Current Legal Issues: the use of force in international law

1. Current Legal Issues: the use of force in international law States Using Force in Self-defence: Article 51 of the UN Charter KILAW - Dr Myra Williamson - Spring 2014

2. Reading • I recommend that you read about this topic in between classes to help you understand the topic, gain deeper insights and learn about other cases that we don’t cover in class • Reading will provide you with better understanding and it will give you extra information to use in your exams and research projects • A good summary of Article 51 and self-defence in Ademola Abbas International Law: Text, Cases and Materials at pp363-376 • You can also read the cases by going to the ICJ website

3. Exceptions to the rule • We have learnt that there is a rule under Article 2(4) of the UN Charter that states may not use force • Exceptions: • In self-defence(under Article 51 of the UN Charter) • When authorised by the UN Security Council • Note: there was a 3rd exception (Article 107 – allows using force against ‘former enemy States’) but it no longer applies and is a dead provision since the former enemy States are now members of the UN, so there are only 2 exceptions This slideshow is mainly about exception 1. Later, another slideshow will explain exception 2.

4. Present law: using force in self-defence • Despite the prohibition on the use of force in Article 2(4), states may use force in self-defence under Article 51 • When they do that, they do not need to ask the United Nations’ Security Council for permission - they just act • Article 51 is a very important part of the UN Charter • It comes within Chapter VII of the UN Charter – it’s the last article in Chapter VII • We will look at Chapter VII in a later slideshow

5. Article 51 Nothing in the present Charter shall impair the inherent right of individual or collective self-defenceif 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.

6. Why is Article 51 in the Charter? • Originally, when the UN Charter was drafted, Article 51 was not there • The original draft was going to give the Security Council all power to authorise the use of force • Then a group of states stated their unhappiness with that: they worried what would happen if a state was attacked and the Security Council couldn’t agree on a response under Chapter VII • Article 51 was inserted as a compromise – to make sure that if a State is attacked it can defend itself

7. What does Article 51 mean? • Scholars continue to argue over the meaning of Article 51 • We call this an area of ‘unsettled law’ because scholars continue to argue over the meaning • Questions that are not agreed upon include: 1. What does “armed attack” mean? 2. Can a state strike before an “armed attack” has occurred? For example, if a state is worried about a nuclear attack, can it strike first? 3. What should states do if they are attacked by non-state actors?Does Art 51 apply to attacks carried out by non-state actors?

8. What does Article 51 mean? • If a state suffers an ‘armed attack’, then it may respond • The state doesn’t have to ask for permission to use force • This is logical: waiting until it goes before the Security Council could take time and it might be too late for the state • The state can respond individually or collectively : • It can act by itself (individually) • It can ask other states to act with it or for it to help defend it against the attackers (collectively) • The right does not last forever: it lasts only ‘until the Security Council has taken measures necessary to maintain international peace and security’

9. Requirement to notify • The state that uses force in this way must notify the Security Council immediately that is is using force in self-defence under Article 51 • Note: That does not mean it is asking permission, it simply is required to notify its use of force to the Security Council • Even if a state uses force under Article 51, the Security Council can still take any action that it deems necessary

10. What does “inherent right” mean? • ‘Inherent’ means “existing in something as a permanent, essential or inseparable element or quality” • In Article 51, it means that all states have the right to use force in self-defence, and that this right is part of being a state • The right of self-defence predates the UN Charter • It was part of customary international law - the right already existed when the UN Charter was signed • Remember the Kellogg-Briand Pact 1928 – many states signed but they reserved the right to use force in self-defence • When read with the words “Nothing in the present Charter shall impair the inherent right of…self-defence” it confirms that states already had the right to use force in self-defence and that the right continues, even after the UN Charter

11. The Caroline case - I • The traditional definition of self-defence comes from the Caroline case “it was in the Caroline case that self-defense was changed from a political excuse to a legal doctrine” • R Y Jennings, “The Caroline and McLeod cases’ 32 American Journal of International Law, 1938, p.82 • The facts: • The Caroline was a boat • It was being used by some Canadian rebels, fighting against British rule in Canada • Americans were helping the rebels using the Caroline • Members of the British Navy set the boat alight and sent it over the Niagra Falls (an American on board was also killed) • It became a major diplomatic incident between the US and the UK.

12. The Caroline case - II • There was correspondence (letters) between the US and UK • The UK claimed it was acting in self-defence, the US disagreed • The letters that were exchanged between US Secretary of State Webster and Lord Ashburton from the UK contained several statements on the use of force in self-defence generally and what had to be proven in a case of self-defence • Those statements have been accepted over the years and have become part of the customary international law of self-defence

13. “Under these circumstances, and under those immediately connected with the transaction itself, it will be for Her Majesty's Government to show, upon what state of facts, and what rules of national law, the destruction of the "Caroline" is to be defended. It will be for that Government to show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation. It will be for it to show, also, that the local authorities 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-defence, must be limited by that necessity, and kept clearly within it…

14. …It must be strewn that admonition or remonstrance to the persons on board the "Caroline" was impracticable, or would have been unavailing; it must be strewn that daylight could not be waited for; that there could be no attempt at discrimination, between the innocent and the guilty; that it would not have been enough to seize and detain the vessel; but that there was a necessity, present and inevitable, for attacking her, in the darkness of the night, while moored to the shore, and while unarmed men were asleep on board, killing some, and wounding others, and then drawing her into the current, above the cataract, setting her on fire, and, careless to know whether there might not be in her the innocent with the guilty, or the living with the dead, committing her to a fate, which fills the imagination with horror. A necessity for this, the Government of the United States cannot believe to have existed.”

15. The Caroline case – IIIThe principles agreed upon • To use force there must first exist: • “a necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation” • THIS IS THE REQUIREMENT OF NECESSITY • Any action then taken: • “must not be unreasonable or excessive since the act, justified by the necessity of self-defence, must be limited by that necessity and kept clearly within it” • THIS IS THE REQUIREMENT OF PROPORTIONALITY

16. SO…what’s the Caroline got to do with Article 51? • Well, Article 51 says that “Nothing in the present Charter shall impair the inherent right of self-defence…” • That means that the right already existed, before the Charter, and it is not being cancelled out • That means, we must look at the customary international law that existed before the Charter • That means, we must apply the Caroline rules • Also, we know that the “right of self-defence” is not defined anywhere in the UN Charter – it makes sense to look to customary international law to understand it

17. So, how should Article 51 be interpreted? • Two main schools of thought: • Some scholars say that Article 51 and Art 2(4) are exhaustive - that means, the right to self-defenceis now described in the UN Charter, and ONLY in the UN Charter • Other scholars say that there is a customary right and there is also a right under Article 51 (they use the words “inherent right of self-defence” to argue that a right already existed before the Charter and it still exists)

18. How do we resolve this conflict? • We should turn to the International Court of Justice (ICJ) – it is the body that interprets and applies international law • The ICJ has stated that • The words “inherent right of self-defence” refers to a right in customary international law that existed before the UN Charter came into existence • Article 51 does not “subsume and supervene” customary international law • The ICJ made these findings in a famous case called the Nicaragua case

19. The Nicaragua case • Full name: • Case Concerning Military and Para-Military Activities In and Against Nicaragua (Nicaragua v United States of America), (Merits), Judgment of 27 June 1986, ICJ Reports, 1986. • The judgment is available here: http://www.icj-cij.org/docket/index.php?sum=367&code=nus&p1=3&p2=3&case=70&k=66&p3=5 A summary is available on wikipedia by clicking here: http://en.wikipedia.org/wiki/Nicaragua_v._United_States#cite_note-UN_ARES4131-24 • What was that case about?

20. The Nicaragua case: the facts • Nicaragua brought a case to the ICJ against the USA • Nicaragua claimed that the US had been recruiting, training, arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding, and directing military and paramilitary actions in and against Nicaragua • In other words, the US was supporting the ‘contras’ who aimed to overthrow the government of Nicaragua • Nicaragua also claimed that the US had : • Breached Article 2(4) of the UN Charter; • Breached the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956 • Violated Nicaragua’s sovereignty by attacking by air, land and sea, killing Nicaraguan citizens, mining its harbours • Used force and the threat of force against Nicaragua

21. The Nicaragua case: what Nicaragua wanted • Nicaragua went to the ICJ seeking: • A halt to the US’ activities in funding the Contras • A halt to the US interference in Nicargua • Compensation - Nicaragua wanted reparations from the US to compensate for the damage caused to its people, property and economy, for breaching the UN Charter and for breaching a treaty between the two countries

22. What did the US argue? • The US argued that the ICJ had no jurisdiction – it lost that point and took no further part in the merits • But it’s position was that it was acting in self-defence when it used force against Nicaragua – it claimed that El Salvador had been attacked byNicaraguan rebels, and El Salvador had asked the US to defend them • The ICJ rejected that:

23. The Nicaragua case: The jurisdiction phase • First, there was argument over whether the ICJ had jurisdiction to hear the case • On 26 November 1984, the Court released its judgment • Nicaragua won that argument • The ICJ found that it had jurisdiction to hear the case brought by Nicaragua against the US • Then the US withdrew from the case and from the ICJ • Then the ‘merits’ of the case were heard

24. The Nicaragua case: the Merits stage • On 27 June 1986, the ICJ released its judgments on the Merits (the actual arguments by both sides) • The ICJ found (inter alia) that: • The United States had been involved in the "unlawful use of force” against Nicaragua • The alleged violations included attacks on Nicaraguan facilities and naval vessels, the mining of Nicaraguan ports, the invasion of Nicaraguan air space, and the training, arming, equipping, financing and supplying of forces (the "Contras") and seeking to overthrow Nicaragua's Sandinista government. • This was followed by the statements that the judges voted on • If you want to read the majority judgment, click here: • http://www.icj-cij.org/docket/files/70/6503.pdf

25. Main findings on Article 51 1. Nicaragua had provided some arms and other logistical support to rebels in El Salvador but it was not enough to amount to an armed attack, therefore, the US did not have the right to respond as it did 2. Nicaragua had made some incursions into Costa Rice and Guatemala but those countries had not asked the US to act on their behalf in self-defence. El Salvador did ask, but only after the US had begun its activities 3.Therefore, there was no justification for the US to claim it was acting in “collective self-defence” on behalf of El Salvador, Costa Rica and Guatelamala Remember: to act in self-defence there must first be an ‘armed attack’ – here, there was no ‘armed attack’ to justify the US acting in collective self-defence

26. Main findings on control of rebels • The Contras (who were funded, trained, organized, armed etcby the US) had committed many serious human rights violations in Nicaragua • However, to make the US responsible, it had to be proven that the US had “effective control” of the operations in which the Contras carried out serious human rights violations including murder, rape, torture • The ICJ held that since the US did not have “effective control” over the Contras, it could not find that the US government was responsible for the actions of the Contras • However, the Contras themselves remained responsible for human rights violations

27. The Nicaragua case: what happened in the end? • Nicaragua won • The ICJ held that the US had acted unlawfully and should pay compensation • But the US refused to comply with the judgment • Nicaragua tried many times to get the US to comply: the US refused • Nicaragua brought the matter to the Security Council many times: • In 1984 (once) • In 1985 (three times) • In 1986 (twice) • Every time, the US used its veto power (See http://www.globalpolicy.org/component/content/article/102/40069.html • Nicaragua also took its case to the UN General Assembly in 1987 seeking the US’ compliance: the US and Isreal were the only countries that voted against that resolution The US never took any notice of the ICJ’s decision The US never paid compensation to Nicaragua The US never apolgised to Nicaragua for its actions

28. Nicaragua and the rule of law • Even after the US lost the case in the ICJ it continued to fund the contras and it continued to ignore the judgment. • Numerous attempts were made by Nicaragua to get the US to comply with the ICJ’s judgment. All, without success. • Nicaragua introduced resolutions at the General Assmebly seeking the US’ compliance: eg http://www.undemocracy.com/A-RES-41-31.pdf but the US and Israel always voted against them. • The US never accepted the judgment – but some US lawyers were critical of the position taken by their own government (see video) • What does this mean for the rule of law in international law?

29. Why is this case important? • For many reasons… • Regarding jurisdiction • Regarding the fact that the US completely ignored the judgment • Regarding the meaning of Article 51 • that the right of self-defence is contained in both Art 51 AND customary international law • That the rules in Art 51 and customary international law overlap but are not exactly the same • For stating that an ‘armed attack’ can occur by a state or by non-state actors: ‘the sending, by or behalf of a state of armed bands or groups which carry out acts which are of such gravity that they would amount to an actual armed attack conducted by the regular armed forces…” • For stating that logisitical support for rebels/irregular forces doesn’t equal an armed attack

30. Main findings from the Nicaragua for our purposes • The ICJ found that irregular forces such as armed bands and rebel groups can also level armed attacks against States IF they act on behalf of a State and are under that State’s effective control, and…because of its ‘scale and effect’ it would have been classified as an ‘armed attack’ had it been carried out by regular armed forces • However, merely providing logistical support or funds for irregular forces is not enough • The majority in the ICJ said it “does not believe that the concept of ‘armed attack’ includes…also assistance to rebels in the form of the provision of weapons or logistical or other support’

31. Dissenting judgments • We must note that not all the judges agreed • Sir Robert Jennings wrote that logistical support for rebels may be crucial • He wrote “logistics covers the ‘art of moving, lodging and supplying troops and equipment’…in pinciple he thought that providing logistical support could amount to an ‘armed attack’ • Judge Schwebel also disagree with the majority on the armed attack issue • For more info see Abbas at 366-368

32. ‘Armed attack’: state or non-state actors? • An important question that arises from Article 51 is about the exact meaning of “armed attack” • Does the armed attack have to come from another state? • Or can it can from individuals? Non-state actors? • When the UN Charter was drafted, it meant armed attacks from other states….has that changed? • Can an attack from non-state actors amount to an “armed attack”?

33. Another important case… • In 2004, the ICJ gave an Advisory Opinion in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Palestinian Wall) case • This was not a contentious case – it was an advisory opinion on the legality of the wall that Israel was building • The ICJ had to state what “armed attack” means • The ICJ stated: • “Article 51…recognizes the existence of an inherent right of self-defence in the case of an armed attack by one State against another State. However, Israel does not claim that the attacks against it are imputable to a foreign State’ • Not everyone agreed with that statement • We will try to come back to this point later in the course in the discussion about Afghanistan and 9/11

34. Conclusion • There is a lot more that could be said about the meaning of Article 51 – hundreds of articles and books have discussed the meaning of this short article • Its meaning continues to evolve • We will look at one more aspect of self-defence in the next slideshow – anticipatory self-defence • If you have a basic understanding of how Article 51 works and some of the issues in applying it, as well as some knowledge of the cases, you will have understood this material