Anthony Aust. Handbook of International Law

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resolution, ‘measures commensurate with the specific circumstances as may be necessary’. Similar

interdiction regimes were authorised in the cases of the FRY (Resolution 787 (1992), paragraph 13)

and Haiti (Resolution 917 (1994), paragraph 10).

Protection of civilians and peacekeeping forces

In several cases, the use of force has been authorised for other, more limited, purposes. Resolution

794 (1992) authorised the US-led coalition of forces to use ‘all necessary means’ to establish a

secure environment for humanitarian relief operations in Somalia. Resolution 908 (1994) authorised

Members to take ‘all necessary measures’ to extend close air support in defence of UNPROFOR

personnel in Croatia.

Self-defence

Article 51 provides that:

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.

Although the Article is the last in Chapter , it is a saving provision, albeit of vital importance.

Written in terms that were soon seen as too restrictive even in 1945, the Article is now regarded as

confirmation that the obligations of the Charter do not affect the exercise by a state of its inherent

right in customary international law to defend itself, so that the right continues to exist alongside the

Charter prohibition on the use of force.

Moreover, the right of self-defence has been developed,

and continues to develop, to meet new threats. This is recognised by members of the Security

Council and other states by their reactions (often mere

65. As for further Council action in 2004, see S/PRST/2004/4 of 26 February 2004 and UNSC Res. 1529

(2004) and 1542 (2004).

66. UNSC Res. 958 (1994). See also UNSC Res. 1270 (1999) and 1289 (2000) about Sierra Leone. UN

peacekeeping forces are known colloquially as the ‘blue helmets’. In 1989, Austria seriously proposed that

there should be a UN force to protect the environment. Several members of its UN mission were then

called Helmut, and the author (then in the UK mission) suggested informally that the proposed force be

known as the ‘Green Helmuts’. The idea was then quickly dropped. Years later, the suggestion was

recalled with much affection by the then members of the Austrian mission.

67. Military and Paramilitary Activities (Nicaragua v. US) (Merits), ICJ Reports (1986), p. 14, paras.

172–82; 76 ILR 1.

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acquiescence) when faced with justifications of the use of force based on self-defence, although one

has to bear in mind that the views of states on such matters may also be influenced by extraneous

political considerations.

US Secretary of State Webster made the classic statement of the law on self-defence in 1841 in

respect of the Caroline incident.

British forces had seized and destroyed in US territory a vessel

being used by US nationals assisting an armed rebellion by Canadians over the border, Canada then

being a British colony. Two of the US nationals were killed. Webster declared that, in order to be

lawful, such recourse to force in self-defence required:

a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for

deliberation [and involving] 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.

Webster’s criteria were subsequently developed in order to be more in tune with the realities of

international life, where there is usually a choice of means and some time for deliberation. Although

everything will depend on the facts and circumstances of each particular case, to be a lawful exercise

of the right of self-defence the threat or use of force against another state must be:

In response to an armed attack (economic pressure is not enough) on its territory, ships,

aircraft, embassies, consulates or nationals. The Israeli commando raid on Entebbe airport in

1976 to release Israeli nationals who had been taken hostage by Palestinians was justified

because Uganda was unwilling or unable to do anything. Article 51 does not require that the

attack be by a state: force can be used in response to a terrorist attack even if no other state is

involved. This was recognised expressly by the UN Security Council in Resolution 1368

(2001), following the 11 September 2001 terrorist attacks on the United States.

And it is not

necessary to wait to be attacked: force can

68. 29 BSP 1137 and 30 BSP 195. See R. Jennings, ‘The Caroline and McLeod Cases’ (1938) AJIL

82–99.

69. See also p. 294 below. The ICJ recently got this completely wrong: see Legal Consequences of

the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion, ICJ Reports

(2004), para. 139; ILM (2004) 1009; and the separate critical opinions of Judges Higgins (para. 34)

and Kooijmans (para. 35), and the declaration of Judge Buergenthal (para. 6).

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be used in anticipation of, and to pre-empt, an attack; no state is obliged to wait until the

enemy missile actually strikes or the terrorist bomb explodes. This is, however, an area where

there is also scope for abuse. The Council condemned the destruction in 1981 by Israel of an

Iraqi nuclear reactor that Israel suspected was being used in connection with developing a

nuclear weapon.

And there have been cases where the justification of self-defence of one’s

nationals was spurious, such as in the case of the US military interventions in Grenada (1983)

and Panama (1989).

So-called democratic intervention has also been invoked in another

unconvincing attempt to justify the interventions, although more on political grounds.

Necessary. There must be no viable alternative.

The more imminent the attack, the more

cogent will be the resort to force.

Limited to the immediate purpose. Reprisals,

retribution or exemplary or punitive attacks are

not permitted, since by definition they would be disproportionate.

Reasonable and proportionate to the threat or the force used against it. The US carried out air

raids on Tripoli in 1986 in response to supposed Libyan involvement in a terrorist attack on a

Berlin discotheque a few days before in which two US nationals were killed and seventy-nine

injured, and to try to prevent further attacks. The raid was considered by many states to be a

disproportionate use of force. But, when force is justified, it sometimes means that lives have

to be sacrificed in order to prevent even greater loss of life. The obvious example would have

been the shooting down of the four hijacked airliners before they could carry out their suicide

missions in New York and Washington on 11 September 2001, assuming of course that there

had been evidence at the time of their real intention.

In the case of collective self-defence (as under Article of the North Atlantic Treaty),

there must

first be a request from the state that has been threatened or attacked. But, if a collective security

organisation like

70. UNSC Res. 487 (1981). At the time Israel could not make a convincing case, not being able to foresee

what would be discovered later. See also V. Lowe, ‘“Clear and Present Danger”: Responses to Terrorism’

(2005) ICLQ 185.

71. Gray, pp. 126–8.

72. Gray, pp. 50–1.

73. In Oil Platforms (Iran v. US), ICJ Reports (2003), paras. 74–8, the ICJ held the test of necessity to be

strict.

74. See p. 257 below on reprisals during an armed conflict.

75. See also p. 352 below on Article 3bis of the Chicago Convention.

76. 34 UNTS 243 (No. 541); UKTS (1949) 56.

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NATO ‘decides’ to use force, that is only an internal decision. It can be carried out lawfully only if

there is Security Council authorisation or a basis in customary international law, such as self-

defence. Article has been invoked only once, following the terrorist attack on the United States on

11 September 2001. The subsequent military operation in Afghanistan was actually carried out by an

ad hoc coalition led by the United States acting in self-defence against international terrorism.

UNSC Resolution 1386 (2001) replaced the coalition forces with an International Security

Assistance Force (ISAF) which since August 2003 has been led by NATO.

When territory has been occupied illegally, the use of force to retake it will be a lawful exercise of

the right of self-defence. Although Resolution 502 (1982) demanded that Argentina end its

occupation of the Falkland Islands, it did not authorise (or prohibit) the use of force to retake the

islands. This was done by the United Kingdom in exercise of its right of self-defence. Although

Resolution 678 (1990) authorised a coalition of states to use ‘all necessary means’ to liberate

Kuwait, this could also have been done by the coalition at the request of the Government of Kuwait

in exercise of its right of self-defence, and this was expressly recognised in the preamble to

Resolution 661 (1990).

Article 51 requires that any use of force in self-defence must be reported immediately to the

Council, and that the state must cease using force once the Council has taken the measures

‘necessary’ to maintain international peace and security. This does not mean that it must stop using

force as soon as the Council adopts measures: the measures have first to be shown to be really

effective.

Humanitarian intervention

The Security Council can authorise military intervention for humanitarian purposes (Resolution 794

(1992) on Somalia) provided that the situation is a threat to international peace and security. But

here we are concerned with intervention in another state to deal with extreme human distress without

Council authorisation – a vital distinction that is sometimes overlooked.

The Charter is capable of dealing with any threat to international peace and security and has been

interpreted and applied by the Council

77. See p. 227 above.

78. See the comprehensive views given to the UK Parliament by Brownlie, Chinkin, Greenwood and Lowe

in (2000) ICLQ 876–943.

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pragmatically; and some interventions done without Council authority have been commended by the

Council, or at least been acquiesced in.

In April 1991, British, French and US forces entered northern Iraq to protect thousands of Iraqi

Kurds who were under serious threat from Iraqi forces. These internally displaced persons were in a

critical physical condition: unless food, water, medicine and shelter could be provided quickly, it

was plainly evident from the media that they would begin to die in great numbers. But the Kurds

could be helped only if they and the aid workers assisting them could be protected from the Iraqi

forces. Due to threatened vetoes in the Council, Resolution 688 (1991) did not authorise force to be

used, but it did condemn Iraq for the repression of its civilian population; found that the situation

‘threaten[ed] international peace and security in the region’;

and demanded that Iraq end its

repression and allow access to international humanitarian organisations. The armed intervention

which followed was not authorised by the resolution, and was therefore justified solely on the

ground that it was necessary to deal with a situation of extreme human distress.

A so-called ‘no-fly

zone’ was established over northern Iraq in April 1991, and over the south of Iraq in August 1992,

by the United Kingdom and the United States in order to monitor compliance by Iraq with the

demands of Resolution 688. Up to the 2003 Iraq war, British and US military aircraft patrolled the

zones, and when attacked or threatened with attack fired in self-defence, not on the basis of any

Council authority. The zones were not criticised by the Security Council or the General Assembly.

In August 1990, the Economic Community of West African States (ECOWAS) deployed a

military force (ECOMOG) to intervene in the bloody conflict between rival parties in Liberia where

law and order had broken down totally. No authority was sought from the Security Council, which

seventeen months later commended the action.

In September 1998, the Council expressed its grave concern at the use of excessive and

indiscriminate attacks by Serbian and FRY forces on the majority ethnic Albanian population in the

Serbian province of Kosovo, leading to the displacement of over 230,000 people. In Resolution 1199

(1998), the Council demanded that the FRY cease its repression, and

79. It had been drafted by the present author as a Chapter resolution, but was watered down once China

had indicated informally that it would veto such a resolution.

80. See (1992) BYIL 822–8.

81. See (1993) BYIL 736–40.

82. S/22133. Later ECOWAS procured a UN arms embargo against Liberia (UNSC Res. 788 (1992)).

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warned of an impending humanitarian catastrophe. The situation worsened. A draft resolution to

authorise NATO intervention was opposed by Russia and China, and so was not put to the vote.

Nevertheless, in March 1999, NATO forces mounted a bombing campaign against Serbia in an

attempt to stop the attacks on civilians in Kosovo. The action was explained as justified as an

exceptional measure to prevent an overwhelming humanitarian catastrophe.

The legal basis for such humanitarian intervention remains controversial, both politically and

legally. As with self-defence, the justification of humanitarian intervention may be used as a cover

for other, much less worthy, purposes. States contemplating using it need to satisfy themselves that

the following criteria are met: (1) there must be a compelling and urgent situation of extreme

humanitarian distress which demands immediate relief; (2) the state most directly involved must

either not be willing or able to deal with it (it may of course be the cause of the distress); (3) there is

no alternative, the Security Council being unable to agree on authorising intervention; and (4) the

action must be limited in scope and time to what is necessary to relieve the distress.

These criteria may well have been satisfied in the case of Darfur in 2004/5. The purpose is to help

defend people against a threat to their life. The fact that they are foreign nationals is no longer a

good reason for doing nothing. Provided the criteria are fully met, a military intervention can be

justified in international law. There are good grounds for saying that a limited use of force for the

sole purpose of relieving extreme human distress, to stop genocide or ethnic cleansing or other

serious violations of international law, is not a violation of Article 2(4). Its full text is seldom

quoted: it requires Members 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’. Those Purposes include the promotion of

human rights and the solving of humanitarian problems (Article 1(3)). When the upholding of the

Purposes comes into acute conflict with the sovereignty of a state that is the very obstacle to

achieving them, respect for its territorial integrity or political independence has to give way to the

overriding needs of humanity or, as the International Court of Justice

83. See (1998) BYIL 593 and (1999) BYIL 592–3. See also the House of Commons, Foreign Affairs

Select Committee, Report on Kosovo, 23 May 2000; and Gray, International Law and the Use of Force,

2nd edn, Oxford, 2004, pp. 37–49.

84. See (1998) BYIL 593 and (2001) BYIL 696.