The Law of Use of Force at the Turn of the Millennia

Baltic Yearbook of International Law

Volumn 3, Issue , 2003, Pages 191-228

  Müllerson, Rein ^a  

^a KING'S COLLEGE LONDON   (United Kingdom)

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EID: 85181743456     PISSN: 15696456     EISSN: None     Source Type: Book Series    
DOI: None     Document Type: Chapter

References (108)

1. 1 SC Res.678, 29 November 1990.
2. 2 Thucydides, The Peloponnesian War, W. W. Norton & Company, 1998, pp. 11-12.
3. 3 Ibid., p. 30.
4. 4 Ibid., p. 229.
5. 5 Ibid., p. 227.
6. 6 Majid Khadduri (ed.), The Islamic law of Nations of Shaybani’s Siyar, The John Hopkins Press, 1966, p. XI.
7. rd ed., Cambridge University Press, 2001, pp. 61-62.
8. 8 Ibid., p. 61.
9. 9 Quoted by Ann Elisabeth Mayer in her ‘War and Peace in the Islamic Tradition and International Law’, in J. Kelsay and J. T. Johnson (eds.), Just War and Jihad. Historical and Theoretical Perspectives on War and peace in Western and Islamic Tradition, Greenwood Press, 1991, p. 204.
10. 10 Ibid., p. 205.
11. 11 R. Jennings, ‘The Caroline and McLeod Cases’ (1938) 32 American Journal of International Law (AJIL), pp. 82-99.
12. 12 I. Brownlie, International Law and the Use of Force by States, Clarendon Press, 1963, pp. 36-37.
13. 13 Ibid., p. 35.
14. 14 R.Y. Jennings, supra note 11., p. 89.
15. 15 Even in 1991 3 States (Cuba, Yemen and Zimbabwe) voted against and 2 States (China and India) abstained from voting for Security Council Resolution 688 of 5 April 1991 on the humanitarian crisis in Northern Iraq that constituted a threat to international peace and security. As Zimbabwe asserted, ‘a domestic political conflict lies at the core of the situation and, therefore, despite the humanitarian dimensions, it should not be before the Security Council’. See S. Murphy, Humanitarian Intervention, University of Pennsylvania Press, 1996, p. 171.
16. 16 Financial Times, 26 May 1999.
17. 17 NSSUSA, p. 16.
18. 18 See, for example, Yearbook of the International Law Commission, 1966, II, pp. 247-248.
19. 19 See, for example, R. Müllerson, Ordering Anarchy, Kluwer Law International, 2000, pp. 156-161.
20. 20 O. Schachter, International Law in Theory and Practice, Martinus Nijhoff Publishers, 1991, p. 20.
21. 21 A. Slaughter and W. Burke-White, ‘An International Constitutional Moment’ (2002) 48 Harvard International Law Journal 1, p. 1.
22. 22 M.J. Glennon, Limits of Law, Prerogatives of Power. Interventionism after Kosovo, Palgrave, 2001, p. 2.
23. 23 Ibid., p. 114.
24. 24 Ibid., p. 120.
25. 25 S. Murphy, Humanitarian Intervention: The United Nations in the Evolving World, 1996, p. 1996.
26. 26 O. Schachter, International Law in Theory and Practice, Martinus Nijhoff Publishers, 1991, pp. 118-119.
27. 27 P.C.I.J., Rep., Series B, No.4, (1923), p. 24.
28. 28 M. Schmitt, ‘Counter-Terrorism and the Use of Force in International Law’, a paper presented at the Conference at the Naval War College (RI), 26-28 June 2002 (not yet published but Professor Schmitt’s kind permission for references is obtained).
29. 29 A. Slaughter and W. Burke-White even write that ‘to respond adequately and effectively to the threats and challenges that are emerging in this new paradigm, we need new rules. Just as in 1945, the nations of the world today face an international constitutional moment’. See Slaughter, Burke-White, supra note 21, p. 2.
30. 30 R. Dworkin, Law’s Empire, Oxford, 1998, p. 348.
31. 31 W. Freedmann, The Changing Structure of International Law, 1964.
32. 32 G. Evans, M. Sahnoun, ‘The Responsibility to Protect’ (2002) 81 Foreign Affairs, No. 6, p. 99.
33. 33 Granville Byford draws our attention to the fact that many historical figures admired today (at least, but not exclusively, by their own people) have committed
34. 35 Of course, one may ask whether those who commit acts of terror in armed conflicts are terrorists or war criminals. They are both, of course. In time of war, acts of terror (e.g., deliberately attacking civilians, killing prisoners of war, using indiscriminate force etc.) are either grave breaches under the Geneva Conventions or other acts defined as war crimes.
35. 36 J. Vest, ‘Fourth-Generation Warfare’ (2001) 288 The Atlantic Monthly, December, No. 5, pp. 2-3.
36. 37 C. Carr, Lessons of Terror. A History of Warfare against Civilians - Why it has always failed, and why it will fail again, Little, Brown, 2002.
37. 38 See, for example, paragraph 5 of the ILC Commentaries to Article 25 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the ILC in August 2001.
38. 39 Yearbook of the ILC, 1980, Vol. II, Part 2, p. 44.
39. 40 By the way, in the Caroline incident, the British in 1837 crossed the Niagara River and destroyed the steamship Caroline that was used by private persons who helped rebels fighting the British. It was not attacked by the US or by irregulars who would have acted on behalf of the US. Therefore, so far as the Americans and British talked about self-defence it could have been about defence against non-state entities in the territory of another State.
40. 41 Paragraph 14 of the ILC Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted in August 2001.
41. 42 Yearbook of the ILC, 1973, vol. II, p. 249.
42. 43 Article 48(1)(b) of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted in August 2001.
43. 44 Myjer and White point to the fact that references to the right to self-defence were only in the Preambles of the Security Council Resolutions 1368 and 1373 and therefore, in their opinion, the Council did not unequivocally determine that there had been an armed attack against the US on 11 September 2001. They believe that ‘at an early stage therefore the Security Council should have made it clear without a shadow of doubt whether it was of the opinion that there solely is an Article 39 situation, or a Chapter VII self-defence situation (Myjer, White, ‘The Twin Towers Attack: An Unlimited Right to Self-Defence?’, 2002 Journal of Conflict and Security Law, vol. 7, p. 10). However, on 12 September 2001, when the Council passed Resolution 1368, it may not yet have been clear who was behind these attacks (e.g., had they been committed by a US terrorist group, then such an attack would not have given any right to self-defence under international law notwithstanding the magnitude of the attack). Therefore, because of the shadow of doubt the Council could not use very specific language. I also believe that a reference to the right to self-defence in the preamble of a resolution wholly devoted to a terrorist attack is a sufficient indication that the Council believed that there was at least a prima facie self-defence situation.
44. 45 Resolution 1386 (2001), 20 December 2001.
45. 46 M. Byers, ‘Terrorism, the Use of Force and International Law after 11 September’ (2002) 51 International and Comparative Law Quarterly, Part 2, p. 411.
46. 47 Myjer, White, supra note 44 p. 7.
47. 48 P.M. Dupuy, ‘The Law After the Destruction of the Towers’ (2002) The European Journal of International Law, Discussion Forum: The Attack on the World Trade Centre: Legal Responses, http://www.ejil.org/forum_WTC .
48. 49 For example, Resolution 924 of the UN Security Council imposed sanctions against Bosnian Serbs, while Resolution 864 found that ‘as a result of UNITA’s military actions, the situation in Angola constitutes a threat to international peace and security’. An arms embargo was imposed against UNITA -a non-state entity.
49. th attacks, ‘Responding to Terrorism: The Strikes against bin Laden’ (1999) 24 Yale Journal of International Law, p. 559.
50. 51 Y. Dinstein, War, supra note 6, p. 192.
51. 52 Ibid., p. 214.
52. 53 G. Gaja, ‘In What Sense was There an “Armed Attack”?’, The European Journal of International Law web site: Discussion Forum. The Attack on the World Trade Centre: Legal Responses, visited 16 July 2002.
53. 54 See, for example, Security Council Resolution 1267 (1999), para.1.
54. 55 The United States insisted that the Taliban: ‘Deliver to United States authorities all the leaders of Al-Qa’ida who hide in your land. Release all foreign diplomats, including American citizens, you have unjustly imprisoned. Protect foreign journalists, diplomats, and aid workers in your country. Close immediately and permanently every terrorist training camp in Afghanistan, and hand over every terrorist and every person in their support structure to appropriate authorities. Give the United States full access to terrorist training camps, so we can make sure they are no longer operating’. See Address Before a Joint session of the Congress on the United States Response to the Terrorist Attacks of September 11, 37 Weekly Compilation of Presidential Documents, 1347 (Sept. 20, 2001).
55. 56 See, Article 3(a) of the Definition of Aggression of 1974 which states that ‘the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein’, is an act of aggression.
56. 57 In 1978 the statement by Ambassador Harriman of Nigeria, who was Chairman of the Ad Hoc Committee on the Drafting of an International Convention Against the Taking of Hostages, disputed the use of the word ‘terrorist’ in describing Palestinian struggle against Israel: ‘Here I wish to reiterate that my Government does not believe that any liberation movement should damage its prestige by taking hostages, and that the noble fights for liberation should be based on very high values. I believe that the PLO at no stage in its war for liberation has abused privilege; at no stage has it terrorised; it is at war’. See, W.V. O’Brien, ‘Reprisals, Deterrence and Self-Defence in Counterterror Operations’ (1990) 30 Virginia Journal of International Law, p. 449. If at that time, the Soviet Union, a permanent member of the Security Council, wholeheartedly subscribed to this statement, today Russia, which is facing separatist terrorism in Chechnya, as well as Central Asian successor States to the Soviet Union, adamantly reject such assessments of ‘liberation’ movements.
57. 58 Y. Dinstein, supra note 6, pp. 192-221.
58. 59 G.M. Travalio, ‘Terrorism, International Law, and the Use of Military Force’ (1999) 18 Wisconsin International Law Journal 1, p. 165.
59. 60 A. Slaughter, Burke-White, supra note 21, p. 3.
60. 61 Dinstein, supra note 7, p. 172.
61. 62 Military and Paramilitary Activities (Nicaragua v. U.S.), ICJ Report 1986, para. 191.
62. nd ed., p. 192) and many other authors have criticised this distinction drawn by the ICJ between armed attacks and ‘mere border incidents’.
63. nd ed., p. 192.
64. 65 U.N. Doc., A/9631 (1974).
65. 66 A. Cassese, ‘Terrorism Is also Disputing some Crucial Categories of International Law’ (2001) 12 EJIL, p. 996.
66. 67 W.M. Reisman, ‘International Legal Responses to Terrorism’ (1999) 22 Houston Journal of International Law, No. 1., pp. 6-7.
67. 68 Nicaragua Case, (1986) ICJ Reports, para.191.
68. 69 See, e.g., R. Erickson, Legitimate Use of Force Against State Sponsored Terrorism, U.S. Air War College, 1989, p. 134.
69. 70 See ‘Military Responses to Terrorism: Remarks of Francis A. Boyle’ (1981) 81 Proceedings of the American Society of International Law, 288.
70. 71 Nicaragua, supra note 66, para. 195.
71. 72 Ibid., para. 292 (3).
72. 73 Ibid., para. 292 (4).
73. 74 Dissenting Opinion of Judge Schwebel, Nicaragua Case, para. 155.
74. 75 Dissenting Opinion of Judge Jennings, Nicaragua Case, p. 543.
75. 76 ICTY, Appeals Chamber, Prosecutor v. Dusko Tadic, 15 July 1999, para. 116.
76. 77 Ibid., para. 117.
77. 78 Ibid., para. 124.
78. 79 The term ‘unwilling’ should here include not only tolerance of the presence of terrorist organisations and sympathy for their cause but also active support, assistance as well as various degrees of control.
79. 80 The Draft Articles on Responsibility of States for Internationally Wrongful Acts.
80. 81 See, Article 2 of the Draft Articles on State Responsibility, which says that ‘there is an internationally wrongful act of a State when conduct consisting of action or omission’ is attributable to the State and constitutes a breach of an international obligation of the State.
81. 82 G. Travalio, supra note 59, p. 153.
82. 83 M. Koskenniemi, The Gentle Civilizer of Nations. The Rise and Fall of International Law 1870-1960, Cambridge University Press, 2001.
83. 84 Ibid., pp. 502-507.
84. 85 Ibid., p. 500.
85. 86 Ibid,, p. 492.
86. 87 Ibid., pp.475, 481, 483.
87. 88 Ibid., p. 483.
88. 89 Ibid., p. 484.
89. 90 Ibid., p. 481.
90. 91 Proceedings of the American Society of International Law, 1963, p. 14.
91. 92 Koskenniemi, supra note 83, p. 475.
92. 93 M. Koskenniemi, From Apology to Utopia. The Structure of International Legal Argument, Lakimiesliiton Kustannus, Finnish Lawyers Publishing Company, 1989, p. 171.
93. 94 In 1968 Morgenthau wrote: ‘The international legal order appropriate to the globalism of American foreign policy would be monistic and absolutistic rather than pluralistic and relativistic. For American globalism assumes the existence of one valid legal order whose content is defined by the United States and which reflects the objectives of American foreign policy. The American globalism of necessity culminates in a pax Americana or American imperium in which the political interests and legal values of the United States are identified with universal ones’. H.
94. Morgenthau, ‘Emergent Problems of United States Foreign Policy’, in K. Deutsch, S. Hoffmann (eds.), The Relevance of International Law, Schenkman, 1968, pp. 55-56.
95. 95 Koskenniemi, supra note 81, p. 492.
96. 96 Ibid., p. 496.
97. 97 Ibid., p. 428.
98. 98 Ibid., p. 454.
99. 99 Ibid., p. 504.
100. 100 Ibid., p. 506.
101. 101 Ibid., p. 507.
102. 102 E.A. Korovin, International Law of the Transitional Period (in Russian), Moscow, 1924, p. 62.
103. 103 Koskenniemi, supra note 81, p. 504.
104. 104 PCIJ, Series A, No. 2, p. 34.
105. 105 I.C.J. Reports, 1963, p. 28
106. 106 I.C.J. Reports, 1984, pp. 428-429, para. 83.
107. 107 See, paragraph 96 of the Prosecutor v. Dusko Tadic in The Appeals Chamber, Judgement of 15 July 1999 (http://un.org/icty/tadic/appeal/judgement/tadaj9907150e.h.)
108. 108 R. Higgins, ‘The Place of International Law in the Settlement of Disputes by the Security Council’ (1970) 64 AJIL, pp. 15-16.