda​, not from the Taliban. It
was necessary to attack certain elements of the Taliban, in order to prevent attacks from
Al-Qaeda​. Security Council resolutions 1368 (2001) and 1373 (2001) support the view that
self-defence is available to avert large-scale terrorist attacks such as those on New York and
Washington on 11 September 2001. So too do the invocation by NATO and the OAS of their
respective mutual defence obligations[55]. In his statement of 21 April 2004 in the House of
Lords, the Attorney General said:

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 acts.[56]

The European Union statement upon voting in favour of General Assembly resolution ES-10/18
suggests that EU Member states and those other states associated with the statement would not
accept that the armed attack must be by a state:

The European Union will not conceal the fact that reservations exist on certain paragraphs of the
Court’s advisory opinion. We recognise Israel’s security concerns and its right to act in
self-defence.
Russia’s statements following the school siege at Beslan likewise appear to be based upon the
assumption that self-defence may be available against attacks from terrorists. The Russian
Foreign Minister is reported as saying on Al-Jazeera that:

Question: Recently the Russian Defence Minister said that Russia has
a right to strike blows at terrorists’ bases at any point of the
world. Does his statement not contradict your assertion
that it is necessary to respect international law?

Answer: It is necessary to respect international law. In particular,

Article 51 of the Charter of the United Nations confirms the
right of states to self-defence. The resolutions of the UN
Security Council adopted after the 11​th of September 2001
unanimously decreed that the right to self-defence extends
not only to classical armed attacks, but also to armed
attacks which are made by means of a terrorist act.
Contemporary international law presumes that if a country
is subjected to a terrorist attack and if there are serious
grounds to assume that this attack may continue, then the
state by way of the exercise of its right to self-defence can
take necessary measures to eliminate or diminish such a
lingering threat.

The issue of whether an “armed attack” within the meaning of Article 51 may be perpetrated by
a non-state actor has been addressed in a number of academic legal analyses of the military
action in Afghanistan in 2001. A range of views is expressed, but a number of them are
preoccupied with the particular context of Afghanistan, rather than the more general proposition.
On the one hand there are those such as Franck,[57] Greenwood,[58] Murphy[59] and
Sofaer,[60] who see no difficulty in principle with the notion that non-state actors may perpetrate
an “armed attack” such as to trigger the right of self-defence. Greenwood and Murphy both cite
the ​Caroline incident itself as an early example. Verhoeven,[61] Byers[62] and Ratner[63] each
suggest that whatever may previously have been the law, following the attacks of 11 September
2001 almost all states acquiesced in the invocation by the US and the UK of the right of
self-defence as the legal basis for the action in Afghanistan. In somewhat similar vein, Gray[64]
appears to suggest that Afghanistan should be largely confined to its facts (a massive terrorist
attack, continuing threat of global terrorism by those responsible for it, the response was directed
at a country which had allowed the terrorists to operate from its territory and refused to surrender
them, and the findings of the Security Council contained in resolutions 1368 and 1373). Others
(including Cassese,[65] Charney,[66] Corten and Dubuisson,[67] Myjer and White[68]) believe
that Article 51 is limited only to armed attacks committed by or attributable to a state and are
therefore critical of the US reliance on self-defence as a legal basis for the action. In an article
from 1989, Schachter[69] suggests that there is nothing in the text of Article 51 which limits
“armed attack” to acts by or imputable to a state, but finds such a limitation is implicit from the
ICJ Judgment in the ​Nicaragua ​Case and earlier work of the ILC on State Responsibility[70].
Finally, Brunee and Toope[71] require that there be a necessary link (direct support or at least
tacit approval) between the target state of a self-defence action and the terrorists perpetrating the
attack, although ‘states without any effective government may be an exception’.

Question 3: Must there be an actual armed attack before the right of self-defence comes into
play?

Sir Franklin Berman

This is a stale question; although it has been running for decades, the debate has thrown up no
new elements leading to any conclusion other than that it remains unrealistic to suppose that
self-defence must ​in all cases await an actual attack. There is (again) nothing in the way Article
51 is worded to require it to be interpreted this way; nor, in any event, does the negotiating
history display a clear intention to cut down the right of self-defence in this way, such as would
be necessary to impose a literalist reading in order to produce so unrealistic a result.

It might in any case be observed that the ​whole of the law of self-defence rests upon the
neutralization of threats. This is what the ​proportionality rule establishes; the law doesn’t
provide for a tit-for-tat response, an eye for an eye, but allows the injured state to do what is
reasonably necessary to deal with the ​threat it is facing, even if the threat comes into being as the
result of an actual attack, not an imminent one.

The ICJ judgment in the ​Nicaragua Case remains as unsatisfying now as it was at the time, as a
pronouncement on a fundamental point of international law. The Court’s failure, without the
benefit of full argument from an absent defendant, to develop the full capacity of the combined
necessity and ​proportionality criteria remains a particularly unhappy feature of the decision. A
sliding scale calibrated according to the nature and magnitude of the threat, and its origin (the
actors involved etc.) is perfectly feasible, and certainly would not have the effect of encouraging
abusive claims; on the contrary, it would pose a criterion which, simply because of its practical
realism, conduces better to the functioning pattern of accountability that is so plainly lacking at
present. The ​Caroline incident was as much about anticipatory self-defence as about the riposte
to actual armed attacks.

Much of the ‘problem’ is artificial, and derives from an insistence on looking at self-defence as if
it were a legal institution wholly separate from the Chapter VII powers of the Security Council,
which, even on the literal terms of Article 51, it plainly is not.

The answer lies in the nature of the particular threat, and in the nature of the measures apt to
neutralise it. There is little room for abstract general propositions; ​necessity and
proportionality​, applied properly and in good faith, are adequate to cope with all reasonably
foreseeable circumstances.

Daniel Bethlehem

This question was expressly left open in the ​Nicaragua C​ ase. While there may be some who still
contend that the language of Article 51 expressly excludes any right of anticipatory defence, I do
not believe that this view is sustainable. The better view, in my opinion, is that international law
does permit anticipatory self-defence. The debate, such that it is, is centred around the
circumstances in which such a right can be exercised.

James Gow

In conventional terms, yes, but that could, just, mean ‘intercepting’ an attack that has not yet
inflicted a blow, but is about to do so, or is in the process of attempting to deliver the first blow.
However, in a meaningful sense, for the contemporary international environment, it absolutely
should not. Some questions, in some cases, will be so risky that not to take action, even if there
is an element of doubt, will be unacceptable. The key issue to work through this question on the
near horizon is that of Iran. I have no doubt that no recent US Administration (post-Carter) and
no future US Administration could countenance Iran’s acquiring of a nuclear weapons capability,
nor that it will use force, if appropriate, one way or another, on one scale or another, to prevent
such acquisition (with the only alternative being to ‘permit’, ‘encourage’ and ‘assist’ Israel to
perform the mission instead, something that would have even more negative impact on the
security environment than the US’s striking).
Leaving aside the very important question (which, I presume, should impact on consideration of
proportionality) of ‘how’ the action will be deemed to be necessary and that it will be taken is
sure, in the given situation. This would be an act of self-defence, pre-emptively, because waiting
until a later state would be too late. Iran’s connection with ​Hizbollah would be a factor here,
increasing the sense of risk. At the same time, that link would probably not be sufficient to
justify a use of destructive force even under the widened interpretation of the right to
self-defence mentioned in the previous answer. An interesting question of policy and practice in
seeking to determine some kind of boundary or threshold would be consideration of what Iran
could do reasonably to maintain nuclear programmes, even to acquiring a nuclear weapons
capability that would be acceptable and would not make it be viewed as a threat.

Christopher Greenwood

Not in my opinion. I think state practice supports a right of anticipatory self-defence against an
imminent armed attack but not the kind of pre-emptive action where an attack is not imminent
that the US contemplated in the Security Strategy Document[72].

Vaughan Lowe

No. It is enough if an attack is imminent. The relevant questions here are all well-known and I
do not intend to wade through them. The key principles seem to me to be:
1. that the factual circumstances must be such as to demonstrate a plain probability
of an attack; and,
2. that the use of forcible defensive action must to be postponed in favour of
non-forcible measures and measures not involving an infringement of the
sovereignty of another state, so that forcible measures are employed only at the
point where there is no reasonable alternative that is reasonably likely to be
effective in averting or stopping the attack.

Sir Adam Roberts

That there has to be some right of states to act pre-emptively (i.e. eliminating the prospect of an
imminent attack by disabling a threatening enemy) is quite widely but not universally accepted.
The acceptance of this principle is partly a recognition of a fact of life – that states and their
citizens are inevitably attracted to the idea of preventing the possibility of attacks, rather than
waiting until they occur and then responding.

In the writings of international lawyers, an acceptance that there must be some scope for
pre-emptive action is usually associated with the view that Article 51 of the UN Charter simply
recognises a pre-existing right of self-defence, which continues in the UN era.

Similarly those who oppose pre-emptive action tend to see Article 51 as replacing the traditional
right to self-defence. See, for example Professor Randelzhofer’s reasoning where he states that
‘an anticipatory right of self-defence would be contrary to the wording of Art. 51…as well as its
object and purpose’[73], going on to assert that ‘Art. 51, including its restriction to armed attack,
supersedes and replaces the traditional right to self-defence’.[74] One weakness of this position
is that, by setting a standard that might prove unrealistic, it risks reducing international law on
the ​jus ad bellum​ to near-irrelevance.

The better conclusion is that there is a respectable argument that the right of self-defence can
come into play even before there is an actual armed attack. However, there are, undeniably, very
great risks in opening the door to pre-emptive military action by states. Pre-emption is likely to
depend on thoroughly subjective judgements about a presumed threat. Information from
intelligence agencies may be inaccurate or tainted. Other states may be sceptical about the
justifications made by a state engaging in pre-emptive action. Thus there is a need for procedural
and substantive safeguards to reduce the risk of abuse.

Philippe Sands

The right of self-defence encompasses a right to use force in anticipation of an actual armed
attack, where there is an imminent threat (this view is set out more fully in my Memorandum to
the House of Commons Select Committee, paragraph 9 [below]). In this regard, I reiterate my
agreement with the views set out in a memorandum prepared by Professor Christopher
Greenwood (October 2002, paras. 20-26 [see below]).

Memorandum of Professor Philippe Sands (June 2004):

“9. The conditions under which self-defence may justify the use of force are set out in the
memoranda of Professor Greenwood (paras. 20-26). I subscribe fully to the views he there
expresses. In particular, I agree that the right of self-defence encompasses a right to use force in
anticipation of an actual armed attack, where there is an imminent threat. In addition, since the
UN Security Council has determined that the inherent right to self-defence may be exercised in
relation to terrorist acts (see resolution 1368 (2001) of 12 September 2001) the right to
anticipatory self-defence extends to non-statal terrorist acts also.”

Memorandum of Professor Christopher Greenwood (October 2002):

“21. The question is whether the right of self-defence under customary international law
which is preserved by Article 51 of the Charter would justify military action against Iraq on
the basis of a threat of armed attack. In my opinion, it would do so if the threat was of an
imminent armed attack but not otherwise.

22. Although Article 51 refers to the right of self-defence "if an armed attack occurs", the
United Kingdom has consistently maintained that the right of self-defence also applies where
an armed attack has not yet taken place but is imminent. A large number of other governments
(including those of the USA, France, other NATO states and the former USSR) have
espoused this view. It also has strong support from commentators. Thus, Judge Rosalyn
Higgins (writing before her election to the ICJ) has said that—

". . . 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. And, even in the face of conventional warfare, this would also seem
the only realistic interpretation of the contemporary right of self-defence. It is the
potentially devastating consequences of prohibiting self-defence unless an armed
attack has already occurred that leads one to prefer this interpretation—although it
has to be said that, as a matter of simple construction of the words alone, another
conclusion might be reached." (​Problems and Process​ (1994), p. 242)

The same view has been taken by Sir Humphrey Waldock (81 RC (1952-II) 496-8), Judge
Schwebel (136 RC (1972-II) 478-83), Sir Gerald Fitzmaurice (92 RC (1957-II) 171), Sir
Robert Jennings and Sir Arthur Watts (​Oppenheim's International Law, 9th ed., 1992, vol. I,
p. 421) and Sir Derek Bowett (​Self-Defence in International Law (1958) 187-92). Waldock,
Schwebel and Jennings are all past Presidents of the ICJ.

23. I accept that other writers, notably Professor Ian Brownlie (​International Law and the Use
of Force by States (1963) 257-61), have taken the contrary view but, with great respect to
 them, I believe that the view expressed by Judge Higgins and the other writers quoted above
accords better with state practice and with the realities of modern military conditions.

24. Nevertheless, the right of anticipatory self-defence is quite narrowly defined. Ever since
the United Kingdom-US exchange in what has become known as the ​Caroline c​ ase in
1837-38, the right has been confined to instances where the threat of armed attack was
imminent. In my opinion, that still reflects international law and, in so far as talk of a doctrine
of "pre-emption" is intended to refer to a broader right to respond to threats which might
materialise some time in the future, I believe that such a doctrine has no basis in law.

25. In assessing what constitutes an imminent threat, however, I believe that it is necessary to
take account of two factors which did not exist at the time of the ​Caroline. T ​ he first is the
gravity of the threat; the threat posed by a nuclear weapon or a biological or chemical weapon
used against a city is so horrific that it is in a different league from the threats posed by
cross-border raids by men armed only with rifles (as in the ​Caroline​). The second
consideration is the method of delivery of the threat. It is far more difficult to determine the
time scale within which a threat of attack by terrorist means, for example, would materialise
than it is with threats posed by, for example, regular armoured forces. These would be
material considerations in assessing whether Iraq posed an imminent threat to the United
Kingdom or its allies.

26. If Iraq did pose such an immediate threat then, in my opinion, military action against Iraq
for the purpose of dealing with that threat would be lawful. The degree of force used would
have to be proportionate to the threat and no more than necessary to deal with that threat
(including preventing a recurrence of the threat). In addition, the use of force would have to
comply with the separate requirements of the Geneva Conventions and other applicable rules
of international humanitarian law.”

Gerry Simpson

The plain words of Article 51 suggest a strict reading of the term, “armed attack” but a slim
majority of scholars, drawing on the world “inherent” in Article 51, take the view that there is a
right to anticipatory self-defence in heavily circumscribed instances. There are serious
difficulties around the doctrine in this area. A restrictive reading leads to the absurdity of a
suicidal abstention from the use of defensive force. An expansive reading risks swallowing
altogether Article 2(4)’s prohibition on force.
One further problem: what is an actual armed attack? It is not at all clear precisely when an
armed attack begins. Some of what is characterised as anticipatory self-defence may be classical
self-defence. For example, is the arming of nuclear missiles combined with a decision to launch
them the beginning of an armed attack or the prelude to an armed attack? Is the mass ​movement
of tanks to a border area, combined with high levels of bellicosity, an armed attack or simply
posturing? Some of this is psychological. Debates still rage around the Six-Day War, supposedly
the high point of anticipatory self-defence, about (a) whether there really was intention on the
part of Egypt to invade Israel (b) whether intention was necessary and (c) whether intention
was/is discoverable?

Colin Warbrick

Yes, in the extended sense as set out in my resonse to question 1.

Nicholas Wheeler

Those who oppose a narrow and restrictive view of Article 51 argue that it places states in a
position where they are expected to absorb what could be a devastating attack before they are
permitted to respond. Some forms of “armed attack” against a state could be so overwhelming
that if the defending state is required to wait until they have actually occurred, no effective
defence will be possible. Critics of a narrow reading of Article 51 argue that the drafters of the
UN Charter never intended it to be interpreted in this way. Here, they argue that a proper
interpretation of Article 51 supports a right of pre-emptive or anticipatory self-defence.

Those who argue for this broad interpretation of Article 51 rely on the language in that provision
which states that ‘nothing in the present Charter shall impair the inherent right of self-defence’.
From this, it is argued a right of anticipatory self-defence exists in customary international law,
and that this legal right to use force pre-emptively is not extinguished by Article 51. This claim
goes back to the ​Caroline incident of 1837. The ​Caroline w ​ as a US vessel which was allegedly
preparing to transport guerrilla forces and ammunition to assist rebels who were challenging
British rule in Upper Canada. The British attacked the ship before it put to sea and sent it over
Niagara Falls. The criteria for exercising a right of anticipatory self-defence emerged during the
treaty negotiations a few years later in an exchange of letters between the British and American
Governments. The British Foreign Secretary, Lord Ashburton defended attacking the ​Caroline
on grounds of self-defence. But the American Secretary of State, Daniel Webster, replied that for
the plea of self-defence to be accepted, the British Government would have ‘to show a necessity
of self-defence, instant, overwhelming, leaving no choice of means, and no moment for
deliberation’.

It is argued that a broad interpretation of the rule of self-defence is supported by state practice.
Examples cited here include the response of the USA to the Cuban Missile Crisis in 1962, the US
bombing of Libya in 1986, and Israel’s bombing of the Iraqi nuclear reactor at ​Osiraq in 1981.
The United States’ 2002 National Security Strategy[75] sought to justify the new policy of
pre-emption by representing it as being in conformity with the existing legal right of anticipatory
self-defence. Condoleezza Rice, the President’s National Security Advisor, and a key figure in
the drafting of the National Security Strategy, contended that the case for pre-emption should be
seen as a continuation of a long tradition in which ‘the United States has long affirmed the right
to anticipatory self-defense’.[76] But it is evident that what was being proposed in the National
Security Strategy was a radical departure from anything that Daniel Webster envisaged as
justifiable self-defence.

Sir Michael Wood

No. An imminent attack suffices, see, for example, the exchange of letters following the
Caroline​ incident[77].

Question 4: If the use of force in self-defence is permissible in relation to anticipated armed

attacks, what does the criterion of ‘imminence’ mean, particularly in relation to current threats?
What evidence need there be of a threat of an imminent armed attack before the use of force in
self-defence is justifiable?

Sir Franklin Berman

Logic and prudence both dictate that ‘imminence’ should mean just what it says. ​Quaere
however whether ‘imminence’ is a separate criterion in its own right, or simply part of the
criterion of ‘necessity’ properly understood, i.e. that force is only admissible as a lawful response
to a threat when there is no other means of countering it. There may however be some rhetorical
point in retaining the additional criterion, if it serves to place added emphasis on the fact that a
forcible response in these circumstances lies at the limits of an already exceptional legal
category, and therefore requires a correspondingly high level of justification.

The question of evidence plays an especially important part in this calculus (presumably
‘justifiable’ in the question means ‘lawful’, i.e. justifiable in law, not justifiable on some other
measure). This is not however to decry the general importance of evidence in relation to the
permissible use of force, an aspect which has been damagingly neglected in the literature. The
self-defence rule cannot possibly mean that force is lawful whenever the state ​thinks that a
particular application of force is necessary to deal proportionately with what it conceives to be a
particular threat against it (immaterial whether the threat derives from an actual use of force or
an imminent one) – even if ‘thinks’ is glossed to be ‘sincerely believes’ or even ‘very sincerely
believes’; that would destroy its value and standing as a legal rule designed to balance the rights
of both sides in a quarrel. The fatal flaw in the new-minted doctrine of ‘​pre-emption’​ is that it
excludes by definition any possibility of an ​ex post facto judgement of lawfulness by the very
fact that it aims to deal in advance with threats that have not yet come into existence; it is thus
inherently self-justifying and can have no place in an ordered system of law. To make the
general rule of self-defence into one that was in the last analysis self-judging would expose it to
the same fundamental objection. How would such a rule protect the interests of a generally
peaceable and law-abiding state against a hostile, lawless neighbour?

Evidence is, in short, fundamental to accountability, and accountability to the rule of law. The
more far-reaching, and the more irreversible, its external actions, the more a right-thinking state
should accept (internally as well as externally) the burden of showing that its actions were
justifiable on the evidence. This does not however mean that the law refuses the state a
reasonable margin of appreciation in the light of the particular circumstances to which it is called
upon to react.

Daniel Bethlehem

The concept of “imminence” reflects US Secretary of State Webster’s formulation in his letter
following the 1897 ​Caroline incident of ‘instant, overwhelming, leaving no choice of means, and
no moment for deliberation’. While it has now entered the lexicon of the law relating to
anticipatory self-defence, “imminence” has traditionally been implicitly construed by reference
to the notions of immediacy as understood in the sense of the ​Caroline ​incident.
In my view, if “imminence” is to be a useful concept at all in the context of contemporary
threats, it cannot be construed by reference to a temporal criterion only but must reflect the wider
circumstances of the threat. In this regard, there may be some utility in looking at a threat of
armed attack as akin to the inchoate offence of an attempt to commit a criminal act in domestic
law in which the offence is completed when the last (or perhaps critical) preparatory step is
undertaken. On this view, an imminent attack may occur when the State or group which
threatens the attack has put in place all the necessary elements for such an attack. The one
appropriate exception to this, stretching the temporal framework more broadly, is in
circumstances in which an early preparatory act may so raise the threshold of the threat and the
likelihood of attack that it gives rise to a right of anticipatory self-defence on the ground of
necessity.

As regards threats posed by the use of WMD, I expressed the view, in my evidence to the
Foreign Affairs Select Committee, that there would be some advantage in the development of a
concept of a “threat of catastrophic attack” and that, faced with a threat of attack of this kind, it
would be appropriate to begin to think beyond imminence to reasonable foreseeability, i.e., away
from temporal notions of threat and towards action required to neutralise the risk of catastrophic
harm. In its recommendations, the Committee addressed this point in the following terms:

“We conclude that the concept of ‘imminence’ in anticipatory self-defence may

require reassessment in the light of the WMD threat but that the Government
should be very cautious to limit the application of the doctrine of anticipatory
self-defence so as to prevent its abuse by states pursuing their national interest.
We recommend that in its response to this Report the Government set out how,
in the event of the legitimisation of the doctrine of anticipatory self-defence, it
will persuade its allies to limit the use of the doctrine to a ‘threat of
catastrophic attack’. We also recommend that the Government explain its
position on the ‘proportionality’ of a response to a catastrophic attack, and how
to curtail the abuse of that principle in the event of the acceptance of the
doctrine of anticipatory self-defence by the international community.”[78]

On the question of the evidence necessary before a State can act by way of anticipatory
self-defence, the threshold should be both high and, insofar as this can reasonably be achieved,
the evidence should be publicly demonstrable. In the light of recent events, this issue will clearly
be pivotal to the on-going debate on these issues. Related to this, I am of the view that the ICJ’s
rejection, in the ​Oil Platforms Case, of any margin of appreciation by States on this issue,
requiring strict and objective proof of a threatened attack, is incredible and will not, and should
not, be the governing standard in these matters.
James Gow

Imminence must mean something that is not too late – but that could not always be precisely
defined. Evidence in cases such as this will be notoriously difficult to adduce. There might be
sketchy information, painting a dangerous picture, but one that might in the end prove to be
benign. It might be that there is no way that the evidence can reasonably be produced, perhaps
because of its nature, or source, perhaps because it is the product of interpretation of many small
pieces of information. This could be the case even after a use of destructive force. It might be
that information turns out to be wrong. But it will be almost impossible not to act in some
situation or another. Context will define, as it always has regarding proportionality as an issue.
The questions have to be not only what evidence need there be, but who must be aware of
it/shown, as well as how it can be communicated, at which stages before, during and after an
engagement, and with what conditions specifically and broadly set for responsible action under
the right to self-defence.

Christopher Greenwood

I think one still starts with the criteria as defined following the ​Caroline incident, but we need to
take account of two other factors in assessing what is meant by imminence – the gravity of the
threat (e.g. a more generous notion of imminence if what is threatened is another ‘9/11’ rather
than the minor acts of the ​Caroline incident) and the means of delivery. It is far more difficult to
assess the timeline for a covert attack as intelligence here is a bit like seeing the periscope of the
submarine in World War II – one only gets a glimpse and it is difficult to say exactly when the
attack will occur. I think the UK Attorney General set the standard too high in his April 2004
statement[79] when he said that the attack must actually be imminent. The correct standard
seems to me to be one of reasonable suspicion but that requires real evidence that an attack is
imminent sufficient to convince a detached bystander and not just someone who wants to be
convinced.

Vaughan Lowe

The requirement of “imminence” is satisfied if there is evidence that an attack is planned, that
preparations for the attack have been commenced, and that it is intended to proceed to commit
the attack, and if it is reasonably believed that any further delay in countering the intended attack
will probably result in the inability of the defending state effectively to defend itself against the
attack. This follows from the previous answer.

If a state wishes to be exonerated for its use of force in self-defence, it must be prepared to
adduce the evidence that it considered to be the justification for its action. If it is not prepared to
do that, it can of course still use force in self-defence, but it must accept the consequences of its
decision not to justify its action –as it would if its attempted justification were found to be
inadequate.

Sir Adam Roberts

Contemporary debates about pre-emptive and preventive uses of force are not limited to the
question of responding to imminent attack – i.e. pre-emptive action. Successive US
administrations have also indicated some interest in a right of military action to nip a future
threat in the bud – what is properly called preventive action. The classic work of official
advocacy of such approaches is of course The National Security Strategy of the United States.

It is somewhat confusing that these two debates have both been subsumed under the label of
pre-emption. In the field of strategic studies ‘pre-emptive strike’ refers to military action to
prevent an imminent military attack. Confusingly, the Attorney-General’s statement in the House
of Lords on 21 April 2004 referred to ‘a pre-emptive strike against a threat that is more remote’.
I do not quarrel with the substance of his remark (namely that such an attack is not authorised in
international law), but I do disagree with the label – ‘preventive’ being the more correct term in
this case.

I have discussed aspects of these debates, and various other issues more fully in a 2003 booklet
on ​International Law and the Use of Military Force​.[80] In what follows I shall summarise my
view on this very briefly. I will stick to the question of pre-emptive military action against
imminent attack, but one has to recognise that this shades by degrees into the conceptually
separate matter of preventive military action.

The criteria which emerged following the ​Caroline i​ ncident strike me as of limited value in
assessing whether pre-emption may be justified in a particular case. Except at the tactical level,
the situation in the ​Caroline ​incident was not basically about pre-emption, as in December 1837
the rebellion in Canada was actual and ongoing. Moreover, the case for pre-emptive action today
could not be confined to the ‘​Caroline ​criteria’, and in particular by the criterion that there is ‘no
moment for deliberation’. Many crises that involve possible questions of pre-emptive military
action have been the subject of extensive domestic and international deliberation: witness the
long debates about possible terrorist and/or nuclear threats from Iraq, Iran, North Korea, and so
on.

‘Imminence’ of attack has to mean intent, capacity, plans and active preparations to attack.
Because of the high risk of abuse of any right of pre-emption (however qualified that right was),
there should be a high standard of evidence. The evidence should be thoroughly tested by proper
procedures within government and perhaps also internationally. Here again, the criterion of ‘no
moment for deliberation’ found in the ​Caroline case strikes me as unfortunate: it is likely to be
the enemy of judicious consideration and proper procedure.

Philippe Sands

I reiterate the views set out at Paragraphs 8 to 16 of my Memorandum of June 2004 to the House
of Commons Select Committee on Foreign Affairs (below). In particular, I consider that to the
extent that a doctrine of “pre-emption” encompasses a right to respond to threats which have not
yet crystallized but which might materialise at some time in the future, then such a doctrine has
no basis in international law. I agree with the view expressed by the Attorney General in his
statement to the House of Lords on 21 April 2004 covering the circumstances in which the use of
force in anticipatory self- defence may be permitted. The conditions set forth following the
Caroline incident have to be read against modern and recent developments, so that the concept of
imminence be treated as a flexible one which is to be determined by reference to ​capability and
intent.​ Each case will necessarily turn on its own facts, and is dependent on a decent level of
confidence and trust in the process of assessing the circumstances in which an armed attack is
imminent. The determination of “imminence” is one which each state is entitled to take.
However, such determination is to be made on grounds which are capable of objective
assessment and must be motivated by the application of proper criteria. In this regard the
circumstances leading up to the recent Iraqi conflict have undermined the credibility of systems
for gathering and assessing intelligence in the United Kingdom. Trust needs to be restored.

Memorandum of Philippe Sands dated June 2004 to the House of Commons Select Committee
on Foreign Affairs (paragraphs 8-16):

8. “The possibility that terrorist organisations or rogue states might obtain WMD has
concentrated minds on the circumstances under which a state is entitled to use force
 in self-defence to prevent a future attack, within the meaning of Article 51 of the
United Nations Charter. Again, this argument was not made in relation to Iraq.
9. The conditions under which self-defence may justify the use of force are set out in the
memoranda of Professor Greenwood (paras. 20-26). I subscribe fully to the views he
there expresses. In particular, I agree that the right of self-defence encompasses a
right to use force in anticipation of an actual armed attack, where there is an imminent
threat. In addition, since the UN Security Council has determined that the inherent
right to self-defence may be exercised in relation to terrorist acts (see resolution 1368
(2001) of 12 September 2001) the right to anticipatory self-defence extends to
non-statal terrorist acts also.
10. I also agree with Professor Greenwood that the right of anticipatory self-defence
must be narrowly defined. As Professor Thomas Franck has put it:
“The problem with recourse to anticipatory self-defence is its ambiguity. In the right
circumstances, it can be a prescient measure that, at low cost, extinguishes the fuse of
a powder keg. In the wrong circumstances, it can cause the very calamity it
anticipates.” (​Recourse to Force: States Action Against Threats and Armed Attacks​,
Cambridge University Press, 2002, p. 107).
11. In what circumstances might a threat be said to be imminent, such as to justify the
exercise of anticipatory self-defence? Does it encompass threats which have not yet
materialised but which might materialise some time in the future? The US National
Security Strategy (September 2002) appears to suggest that it does. It states that:
“The United States has long maintained the option of pre-emptive actions to counter a sufficient
threat to our national security. The greater the threat, the greater is the risk of inaction – and the
more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty
remains as to the time and place of the enemy’s attack. ​To forestall or prevent such hostile acts
by our adversaries, the United States will, if necessary, act pre-emptively.
The United States will not use force in all cases to pre-empt emerging threats, nor should nations
use pre-emption as a pretext for aggression. Yet in an age where the enemies of civilisation
openly and actively seek the world’s most destructive technologies, the United States cannot
remain idle while dangers gather.” (p. 15, emphasis added).
In his Memorandum to this Committee Professor Greenwood wrote of the US National Security
Strategy that “so far as talk of a doctrine of “pre-emption” is intended to refer to a broader right
to respond to threats which might materialise some time in the future, I believe that such a
doctrine has no basis in law” (para. 24). I agree with Professor Greenwood’s statement.
12. In his speech of 5 March 2004 the Prime Minister said:
 “Containment will not work in the face of the global threat that confronts us. The
terrorists have no intention of being contained. The states that proliferate or
acquire WMD illegally are doing so precisely to avoid containment.
Emphatically I am not saying that every situation leads to military action. ​But we
surely have a duty and a right to prevent the threat materialising​; and we surely
have a responsibility to act when a nation's people are subjected to a regime such
as Saddam's.” (emphasis added).
Some press reports of this speech have suggested that the Prime Minister was endorsing the
United States’ doctrine of pre-emption.[81] It is not clear to me that that was his intention.
13. The Attorney General, Lord Goldsmith, made an important statement in the House of
Lords on 21 April 2004. In response to a question from Lord Thomas of Gresford as
to whether the Government accepted the legitimacy of pre-emptive armed attack as a
constituent of the inherent right of individual or collective self-defence under Article
51 of the United Nations Charter, the Attorney General said:
“It is argued by some that the language of Article 51 provides for a right of self-defence only
in response to an actual armed attack. However, it has been the consistent position of
successive United Kingdom Governments over many years that the right of self-defence
under international law includes the right to use force where an armed attack is imminent.
It is clear that the language of Article 51 was not intended to create a new right of
self-defence. Article 51 recognises the inherent right of self-defence that states enjoy under
international law. […] It is not a new invention. The Charter did not therefore affect the
scope of the right of self-defence existing at that time in customary international law, which
included the right to use force in anticipation of an imminent armed attack.
The Government's position is supported by the records of the international conference at
which the UN charter was drawn up and by state practice since 1945. It is therefore the
Government's view that international law permits the use of force in self-defence against an
imminent attack but does not authorise the use of force to mount a pre-emptive strike against
a threat that is more remote. However, those rules must be applied in the context of the
particular facts of each case. That is important.
The concept of what constitutes an "imminent" armed 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
acts. It was on that basis that United Kingdom 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.
Two further conditions apply where force is to be used in self-defence in anticipation of an
imminent armed attack. First, military action should be used only as a last resort. It must be
necessary to use force to deal with the particular threat that is faced. Secondly, the force
used must be proportionate to the threat faced and must be limited to what is necessary to
deal with the threat.
In addition, Article 51 of the Charter requires that if a state resorts to military action in
self-defence, the measures it has taken must be immediately reported to the Security
Council. The right to use force in self-defence continues until the Security Council has taken
measures necessary to maintain international peace and security. That is the answer to the
Question as posed.”[82]
14. I agree with the view expressed by the Attorney General. It is clear, reasonable and
balanced, and accurately summarises the current state of international law. It confirms
also that the use of force against Iraq would not have been justified on grounds of
anticipatory self-defence, and that the Government was correct not to go down that
route.
15. In any particular case the key issue will be whether an attack is ‘imminent’. In the
Caroline incident in 1837 the US Secretary of State famously set out the
circumstances of a “necessity of self-defence, instant, overwhelming, leaving no
choice of means and no moment for deliberation”. The concept of imminence is a
flexible one, as it must be in an age in which technology allows great devastation to
be wrought in a very short period of time. ‘Imminence’ has to be determined by
reference to ​capability and ​intent​. There may be circumstances in which capability
could include the acquisition (by a state or a terrorist organisation or even an
individual on behalf of a terrorist organisation) of material or component parts to be
used in the manufacture of WMD, and not possession of the finished product. Each
case will turn on its own facts, so that the process by which the evidence which points
to an ‘imminent’ attack is collected and assessed by the government will be of great
importance.
1. The greater the level of confidence and trust in the government’s assessment
process the more likely it is that any decision to use force will be considered to be
legitimate. The process of assessment will be based on intelligence material which cannot
be made public. However, the public is entitled to be reassured that the process of
assessment is sound and is motivated by the application of the proper criteria. This is
where the recent Iraqi conflict has caused potentially great harm, since the presentation of
the evidence has tended to undermine the public’s confidence in the assessment of the
threat. In present circumstances it is likely that situations will occur where the exercise of
 anticipatory self-defence may be required. It is therefore of the utmost importance that
steps be taken, as a matter of urgency, to restore public trust in governmental
decision-making.”

Malcolm Shaw

The concept of “imminence” within the context of anticipatory self-defence is relative. It

depends upon the nature of the threat and the possibility of dealing adequately with it at any
given stage. What is imminent will vary as technology evolves. The aim of self-defence is to
defend the territory and population of a state and the extent to which this is feasible will be
dependent upon the character of the attack (foot soldiers, chariots, tanks, planes, missiles) as well
as the vulnerability of the target state and the intention of the attackers. Russia and China can
absorb initial attacks and be in a position to regroup and counter-attack even if hundreds of miles
of territory have been lost. Other states, not so well endowed geographically, cannot and thus
must act in time to prevent the anticipated destruction, such as may have been the case with
regard to Israel in 1967. “Imminent” will also need to be interpreted in the light of changing
threats in the light of changing practice.[83] Today, of course, terrorist threats are high on the
agenda and after 11 September 2001 and other outrages, no longer to be hived off as the problem
of a few relatively unimportant states.

However, “imminent” does not mean “perhaps sometime in the future”. A forceful action to
disrupt an imminent terrorist act being prepared in a neighbouring state may well be legitimate;
force to attack person who may in the future contemplate such activity is not. Distinguishing the
two is not easy. Relevant factors would include the pattern of events to date, statements and
threats made, the level of the threat (e.g. preparations for the use of a ‘dirty bomb’ in a city) and
the realistic possibility of averting the threats by non-forcible means. Current events have
highlighted the issue of evidence. Clearly credible evidence reasonably believable in the
circumstances is required and it may be that the test of this has or will harden in the light of the
Iraq situation. In such situations, it is difficult to envisage in all reality judicial tests of “beyond
reasonable doubt” determined by objective bodies as being the sole determinant. While it is easy
to say that hindsight will determine the issue and the consequences will be drawn at that stage, it
is important that those responsible for taking the measures in question have assured themselves
as to reasonable and adequate evidential methodologies.

Gerry Simpson
Self-defence is auto-interpretative. In a decentralised international legal order states themselves
will often have to make these sorts of decisions. The definition provided following the ​Caroline
incident is the best we have in relation to imminence: there must exist a circumstance of
irreversible emergency. Recent efforts by the USA[84] to establish a right to pre-emptive (or
‘precautionary’) self-defence have not received widespread support from states and are to be
resisted. These efforts attempt to enlarge the meaning of “imminence” to accommodate so-called
new, unprecedented threats. Imminent is re-read to mean “possible” or “likely at some point in
the future”. This stretches language and international law too far. As Philip Jessup put it: ‘…of
all the clichés which infect patriotic exhortations, the most subtly poisonous is that which calls
the war in progress at the moment “different from other wars” .[85]

Colin Warbrick

I should largely follow Brownlie’s views, and eliminate "imminence". Instead, the test should be,
"when has an armed attack occurred?", though I think the practice indicates a rather more
favourable test for the defender than that, as Brownlie says, extra-territorial action must
"unequivocally" be the commencement of an attack.[86] As I have indicated in my response to
question 1, this is primarily a military question and involves the assessment of actual events,
rather than speculation - but the evidence will need interpretation and the risk it demonstrates
will be subject to assessment.

Even if one were to go further and accept some notion of imminence of attack as sufficient to
justify defensive force, there must be an "attack" which is imminent, a concrete prospect, not a
speculative possibility of unspecified action (and what is more the concrete threat should be
directed against the self-defending state). Even during the Cold War, when the possible damage
which might have been inflicted on a state was of a quite different order that did not override the
proscription of Article 2(4). This surely is a case for Security Council authorised action - the
threat is not to a state but to international peace and security.

The Attorney General's statement to the House of Lords in April 2004 sought to divorce the
concept of "imminence" from "attack" when he said that a right of self-defence arose,

"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."[87]
Although he took care to distance himself from the notion of a right to use pre-emptive force, it
is not clear what the difference is at what at might call the really imminent end of imminence
between the Attorney General's formulation and pre-emptive force. His statement is a claim that
there is a right to use force where the state facing attack cannot be identified, even in
anticipation - whatever such a right of action would be, it would not be self-defence.

Nicholas Wheeler

Speaking in the House of Lords on 21 April 2004, the Attorney General, Lord Goldsmith, said:

It is argued by some that the language of Article 51 provides for a right of

self-defence only in response to an actual armed attack. However, it has been
the position of successive United Kingdom Governments over many years that
the right of self-defence under international law includes the right to use force
where an armed attack is imminent.[88]

The question is what constitutes imminence in this context. According to the criteria which
emerged following the ​Caroline ​incident, imminence is defined as a threat that is ‘instant,
overwhelming, leaving no choice of means, and no moment of deliberation’. However, Michael
Walzer argues we should be uncomfortable with this definition if it is invoked to refer only to
‘the immediate moment’ and thereby does away with the category of cases where there is room
for deliberation about how to respond.[89] He suggests that it is possible to distinguish between
justifiable pre-emption and unjustified aggression by deciding whether the following criteria are
met: ‘a manifest intent to injure, a degree of active preparation that makes that intent a positive
danger, and a general situation in which waiting, or doing anything other than fighting, greatly
magnifies the risk’.[90] He maintains that Israel’s first strike against the Egyptian air force in
1967 met this threshold of ‘sufficient threat’.[91]

The National Security Strategy of the United States agues that the existing legal right of
pre-emption rests ‘on the existence of an imminent threat – most often a visible mobilization of
armies, navies, and air forces preparing to attack’.[92] It argues that we need to broaden the
concept of imminence to recognise the nature of the threat posed today by ‘Rogue states and
terrorists [who] do not seek to attack us using conventional means’.[93] Groups like al-Qaeda
armed with weapons of mass destruction (WMD) could kill millions of civilians from secret
bases, and without warning. To address the challenge from transnational terrorism, the Bush
Administration declared that, ‘​to forestall or prevent such hostile acts by our adversaries, the
United States will act pre-emptively’.[94] The National Security Strategy points out that given
the enormous costs of inaction in the face of such terrifying weapons, there is a ‘compelling case
for taking anticipatory action to defend ourselves, ​even if uncertainty remains as to the time and
place of the enemy’s attack’.​ [95]

The above formulation is very different from the criteria established following the ​Caroline
incident because it justifies military action aimed at warding off a potential danger before it
materialises into a specific intention and preparations to attack. There is nothing new about this
idea, and Walzer cites the case of the War of the Spanish Succession.[96] This was fought
against France in the belief that it was necessary to prevent the balance of power tipping
dangerously in Louis XIV’s favour. Here, war was justified by the fear that if Europe failed to
act against France, it would eventually succumb to its hegemony. Walzer critiques this type of
thinking on the grounds that ‘war is justified…by fear alone and not by anything other states
actually do’.[97] For the architects of the Bush doctrine, the ‘fear’ that WMD might find their
way into American cities provides sufficient justification for anticipatory strikes even where
there is no imminent threat from an adversary.

In rejecting the attempt in the US National Security Strategy to broaden the concept of
imminence to cover preventive war (such as the War of the Spanish Succession and the more
recent case of Iraq in 2003), it is important to distinguish between what Gareth Evans calls
imminent and non-imminent threats.[98] He argues that there are real non-imminent threats such
as the coupling of WMD, rogue states and terrorism, but these cannot justify unilateral action on
grounds of a right of anticipatory self-defence. Instead, Evans argues that we should address
these threats before they materialise into real dangers, but we should do so collectively. And if
action is to be taken against non-imminent threats on the grounds that waiting greatly increases
the risk, then such action should only be taken by the Security Council acting under its powers
under Chapter VII of the UN Charter. In cases where the Council is not satisfied that a strong
case has been made supporting preventive armed action against emerging threats – as was the
case with in Iraq in 2003 – there is no legal basis for states to act unilaterally.

Sir Michael Wood

As the Attorney General said in the House of Lords on 21 April 2004:

The concept of what constitutes an "imminent" armed 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 acts. It was on that basis that United Kingdom
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.

There is no basis in international law for going further. In particular, in so far as a right of
pre-emptive (or preventive) self-defence implies a departure from the requirement of imminence
it has no basis in the law. Put another way, as Hans Blix did in his third Hersch Lauterpacht
Memorial Lecture on 24 November 2004:

“Although ‘imminence’ may be a severe time requirement, ‘a growing threat’ would

be an unacceptably lax criterion and would not tally with the generally accepted
position that force should be used only as a last resort.”[99]

Question 5: What does the criterion of ‘proportionality’ mean?

Sir Franklin Berman

It seems now to be safely established that the proportion required is that between the ​threat and
the means chosen to deal with it (see the ICJ’s ​Nuclear Weapons ​Advisory Opinion[100]),
though it would probably be better to qualify ‘means chosen’ by ‘reasonably’. The problem
seems to reside less in the assessment of reasonable means than in the reasonable assessment of
what ‘the threat’ amounts to. An invasion and occupation of Iraq, and the replacement of its
system of government, could not have been covered by the law of ​self-defence on the argument
that that was the only way to deal effectively with the threat posed to neighbouring states (for
example, Israel) by Iraq’s weapons of mass destruction.

Daniel Bethlehem
The concept of proportionality has not been defined but has simply been construed in rough and
ready terms to mean some kind of parity between attack and response. The analysis by Derek
Bowett[101] concerning reprisals suggested that the Security Council viewed proportionality
almost in terms of a casualty head-count. The Security Council’s refusal to condemn Israel on 5
October 2003, for bombing Syria, without loss of life, in response to a terrorist attack by Islamic
Jihad (which receives Syrian backing) the previous day which killed 19 people and injured a
further 60, suggests that the Security Council continues to operate on the basis of a rough and
ready assessment of parity.

The concept of proportionality was and remains a feature of the law on reprisals and, in this
context, may be more sophisticated than the concept as used in a self-defence context as the
concept of reprisals contains an element of prospective proportionality, i.e., such as action as is
necessary to achieve a return to legality.

In my view, the concept of proportionality must be construed to include, as appropriate, both a

retrospective and a prospective element. In other words, force used by way of self-defence must
be assessed by reference to the scale of an attack that has already been initiated and the harm in
the process of being done. Where, however, force is used by way of anticipatory self-defence,
proportionality must be assessed by reference to the scale of the attack that is threatened and the
force that is necessary to effectively address the threat of attack. Where the force used by way of
self-defence is in response to an accumulation of attacks – currently impermissible, in the light of
the ​Oil Platforms Judgment but which in my view should be permitted (see my response to
question 1, above) – proportionality must be assessed by reference to what is necessary to
effectively forestall the threat of future attacks.

James Gow

It means nothing particularly. It is defined by context – and must be defined, or justified in terms
of the context. A particular use of force, at one time, in one situation, under one interpretation,
might be justified, but the same use of force, in different circumstances, might not. Attached to
this is the issue of whether there are any situations or use of destructive force that no context can
justify.

Christopher Greenwood
That the force used in self-defence must not be manifestly excessive in relation to the threat
posed or the value of the goal you are permitted to achieve. For example, a high level of force
with many casualties may be necessary to recapture an uninhabited rock or to rescue a single
hostage, but one would have to question whether it was proportionate in either case.

That said, I think the ICJ was right in ​Nuclear Weapons Advisory Opinion[102] ​to reject the
argument that the use of a nuclear weapon was so destructive it could never be proportionate.
Similarly, I would reject the suggestion that for a small state to defend itself against invasion in
circumstances where it could not win and would simply cause heavy loss of life must be
disproportionate. There is no support for that in state practice.

Vaughan Lowe

The requirement of “proportionality” is satisfied if:

1. no greater force is used than is necessary to avert the imminent attack; and,
2. the physical and economic consequences of the force used in order to defend
against an imminent attack are not disproportionate in relation to the harm that
might reasonably be expected to be a consequence of the successful completion of
the attack.

The Attorney General’s speech in the House of Lords in April 2004 identified these two distinct
limbs of proportionality.[103] The first limb is another way of looking at the requirement of
necessity. The second is perhaps that which is more accurately termed a requirement of
proportionality. An example of the first would be that killing attackers is not justified if they can
be apprehended and disarmed without killing them. An example of the second would be that
extensive bombing of a naval base in the attacking state would not be justified if the anticipated
attack were believed to consist in the dispatch of a frigate and a dozen troops to occupy an
uninhabited island.

Sir Adam Roberts

The principle of ‘proportionality’ can refer to two different things:

1. the proportionality of a military action taken in response to a grievance – in
which sense it is a link between ​jus ad bellum​ and ​jus in bello;​ and,
 2. proportionality in the conduct of armed hostilities ​(jus in bello).​
The latter encompasses the proportionality of a military response to an adversary’s military
actions, the proportionality of a military action in relation to the anticipated military advantage to
be gained, and proportionality in reprisals.

Both of these aspects are of particular importance in a war that is partially justified in terms of
pre-emption. This is because, when the initiation of a war is a subject of contestation, the means
by which it is conducted are also likely to be the subject of international criticism.

Some of the operational rules relating to proportionality are contained in the treaties and
customary rules of the laws of war. They are not simple to apply, and do not necessarily require
exact equivalence between one side’s action and the other side’s reaction.

Philippe Sands

Both criteria fall to be applied on a case-by-case basis. The examples given by Thomas
Franck[104] in his 2002 Hersch Lauterpacht Memorial Lectures may provide a basis for
discussion.

Malcolm Shaw

Proportionality means that there has to be a sense of relationship between the threat and the
response. What is proportionate will depend upon the nature of the threat faced and the means
available in practice to counter it, as well as the requirements of law.[105] Case law is vague on
the precise conditions required. Time may also alter the equation. Israel was roundly condemned
for bombing the Iraqi nuclear reactor just before it went critical in 1981. I suspect that such
criticisms faded as from 1990.

The first issue will be to determine against what the proportionate response is to be measured
since simply to pronounce that the action must be proportionate to the armed attack begs the
question. Indeed, it seems to me that the appropriate determinant is not the armed attack as such
but the totality of the threat that this represents. An analysis of the threat needs to be considered
and realistic. Is the aim to grab a few miles of land or to extinguish the target state or murder
large numbers of the population or “ethnically cleanse” the territory in question? Is the aim to
attack a military location or a city?

The different levels of threat will of necessity require a different response. Reasonable evidence
will, of course, be critical and may condition the reaction of third states after the event, but such
evidence is time-conditioned in that the test will be what is reasonable at the time in the light of
knowledge known or reasonably to have been known at the time of response.

Gerry Simpson

Under customary international law, any action in self-defence must be proportionate and
necessary.[106] The Court has held that any act of self-defence ought to be proportional to the
armed attack and necessary to respond to it.[107] Proportionality, then, refers to a similarity in
scale between the attack and the response.

Colin Warbrick

This is a very difficult question. As military doctrine inclines to the use of overwhelming force,
questions of proportionality shade into ones of necessity (see next question) or become matters
of ​jus in bello.​ Also, there remains an unresolved question in international law: proportionate to
what?:
· to the damage that the attack has done and its continuation threatens?;
· to that which is necessary to bring the attack to an end?; or,
· to that which is necessary to prevent a repetition in the absence of satisfactory
guarantees by the other state that there will not be a repeat?
What does not seem to be legally relevant as a matter of principle, but which may be of
importance as a matter of practice or from a political perspective, is the damage anticipated or
actually suffered. This is a question of responsibility rather than self-defence. Relying on it
encourages the use of self-defence to cover what is really punishment or enforcement action.
The more the attack is against the survival of the state (or perhaps these days, the government)
rather than against an interest of the state, the wider the scope for legitimate proportionate force
in response. Attacks by non-state actors may seldom threaten the governmental structures of a
state (though perhaps one should not be too sanguine about ruling out "mercenary" action against
weak governments). Accordingly, the proportionality calculation should take into account the
relatively limited consequences for a defending state, particularly where it claims the right to act
against the territory of a state not directly or not at all responsible for the attack.

Nicholas Wheeler

Proportionality in this context means the use of no more force than is required to defend the
threatened state.

Sir Michael Wood

Acts of self-defence must be ​proportionate to what is required for achieving that object: “the
force used must be proportionate to the threat faced and must be limited to what is necessary to
deal with the threat”.[108]

Question 6: What does the criterion of ‘necessity’ mean?

Sir Franklin Berman

See my response to question 4 above.

Daniel Bethlehem

In the ​Wall Advisory Opinion, the Court referred to Article 25 of the State Responsibility
Articles and, in particular, to the requirement therein that “necessity” requires that the conduct in
question “is the only means for the state to safeguard an essential interest against grave and
imminent peril”. Leaving aside whether Article 25 of the State Responsibility Articles was
appropriately invoked by the Court in this context, it is undisputed that the concept of necessity
contemplates circumstances in which a state is faced with an immediate requirement to act
against a grave peril. The concept can be traced back directly to the language of the formula
used following the ​Caroline ​incident, ‘the necessity of self-defence, instant, over-whelming,
leaving no choice of means, and no moment for deliberation’.

The interpretation of “necessity” in a self-defence context is, in my view, closely linked to the
scale of the attack or threatened attack and the idea of prospective proportionality, i.e., what is
necessary to effectively address the attack or threatened attack. It is also bound up with the
question of whether a State has, or ought to have, a margin of appreciation when it comes to
assessing a ‘grave and imminent peril’. The ICJ, in the ​Oil Platforms Case and the ​Wall
Advisory Opinion, rejected both elements, in my view wrongly, as well as ignoring its
assessment, in the ​Gabcikovo Case[109], as well as in various examples of State practice (cited
in the ILC State Responsibility commentaries), which suggest that necessity does admit of some
margin of appreciation.

In my view, the use of force by way of self-defence may be justified as necessary in

circumstances in which:
(a) there is a well-founded appreciation of grave peril;
(b) the use of force is in the circumstances the only available means or, if other
means are available, is likely, on a considered assessment of all the
circumstances, to be the only effective means available to address the threatened
peril; and,
(c) any delay in the use of force by way of self-defence would result in a significant
increase in the risk of peril.
The use of force on grounds of necessity is also limited by the principle of proportionality.

James Gow

It means that those making the decisions have no reasonable alternative but to take action. In this
context, the much-mooted notion of ‘wars of choice’ seems to me redundant, at least in the
context of liberal democracies. There might be choices over how much to contribute, in which
ways, to a use of destructive force, but I cannot imagine any democratic leader(s) who would
take a decision to engage armed forces, or other means of applying restrained coercive violence,
without judging that they had no other, or better, option. In this context, the interaction with
‘imminence’ must be weighed. Necessity will determine imminence – it will be necessary to act
before it is too late. Here, another question informing reflection must be, once again, what must
an actor – state or non-state (or virtual state?) – do to demonstrate that it is not a threat, in a
broad sense, and so that action is not justified. Certainly, there will be an increasing onus on
those charged with being a threat to show that they are not.

Christopher Greenwood

That the force used is no more than is reasonably necessary to achieve the goal permitted – for
example, the expulsion of an invader, the prevention of future terrorist threats from a particular
source.

Applying that test is very complicated since it has to take account of such factors as the need to
keep your own casualties as low as possible. The Belgrano sinking is an instance of how
difficult the test can be to apply.

Vaughan Lowe

The criterion of necessity means that there should be no reasonable alternative to the proposed
course of action that is likely to be reasonably effective in averting the threat. That principle has
several strands.

Firstly, it answers the question, “what force may be used?” It means that less forceful, or less
extensive means would be insufficient to remove the threat or reduce it to an acceptable level.
That point is important as it is generally not necessary to kill every last soldier (or insurgent) in
order to remove the threat for all practical purposes, or at least to reduce it to a level at which,
say, normal policing action can reasonably be expected to avert a renewed attack. That suggests
that the analysis is dynamic, in the sense that throughout a use of force in self-defence the
question should be continuously asked, is there a real need for further force to be used. In other
words, defensive force should be controlled, and not consist in the triggered release of a
pre-ordained response.

Threats constitute a particular problem. The making of a threat to kill may be said to be a lesser
degree of force and to inflict a lesser degree of harm that an actual moderate physical assault.
There have, I think, been explicit threats in recent history to use ‘disproportionate force’ in
response to any attack. I do not think that the law is either very clear or very important in this
context. It is plain that such threats are unhelpful in any society which seeks to maintain the
principle of proportionality.

Secondly, it answers the question, “when may force be used?” Necessity is an aspect of
imminence, in as much as it requires that there be no time to pursue non-forcible measures with
any reasonable chance of averting or stopping the attack.

The third strand is another aspect of the above question of ​when force may be used, which might
be thought of as the “who” question. It is the question of whether it is necessary for the target
state to take action, or whether another state is able and willing to act, and intends to do so.

Finally, it raises the question of, “against whom” a necessary response may be directed. The
purpose of defensive force is to disarm the (imminent) attacker and stop, or avert, the attack.
Action against third parties, such as the central government of the state in which the attacker is
found, may be justified if it is controlling the attack, but may not be justified if the attackers are
operating independently of that government. Defensive force cannot be used to punish states for
a failure to repress terrorist actions emanating from their territory.

Sir Adam Roberts

The criterion of “necessity”, in relation to a planned use of force in another state, has to refer first
and foremost to the lack of reasonable alternatives to the projected military action. Other military
or non-military means of achieving an objective need to be carefully considered and, if at all
possible, pursued.

This meaning of necessity is especially important in the kinds of crises that have given rise to
discussion of pre-emptive and preventive uses of force. For example, the fact that a terrorist
insurgency is getting military support from another state does not in itself prove the necessity for
attacking the territory of that state. The UK did not conduct its counter-insurgency operations in
Malaya from 1948 onwards, or in Northern Ireland more recently, on that basis – and it would
have run into trouble if it had argued in these cases that it was entitled to attack China and
Ireland respectively. I do not deal here with the ​jus in bello principle of ‘military necessity’,
which is somewhat distinct, though with certain points of overlap.
Philippe Sands

See my response to question 5 above​.

Malcolm Shaw

Necessity is linked to proportionality in that the response has to be limited to measures

appropriate in order to deal with the threat (see my response to question 5, above). Indeed,
necessity is a gloss on proportionality and restricts the response to the elimination of the threat.

Necessity will also relate to the means available so that the kinds of forces and the level of
armament to hand will be relevant to the type and intensity of response that it would be
reasonable to expect, as well as the realistic possibilities of resorting to non-military means in the
circumstances. What this means in practice is, however, uncertain. Tanzania in responding
legitimately to a Ugandan attack upon the Kagera salient in 1978 continued on to Kampala and
overthrew the regime. There was little meaningful criticism. Again, the UN authorised coalition
forces in 1991 stopped at the Iraqi border after expelling invading troops from Kuwait.

Gerry Simpson

Necessity refers to the action required to terminate the attack and/or subdue the threat. Thus,
necessity and proportionality could come into serious conflict. The standard formulation, of
course, is conjunctive: self-defence has to be both proportionate ​and​ necessary.

The difficult case is the act of self-defence that seeks to extinguish a serious threat or ongoing
use of force through measures that appear disproportionate to the original armed attack. As
Myjer and White put it: “Does an attack on a small part of the United States justify an armed
response against a whole country?”.[110] One way round this problem is to say that
proportionality is to be judged against the threat as well as the armed attack itself. This seems
more pragmatic but risks collapsing proportionality and necessity.

With anticipatory self-defence, the position is murkier still. Necessary to counter-act this attack?
This and future attacks? Proportionate to the expected attack?
Colin Warbrick

It might be useful to refer to the case-law of the European Court of Human Rights as a guide to
the idea of necessity.[111] The Court takes as its first standard action being "absolutely
necessary" (coincidentally, for lawfully self-defence, ​inter alia,i​ n Article 2(2) of the
Convention). What this requires of the state is an investigation of the circumstances to see that
there is no alternative, careful planning about the deployment and use of the force determined to
be absolutely necessary, and a strict limitation of the actual use of force to the purposes
identified in the Convention. This is a more demanding test than the international law standard of
"necessity". Whether action is merely "necessary" for some purpose or other requires a
proportionality assessment, taking into account the importance of the individual right which
would be interfered with by the proposed action. The state is expected to produce evidence to
support its claim of necessity. Considerable weight is attached to the existence of alternative
means for securing the state's ends. Futility of action to achieve the claimed aim is the clearest
demonstration of absence of necessity. The Court distinguishes the test of necessity from
"reasonableness" or good faith. Reasonableness does not take sufficient notice of what is at stake
for the individual; good faith does not protect against (patently) inadequate decision-making.

The interest which is at stake when a state claims the right to respond by self-defence may be the
lives and property of a state and its nationals when the latter is not directly implicated or not
implicated at all in a wrongful act against the defending state. Necessity means that the force
used was the only way in which the armed attack could have been terminated and that the force
used was directed solely to terminating the attack and, if the defending state is faced with a
campaign against, of preventing or minimising the effects of future elements of the campaign
against it. The force must be used for self-defence purposes and no other but hard questions arise
about the necessity of removing a regime implacably opposed to the self-defending state and
willing to resume hostilities when it is able, if left in place. Considerations of self-determination
have an impact on programmes for regime change. That is to say, even necessity is limited by
other rules of law.[112] As the defeats of Germany and Japan show, overthrow of particularly
recalcitrant governments might find legal justification in some circumstances, even as exercises
of self-defence.

Nicholas Wheeler
The requirement of necessity incorporates two related aspects: first, that all peaceful means of
defending the state have been exhausted, and second, that the scale of the threat is of sufficient
gravity to warrant the use of force.

Sir Michael Wood

The use of force in self-defence must be necessary, meaning that other (non-forcible) means to
reverse/avert the attack must be unavailable.

Question 7: Is it permissible to use force in self-defence against a terrorist grouping within

another state although that state may not be unwilling, but simply unable, to deal with a terrorist
organisation itself?

Sir Franklin Berman

The answer in principle is ‘yes’, but lies at a level of generality that renders it of singularly little
practical usefulness. The trivial case is that of a state that is ​willing ​(though unable); such a
state must be presumed to be ready to act jointly with other states specially affected, or at least to
consent to their acting, in such a way as to remove any question mark over legality.

It is implicit that the first step has to be to call on the target state to meet its obligations, and that
squares with the practice of the UN Security Council, e.g. in respect of Libya and Afghanistan.
A state that merely claims to be willing, but declines to act alone or in combination with others,
puts itself by that fact into the ‘unwilling’ category. It also makes itself a wrongdoer (in respect
of other states directly affected), so diminishing its rights in relation to corrective measures they
are entitled to take within the limits laid down by international law.

That said, the nature and degree of the force that may legitimately be employed will not be
identical to the case where the territorial state’s own actions give rise to the threat to the other
state or states. Specifically, the fact that in international armed conflict a belligerent state’s
infrastructure and civilian population are exposed to the risk of collateral damage can’t readily be
assumed to apply to the case of limited punitive operations aimed at neutralizing a terrorist
organization.
The closest analogy (though a fruitful one) is intervention by a belligerent on neutral territory to
put a stop to hostile activities carried out by an opposing belligerent there.

Daniel Bethlehem

A state is required to ensure that its territory is not used for the commission of unlawful acts.
Where a state is unable to assert control over a terrorist organisation located in its territory, the
state which is a victim of the terrorist attacks would, as a last resort, and on the basis of the
principles addressed above, be permitted to act in self-defence against the terrorist organisation
in the state in which it is located.

James Gow

This is a particularly difficult issue – though the simple answer is ‘yes’, as it has already
happened. However, there is clearly a case theoretically at least for saying that the US operations
against Afghanistan and Sudan, while self-defensive, were also acts of aggression against those
states, because the states themselves had not been involved ​per se in the attacks on the Nairobi
and Dar es Salaam US embassies. This appears to be the case acutely regarding Sudan, where the
information, as I understand it, later proved to be out of date and wrong. Therefore, regarding
each of the elements of the self-defence equation in the changing context, there has to be some
indication of what the conditions are for any actor (state or otherwise) reasonably taking action it
believes to be justified at the time and for which it does not believe that there is an alternative to
demonstrate responsibility afterwards. Clearly any lives lost cannot be restored. But it seems to
me that, while action might be necessary, there must be responsibility after the fact (whatever the
case, but especially if it is shown clearly that action, in this uncertain world, was appropriate, in
terms of that which was known (while more could not reasonably be known) but the legitimacy
of which is compromised by the emergence of information which was not known and could not
be known

Christopher Greenwood
In an extreme case, I think it is, but only as a last resort. There is an analogy with the right of a
belligerent to destroy enemy forces which are using neutral territory or waters in a case where
the neutral is unable to enforce its neutral rights.

Vaughan Lowe

Yes. The state may not be responsible for the acts of the terrorists, but it is responsible for any
failure to take reasonable steps to prevent the use of its territory as a base for attacks on other
states. Its inability to discharge the duty does not relieve it of the duty. If it refuses an ‘offer’ to
send troops into the state to nullify a threat of an imminent attack, it must find some other way of
discharging its responsibility. If it does not, it should be regarded as ‘unable or unwilling’ to
discharge its responsibilities.

But in any event, I repeat an earlier point.[113] The right to use force in self-defence is an
inherent right. It is not limited to ‘forcible counter-measures’ and thus not dependent upon any
prior breach of international law by the state in which defensive force is used.

Sir Adam Roberts

It is extremely hard to answer this question in the abstract. In principle it would be wrong to give
a negative answer. However, a positive answer should not be seen as a green light. Terrorist
organisations are not easily rooted out by foreign armed forces, especially when the latter are
ignorant of the geography, culture and language of the society concerned. Intervention may make
most sense when there are significant local allies (whether the government, or regional forces)
who will collaborate in addressing the problem posed by the terrorist organisation.

Philippe Sands

If it is accepted that force may be used against non-statal actors where the host state is unwilling
to act, then there is no reason in principle why force cannot be used when a host state is willing
but unable to act. However, the circumstances in which force can be used may differ, particularly
in regard to the nature and extent of prior engagement with the host state, and the question of
whether (and under what conditions) its formal consent may be required (see Grenada).
Malcolm Shaw

See my response to question 2 above. Inability to act is not a defence since the target state is still
under attack from the first state. However, where the state, although unable to deal with the
terrorist organisations, is indeed willing to take action, it must take steps to seek assistance in
order to mitigate its powerlessness and thus render the proposed response from the target state
unnecessary.

Gerry Simpson

There are two general problems worth raising here. The first concerns the problem of
nomenclature. The terms “pre-emptive self-defence”, “preventative war”, “anticipatory
self-defence” and “precautionary self-defence” are not terms of art and their, often
interchangeable, use has created great confusion e.g. a group of politicians I spoke with this
summer reversed the usual international law categorisations of anticipatory (immediate) and
pre-emptive (precautionary) self-defence.

Secondly, though, I wonder if the search for universalisable rules is misconceived. Perhaps in
approaching the issue of force there ought to be more emphasis on the apparent prerogatives of
Great Powers and the vulnerability of outlaw states. Might it not be the case that principles of
international law applying to self-defence outside the Charter are likely to operate in ways rather
similar to the operation of collective security under the terms of the Charter? The putative
legitimacy of a use of force in each case may become conditional on the status of the actors
employing such force and the status of those who are subject to such attacks. Tentatively in
Kosovo and, more confidently, in Afghanistan, the Great Powers, may have attempted a
redefinition of sovereign equality itself.

Colin Warbrick

What distinguished the response against Afghanistan were the particular facts. In the case of the
11 September 2001 attack, the magnitude of the damage inflicted by the non-state actor was
exceptional but its legal relevance was as evidence of what the continuation of the campaign
against the USA might mean. Responsibility for the attack fell to ​Al-Qaeda,​ established by the
group's own statements, and more were plausibly threatened. That the group benefited from
facilities in Afghanistan was also made out; the non-co-operation of the government of
Afghanistan to engage in an operation against ​Al-Qaeda was established to a much lesser degree.
The Taliban government was in breach of obligations under The Security Council Resolution to
hand over Bin Laden to a state willing to prosecute him (though those resolutions did not give,
nor were claimed by any state to give, an independent right to use force to enforce them).
Non-co-operation might have been in breach of an obligation owed to the UN (though not to the
US); further, it might have been evidence of the necessity of taking action to prevent or limit the
next episodes in ​Al-Qaeda'​ campaign, regardless of any responsibility of Afghanistan.

I am not sure how much we can extrapolate from this. The existence of a campaign or the
presence of an attack as understood above from non-state groups requires demonstration, to give
rise to a right of self-defence at all. There was evidence of complicity of the Ugandan authorities
with the hijackers in the Entebbe incident. To demonstrate the necessity of action against the
territory of another state not directly responsible for the acts of the non-state group requires, inter
alia, the demonstration that there is no other means of meeting the attack (and that this way will
do so). The state potentially under threat might be persuaded to co-operate in the face of a
legitimate threat to its territory but, save for the most compelling emergency, the territorial state
is surely entitled to proceed first in its own way against an identified group on its territory. The
Security Council might authorise action. It seems to me likely that satisfying the necessity test
will be rare.

Nicholas Wheeler

One of the criticisms levelled against the US after its attacks on the Taliban and ​Al-Qaeda is that
the government of Afghanistan was not responsible for the actions of terrorist groups based on
its territory. The question is, “at what point do we decide that the conduct of a terrorist group is
attributable to that of the state upon whose territory the group is based?” Those who deny the
legality of ​Operation Enduring Freedom argue that the Taliban lacked control over Osama bin
Laden. In the ​Nicaragua C ​ ase, the ICJ maintained that the USA was not responsible for the
breaches of international humanitarian law by the ​Contras since ‘it had not directed and
controlled the individual operations giving rise to these breaches’.[114] Applying this precedent
to the case of Afghanistan, it is argued that the Taliban’s involvement in the attacks on the
United States of 11 September 2001 was too distant for it to be held responsible for the attack.
The implication of this is that the US was not legally justified in using force against Afghanistan,
even though it had knowingly harboured the terrorist group that launched such a devastating
attack upon the territory of the USA. This is not a realistic position, and the support given to the
US position by Security Council resolutions and many other states, demonstrated that
international society acknowledged that there was a legal basis to use force in self-defence
against attacks such as those launched on 11 September 2001.

Sir Michael Wood

Yes (provided, of course, that the other conditions for self-defence are met). Compare the
“unable or unwilling” test for intervention to protect nationals. In many cases, however, where a
state is unable it will consent to action so there will be no need to have recourse to the right of
self-defence.

[1] The question whether there is also a right to take action in exceptional circumstances of
humanitarian emergency, or to protect fundamental rights, is not dealt with here; nothing in this
paper can be regarded as prejudicing the question one way or the other. Although Article 51
mentions the right of collective self-defence, this study deals only with individual self-defence.
[2] The International Court of Justice (ICJ) expressly left open the issue of the lawfulness of a
response to the threat of an imminent armed attack in the ​Case concerning Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v USA​) (Merits, 1986 ICJ Rep. 14,
at para. 194). When the question of the existence of an armed attack featured in the Court’s
overall reasoning on the law of self-defence, it appeared before the treatment of the principles of
necessity and proportionality. The same framework was followed by the Court some 17 years
later in the ​Oil Platforms Case (Case Concerning Oil Platforms (Islamic Republic of Iran v.
United States of America​, 2003 ICJ Rep.) where it first investigated the existence of an armed
attack (paras. 61 to 64 and 72) before it turned to the application of the principles of necessity
and proportionality (paras. 73 and 74).
[3] For the purposes of this document the term ‘anticipatory ‘ self-defence is preferred over
‘pre-emptive’ self-defence, although the latter is also in current use, for example in the report of
the United Nations Secretary-General’s High-level Panel on Threats, Challenges and Change: ‘A
More Secure World:Our Shared Responsibility’ para.189.
[4] The United Nations Secretary-General’s response “In Larger Freedom” to the high-level
panel report mentioned above states: “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 recognised that this covers an imminent attack as well as one that has already
happened” (at para. 124). In the resolution adopting the World Summit Outcome the UN General
Assembly reaffirmed that “the relevant provisions of the Charter are sufficient to address the full
range of threats to international peace and security” and reaffirmed “the authority of the Security
Council to mandate coercive action to maintain and restore internaitonal peace and security” but
did not comment on the meaning of Article 51.
[5] As in the ​Caroline ​incident, and in the case of the intervention in Afganistan in 2001, which
was categorised by the US and the UK as the exercise of the right of anticipatory self-defence
(see UN Doc. S/2001/946 and UN Doc. S/2001/947).
[6] The exchange between the US and the UK agreed that there be “a necessity of self-defence,
instant, overwhelming, leaving no choice of means and no moment for deliberation” and the use
of force, “justified by the necessity of self-defence, must be limited by that necessity, and kept
clearly within it”.
[7] See commentary for section 4, below.
[8] This study does not, however, deal with the rescue of citizens abroad, which raises different
issues.
[9] There are statements by the International Court of Justice which suggest that there may be
instances of the use of force which are not of sufficient gravity as to scale and effect to constitute
an armed attack for the purpose of self-defence. (​Nicaragua case, note 2, at paras.191 and 195
and ​Oil Platforms​ Case,​supra n​ ote 2, at paras. 51, 63-64 and 72.
But these statements are not generally accepted.
[10] Note 2 above, at para. 64.
[11] Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory,​ ICJ, 9 July 2004, at para. 139.
[12] The criterion of ‘necessity’ if force is legally to be used in self-defence can be traced back to
the language of the ​Caroline​ formula:
“[i]t will be for … [Her Majesty’s] Government to show a necessity of self-defence, instant,
overwhelming, leaving no choice of means, and no moment of deliberation” and the action must
not be “unreasonable or excessive, since the act, justified by the necessity of self-defense, must
be limited by that necessity, and kept clearly within it.”
The ICJ held in the ​Nicaragua case (above note 2) that “the specific rule whereby self-defence
would warrant only measures which are proportional to the armed attack and necessary to
respond to it” was “a rule well established under customary international law”, and re-affirmed
​ dvisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (​ 1996 ICJ
this in its A
Rep. 226)
[13] This formulation leaves open the question whether greater mechanised force can be justified
by the reduction in risk to the lives of the defending State’s forces, a question which is more
normally dealt with by the rules of international humanitarian law.
[14] In its decision in the ​Oil Platforms case (above note 2​), the ICJ elaborated on the
”necessity”criterion. It held that “the requirement of international law that measures taken
avowedly in self-defence must have been necessary for that purpose is strict and objective,
leaving no room for any ‘measure of discretion’ ” (para.73). In practice of course the assessment
of the necessity of a particular action is far from straightforward, and can be undertaken only on
the basis of the facts available at the time, but with a good faith assessment of those facts.

[15] ​Nicaragua c​ ase ( note 2 above), para.176; see also, para.41 of the Advisory Opinion on the
Legality of the Threat or Use of Nuclear Weapons ​(above note 12).
[16] For example, the Attorney General stated in the House of Lords on 21 April 2004: “the
force used must be proportionate to the threat faced and must be limited to what is necessary to
deal with the threat.” (Lords, Hansard, col. 371).
[17]Note 2 above, at para. 77.
[18] See note 22.
[19] Note 11 above, at para. 139: “Article 51 of the Charter thus recognizes the existence of an
inherent right of self-defence in the case of armed attack by one State against another State.” But
the European Union statement made upon the adoption of General Assembly resolution
ES-10/18 (concerning the ​Wall ​Advisory Opinion) suggests that EU member states and the other
states associated with the statement would not accept the possible implication of the Opinion that
self-defence is not available unless the armed attack is by a state. “The European Union will not
conceal the fact that reservations exist on certain paragraphs of the Court’s advisory opinion .We
recognise Israel’s security concerns and its right to act in self-defence.” The matter came up
again in a recent case in the ICJ; the Court stated that in the absence of attribution of the armed
force to a State there is no right of self-defence against ​that State. (​Case concerning Armed
Activities on the territory of the Congo (Democratic Republic of the Congo v. Uganda)(​ Merits,
2005 ICJ Rep., at paras. 146,147)). In line with the ​Wall Advisory Opinion this should not be
read as prohibiting action in self-defence against non-state actors as such.
[20] While certain writers have argued that Article 51 concerns only responses to aggression
against another state, their argument based on the French text is not persuasive. True, the French
text of Article 51 uses the term ​aggression armée, ​and ​aggression is also the term used in Article
39, but the French Government accepted during the debates on the definition of aggression that
aggression in Article 39 was not the same concept as ​aggression armée in Article 51; further, the
English, Chinese and Spanish texts of the Charter use different terms for Articles 39 and 51.
[21] It should however be noted that Security Council resolution 1368(2001) does not settle the
matter entirely, as in that case there was already significant evidence of a degree of responsibility
of a state (Afghanistan) for the continuing ability of the terrorists to carry out attacks.

[22] The ICJ Judgement in the ​Case concerning Armed Activities on the territory of the Congo
note 19 above, at paras. 146 and 147) implies that unwillingness or inability of a State to deal
with irregular forces on its territory is insufficient to create a right in self-defence against the
State. However, the Court does not answer the question as to the action a victim State may take
in the case of an armed attack by irregular forces, where no involvement of the State can be
proved. According to Judges Kooijmans and Simma the occurrence of an armed attack is
sufficient to create a right of action in self-defence, whether or not the actions are attributable to
a State (Separate Opinions of Judge Kooijmans, paras. 26-30 and of Judge Simma, paras.7-.12).

[23] It is in this context (rather than that of an attack by a state itself) that it is relevant to
consider the ICJ’s remarks in the ​Nicaragua judgment (​supra note 2). At para. 195 the Court
stated that: “… it may be considered to be agreed that an armed attack must be understood as
including not merely action by regular armed forces across an international border, but also “the
sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry
out acts of armed force against another State ​of such gravity as to amount to (inter alia) an
actual armed attack conducted by regular forces,​ “or its substantial involvement therein. ” …
The Court sees no reason to deny that, in customary law, the prohibition of armed attacks may
apply to the sending by a State of armed bands to the territory of another State, ​if such an
operation, because of its scale and effects, would have been classified as an armed attack rather
than as a mere frontier incident had it been carried out by regular armed forces.​ ” (italics added)
[24] Waldock, Recueil, 1952 II, p 461.
[25] International Court of Justice, Judgment (Merits) of 27 June 1986, “​Military and
Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of Americ)a”​ .
[26] International Court of Justice, Judgment of 6 November 2003, “​Case Concerning Oil
Platforms (Islamic Republic of Iran v. United States of America)”​ .
[27] International Court of Justice, Order of 2 June 1999 on Request for Provisional Measures,
“Legality of Use of Force (Yugoslavia v. United States of America/Spain)”.
[28] International Court of Justice, Advisory Opinion of 9 July 2004 on “​Legal Consequences of
the Construction of a Wall in the Occupied Palestinian Territory​”.
[29] Note 2 ​supra,​ para.195.
[30] See ​Nicaragua​, note 2 ​supra at para. 191 and ​Oil Platforms​, note 3 ​supra at paras. 51, 63-64
and 76.
[31] See, for example Dinstein, “​War, Aggression and Self-Defence”​, Cambridge University
Press, at p. 172.
[32] See Gray “​International Law and the Use of Force: Foundations of Public International
Law​”, pp.130-131; and Franck, “​Fairness in International Law and Institutions​”, pp.101-105.
[33] This response and his others are made in a personal capacity and do not necessarily
represent the views of Her Majesty’s Government.
[34] Exchange of letters between US Secretary of State Daniel Webster and Lord Ashburton,
Foreign Secretary of Great Britain, relating to the case of the ​SS Caroline,​ 1837; 29 BFSP
1137-1138; 30 BFSP 195-196; See Jennings (1938) 32 AJIL 82 and Rogoff and Collins (1990)
16 Brooklyn JIL 493.
[35] See, for example, decisions of the UN Security Council, NATO, and the OAS, etc..
[36] Albrecht Randelzhofer in Bruno Simma (ed.) (1994) “​The Charter of the United Nations, A
Commentary​”, p. 802.
[37] Note 5 ​supra,​ para.139.
[38] ​Ibid.​
[39] My criticisms here of the ICJ’s ​Wall ​Advisory Opinion should not be taken to imply support
for Israel on the wall generally. I am on record as supporting the application of international
humanitarian norms to the Israeli-occupied territories. My concern is simply that the Advisory
Opinion includes some general statements that are based on weak reasoning, show little
understanding of realities on the ground on both the Israeli and Palestinian sides, and offer poor
guidelines for the future.

[40] See UN Security Council Resolution 1368 “​Threats to international peace and security
caused by terrorist acts​”, S/RES/1368 (2001).
[41] See, for example, Alain Pellet, “​Non, ce n'est pas la guerre!”​ , ​Le Monde​, 20 September
2001; “​No, this is not war!​” in EJIL discussion forum on ‘​The Attack on the World Trade Center:
Legal Responses’​ at http://www.ejil.org/forum_WTC/ny-pellet.html.
[42] ILC (2001) “​Draft Articles on Responsibility of States for Internationally Wrongful Acts”​ ,
see Report of the International Law Commission on the work of its Fifty-third session, ​Official
Records of the General Assembly, Fifty-sixth session, Supplement No. 10​ (A/56/10), chp.IV.E.1.
[43] See the ​Nicaragua​ Judgment (1986), note 2 ​supra​, at 62, para.101.
[44] See UN SC Resolution 1368 (2001), note 17 ​supra.​
[45] United Nations General Assembly Resolution 3314 (XXIX) “​Definition of Agression”
(1974).
[46] Simpson, G. “​Great Powers and Outlaw States​”, p.332.
[47] See also later in paragraph 139, “imputable to”.
[48] Note 5, ​supra. N ​ ecessity, considered and rejected by the Court at para.140, and was
perhaps potentially more relevant.
[49] Ibid, para.33.
[50] See also criticism of this reasoning by Judge Higgins in her academic capacity in Higgins,
R. “​Problems and Process: International Law and How We Use It​”, pp.250-251.
[51] Separate Opinion of Judge Higgins on “​Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory”​ , ICJ Reports (2004), para.34.
[52] Separate Opinion of Judge Buergenthal on “​Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory​”, ICJ Reports (2004), para.6.
[53] Eick, C. “​Präemption’, ‘Prävention’ und Weiterentwicklung des Völkerrechts​”, ZRP 2004,
200 at 201 (my translation). See also Watts, “​Physical Barriers to Armed Infiltration:
Self-Defence and Israel’s Wall in the Occupied Palestinian Territories”​ .
[54] See “Statement by the North Atlantic Council” NATO press release (2001) 124.
[55] 40 ILM(2001), 1267 and 1270.
[56] Statement of Attorney General, Lord Goldsmith, to the House of Lords, ​Hansard,​ 21 April
2004, column 370.
[57] Franck, T (2001) “​Terrorism and the Right of Self-Defence​”, 95 AJIL 839.
[58] Greenwood, C. (2002) “​International Law and the ‘War on Terrorism​” (2002) International
Affairs Vol.78, Issue 2, April 2002, 301.
[59] Murphy S.D. (2002) “​Terrorism and the Concept of ‘Armed Attack’ in Article 51 of the UN
Charter”​ 43 Harv. JIL 41, though Murphy also suggests that the links between ​Al-Qaeda and the
Taliban Government were sufficiently close for the former’s acts to be imputable to the latter.
[60] Sofaer, A. (2002) “​Terrorism as War​” ASIL Proceedings 254: see also J. Murphy ​The
United States and the Rule of Law in International Affairs​ (2004) at p. 169.
[61] Verhoeven, J. “​Les ‘étirements’ de la légitime défense”​ (2002) 48 AFDI 49.
[62] Byers, M. “Terrorism, the Use of Force and International Law after 11 September” (2002)
51 ICLQ 401.
[63] Ratner, S. “Jus ad Bellum​ and J​ us in Bello ​after September 11​” (2002) 96 AJIL 905.
[64] See Gray, ​loc.cit.,​ note 9, ​supra​, at pp.164-179.
[65] Cassese, A. “​Terrorism is also Disrupting some Crucial Legal Categories in International
Law​” (2001) 12 EJIL 993.
[66] Charney, J. “​The Use of Force Against Terrorism and International Law​” (2001) 95 AJIL
835.
[67] Corten, O. and Dubuisson, F. “​Opération ‘liberté immuable’: une extension abusive du
concept de légitime défense​” (2002) 106 RGDIP51.
[68] Myjer, E.and White, N. “​The Twin Towers attack: an Unlimited Right to Self-Defence​”
(2002) 7 Journal of Conflict and Security Law 5.
[69] Schachter, O. “​The Use of Force against Terrorists in Another Country​” (1989) 19 Is. YB
HR 209
[70] Note 19, ​supra.
[71] 53 ICLQ (2004) 785 at p.795 and footnote 58. In the case of ‘state failure’, the authors say,
‘the simple presence of terrorists may be enough to justify a carefully targeted armed response,
addressed at the terrorists alone. This approach would of course amount to a limited extension of
self-defence to resist the armed attacks or imminent attacks of non-State actors, but only in the
rare situations where no state authority exists. ’
[72] National Security Strategy of the United States of America (2002), available at
http://www.whitehouse.gov/nsc/nss.html, reprinted in 41 ILM 1478 (2002)..
[73] Randelzhofer in Simma, B. (ed.) (1994) “​The Charter of the United Nations, A
Commentary​”, p.803.
[74] Ibid., p.806.
[75] Note 49, ​supra.
[76] Condoleezza Rice, 2002 Wriston Lecture, New York, 1 October 2002.
[77] Note 11, ​supra.​
[78] Foreign Affairs Select Committee (2004), para.429.
[79] Note 33, ​supra.
[80] Roberts, A (2003) “​International Law and the Use of Military Force: The United Nations,
the United States and Iraq​”, E ​ uropaeum: OXFORD. This is the text of a Europaeum Lecture
that I delivered at Leiden University, 6 June 2003.
[81] See e.g. Financial Times, 6 March 2004, p. 2, “​PM defends pre-emptive attacks on rogue
states”.
[82] Hansard, 21 April 2004, column 370.
[83] See, for example, UN Security Council resolutions adopted on 12 September 2001 and
subsequently.
[84] See National Security Strategy of the United States of America, note 49 ​supra​.
[85] Jessup, P in Schwarzenberger, G. (1944) “​Totalitarian Lawlessness and International Law​”,
Jonathan Cape: LONDON, at p.39. Note also Schwarzenberger’s rebuke to those with, “the
all-too-ready and frequent tendency to pin the label of novelty on anything which does not
happen to have come to one’s individual attention”, p.39.
[86] Ibid.
[87] Note 33, ​supra.​
[88] Quoted from written evidence submitted by Professor Philippe Sands QC to the House of
Commons Foreign Affairs Committee, 1 June 2004.
[89] See Walzer, M (1977) “​Just and Unjust Wars: A Moral Argument with Historical
Illustrations​”​ A
​ llen Lane: LONDON.
[90] Ibid., p.81
[91] Although as Michael Byers points out, Israel claimed that Egypt’s blocking of the Straits of
Tiran was a prior act of aggression thereby justifying self-defence under Article 51 of the
Charter. See Byers, M. ‘​Preemptive Self-defense: Hegemony, Equality and Strategies of Legal
Change​’, 11 Journal of Political Philosophy​ ​(November 2003), p.180.
[92] National Security Strategy of the United States (2002), note 49 ​supra.​
[93] Ibid.
[94] Ibid (emphasis added).
[95] Ibid. (emphasis added).
[96] Note 56, ​supra,​ pp.78-80.
[97] Ibid. p.77.
[98] Evans, G. “​When is it Right to Fight? Legality, Legitimacy and the Use of Military Force”​ ,
2004 Cyril Foster Lecture, Oxford University, 10 May 2004.
[99] See http://lcil.law.cam.ac.uk/lectures/hersch_lectures_2004.php
[100] International Court of Justice, Advisory Opinion of 8 July 1996 on “​Legality of the Threat
or Use of Nuclear Weapons”​ , ICJ Reports 1996.
[101] Bowett, D. “​Reprisals Involving Recourse to Armed Force​”, 66 AJIL 1 (1972)
[102] Note 77, ​supra.​
[103] Note 33, ​supra.​
[104] Franck, T.M. (2002) “​Recourse to Force: State Action against Threats and Armed
Attacks”​ , Hersch Lauterpacht Memorial Lectures Series, Cambridge University Press:
CAMBRIDGE
[105] See ​Nuclear Weapons​ Advisory Opinion, note 77, ​supra,​ at p.245
[106] See ​Nuclear Weapons A ​ dvisory Opinion, note 77, ​supra,​ at​ p​ ara.41
[107] See ​Nicaragua ​Case, note 2, ​supra,​ at para.176
[108] See Statement by the Attorney General, note 33, ​supra.​
[109] International Court of Justice, Judgment of 25 September 1997 in the “​Case Concerning
the Gabcikovo-Nagymaros Project​ (​Hungary v. Slovakia)​ ”
[110] See Myjer & White, note 45, ​supra​, at p.8.
[111] However, I do not suggest that its categories supplant state practice in the field of the use
of force.
[112] Though Judge Fleischauer, in his separate opinion in the ICJ ​Nuclear Weapons A ​ dvisory
Opinion, was saying that this limit may not apply in cases of ​extreme​ necessity. Note 77, ​supra.​
[113] See response to question 2, ​supra​.
[114] See note 2, ​supra,​ quoted in Simpson (2004)​, p​ .333.
4.1 Introduction

Article 2 (4) of the United Nations Charter prohibits the threat or use of force in international
relations, a prohibition that is accepted as customary international law.[1] Article 51 of the
Charter therefore allows a short-term limitation2 to article 2 (4) whereby a state may have
recourse to individual or collective self-defence ‘if an armed attack occurs … until the Security
Council has taken measures necessary to maintain international peace and security’. The
affirmation of a right to self-defence undermines the absolute nature of the prohibition against
unauthorised use of force in article 2 (4).

4.2 Background: From Just War to the UN Charter

Before the UN Charter made the jus ad bellum universally applicable, justifications for going to
war were more developed in the Western tradition than in other traditions.[2] Richard Sorabji
says that in most other traditions, much more emphasis is placed on the jus in bello, the means
used to fight wars, although, as discussed in Chapter 2, right authority is critical in all
traditions.[3] Saint Augustine of Hippo is generally considered the father of the institution of just
war in the Western tradition.[4] He believed a just war was about redressing harm or avenging an
injury. It was a reactive doctrine with the goals of peace, law enforcement and the restoration of
order. Drawing on the Western tradition, contemporary scholars typically point to five ad bellum
criteria for a war to be considered just: just cause, last resort, right authority, proportionality (that
the war does not cause more harms than the good achieved by victory) and reasonable prospect
of success. Some authors also add right intention and the goal of peace.[5]

However, in order to avoid the constraints of the legal state of (declared) ‘war’, such as rules
appertaining to neutrality, states claimed their coercive actions to fall within other legal
categories, for instance, a reprisal (‘an act of war taking place in time of peace’ and thus law
enforcement) or actions taken of necessity.

The facts of the Caroline case[6] arose during a rebellion in Canada in 1837. Rebels (i.e.,
non-state actors) attacked British ships as they sailed through Canadian waters. The Caroline was
an American ship carrying supplies for the rebels. The British responded by seizing the Caroline
from American waters and sending her over Niagara Falls, with loss of life. In determining the
legality of the British actions, diplomatic correspondence followed between the Americans and
British. For the former, Secretary of State Webster asserted that ‘to show a necessity of
self-defence, [action must be] instant, overwhelming, leaving no choice of means, and no
moment for deliberation’. The British concurred with this formulation and necessity and
instantaneous action subsequently became accepted as the defining customary international law
criteria for self-defence.

4.3 Conditions for Self-Defence

UN Charter, article 51 sets out the conditions for a claim of self-defence:

Nothing in the present Charter shall impair the inherent right of individual or collective
self-defence if an armed attack occurs against a Member of the United Nations, until the Security
Council has taken measures necessary to maintain international peace and security. Measures
taken by Members in the exercise of this right of self-defence shall be immediately reported to
the Security Council and shall not in any way affect the authority and responsibility of the
Security Council under the present Charter to take at any time such action as it deems necessary
in order to maintain or restore international peace and security.

Article 51 shifts the decision to use force from the collectivity (the SC) to the individual state; it
‘embeds a model of sovereignty drawn from the interpersonal self-defence rights’.[7]

4.3.1 ‘If an Armed Attack Occurs …’

Accordingly, self-defence is provided for ‘if an armed attack occurs’.[8] This does not correlate
precisely with article 2(4), which prohibits ‘the threat or use of force’, indicating that some such
incidents may not justify force in self-defence. Nor is it configured in the same terms as the
trigger for SC response under chapter VII of the Charter: ‘breach of the peace, threat to the peace
or act of aggression’.[9] Nevertheless armed force that cannot be justified as self-defence may
constitute aggression.[10] The first question is therefore what constitutes an armed attack. Unlike
aggression, there has been no negotiated definition. Authorities suggest that ‘to be deemed an
armed attack, an operation must have a minimum “scale and effects”’.[11] In the Oil Platforms
case the ICJ stated the need to distinguish ‘the most grave forms of the use of force (those
constituting an armed attack) from other less grave forms’.[12] While there must be cross-border
forcible action to constitute an armed attack, minor localised border skirmishes are unlikely to be
accepted as such, even if they involve loss of life,[13] although ‘a cumulative series of minor
attacks may constitute an armed attack’.[14] A consequence of excluding small-scale violence
from the concept of ‘armed attack’ is to rule out the right to self-defence and to minimise the
threat of escalation of violence; contrariwise it has been argued that so doing is ‘conceptually
confused, inconsistent with customary practice and undesirable as a matter of policy. … The
better view is that any deliberate projection of lethal force onto the territory of another state …
will normally trigger the application of Article 2(4)’.[15]

Events in the Crimea in 2014 raise the question whether of an armed attack has occurred where
there is an undoubted military presence but no use of direct force. Russian troops were legally
present in the Crimea in accordance with the terms of a 1997 Treaty (extended in 2010) agreed
between Russia and Ukraine.[16] But the Treaty imposed restrictions on those foreign troops;
major troop movements required prior consultation, and numbers could not be unilaterally
increased. Russia did not comply with these terms. The 1974 GA definition of aggression
provides that ‘[t]he use of armed forces of one State which are within the territory of another
State with the agreement of the receiving State, in contravention of the conditions provided for in
the agreement’ qualifies as an act of aggression.

The indisputable show of considerable force made possible the referendum providing for
Crimea’s secession from Ukraine,which ensured that the ‘scale and effects’ of the action were
grave: annexation of the territory of a sovereign state.[17]

the implications for the UN Charter if these events did not constitute an armed attack would be
that ‘Ukraine could not lawfully use force against Russian troops to protect territory that
undisputedly is part of Ukraine’[18]

On the other hand, the presence of the Russian military did involve violations of human rights on
a considerable scale: this included holding a referendum without proper procedures and under
military pressure; discrimination against ethnic Ukrainians and Crimean Tartars; infringement of
property rights; and control over media and information.[19]

In other scenarios the ICJ has been reluctant to recognise all forms of even coercive intervention
by a state into another state as an armed attack. In the Nicaragua case the Court found that
sending armed bands into the territory of another state could constitute an armed attack if it was
of sufficient scale and effects. Assisting rebel forces (e.g., through the provision of weapons or
logistical support) is not in the opinion of the Court an armed attack,[20] although it may
constitute a threat or use of force, or illegal intervention. In the Court’s view the appropriate
legal response to wrongful intervention is not military force in self-defence but the imposition of
non-forcible counter-measures.

4.3.3 Imminence: Anticipatory Self-Defence

The risk of escalating violence under the cover of self-defence is theoretically limited by the
legal requirements that such action be imminent, necessary and proportionate. However,
determining any precise and agreed content to these conditions is problematic. The issue of
imminence arises in relation to the notion of anticipatory self-defence. The wording of article[21]
is clear: the right to self-defence arises ‘if an armed attack occurs’. A restrictive approach would
therefore prohibit any defensive action until this has taken place. But this interpretation is ‘hotly
contested by writers and in state practice’.[22] It is argued that it would punish the victim and
favour the aggressor, supporting a strong argument that a state cannot be expected to wait until
an anticipated attack eventuates. This position carries further weight in the context of

fears of terrorist activity. In addition to the interpretive issue is the practical question of what
evidence is required to justify such a first strike and who is to make that evaluation. The state
that fears that it may become subject to an attack may not be able to make an objective
assessment and may act prematurely out of fear, suspicion, on the basis of unreliable intelligence
or in bad faith.
In 2002 the unresolved debate with respect to anticipatory self-defence took on a further twist. In
that year the US National Security Strategy addressed the threats of WMD and terrorism. It
asserted that international law had long ‘recognized that nations need not suffer an attack before
they can lawfully take action to defend themselves against forces that present an imminent
danger of attack’, but that the concept of imminence must be adapted to address contemporary
threats.[23] It set the stage for the 2003 invasion of Iraq by setting out a claimed right to act
unilaterally ‘to exercise our right of self-defence by acting pre-emptively against such terrorists,
to prevent them from doing harm’ to the United States – the people and the country. The core
difference between this claim and that to take anticipatory action in self-defence is one of degree:
what may be termed pre-emptive self-defence applies to the military response to some potential
future attack, even if the timing and place of such an attack are uncertain, rather than to one that
is imminently anticipated. ‘Imminence’ in the terms of the Caroline case means ‘instant,
overwhelming, leaving no choice of means and no moment for deliberation’.[24] In her 2002
Wriston Lecture at the Manhattan Institute, Condoleeza Rice commented on the 2002 National
Security Strategy’s call for a new concept of imminence: ‘some threats are so potentially
catastrophic – and can arrive with so little warning, by means that are untraceable – that they
cannot be contained … new technology requires new thinking about when a threat actually
becomes ‘imminent’.[25]

Thus the argument for pre-emptive self-defence in the case of the 2003 invasion of Iraq is based
on a subjective determination that there is a latent threat caused by the nature of the target state
as a ‘rogue state’, as seeking to develop a nuclear capacity, or as possessing (and thus potentially
using) WMDs.[26] The failure to locate any WMDs in Iraq following the 2003 invasion
highlighted the dangers of such claims. A broad interpretation of article 51 allowing for
pre-emptive self-defence was not supported by other states, with the United Kingdom, for
instance, preferring to base its claim for the legality of the invasion of Iraq on the interpretation
of earlier SC resolutions.[27] Nor has it since gained ground with states, commentators or the
ICJ.

Beyond that, however, only the SC has the responsibility to authorize the use of preventive
force.[28] The GA in its 2005 Millennium Outcome Document also failed to endorse any notion
of pre-emptive self-defence, instead reaffirming ‘that the relevant provisions of the Charter are
sufficient to address the full range of threats to international peace and security’.[29] However,
in rejecting the notion of pre-emptive self-defence, these statements appear to accept the less
radical concept of anticipatory self-defence. The ICJ has not clarified the question. In a case
brought by the Democratic Republic of the Congo against Uganda, the Court asserted that the
use of force in self-defence applies only ‘within the strict confines’ of article 51, which ‘does not
allow the use of force by a State to protect perceived security interests beyond these
parameters’[30]
4.3.4 Necessity and Proportionality

It is equally difficult to give a precise content to the two other conditions for self-defence – the
concepts of necessity and proportionality.109 Necessity presupposes that all other possibilities
have been exhausted before recourse to force. The threshold is high: the International Law
Commission Articles on State Responsibility allow necessity to preclude wrongfulness only if
the act (a) ‘is the only way for the State to safeguard an essential interest against a grave and
imminent peril and (b) does not seriously impair an essential interest of the State or States
towards which the obligation exists, or of the international community as a whole’.[31] Article
21 of the Articles reiterates the right of self-defence, but does not elaborate any further the
meaning of necessity as a condition for self-defence. It could be argued that recourse to force in
the name of self-defence of itself impairs an essential interest of the international community as a
whole, the right to security, an argument that has greater strength if ‘international community’ is
understood as including individuals.

Necessity also has a temporal element. States may be unwilling to undertake time-consuming
steps and to wait to see if a forceful response is in fact necessary.

the United States determined that Al Qaeda, which was being sheltered by the unrecognised
Taliban regime in Afghanistan, was responsible for the attacks on 11 September 2001. The
United States demanded that Osama Bin Laden be handed over. When this did not happen it led
the coalition of the willing to take military action against Afghanistan, claiming the action to be a
lawful exercise of self-defence. This action commenced on 7 October 2001 before the United
States had had time to determine whether the handover of Bin Laden could be negotiated.[32]
The military response could be understood as a reprisal (prohibited under the GA Declaration on
the Principles of Friendly Relations)[33] or as pre-emptive action against further attacks.
However, the international community widely accepted the US action against Afghanistan as
legal self-defence

Proportionality in the jus ad bellum is another slippery concept

In the Nicaragua case the ICJ favoured the second approach, thereby limiting forceful action in
self-defence to what is needed to reply to an attack.This is consistent with the approach of
Professor Ago in the International Law Commission, who determined that the concept of
proportionality ‘was that which was proportionate to repelling the attack, and not a requirement
of symmetry between the mode of the initial attack and the mode of response’.[34]

It is evident that a determination of legality would differ according to which approach to

proportionality is preferred. This has particular application in the context of terrorist attacks. For
example, at the outset of Operation Cast Lead – Israel’s military action against the Gaza Strip in
December 2008 through January 2009
As is apparent from the letters submitted by the Israeli permanent representative to the UN, Israel
justified this military action as legal self-defence against ongoing terrorist attacks from Gaza.
The Goldstone Report found that more than 8,000 rockets and mortars had been launched from
Gaza into southern Israel since April 2001, that they had caused relatively few fatalities and
physical injuries among the residents of southern Israel and that property damage was also not
extensive.[35] As well as rockets failing to strike persons and property, casualties are reduced by
the warning systems and protective bomb shelters within Israel. What, of course, must not be
underestimated is the deep insecurity and fear that these attacks cause to the affected
populations, as well as psychological trauma. Israel unarguably has the right to defend itself
against armed attacks, but was Operation Cast Lead a proportionate exercise of this right?

if the criterion is quantitative assessment of harm, it appears disproportionate, if, however, it is

the intensity of action necessary to prevent further attacks, then it may appear proportionate.

4.4 Armed Attack by or against Whom?

4.4.1 Self-Defence in Response to Attacks against Nationals

The use of force in defence of nationals is a version of both self-defence (attacks on the nationals
of a state constitutes an armed attack on the state) and of humanitarian intervention, as discussed
in Chapter 5.

The claim has become another example of the stretching of self-defence in the twenty-first
century as President Putin has claimed that Russia’s actions in Georgia in 2008 and in the
Crimea in 2014 were for the protection of Russian nationals against armed attacks. In both cases,
Russian troops were already deployed in the area, as peacekeepers in Georgia and as military
deployment in Crimea. Putin’s legal justification with respect to the Crimea was expressed in a
letter to the Federal Council, the upper house of Parliament that has the constitutional right to
approve deployment of Russian armed forces outside the territory of the Federation. He noted
‘the extraordinary situation in Ukraine, the threat to the lives of citizens of the Russian
Federation.

In explaining to the Duma Russia’s actions with respect to the Crimea, President Putin
emphasised that attempts had been made in Ukraine ‘to deprive Russians of their historical
memory, even of their language and to subject them to forced assimilation’ and that the rights of
ethnic minorities – Russians – had been violated. On 27 March 2014 the GA called upon states
not to recognise any change in the status of the Autonomous Republic of Crimea and to refrain
from actions or dealings that might be interpreted as such.[36]

4.4.2 Armed Attack by Non-State Actors

In contemporary political violence, neither the attackers nor the defenders are necessarily states.
The classic case is the terrorist attacks on New York and Washington, D.C., on 11 September
2001; similarly, the ‘public brutality and indoctrination’[37] committed by IS in Syria and Iraq
demonstrate the ongoing capabilities of non-state actors for extreme violence.

While flying civilian planes into the World Trade Center and the Pentagon indisputably
constituted attacks of a high threshold of violence, they were carried out by non-state actors.
Article 51 does not explicitly say that the armed attack must emanate from a state, although the
UN Charter regulates relations between sovereign states and is predicated upon that basis. This
starting point is also explicit in the GA’s 1974 definition of aggression, which states that
‘aggression is the use of armed force by a State’.[38] The definition of the crime of aggression
by the Review Conference of the ICC similarly states that ‘an “act of aggression” means the use
of armed force by a State against another State’.[39] However, the African Union has adopted a
definition that encompasses the use of armed force ‘by a State, a group of States, an organization
of States or non-State actor(s) … against the sovereignty, political independence, territorial
integrity and human security of the population of a State Party to this Pact’.[40] The inclusion of
aggression as a crime subject to the jurisdiction of the ICC constitutes the criminalisation of
war.[41] This approach assumes that aggression can be committed by an individual responsible
for its ‘planning, preparation, initiation or execution’.[42]However, the individual must be linked
to the state, for it applies to a person ‘in a position effectively to exercise control over or to direct
the political or military action of a State’,[43] not apparently to the same acts of a non-state
military or terrorist group.

The ICJ has not directly considered whether there is a right of self-defence against the acts of
non-state actors, but by indicating that the inherent right of self-defence arises in the case of
armed attack by one state against another state has apparently adopted a restrictive, state-based
approach.[44] The majority in the case of Armed Activities on the Territory of the Congo
(involving claims by the DRC against Uganda) did not determine ‘whether and under what
conditions contemporary international law provides for a right of self-defence against attacks by
irregular forces’. Judges Simma and Kooijmans, however, directly addressed the issue; Judge
Simma considered that SC Resolutions 1368 and 1373 (adopted in the aftermath of 11 September
2001) ‘cannot but be read as affirmations … that large scale attacks can qualify as “armed
attacks”’ within the terms of article 51, and both he and Judge Kooijmans considered that armed
attacks by non-state actors should be subject to the same tests as those committed by states.[45]
Judge Buergenthal in the Wall case thought likewise, noting that

In its resolution 1368 (2001), adopted only one day after the 11 September 2001 attacks on the
United States, the SC invokes the right of self-defence in calling on the international community
to combat terrorism. In neither of these resolutions did the SC limit their application to terrorist
attacks by State actors only, nor was an assumption to that effect implicit in these
resolutions.[46]
In the Wall case Judge Buergenthal considered that the Court had failed to address not only the
question of a right to self-defence against the acts of non-state actors, but more broadly that of
Israel’s right to self-defence from continuous terrorist attacks, or the extent to which the wall ‘is
a necessary and proportionate response to these attacks’.

An international body that has taken a different approach from that of the ICJ is the International
Fact-Finding Mission into the conflict in Georgia that was constituted by the EU after the
Russian intervention in South Ossetia in August 2008. In an extremely detailed report it directly
addressed the issue of non-state actors and asserted that UN Charter articles 2(4) and 51 both
apply to the acts of non-state entities (in this instance South Ossetia and Abkhazia).[47] The
consequence of this conclusion is that the actions of such entities may both constitute a wrongful
use of force or an armed attack and that they may act legally in self-defence. Consequentially
other actors (in this instance Russia) may claim to be acting in collective self-defence of those
entities, an expansive interpretation with the potential for escalation of violence.

Other states as well as the United States have used force in response to armed attacks by
non-state actors, including Israel in Lebanon in 2006 and Turkey’s incursions into northern Iraq
in 2008 against Kurdistan Worker’s Party (PKK) bases situated there. Kress notes that the lack of
international criticism of Turkey ‘cannot be ignored’.After careful consideration of the relevant
state practice and commentaries, he concludes that despite the ICJ’s contrary position, since 11
September 2011 there exists a right of self-defence against armed attacks committed by non-state
actors. However, the parameters of this have not been determined; any such use of force must be
subject to the requirements of necessity and proportionality,

If self-defence against an armed attack by a non-state actor is accepted as justifiable, the next
question is: who is the legitimate target of such coercive response? In Afghanistan, the military
action of the coalition of the willing was not directed solely at Al Qaeda but also at the Taliban,
the then (unrecognised) government in Afghanistan, justified on the grounds that it had
harboured the terrorists. In international law terms, providing a safe place for terrorist activity
initiated from its territory amounts to a direct internationally wrongful act, attributable to the
state. But it is not clear whether there is a right to self-defence against a state simply for the
harbouring of terrorists. In the Nicaragua case the ICJ required a state to exercise ‘effective
control’ over non-state groups in order for their acts to be attributable to the state.[48] President
Bashar al-Assad in Syria cannot be said to be ‘harbouring’ IS, but nor, of course, is he in
‘effective control’ of the territories captured by their forces. He has been engaged in civil war in
Syria since 2012. Nevertheless, as discussed above, the United States claims that its actions in
bombing IS bases in Syria are in individual and collective self-defence that is justified by Syria’s
inability or unwillingness to control IS. This claim conflates internal conflict, consent, individual
and collective self-defence, and collapses state boundaries to justify widespread military action
in the war on terror.
, but to seek relaxation of this ‘effective control’ test, thereby making the acts of non-state actors
more readily attributable to the state.

4.4.3 Targeted Killings

The other aspect of the use of force in counter-terror operations is the use of ‘targeted killings’

, a special procedure of the UN Human Rights Council, has identified the following
distinguishing features of targeted killings:[49] they involve premeditated lethal force,
intentionally directed at an identified individual by a state agent or an organised armed group.
There is a possibility (often a high possibility) that other non-targeted people, including
undoubtedly civilians, will be also killed. Targeted killings may take place outside the targeting
state’s own territory, as, for example, with the killing by Israeli agents of a Hamas leader in a
hotel in Dubai, United States drone attacks in Pakistan, Yemen and Afghanistan and, of course,
the killing of Osama Bin Laden in Pakistan. Unmanned aerial attacks are favoured by those
states with the requisite technology: they are relatively cheap and safe from the perspective of
the attacking state, certainly in comparison with interventions by ground forces. As well as the
high casualty rate, living under the threat of drone attacks is debilitating, can be destructive of
traditional ways of life and undermine community coherence;[50] it can also promote
radicalisation and the desire for revenge attacks.

Justifications based on self-defence are not necessary where the state in which the attack takes
place has consented, thus precluding the wrongfulness of the intervention.[51]

Pakistan is said to have been ‘consulted’ when a US commando operation killed Osama Bin
Laden in a suburban house near Abbotsville, but, apparently, the government was not actually
informed of the details for fear that the information would leak and the attack would be foiled.
Even if consent has been given for the killing of an identified person on the territory of another
state, that state remains bound by its own human rights obligations, unless it has formally
derogated from them to the extent that it is legally able to do so.[52] A state cannot abdicate its
own responsibilities to those within its territory by allowing another state to attack them or
otherwise violate their human rights, for instance, through wrongful arrest or rendition.

4.4.4 Recasting Self-Defence: The ‘Bethlehem Principles’

In light of the uncertainties surrounding the scope of self-defence, in particular its applicability in
response to terrorist attacks by non-state actors, the desirability of a draft ‘Declaratory
Resolution on Self-defence’ has been raised.[53] While no such instrument has been
forthcoming, the former advisor to the UK Foreign and Commonwealth Office, Daniel
Bethlehem, has put forward a set of what he has called ‘Principles Governing Self-defence
against Non-State Actors’.[54]

. Among the sixteen principles articulated by Bethlehem are the following:

that armed attack includes ‘a series of attacks that indicate a concerted pattern of continuing
armed activity’;

that those acting ‘in concert’ with perpetrators of an armed attack include those providing
material support essential to the attacks;

that imminence is to be determined by reference to all relevant circumstances, including the

nature and immediacy of the attack, the probability of the attack, whether the anticipated attack
is part of a pattern of armed activity and its likely scale and the likelihood of other opportunities
to take effective action in self-defence that may cause less collateral harm;

that action against a non-state actor in the territory of another state must be with the consent of
that state, but that such consent is not required if that state is ‘colluding’ with the non-state actor,
or is otherwise unwilling to restrain its activities;

that consent is further dispensed with where there is ‘a strong, reasonable and objective basis for
concluding that the seeking of consent would be likely to materially undermine the effectiveness
of action in self-defence … or would increase the risk of armed attack, vulnerability to future
attacks’;

that seeking consent provides the third state with an opportunity to agree ‘a reasonable and
effective plan of action’, and failure to do so ‘may support a conclusion’ of collusion with the
non-state actors[.] That consent may be ‘strategic or operational, generic, ad hoc, express or
implied’.

Finally, the Principles are said to be without prejudice to the UN Charter, and also to the right of
self-defence ‘that may operate in other circumstances in which a state or its imperative interests
may be the target of imminent or actual attack’.

[1] ​Military and Paramilitary Activities in and against Nicaragua (​Nicaragua v. United States of
America​), (Merits) 1986 ICJ Reports 14, judgment of 27 June 1986, para. 188 (​‘Nicaragua’​)
[2] ​Nuclear Weapons case (per dissenting opinion of Judge Weeramantry, para. 481), citing ​Rahula,
Walpola 1959. ​What the Buddha Taught.​ One World Publications, 84​.
[3] ​Sorabji, Richard 2006. ‘Just War from Its Ancient Origins to the Conquistadors Debate and Its Modern
Relevance’, in Sorabji, Richard and Rodin, David (eds.) ​The Ethics of War: Shared Problems in Different
Traditions.​ Ashgate Publishing, chapter 1
[4] ​For a defence of ‘just war’ as a long-standing Christian tradition made by a contemporary
‘Augustinian Christian’ see ​Biggar, Nigel 2013. ​In Defence of War​. Oxford University Press​.
[5] ​Johnson, James Turner 1981. ​Just War Tradition and the Restraint of War: A Moral and Historical Inquiry​.
Princeton University Press
[6] ​Exchange of letters between US Secretary of State Daniel Webster and Lord Ashburton, Foreign
Secretary of Great Britain, relating to the case of the ​SS Caroline,​ 1837 (​‘Caroline’​).
[7] ​Heathcote, Gina 2012. ​The Law on the Use of Force: A Feminist Analysis​. Routledge, 79​.
[8] ​Oil Platforms (Islamic Republic of Iran v. United States of America)​ , 2003 ICJ Reports, judgment of 6
November 2003, para. 51 (‘​Oil Platforms’)​ .
[9] ​UN Charter, article 39.
[10] ​UN GA Resolution 3314 (XXIX), Definition of Aggression; International Criminal Court, Review
Conference, RC/Res.6
[11] ​ouncil of the EU, Report of the Independent International Fact-Finding Mission on the Conflict in
Georgia (‘Report on Georgia’), 30 September 2009, vol. 2, 245,
[12] ​Oil Platforms,​ ​op. cit.​, para. 51.
[13] ​Eritrea-Ethiopia Claims Commission, Partial Award on the ​Jus ad Bellum​: Ethiopia’s Claims 1–8,19
December 2005, paras. 11–12
[14] ​Oil Platforms,​ ​op. cit.​, para. 62.
[15] ​Tom, Ruys 2014. ‘The Meaning of “Force” and the Boundaries of the Jus ad Bellum: Are “Minimal” Uses
of Force excluded from UN Charter Article 2(4)?’ ​American Journal of International Law​ ​108​: 159–210​.
[16] ​Partition Treaty on the Status and Conditions of the Black Sea Fleet,​ 28 May 1997. The Treaty was
denounced by the State Duma in March 2014 during the Crimean crisis: ‘Putin Submits Proposals on
Denouncing Some Russia-Ukraine Agreements on Black Sea Fleet’, ​ITAR-TASS News,​ 28 March 2014,
[17] ​UN GA Resolution 25/2625, 24 October 1970, Declaration on Principles of International Law
Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the
United Nations,
[18] ​Deeks, Ashley. ‘Here’s What International Law Says about Russia’s Intervention in Ukraine’, ​New
Republic,​ 2 March 2014
[19] ​Rights in Retreat: Abuses in Crimea’, ​Human Rights Watch,​ 17 November 2014
[20] a​ggression and the Use of Force in International Law’, Proceedings of the Annual Meeting of the
American Society of International Law, vol. 108 (2014).
[21] ​UN SC Resolution 678, 29 November 1990 (on Iraq-Kuwait).
[22] ​Harris, David and Sivakumaran, Sandesh 2015. ​Cases and Materials on International Law.​ Sweet and
Maxwell, 8th ed., 760​.
[23] ​National Security Strategy’, ​The White House,​ 17 September 2002, 15,
[24] ​Caroline, op. cit.
[25] ​Rice, Condoleeza. ‘A Balance of Power that Favours Freedom’, ​2002 Manhattan Institute Wriston
Lecture,​ 1 October 2002,
[26] ​Feinstein, Lee and Slaughter, Anne-Marie. ‘A Duty to Prevent’, ​Foreign Affairs, January/February
2004
[27] ​Full Text: Written Answer on Iraq Advice’, ​BBC News,​ 28 April 2005,
[28] ​In Larger Freedom: Towards Development, Security and Human Rights for All,​ UN Doc. A/59/2005,
21 March 2005, paras. 124–125.
[29] ​UN GA Res. 60/1, 24 October 2005 (2005 World Summit Outcome), para. 79.
[30] ​Armed Activities on the Territory of the Congo (​Democratic Republic of the Congo v. Uganda)​ , 2005
ICJ Reports 168, judgment of 19 December 2005 (‘​Uganda’​), para. 148.
[31] ​International Law Commission ​op. cit.​, article 25 (‘Responsibility of States for Internationally
Wrongful Acts’).
[32] ​arfield, Thomas 2010. ​Afghanistan: A Cultural and Political History. Princeton University Press,
269.
[33] ​UN GA Resolution 2625, ​op. cit.​, ‘States have a duty to refrain from acts of reprisal involving the use
of force’.
[34] ​Cited in ​Nuclear Weapons​, ​op. cit.​ (per dissenting opinion Judge Higgins, para. 5).
[35] ​UN Fact-Finding Mission to Gaza, UN Doc. A/HRC/12/48, 25 September 2009, paras. 1597–1598.
[36] ​UN GA Resolution 262/68, 27 March 2014 (Territorial integrity of Ukraine).
[37] ​Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, ​op. cit.​,
para. 1.
[38] ​UN GA Resolution 3314 (XXIX), 14 December 1974, Annex: Definition of Aggression.
[39] ​The Crime of Aggression, RC/Res. 6, 11 June 2010, Annex I, article 8 (2) ​bis.
[40] ​African Union Non-Aggression and Common Defence Pact, Abuja, 31 January 2005.
[41] ​Simpson, Gerry 2008. ‘“Stop Calling It Aggression”: War as Crime’, ​Current Legal Problems ​61​:
191–228​.
[42] ​he Crime of Aggression, RC/Res. 6, 11 June 2010, Annex I, article 8(1) ​bis.​
[43] ​Annex II, article 8, Elements, (2).
[44] ​Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory​, 2004 ICJ
Reports, advisory opinion of 9 July 2004 (​‘Wall’​), para. 139.
[45] ​Uganda, op. cit.
[46] ​Wall, op. cit.,​ declaration of Judge Buergenthal.
[47] ​Report on Georgia, ​op. cit.
[48] ​The ICJ affirmed this principle in ​Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (​Bosnia and Herzegovina v. Serbia and Montenegro)​ , 2007 ICJ Reports, judgment
of 26 February 2007, paras. 399–407.
[49] ​UN Doc. A/68/389, 18 September 2013, para. 24 (‘Report of the Special Rapporteur’).
[50] ​eported in UN OHCHR, ‘Statement of the Special Rapporteur following Meetings in Pakistan’, 14
March 2013,
[51] ​International Law Commission, ​op. cit.​, Annex, article 20.
[52] ​ICCPR, ​op. cit.​ , article 4; ​European Convention for the Protection of Human Rights and
Fundamental Freedoms​ (European Convention on Human Rights, as amended) (ECHR), art. 15.
[53] ​Ronzitti, Natalino 2006. ‘The Expanding Law of Self-Defence’, ​Journal of Conflict and Security Law
11​(​3​): 343–359​.
[54] ​Bethlehem, Daniel 2012. ‘Self-Defense against an Imminent or Actual Armed Attack by Nonstate Actors’,
American Journal of International Law​ ​106​: 770–777
Right to self-defence can be justified either under the provision of Article 51 of the Charter or
under the Customary International Law (CIL). Under CIL, right to self-defence can be justified
by taking the recourse of Principle of ‘necessity and proportionality’. In this way, customary
right to self-defence runs parallel and side by side with right to self-defence given under Article
51 of the Charter.

Hans Wehberg reached the same conclusion in 1951. The application of "physical" force, he
maintained, is necessary for a violation of Article 2 (4), but physical force must be defined to
include certain forms of indirect aggression[4][1] and sometimes use of irregulars to carry out
armed attacks against another State is, “from a functional point of view”, a use of force[5][2]

of the Charter of the United Nations "has come to be recognized as jus cogens".[10][3] The
Court further found it material that this principle is a "universal norm", a "universal international
law", a "universally recognized principle of international law", and a "principle of jus
cogens".[11][4]

2.2. Exceptions to this Rule

However, this prohibition has two exceptions that allow states to employ force. The first
exception is the use of force with authorisation from the UN Security Council (UNSC) under
Chapter VII of the charter. In this regard, Article 42 of the Charter is relevant. Article 42 of the
Charter empowers the Security Council to use necessary force to maintain international peace
and security. Because the Security Council does not have a military force of its own, the Security
Council authorizes member States to use force.

The second exception is the use of force to exercise the right to self-defence under Article 51 of
the charter. Another possibility is also that a state can use force against the territory of another
state by the latter’s invitation. However, besides above mentioned exceptions, using force on any
other grounds amounts to a violation of Article 2(4) of the UN Charter.

India’s surgical strike is required to be evaluated in light of these legal possibilities. In other
words, whether India’s surgical strike falls under the purview of above-mentioned exceptions. So
first point in this regard is clear that the surgical strikes were not authorised by the UNSC, nor
were they conducted on Pakistan’s invitation. Thus the only legal possibility left to justify
India’s surgical strike is India’s right of self-defence under Article 51 of the UN Charter. One
more possibility may also be there that India’s surgical strike may be justified under customary
rule of international law.

3.1. Status of Article 51 of the Charter, i.e. Right to Self-defence, under International Law In the
case of Nicaragua, ICJ said that Art. 51 of the Charter is a customary rule of international
law.[14] Even if principle of CIL is codified into treaties, the former continues to exist side by
side with the latter. The term ‘inherent’ used in Art. 51 of the Charter recognized that customary
law of rights to self-defence existed alongside treaty provisions.[15][5]

The second part of the Article says that measures taken by the State in self-defence must be
“immediately reported” to the Security Council. Now, here, a pertinent question arises is that
whether it is sine qua non under the CIL as well as under the Charter that the procedural
requirements prescribed under Art. 51 of the Charter must be complied of at any cost? In this
regard, CIL does not require following any procedure of reporting to UNSC. Even if State does
not report to UNSC under CIL, it would mere amount to irregularity rather than an action illegal
per se.

ICJ in Nicargua case said that “The Court, whose decision has to be made on the basis of
customary international law. It has already observed that in the context of that law. The reporting
obligation enshrined in Art. 51 of the Charter of the United Nations does not exist.”[16][6] As
the International Court of Justice (ICJ) in Nicaragua case observed that “a principle enshrined in
a treaty, if reflected in customary international law, may well be so unencumbered with the
conditions and modalities surrounding it in the treaty.”[17][7]

So it can be said that if the dispute is decided under the Charter then the rule of reporting to the
UNSC may be relaxed. But up to what extent it may be relaxed or what its possible legal
repercussions would be flow out of it may be the questions of debate & discussion under
International Law.

4. Right to Self-Defence is subject to the Principle of Necessity and Proportionality under

Customary International Law From the historical origin of the two criteria in the famous case of
Carolina incident [21][8] till now, these two criteria of ‘necessity and proportionality have been
recognized and accepted in customary practice as well. In sum, the two criteria have not only
been upheld in the case law of the ICJ, but also are relatively consistently supported in
customary practice.[22][9]

4.1.What is Necessity? Necessity is halting and repelling an existing armed attacks and terrorist
attacks. In order to pass the test of necessity, three things should be justified. These are:

a. Self-Defence as a last resort.

b. Immediacy.

c. Targeting.

4.1.1 Self-Defence as a last resort:

A first component that can be identified the need for ‘self-defence to be a last resort’. This imply
that a State can only resort to armed force against another State when there are no realistic
alternative means of redress available. In other words, self-defence is permissible only when
peaceful means have reasonably been exhausted.[23][10] Practice indeed indicates that the need
to exhaust peaceful means only plays a subsidiary role for the assessment of self-defence claims
in response to a prior attack, and that unlawfulness will only result when a manifest
unwillingness to address diplomatic channels can be demonstrated. According to Corten, in
practice, the necessity requirement is generally interpreted in a relatively flexible manner. Action
in self-defence need not be strictly ‘indispensable’ to repel the armed attack(s), but must be
‘essential, important’.[25][11]

4.1.2. Immediacy:

It is generally accepted that for action undertaken in self-defence to be lawful, it should in

principle be undertaken while the original armed attack which triggered it still in process and that
there should be a close proximity in time between the start of the latter attack and the response in
self-defence.[26][12] The immediate aspect thus serves as an important factor to distinguish
lawful self-defence and unlawful armed reprisals and makes clear that hostilities may not be
re-opened at a much later stage without the occurrence of a new casus foederis.[27][13] This
need for a temporal link between the armed attack and the response in self-defence also finds
support in customary practice.[28][14]Temporal proximity between the armed attack and the
response in self-defence, this condition should not be construed too strictly.[29][15]A certain
degree of flexibility is needed.

In all, customary practice indicates that if a State has been subject not to an isolated attack, but to
a series of armed attacks, and if there is a considerable likelihood that more attacks will
imminently follow, then self-defence is not automatically excluded.[34][16]

4.1.3. Targeting:

A final aspect of the necessity criterion is the choice of targets of the defensive actions. Use of
force must be used, and adequate, for the repelling of an armed attack. For this reason, it is not
sufficient that the target is a legitimate military objective; it must also be connected with the
force to be repelled.[35][17] In short, the action undertaken in response of right to self-defence
should be directed against the source(s) of the armed attack(s).

What is Proportionality?

A first, quantitative approach holds that there must be some sort of equation between the gravity
of the armed attack and the defensive response, in term of relative casualties, damage caused and
weapons used.Further a number of States explicitly claimed that proportionality should be
measured against the objective of self-defence.[37].[18] In DRC v. Uganda, the DRC used the
same standard which has been used by Iran in the Oil Platforms case, and argued that Uganda
invasion and occupation of large parts of its territory had far exceeded the goal of repelling
aggression.[38][19]Uganda did not disagree on the principle itself, but only on its application to
the facts, arguing that its actions had been ‘directly related to defensive objectives’.[39][20]

Right of Self-Defence against Non-State Actors

The ICJ maintains the position expressed in the Nicaragua Case judgment, that only acts
attributable to a State can constitute an ‘armed attack’ As the Court observed, in the case of
Palestine Wall advisory opinion (2004), that Israel had argued that the construction of the
‘barriers’ was consistent with the right of States to self-defence enshrined in Art. 51 of the
Charter.[40][21] According to Israel, Security council resolutions 1368 (2001) and 1373 (2001)
‘had clearly recognized the right of States to use force in self defence against terrorist attacks,
and therefore surely recognize the right to use non-forcible measures to that end.

However, Court rejected Israel’s arguments of self-defence and concluded that: the situation
which contemplated by Israel that ‘Israel does not claim that the attacks against it are imputable
to a foreign State’ is different from the situation contemplated by Security Council resolutions
1368 (2001) and 1373 (200l), 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 Art. 51 of the Charter has no relevance in this case.[42][22]

Judge Buregenthatl and Higgins in turn emphasized that nothing in Art. 51 stipulate that self
defence is available only when an armed attack is made by a State.[46][23] Judge Higgins
stressed that that qualification was rather the result of the Court so determining in Nicaragua and
grudgingly accepted that this ought to be regarded as a statement of the law as it now
stands.[47][24] Judge Buergenthal noted that resolutions 1368 and 1373 supported a more
flexible construction of Art. 51 of the Charter.[48][25]

Again in the case of DRC v. Uganda[49][26] (or Armed Activities), Court narrowly interpreted
Art. 51 of the Charter and concluded that right to self-defence under Art. 51 does not extend to
armed attack by non-State actors. ]The Court in this case not only rejected self-defence in
response to non-State attacks which a State fails to prevent, but also reaffirmed the restrictive
State-centric approach developed in Nicaragua.[52][27]

Judge Kooijmans observed that attacks by irregular forces would, because of their scale and
effects, have to be classified as an armed attack had they been carried out by regulars armed
forces, there is nothing in the language of Art. 51 that prevents the victim State from exercising
its inherent right of self-defence.[53][28]

Prima facie India’s surgical strike raises no question of interfering or violating the territorial
sovereignty or political independence of Pakistan as India (Joint media conference of External
and Defence Ministry) has already confirmed that India conducted surgical strike not against the
Pakistan but against terrorists to destroy their launch pads. It can also not be denied that India
conducted surgical strike in the territory of Pakistan without taking Pakistan into confidence. So
consent of Pakistan was absent in this regard.

[1] Hague Recuell (1951-I), pp. 68-69.

[2] Higgins, “The legal Limits to the Use of Force by Sovereign States, United nations practice”, 37 British Year
Book of International Law 269 (1961), p. 278.
[3] Military and paramilitary Activities in and against Nicaragua (Nicaragua v. United State of America) Merits,
Judgment, I.C.J. Reports, 1986, p. 14, Para 190.
[4] ibid
[5] Military and paramilitary Activities in and against Nicaragua (Nicaragua v. United State of America) Merits,
Judgment, I.C.J. Reports, 1986, p. 14. Paras, 176, 177.
[6] Ibid. I.C.J. Reports, 1986, p. 14, Para 235.
[7] Ibid. I.C.J. Reports, 1986, p. 14, Paras, 178, 188 and 200.
[8] See, e.g., R. Jennings, ‘The Caroline and McLeod cases’, (1938) 32 AJIL 82-99, at 85; 29 BFSP 1137; 30 BFSP
195-6, as cited in Tom Ruys, ‘Armed Attack and Article 51 of the UN Charter’, Evolution in customary Law and
Practice, 1st Ed., 2013, CUP, p.92.
[9] Brownlie, ‘The use of Force in self-defence’, 229; Gardam, Necessity, proportionality, pp. 4-6, 28 et seq: E.g.,
Gray, The Use of Force, PP. 148-9.
[10] Tom Ruys, ‘Armed Attack and Article 51 of the UN Charter’, Evolution in Customary Law and Practice, 1​st
Ed., 2013, CUP, p.95; T. Gazzini, The changing rules on the use of force in international law (Manchester
University Press, 2005), p. 144.
[11] Corten, Le droit contre la guere, pp. 718-23, as cited in Tom Ruys, ‘Armed Attack and Article 51 of the UN
Charter’, Evolution in Customary Law and Practice, 1st Ed., 2013, CUP, footnote 244, p.98.
[12] Ago, ‘Addendum’, 70; Redsell, ‘Israel’s use of force in Lebanon’, 80.
[13] Gazzini, The changing rules, p. 147, as cited in Tom Ruys, ‘Armed Attack and Article 51 of the UN Charter’,
Evolution in Customary Law and Practice, 1st Ed., 2013, CUP, p.99.
[14] UN Doc. S/PV. 1644, 27-28 February 1972.
[15] Constantinou, ‘The right of self-defence, pp. 160-1; Gazzini, ‘The changing rules, p. 144; Redsell, ‘Israel’s use
of force in Lebanon’, 80, as cited in Tom Ruys, ‘Armed Attack and Article 51 of the UN Charter’, Evolution in
Customary Law and Practice, 1st Ed., 2013, CUP, p. 100.
[16] Cf. Corten, ‘Le Droit contre la guerre, pp. 725-8; T. Gazzini, ‘The rules on the use of force at the beginning of
the XXI century’, (2006) 11 JCSL 319-42 at 331, as cited in Tom Ruys, ‘Armed Attack and Article 51 of the UN
Charter’, Evolution in Customary Law and Practice, 1st Ed., 2013, CUP, p. 106.
[17] Constantinou, ‘The right of self-defence, pp. 170-1, as cited in Tom Ruys, ‘Armed Attack and Article 51 of the
UN Charter’, Evolution in Customary Law and Practice, 1st Ed., 2013, CUP, p. 108.
[18] UN Doc. A/AC.134/67-78, 83 (Iraq), 84 (UK).
[19] Armed Activities on the Territory of the Congo, (Democratic Republic of the Congo v. Uganda), ICJ,
memorial of DRC, 6 July 2000, Paras, 5.26 et seq.
[20] Armed Activities on the Territory of the Congo, (Democratic Republic of the Congo v. Uganda), ICJ,
Rejoinder of Uganda, 6 December 2002, Paras 278 et seq.
[21] Ibid para 138
[22] Ibid para 139
[23] egal Consequences cf the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.
J. Reports 2004, Declaration of Judge Buergenthatl, Para6; Separate opinion of Judge Higgins, Para 33.
[24] Ibid. Separate opinion of Judge Higgins, Para 33.
[25] Ibid, Declaration of Judge Buregenthal, Para 6.
[26] Armed Activities on the Territory of the Congo, (Democratic Republic of the Congo v. Uganda), Judgment,
I.C.J. Reports 2005, p. 168.
[27] Corten, Ledroitcontre la guerre, PP. 702-3, as cited in Tom Ruys, ‘Armed Attack and Article 51 of the UN
Charter’, Evolution in Customary Law and Practice, 1st Ed., 2013, CUP, p. 483.
[28] Armed Activities on the Territory of the Congo, (Democratic Republic of the Congo v. Uganda), Judgment,
I.C.J. Reports 2005, p. 168, Separate opinion of judge KOOIjmans, Para 29.

Enough of “self defence” has been done...many works are repettive.

Now, lets come to the last leg of the research :

1. United Nations Charter

2. Four Geneva Conventions of 1949
3. two Additional Protocols of 1977,
4. International Covenant on Civil Political Rights of 1966
5. International Covenant on Economic, Social and Cultural Rights of 1966
6. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment of 1984
7. Vienna Convention on the Law of Treaties of 1969.
Find out relevant and specific provisions from both of them specifically for issue 2. I’ll do the
same from other competition memos and old year memos too, like I did in OC.

Abhijeet take 5 and 6.

Ritik take 7 and 2.
I shall take 1, 3 and 4.

Having listed this down by monday, we’ll start drafting the second issue and Applicant side.

Arsiwa commentary

Article l -Responsibility of a State for its internationally wrongful acts -Every internationally
wrongful act of a State entails the international responsibility of that State

Cases - PCIJ applied the principle set out in article 1 in a number of cases. For example, in the
Phosphates in Morocco case, PCIJ affirmed that when a State commits an internationally
wrongful act against another State international responsibility is established “immediately as
between the two States”. ICJ has applied the principle on several occasions, for example in the
Corfu Channel case,in the Military and Paramilitary Activities in and against Nicaragua case,
and in the Gabˇcíkovo-Nagymaros Project case. The Court also referred to the principle in its
advisory opinions on Reparation for Injuries, and on the Interpretation of Peace Treaties (Second
Phase), in which it stated that “refusal to fulfil a treaty obligation involves international
responsibility”.Arbitral tribunals have repeatedly affirmed the principle, for example in the
Claims of Italian Nationals Resident in Peru cases, in the Dickson Car Wheel Company case, in
the International Fisheries Company case, in the British Claims in the Spanish Zone of Morocco
case and in the Armstrong Cork Company case. In the “Rainbow Warrior” case, the arbitral
tribunal stressed that “any violation by a State of any obligation, of whatever origin, gives rise to
State responsibility”.

Article 2- Elements of an internationally wrongful act of a State There is an internationally

wrongful act of a State when conduct consisting of an action or omission
: (a) is attributable to the State under international law; and
(b) constitutes a breach of an international obligation of the State

Article 1 states the basic principle that every internationally wrongful act of a State entails its
international responsibility. Article 2 specifies the conditions required to establish the existence
of an internationally wrong ful act of the State, i.e. the constituent elements of such an act. Two
elements are identified. First, the conduct in question must be attributable to the State under
international law. Secondly, for responsibility to attach to the act of the State, the conduct must
constitute a breach of an international legal obligation in force for that State at that time. These
two elements were specified, for example, by PCIJ in the Phosphates in Morocco case. The
Court explicitly linked the creation of international responsibility with the existence of an “act
being attributable to the State and described as contrary to the treaty right[s] of another State”.
ICJ has also referred to the two elements on several occasions. In the United States Diplomatic
and Consular Staff in Tehran case, it pointed out that, in order to establish the responsibility of
the Islamic Republic of Iran: [f]irst, it must determine how far, legally, the acts in question may
be regarded as imputable to the Iranian State. Secondly, it must consider their compatibility or
incompatibility with the obligations of Iran under treaties in force or under any other rules of
international law that may be applicable Similarly in the Dickson Car Wheel Company case, the
Mexico-United States General Claims Commission noted that the condition required for a State
to incur international responsibility is “that an unlawful international act be imputed to it, that is,
that there exist a violation of a duty imposed by an international juridical standard”
Article 12- Existence of a breach of an international obligation- There is a breach of an
international obligation by a State when an act of that State is not in conformity with what is
required of it by that obligation, regardless of its origin or character.

Article 13 International obligation in force for a State- An act of a State does not constitute a
breach of an international obligation unless the State is bound by the obligation in question at the
time the act occurs.

(1) Article 13 states the basic principle that, for responsibility to exist, the breach must occur at a
time when the State is bound by the obligation. This is but the application in the field of State
responsibility of the general principle of intertemporal law, as stated by Judge Huber in another
context in the Island of Palmas case:
[A] juridical fact must be appreciated in the light of the law contemporary with it, and not of the
law in force at the time when a dispute in regard to it arises or falls to be settled.Article 13
provides an important guarantee for States in terms of claims of responsibility. Its formulation
(“does not constitute … unless …”) is in keeping with the idea of a guarantee against the
retrospective application of international law in matters of State responsibility. (2) International
tribunals have applied the principle stated in article 13 in many cases. An instructive example is
provided by the decision of Umpire Bates of the United States-Great Britain Mixed Commission
concerning the conduct of British authorities who had seized United States vessels engaged in
the slave trade and freed slaves belonging to United States nationals. The incidents referred to
the Commission had taken place at different times and the umpire had to determine whether, at
the time each incident took place, slavery was “contrary to the law of nations”. Earlier incidents,
dating back to a time when the slave trade was considered lawful, amounted to a breach on the
part of the British authorities of the international obligation to respect and protect the property of
foreign nationals.The later incidents occurred when the slave trade had been “prohibited by all
civilized nations” and did not involve the responsibility of Great Britain Similar principles were
applied by Arbitrator Asser in deciding whether the seizure and confiscation by Russian
authorities of United States vessels engaged in seal hunting outside Russia’s territorial waters
should be considered internationally wrongful. In his award in the “James Hamilton Lewis” case,
he observed that the question had to be settled “according to the general principles of the law of
nations and the spirit of the international agreements in force and binding upon the two High
Parties at the time of the seizure of the vessel”. Since, under the principles in force at the time,
Russia had no right to seize the United States vessel, the seizure and confiscation of the vessel
were unlawful acts for which Russia was required to pay compensation. The same principle has
consistently been applied by the European Commission and the European Court of Human
Rights to deny claims relating to periods during which the European Convention on Human
Rights was not in force for the State concerned
Article 21 Self-defence -The wrongfulness of an act of a State is precluded if the act constitutes a
lawful measure of self defence taken in conformity with the Charter of the United Nations

The existence of a general principle admitting self defence as an exception to the prohibition
against the use of force in international relations is undisputed. Article 51 of the Charter of the
United Nations preserves a State’s “inherent right” of self-defence in the face of an armed attack
and forms part of the definition of the obligation to refrain from the threat or use of force laid
down in Article 2, paragraph 4. Thus, a State exercising its inherent right of self-defence as
referred to in Article 51 of the Charter is not, even potentially, in breach of Article 2, paragraph 4

(2) Self-defence may justify non-performance of certain obligations other than that under Article
2, paragraph 4, of the Charter of the United Nations, provided that such non-performance is
related to the breach of that provision. Traditional international law dealt with these problems by
instituting a separate legal regime of war, defining the scope of belligerent rights and suspending
most treaties in force between the belligerents on the outbreak of war.330 In the Charter period,
declarations of war are exceptional and military actions proclaimed as self-defence by one or
both parties occur between States formally at “peace” with each other.331 The 1969 Vienna
Convention leaves such issues to one side by providing in article 73 that the Convention does not
prejudice “any question that may arise in regard to a treaty ... from the outbreak of hostilities
between States”.

(3) This is not to say that self-defence precludes the wrongfulness of conduct in all cases or with
respect to all obligations. Examples relate to international humanitarian law and human rights
obligations. The Geneva Conventions for the protection of war victims of 12 August 1949 and
the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
protection of victims of international armed conflicts (Protocol I) apply equally to all the parties
in an international armed conflict, and the same is true of customary international humanitarian
law. Human rights treaties contain derogation provisions for times of public emergency,
including actions taken in self-defence. As to obligations under international humanitarian law
and in relation to non-derogable human rights provisions, self-defence does not preclude the
wrongfulness of conduct.
.
Article 25 -Necessity
1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act
not in conformity with an international obligation of that State unless the act:
(a) is the only way for the State to safeguard an essential interest against a grave and imminent
peril; and
(b) does not seriously impair an essential interest of the State or States towards which the
obligation exists, or of the international community as a whole.
2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness
if:
(a) the international obligation in question excludes the possibility of invoking necessity; or (b)
the State has contributed to the situation of necessity.

The term “necessity” (état de nécessité) is used to denote those exceptional cases where the
only way a State can safeguard an essential interest threatened by a grave and imminent peril is,
for the time being, not to perform some other international obligation of lesser weight or
urgency. Under conditions narrowly defined in article 25, such a plea is recognized as a
circumstance precluding wrongfulness.
(2) The plea of necessity is exceptional in a number of respects. Unlike consent (art. 20),
self-defence (art. 21) or countermeasures (art. 22), it is not dependent on the prior conduct of the
injured State. Unlike force majeure (art. 23), it does not involve conduct which is involuntary or
coerced. Unlike distress (art. 24), necessity consists not in danger to the lives of individuals in
the charge of a State official but in a grave danger either to the essential interests of the State or
of the international community as a whole. It arises where there is an irreconcilable conflict
between an essential interest on the one hand and an obligation of the State invoking necessity on
the other. These special features mean that necessity will only rarely be available to excuse
non-performance of an obligation and that it is subject to strict limitations to safeguard against
possible abuse

(3) There is substantial authority in support of the existence of necessity as a circumstance

precluding wrongful ness. It has been invoked by States and has been dealt with by a number of
international tribunals. In these cases the plea of necessity has been accepted in principle, or at
least not rejected. \
In an Anglo-Portuguese dispute of 1832, the Portuguese Government argued that the pressing
necessity of providing for the subsistence of certain contingents of troops engaged in quelling
internal disturbances had justified its appropriation of property owned by British subjects,
notwithstanding a treaty stipulation. The British Government was advised that: the Treaties
between this Country and Portugal are [not] of so stubborn and unbending a nature, as to be
incapable of modification under any circumstances whatever, or that their stipulations ought to
be so strictly adhered to, as to deprive the Government of Portugal of the right of using those
means, which may be absolutely and indispensably necessary to the safety, and even to the very
existence of the State. The extent of the necessity, which will justify such an appropriation of the
Property of British Subjects, must depend upon the circumstances of the particular case, but it
must be imminent and urgent.

The “Caroline” incident of 1837, though frequently referred to as an instance of self-defence,

really involved the plea of necessity at a time when the law concerning the use of force had a
quite different basis than it has at present. In that case, British armed forces entered United States
territory and attacked and destroyed a vessel owned by United States citizens which was carrying
recruits and military and other material to Canadian insurgents. In response to the protests by the
United States, the British Minister in Washington, Fox, referred to the “necessity of self-defence
and self-preservation”; the same point was made by counsel consulted by the British
Government, who stated that “the conduct of the British Authorities” was justified because it was
“absolutely necessary as a measure of precaution”.375 Secretary of State Webster replied to
Minister Fox that “nothing less than a clear and absolute necessity can afford ground of
justification” for the commission “of hostile acts within the territory of a Power at Peace”, and
observed that the British Government must prove that the action of its forces had really been
caused by “a necessity of self-defence, instant, overwhelming, leaving no choice of means, and
no moment for deliberation”. In his message to Congress of 7 December 1841, President Tyler
reiterated that: This Government can never concede to any foreign Government the power,
except in a case of the most urgent and extreme necessity, of invading its territory, either to
arrest the persons or destroy the property of those who may have violated the municipal laws of
such foreign Government

In the Russian Fur Seals controversy of 1893, the “essential interest” to be safeguarded against a
“grave and imminent peril” was the natural environment in an area not subject to the jurisdiction
of any State or to any international regulation. Facing the danger of extermination of a fur seal
population by unrestricted hunting, the Russian Government issued a decree prohibiting sealing
in an area of the high seas. In a letter to the British Ambassador dated 12 February (24 February)
1893, the Russian Minister for Foreign Affairs explained that the action had been taken because
of the “absolute necessity of immediate provisional measures” in view of the imminence of the
hunting season. He “emphasize[d] the essentially precautionary character of the
above-mentioned measures, which were taken under the pressure of exceptional
circumstances”379 and declared his willingness to conclude an agreement with the British
Government with a view to a longer-term settlement of the question of sealing in the area.