T2 - Chapter 1 - The self-defense exception

Challenge of the validity of the UN Charter

• Prblm of interpret

• Change nature of inter conflicts (lot of civil conflicts + failure of UN to enforce peace)

• State : Justice > Peace

The self-defence exception

Article 51 of the UN Charter provides for the right of self-defence if « an armed attack occurs » => explicite recognition

Q° of interpret + nature (when can a State use SD ?)

3 situations must be distinguished :

1. INTERCEPTIVE SELF-DEFENSE

2. ANTICIPATORY SELF-DEFENSE

3. PRE-EMPTIVE SELF-DEFENSE

Interceptive SD

=> an armed attack has been launched but has not reached its target yet. (attack already began)
For academics, in this situation, SD is in conformity with the UN Charter
Ex : intercepting rockets in flight : Israel's missile defence system

Anticipatory SD

• Def : the taking of defensive military action at the point immediately preceding the launching of an armed attack (attack has not begun yet)

• Legal background : the customary law of SD : the Caroline incident

  => 1st part of the 19th cent - anti-British insurrect° in Canada — US ship Caroline was providing assistance to the rebels in Canada so British troops decided to board the ship - death of US nationals — British claimed that they were acting in SD (in anticipatory SD)
  => Reco 2 conditions for anticipatory SD :

  • The necessity criteria : "necessity of that SD is instant, leaving no choice of means, and no moment of deliberation."

  • The proportionality criteria

• The Scholars interpretation of inter law :

  • The restrictive school : narrow interpret of SD, excluding anticipatory SD based on a strict reading of art. 51 which explicitly uses the words « armed attack »

    “Inherent” in Art 51 : Treaty > Customary law

  • The counter-restrictionists school (more supported) : the customary right of SD includes the use of force in anticipation of an attack.

    → Broad conception bcs it is not written in Art 51 "if, and only if, an armed attack occurs."

    → Continuation of customary law

• State practise :

  Ex : 1962 - Cuban missile crisis + 1967 - The Six-Day War + 1981 - The Israeli attack on the Osirak reactor => no respect condition of Caronlina case

  => State accept the legality of anticipatory SD but under the conditions set out by Carolina case (necessity & proportionality) (just as Nicaragua case)

Pre-emptive SD

• Def : right to use offensive military force agnst a target that does not yet, but may in the future, pose a threat (not an imminent attack)
  Ex : Targeting the facilities of a hostile State that is believed to be developing a nuclear capability

• The United States' National Security Strategy, 17 September 2002 : « For centuries, international law recognized that nations need to suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. // We must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries. Rogue States and terrorists do not seek to attack us using conventional means. Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction- weapons that can be easily concealed, delivered covertly and used without warning ».

• Does not rely anymore on the concept of necessity and eminence

• The 2005 version of the US 's official Standing Rules of Engagement : US forces are permitted to take action in SD not only when victimized by an hostile act but also when faced with « hostile intent ».

• Extensive conception that has not been reco by inter community bcs open broadly use of SD (threat to the prohibition of the use of force)

Prblm : end of the imminence condition to use force ?

=> No clear legal standard organising the use of pre-emptive SD

Contemporary challenges

• Weapons of mass destruction whether chemical, biological or nuclear (hidden)

• Terrorism (hidden)

• The imminence of the armed attack

• Possibility of abuses

• Expansionist notion of SD, including anticipatory action, is alleged to be a danger to international order

Operation desert Storm (2003)

Facts : (Us interv in Iraq)

• March : The U.S. and its allies initiated a military intervention in Iraq

• April : U.S. forces occupied Baghdad

• Dec : Saddam Hussein, the former Iraqi dictator was captured and was latter executed

Legal motivation => no Security Council authorization due to the French threat to use veto power (Dominique de Villepin decla at the ONU that no armed attack so no SD)

Could the operation desert storm (military intervention) be justified by self-defense ?

• No obvious right to SD : no attack launched against the US

• Preemptive SD ? (Arg used by USA)

  • the regime's persistent efforts to acquire weapons of mass destruction

  • the presumed connexion with Al Qaeda

  => Prblm : necessity + proportionality criteria => so now NO MORE NEED NECESSITY CRITERIA for USA

Final argument (not really only on preemptive SD the non compliance by Iraq with former SC res. and specifically the 687 res. (= old res. from 1991 - 1st Golf / Iraki war - give the right to use force ((SC authorized the use of force agnst Irak and US considered they were still in violat° of inter law so the res. is still in force (sort of permanent right to armed attack agnst Irak)) (seen as an implicite authorisat° to use force BUT need an explicit one to be legal)

Q° : can a regime change (from dictatorship to democrecy) be legal objective of military action ?

Dictatorship ———- Princ of just war ———-> Democracy

Problematic argument bcs cannot impose democracy (no legal authorization to impose demo in Charter bcs Charter does not deal with domestic political regime) and on a pragmatic view it is not sucessfull either

Final report : a more secure world : our shared responsibility, 2004

« A threatened State, according to long established international law, can take military action as long as the threatened attack is imminent, no other means would deflect it and the action is proportionate.
If 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 an action if it chooses to ».

SO
-> No reinterpretation of art.51
-> No preemptive self-defense
-> Anticipatory self-defense under the imminence condition

BUT
-> No real consensus on the definition of imminence
-> The precise parameters of the use of anticipatory self-defense remain unclear

CONCLUSION -> NO REAL CONSENSUS