SSRN Id2463760

THE MEANING OF ‘FORCE’ - SUBMISSION VERSION
THE MEANING OF ‘FORCE’ AND THE BOUNDARIES OF THE JUS AD BELLUM – ARE ‘MINIMAL’
USES OF FORCE EXCLUDED FROM UN CHARTER 2(4)?
TOM RUYS*
SUBMISSION VERSION – THE FINAL VERSION OF THIS ARTICLE WAS PUBLISHED IN THE
APRIL 2014 ISSUE OF THE AMERICAN JOURNAL OF INTERNATIONAL LAW
Abstract: The idea that Article 2(4) UN Charter is subject to a gravity or ‘de minimis’ threshold, and that
small-scale forcible acts remain outside its scope, appears to be gaining ground in recent years. This is illustrated
by the finding of the Independent International Fact-Finding Mission on the Conflict in Georgia that Article 2(4)
allegedly does not cover targeted killings of single individuals, forcible abductions of individual persons, or the
interception of a single aircraft. The question arises whether the acceptance of a gravity threshold does not risk
opening Pandora’s box by enabling States to rely on various ‘grounds precluding wrongfulness’ to justify small-
scale forcible actions. Against this background, the aim of the present contribution is to take a fresh look at the
notion of the ‘force’ and the conceptual difficulties surrounding it, and to shed further light on the way Article
2(4) UN Charter operates in different settings.
1. Introduction
In spite of a wealth of literature on the law on the use of force, there exists little in-depth
analysis into the precise scope of the term ‘force’ in the sense of Article 2(4) UN Charter.1
The lack of research would not be cause for surprise or concern, if it were established that the
answer is ultimately a straightforward one and/or if the question were to be only of theoretic
or semantic relevance. Yet, neither appears to be the case. Indeed, as will be seen below, the
*
Assistant Professor of International Law at the University of Ghent (Tom.Ruys@UGent.Be). The author wishes to thank Professors
Benedict Kingsbury and Jose Alvarez as well as the anonymous reviewers for their helpful comments. All error’s remain of course the
author’s own.
1
In his seminal work Law against War, Olivier Corten observes that “[t]o the best of my knowledge, this question has not been examined in
any depth in legal scholarship”. O. Corten, The Law against War (Oxford: Hart) (2010), 51. Corten’s work is arguably the first truly in-depth
analysis of customary practice relating to the scope of Article 2(4) UN Charter.
Electronic copy available at: http://ssrn.com/abstract=2463760

relevant evidence is far from unequivocal. In addition, a good deal is at stake in identifying
whether acts qualify as a ‘use of force’ or not.
What is interesting in this context is that certain authors claim that only force of a certain
gravity qualifies as a ‘use of force’. O’Connell, for instance, while acknowledging that “there
is no express authority on the point”, finds that “Article 2(4) is narrower than it might appear
on its face. Minimal or de minimis uses of force likely fall below the threshold of the Article
2(4) prohibition.”2 A similar approach is taken by Corten.3
The suggestion that Article 2(4) is subject to a gravity threshold (distinct from the gravity
threshold for ‘armed attacks’ in the sense of Article 51 UN Charter) may strike some as
surprising – especially when coming from authors that are sometimes labeled as
‘restrictionists’ (or as ‘bright-liners’ as others would have it).4 And yet, the argument has on
occasion been raised and appears to be gaining ground.5
Thus, the Independent International Fact-Finding Mission on the Conflict in Georgia in its
report states that “[t]he prohibition of the use of force covers all physical force which
surpasses a minimum threshold of intensity. Only very small incidents lie below this
threshold, for instance the targeted killing of single individuals, forcible abductions of
individual persons, or the interception of a single aircraft.”6 Other types of acts that are
sometimes deemed insufficiently ‘grave’ include operations aimed at rescuing nationals
2
M.E. O’Connell, ‘The prohibition on the use of force’, in N.D. White and C. Henderson (eds.), Research
Handbook on International Conflict and Security Law (Northampton: Edward Elgar) (2013), pp. 89-119, 102.
3
O. Corten, op. cit., supra n. 1, at 55 (“there is a threshold below which the use of force in international
relations, while it may be contrary to certain rules of international law, cannot violate article 2(4).”).
4
See O. Corten, ‘The controversies over the customary prohibition on the use of force: a methodological
debate’, (2005) 16 E.J.I.L., 803; M.C. Waxman, ‘Regulating to resort to force: form and substance of the UN
Charter regime’, (2013) 24 E.J.I.L., pp. 151-189.
5
Also expressing support, see e.g.: R. Kolb, Ius contra bellum (Brussels: Bruylant) (2009; 2nd ed.), at 247.
6
Report of the Independent International Fact-Finding Mission on the Conflict in Georgia, September 2009,
available at http://www.ceiig.ch/Report.html, Part II, at 242, and footnote 49. Note: the Report refers to the quote
from Kolb (see previous footnote), which in turn refers to the analysis of Corten.
Electronic copy available at: http://ssrn.com/abstract=2463760

abroad, ‘hot pursuit’ operations, small-scale counter-terrorist operations abroad or localized
hostile encounters between military units.
Against this background, the present contribution takes a fresh look at the notion of ‘force’
and the conceptual difficulties surrounding it, and attempts to reconstruct how Article 2(4)
operates in different settings. The structure can be summed up as follows.
After briefly identifying the stakes involved (Section 2), Section 3 spells out three preliminary
considerations. First, the burden of proof rests on those advocating a restrictive interpretation
of the term ‘force’. Second, the case-law of the International Court of Justice (‘ICJ’) renders
no direct support to the idea of a gravity threshold for ‘uses of force’. Third, while proponents
of a gravity threshold primarily rely on the non-invocation of the ‘use of force’ language in
specific cases, such ‘verbal omissions’ not necessarily reflect an actual legal conviction on the
part of the State(s) concerned.
Sections 4 to 6 tackle the contribution’s lead question: are certain ‘minimal’ uses of force
excluded from the scope of the prohibition on the use of force? Three different settings are
scrutinized.
First, Section 4 looks at forcible responses to territorial incursions by military or police units
of another State (by land, sea or air), and – to lesser extent – at localized hostile encounters
between military or police units beyond the territories of the States concerned. The Section
begins by observing that States may in certain situations use armed force against intruding
forces of another State. If such riposte is uncontroversial in the face of large-scale territorial
intrusions, under certain circumstances – in particular when the intruder displays a clear
‘hostile intent’– even small-scale incursions can justify a (similarly small-scale) recourse to
lethal force. What is more, having regard to a number of conceptual observations and to
customary practice, the legality of such (small-scale) recourses to force cannot be explained
by claiming that they remain below the alleged gravity threshold of Article 2(4) UN Charter
3
and instead fall within the ‘law enforcement’ paradigm. The better view seems to be that
whenever State A deliberately uses lethal force – even within its own territory – against the
military or police units of State B, this comes within the scope of Article 2(4). Taking the
reasoning one step further, the view that incursions that do not result in direct confrontations
with the territorial State automatically remain outside the scope of Article 2(4) must be
dismissed. Instead, logic dictates that any incursion that would have warranted deliberate
recourse to lethal force (primarily because it demonstrates a manifest hostile intent) itself
constitutes a ‘use of force’ in the sense of Article 2(4) (irrespective of the actual response of
the territorial State).
Second, Section 5 challenges the idea that ‘targeted operations’ within the territory of another
State fall outside the scope of Article 2(4) UN Charter as long as they (1) remain small-scale,
(2) are not directed against the territorial State (e.g. no targeting of State infrastructure or
State organs), and (3) do not result in direct armed confrontations with the territorial State. If
the claim can be challenged on several more conceptual grounds, it moreover sits uneasily
with actual customary practice. The legality of ‘targeted operations’ is indeed often discussed
by reference to the ‘use of force’ framework. Furthermore, the acceptance of a gravity
threshold for ‘targeted operations’ risks opening Pandora’s box by enabling States to rely on
various ‘grounds precluding wrongfulness’, chiefly countermeasures and necessity, to justify
small-scale forcible actions. In the age of drone warfare, this is a very real concern, which
threatens to undermine the legal constraints on the use of force. The cause for concern is all
the greater insofar as some take the idea of a de minimis threshold considerably further.7 In
7
Consider, for instance, the following blog post in relation to the threat of US air strikes against Syria in the
summer of 2013: “it is sometimes argued, (…) that there are times when justifiable military force below a
certain threshold of intensity and duration, will legally fall below the prohibited standard in Article 2(4). To me,
limited and targeted air strikes in answer to a use of chemical weapons by a government against civilians
persuasively fall into that category.” Post by Dan Joyner at http://armscontrollaw.com/2013/08/23/now-what-
responding-to-alleged-chemical-weapons-attack-in-syria/, 26 August 2013.
4
the end, the better view is that any deliberate projection of lethal force onto the territory of
another State (even if not ‘targeting’ the State itself) will normally trigger the application of
Article 2(4) UN Charter.
Third, Section 6 examines to what extent forcible action against merchant vessels, civilian
aircraft or private individuals may amount to ‘force’ in the sense of Article 2(4). Customary
practice and relevant case-law do not provide a clear-cut answer. Still, an argument can be
made that when such action is undertaken within the State’s own territory, it remains beyond
the scope of Article 2(4) and instead falls within the ‘law enforcement’ paradigm, save where
it appears from the situation that the use of force directly arises from a dispute between
sovereign States. The same holds true when States use armed force against merchant vessels
within the maritime zones over which they exercise functional jurisdiction. By contrast,
unless there is a possible legal basis for enforcement action under the law of the sea, forcible
acts against private vessels on the high seas are not as such removed from the scope of Article
2(4). It follows that, irrespective of the location concerned, small-scale forcible acts against
merchant vessels, civilian aircraft and private individuals may also be covered by Article 2(4).
In the end, one cannot deny that the line between ‘use of force’ and mere ‘law enforcement’
may at times be difficult to draw, nor that ‘gravity’ is one of several factors guiding the
distinction. In spite hereof, Section 7 concludes that the wholesale exclusion of small-scale
and/or ‘targeted’ forcible acts from the scope of Article 2(4) UN Charter is (1) fraught with
conceptual difficulties; (2) does not correspond to actual customary practice, and; (3) is
equally undesirable from a more policy-oriented perspective.
Having summarized the structure and main arguments of the contribution, it is important to
remind the reader of what the contribution is not. First, it is not a comprehensive account of
the scope of Article 2(4) UN Charter. In particular, it does not pronounce on whether certain
interventions remain beyond its scope because they are allegedly not ‘inconsistent with the
5
Purposes of the United Nations’ (as the final phrase of Article 2(4) goes). The latter argument
is often put forward in the context of the discussion over the legality of unilateral
humanitarian interventions – a topic that has again come to the fore in the wake of the
horrendous chemical weapons attack near Damascus in the summer of 2013.8 For the sake of
clarity: those advocating the (exceptional) legality of humanitarian interventions do not
suggest that such interventions do not entail the use of ‘force’ because (or insofar as) they are
of insufficient ‘gravity’ or are not directed against a State. Rather, the argument holds that
such interventions, far from being ‘inconsistent with the Purposes of the United Nations’,
actually further these purposes (notably the promotion of human rights). The credibility of
this argument, and the alleged support for humanitarian intervention in customary practice, is
not addressed here as the focus primarily rests with the meaning of the notion of ‘force’.
On a related note, while the matter cannot be avoided altogether (seeing as the contribution is
in part an exercise in reverse engineering), the goal is not to determine when States can
lawfully resort to armed force, for instance, in response to small-scale territorial incursions
(whether in self-defence or by reference to an alternative legal basis, if any). More
specifically, the aim is not to assess when forcible acts amount to ‘armed attacks’ triggering
the right of self-defence.9 Rather, the aim is to assess when such acts, whether lawful or
unlawful, qualify as ‘force’ within the meaning of Article 2(4).
2. Presenting the stakes
8
See for instance, UK, ‘Chemical weapon use by Syrian regime: UK government legal position’, 29 August
2013, available at https://www.gov.uk/government/publications/chemical-weapon-use-by-syrian-regime-uk-
government-legal-position/chemical-weapon-use-by-syrian-regime-uk-government-legal-position-html-version.
9
For the author’s position on the matter, see: T. Ruys, ‘Armed Attack’ and Article 51 of the UN Charter –
Evolutions in Customary law and practice (Cambridge: CUP) (2010) 585 p.
6
The qualification of an act as ‘force’ in the sense of Article 2(4) of the UN Charter, rather
than, for instance, as a ‘mere’ violation of a State’s territorial integrity or of the duty of non-
intervention, is not without import.
First, there is broad support for the view that the prohibition on the use of force constitutes a
peremptory norm,10 thus bringing into play the consequences attached to such qualification. In
a nutshell, all treaties conflicting with a peremptory norm of general international law are
deemed void (Article 53 of the Vienna Convention on the Law of Treaties (‘VCLT’)). In
addition, if a new peremptory norm emerges, existing treaty provisions which conflict with
that norm become void and terminate (Art. 64 VCLT). Articles 40-41 of the ILC Draft
Articles on State Responsibility (‘DASR’) moreover provide that States shall cooperate to
bring to an end through lawful means any serious breach of such peremptory norm and that no
State shall recognize as lawful a situation resulting therefrom, nor render aid or assistance in
maintaining that situation. True, the peremptory character of Article 2(4) is sometimes limited
to a narrower core,11 yet this discussion is beyond the scope of the present contribution.
Second, and more important for present purposes, the application of Article 2(4) UN Charter
has repercussions for the possibility to invoke ‘grounds precluding wrongfulness’ to justify
those acts. If it is accepted that Article 2(4) constitutes a peremptory norm, the invocation of
10
The ILC has pointed out that ‘the law of the Charter concerning the prohibition of the use of force’ in itself
constitutes ‘a conspicuous example’ of a jus cogens norm (ILC, ‘Draft Articles on the Law of Treaties with
Commentaries’, (1966-II) Y.B.I.L.C., at 247). This statement was quoted by the ICJ in Nicaragua (ICJ, Case
concerning military and paramilitary activities in and against Nicaragua (Nicaragua v. US), Judgment of 27
June 1986, (1986) ICJ Rep., pp. 14-150, at § 190), putting the argument in a seemingly favourable light.
Examples of support in legal doctrine, see e.g., I.D. Seiderman, Hierarchy in international law: The human
rights dimension, Antwerp, Intersentia, 2001, 62; A. Orakelashvili, Peremptory norms in international law
(Oxford: OUP) (2006), at 51; O. Corten, op. cit., supra n. 1, at 200-213.
11
See in particular R. Ago, ‘Addendum to the 8 th Report on State Responsibility’, (1980-II) 32 Y.B.I.L.C., Part
One, at 44. See also L. Hannikainen, Peremptory norms (jus cogens) in international law (Helsinki:
Lakimiesliiton Kustannus) (1988), at 356. Questioning the norm’s peremptory character more generally, see:
J.A. Green, ‘Questioning the peremptory status of the prohibition on the use of force’, (2011) 32-2 Michigan
J.I.L., pp. 215-257.
7
any grounds precluding wrongfulness is automatically excluded (as per Article 26 DASR).12
Yet, even leaving aside the peremptory character of the prohibition on the use of force, Article
50 DASR clearly indicates that countermeasures shall not affect the obligation to refrain from
the threat or use of force. The inadmissibility of ‘forcible’ countermeasures is backed by a
majority of legal doctrine.13 It finds support in the UN General Assembly’s affirmation that
‘States have a duty to refrain from acts of reprisal involving the use of force’,14 and was
explicitly confirmed by the arbitral tribunal in the Guyana/Suriname case.15 In a similar vein,
contrary to what is sometimes suggested,16 ‘(the state of) necessity’ cannot be invoked to
justify uses of force in the sense of Article 2(4) UN Charter. 17 Apart from the fact that
12
Except for self-defence and consent of course (insofar as permitted under primary law).
13
See e.g., J. Mrazek, ‘Prohibition on the use and threat of force: self-defence and self-help in international law’,
(1989) 27 Can. Y.B.I.L., pp. 81- 111, at 90; J. Crawford, State responsibility – the general part (Cambridge:
CUP) (2013), at 690-691; O. Corten, ‘Judge Simma’s Separate Opinion in the Oil Platforms case: to what extent
are armed ‘proportionate defensive measures’ admissible in contemporary international law?’, in U. Fastenrath et
al (eds.), From bilateralism to community interest: essays in honour of Judge Bruno Simma (Oxford: OUP)
(2011), pp. 843-861, at 848-849.
14
See e.g., GA Res. 2625 (XXV), Declaration on Principles of International Law Concerning Friendly Relations
and Cooperation among States in accordance with the Charter of the United Nations, 24 October 1970.
15
Guyana and Suriname, Arbitral Award of 17 September 2007, available at http://www.pca-
cpa.org/upload/files/Guyana-Suriname%20Award.pdf, at § 446: “It is a well established principle of
international law that countermeasures may not involve the use of force. (…).”
16
In his Eighth Report on State Responsibility Special Rapporteur Ago raised the question whether the state of
necessity might ‘exceptionally preclude the wrongfulness of an assault which proved to be less serious’ (R. Ago,
loc. cit., supra n. 11, at 14-51, especially at 38 et seq. (in particular §§ 55-56)). If Ago ultimately left the matter
undecided, several scholars have built on his reasoning by applying the ‘state of necessity’ to cross-border
pursuit of criminals, counter-terrorist operations or ‘protection of nationals’ abroad. See in particular: J. Raby,
‘The state of necessity and the use of force to protect nationals’, (1988) 26 Can. Y.B.I.L., pp. 253-272; A.
Laursen, ‘The use of force and (the state of) necessity’, (2004) 37 Vanderbilt J.T.L., pp. 485-526; O. Schachter,
International Law in Theory and Practice (Dordrecht: Martinus Nijhoff) (1991), at 169-173.
17
An authoritative rebuttal is offered by Corten: O. Corten, ‘L’état de nécessité peut-il justifier un recours à la
force non constitutif d’agression?’, (2004) 1 Global Community, pp. 11-50. Arriving at the same conclusion, see
e.g., J. Mrazek, loc. cit., supra n. 13, at 106-107; P. Cahier, ‘Changements et continuité du droit international’,
(1985-VI) 195 R.d.C., pp. 9-374, at 74; J. Verhoeven, ‘Les “étirements” de la légitime défense’, (2002) 48
8
necessity cannot be invoked to justify a breach of a peremptory norm, the Charter rules on the
use of force constitute a closed system, and that “[n]o consideration of whatever nature may
be invoked to warrant resorting to the threat or use of force in violation of the Charter.”18 In
other words, the primary rules, and in particular the inclusion of Article 51 UN Charter,
implicitly exclude any reliance on necessity (as per Article 25(2)(a) DASR).19 It is also worth
noting, for instance, that before the UNGA Sixth Committee numerous States explicitly took
the view that the state of necessity could not justify a recourse to force in contravention with
the UN Charter.20 In sum, the possibility of relying on grounds precluding wrongfulness is in
principle excluded in relation to actual ‘use of force’.21 By contrast, if it is accepted that
certain forcible acts are not covered by Article 2(4) UN Charter, nothing would prevent the
State concerned from arguing that the conditions for countermeasures or the (admittedly very
strict) conditions for relying on a state of necessity are met.
Third, if the qualification of certain acts as a ‘use of force’ removes the possibility of invoking
grounds precluding wrongfulness, the inverse qualification, i.e., a finding that certain acts do
not constitute a ‘use of force’, in principle rules out the possibility of exercising/invoking the
right of self-defence in reaction thereto. It is indeed generally accepted that every ‘armed
A.F.D.I., pp. 49-80, at 75; C. Stahn, ‘International law at crossroads?: the impact of September 11’, (2002) 62
Z.a.ö.R.V., pp. 183-255, at 212.
18
GA Res. 42/22 of 18 November 1987, Declaration on the enhancement of the effectiveness of the principle of
refraining from the threat or use of force in international relations, Section I, § 3.
19
Article 25(2)(a) DASR states that necessity may not be invoked as a ground for precluding wrongfulness if
“the international obligation in question excludes the possibility of invoking necessity”.
20
For references, see: O. Corten, loc. cit., supra n. 17, at 27-31. Not a single State adopted the opposite view.
Several other arguments can be mentioned. Thus, the idea that ‘uses of force’ can be justified by relying on
necessity does not find support in actual State practice (see Ibid., at 42-47). Accepting that the ‘state of
necessity’ can be relied upon to justify certain uses of force would also lead to manifestly absurd results insofar
as, contrary to ‘countermeasures’, this ground precluding wrongfulness essentially relates to situations where the
other State has not committed an internationally wrongful act (see on this: Ibid., at 18-23).
21
Except for self-defence and consent of course (insofar as permitted under primary law).
9
attack’ automatically constitutes a ‘use of force’.22 Views differ in legal doctrine on the
breadth of the gap between the two notions. Those limiting ‘armed attacks’ to large-scale
attacks construe the gap rather widely, whereas others, accepting that more small-scale attacks
may equally trigger the right of self-defence, construe it more narrowly (some essentially
regard the two notions as materially identical).23 In any case, as will be seen below (see
Section 3(a)), the existence of a cascading relationship between ‘armed attack’ and ‘use of
force’ finds support, for instance, in the preparatory works of the UNGA Definition of
Aggression24 and in the case-law of the ICJ.25 The implication is that, absent a use of force,
there can be no ‘armed attack’ – and, accordingly, no recourse to self-defence. Conversely, it
is safe to assume that, whenever a State invokes the right of self-defence in response to a
certain act, it views the latter act as constituting an ‘armed attack’, and, by definition, a ‘use of
force’.
In all, the legal repercussions resulting from the application of Article 2(4) UN Charter are not
to be ignored.
3. Preliminary remarks
22
Without entering the debate on the legality of pre-emptive or preventive self-defence, it can be stated by
analogy that every threat of an armed attack automatically entails a threat of force. At the same time, it is noted
that the relationship between the notions ‘use of force’ and ‘armed attack’ is not necessarily ‘linear’: if one
accepts that non-State actors can equally commit ‘armed attacks’ in the sense of Article 51 UN Charter
(irrespective of State involvement), then there are at least some ‘armed attacks’ that do not simultaneously
qualify as a use of force in the sense of Article 2(4) UN Charter (from a ratione personae perspective) (since
Article 2(4) UN Charter only covers the threat or use of force by States in their international relations). In the
present context, however, it suffices to state that, at least from a material perspective, acts that are deemed
sufficiently grave to constitute an ‘armed attack’, will automatically also be sufficiently grave to qualify as a ‘use
of force’ in the sense of Article 2(4).
23
See on this: T. Ruys, op. cit., supra n. 9, at 126 et seq.
24
See Ibid., at 143-145.
25
ICJ, Nicaragua case, loc. cit., supra n. 10, at § 191.
10
a. The burden of proof rests with those advocating a restrictive
interpretation of Article 2(4) UN Charter
In the words of the late Thomas Franck, the UN Charter constitutes a ‘growing, living’ system
of rules,26 rules that are capable of adapting to the needs of the international community
pursuant to evolutions in customary practice. It remains useful, however, at the outset of the
analysis, to have a closer look at the language of Article 2(4) UN Charter and its preparatory
works.
It is well-known that Article 2(4) uses the term ‘force’ without in any way defining its
content. Considering the references to ‘armed force’ in other provisions of the UN Charter,27
as well as the rejection of a Brazilian proposal to expand the scope of Article 2(4) to
economic coercion,28 it is, however, generally accepted that it extends to ‘armed force’ only.29
The provision moreover states that it is limited to the use of force between States ‘in their
international relations’. This phrase is commonly interpreted as indicating that the use of force
‘solely within’ a State (e.g., clashes between government troops and rebels within one and the
26
T.M. Franck, Fairness in International Law and Institutions (Oxford: Clarendon Press) (1995), at 260.
27
See the reference to ‘armed force’ in the Charter’s preamble, as well as in the reference to the ‘use of force’ in
Article 44 in a context clearly equating this concept with the use of armed force.
28
U.N.C.I.O., Vol. 6, at 339, 340, 609.
29
See e.g., T.J. Farer, ‘Political and economic coercion in contemporary international law’, (1985) 79 A.J.I.L.,
pp. 405-413. In a similar vein: E.g., A. Randelzhofer, ‘Article 2(4)’, in B. Simma et al. (eds.), The Charter of the
United Nations: a Commentary. Vol. I (New York: OUP) (2002), pp. 114-137, at 117-118; R. Higgins,
Problems and process: international law and how we use it (Oxford: Clarendon Press) (1994), at 248; American
Law Institute, Restatement of the Law – Third. The Foreign Relations Law of the United States (St. Paul,
American Law Institute Publishers) (1990), at 383.
According to Dinstein, “the term ‘force’ in Article 2(4) must denote violence. It does not matter what specific
means – kinetic or electronic – are used to bring it about, but the end result must be that violence occurs or is
threatened.” Y. Dinstein, War, aggression and self-defence (Cambridge: CUP) ( 2011: 5th ed.), at 88.
Note: with the emergence of cyber warfare, an ongoing debate has unfolded within academic and military circles
alike, as to how cyber-attacks or computer network attacks fit into Article 2(4) of the Charter. Computer
networks attacks and cyber warfare are nonetheless beyond the scope of the present contribution. See in
particular: M.N. Schmitt, ‘Computer Network Attack and the Use of Force in International Law: thoughts on a
normative framework, (1999) Columbia J. of Transnat’l L., pp. 885-937.
11
same State) is beyond its reach.30 Furthermore, contrary to what some authors and some
(limited) customary practice suggest,31 the prohibition on the threat or use of force is not
confined to force that is directed against a State’s ‘territorial integrity’ (most notably conquest
or occupation) or its ‘political independence’ (most notably regime overthrowal). Rather, the
final phrase of Article 2(4) UN Charter, which speaks of force ‘inconsistent with the purposes
of the UN Charter’, offers a residual ‘catch-all’ provision, making clear that Article 2(4)
constitutes a comprehensive ban against all uses or threats of force. 32 As the preparatory
works indicate, ‘the intention of the authors (…) was to state in the broadest terms an
absolute all-inclusive prohibition; the phrase ‘or in any other manner’ was designed to insure
that there should be no loopholes.’33 This reading is moreover supported by the context as
well as the ‘object and purpose’ of the provision: the UN’s founding fathers indeed wished to
substantially broaden the pre-existing prohibition on the recourse to ‘war’ laid down in the
Pact of Paris34 to ‘prevent future generations from the scourge of war’.
As a general starting point then, the origin, object and preparatory works of Article 2(4)
suggest that its scope should be understood broadly. The burden of proof would therefore
seem to rest on those advocating a more restrictive interpretation.
30
E.g., Y. Dinstein, op. cit., supra n. 29, at 87.
31
For some (hesitant) indications of such narrow reading of Article 2(4), see: C. Gray, International Law and the
Use of Force (Oxford: OUP) (2008; 3rd ed.), at 32-33. Among legal scholars, the argument was most staunchly
defended by D’Amato. See A. D’Amato, International Law: process and prospect (Dobbs Ferry: Transnational
Publishers) (1987), at 79 et seq.
32
See e.g.,: L. Henkin, International law: politics and values (Dordrecht: Martinus Nijhoff) (1995), at 115-116;
D. Kritsiotis, ‘When states use armed force’, in C. Reus-Smit, The Politics of International Law (Cambridge:
CUP) (2004), pp. 45-79, at 58-59.
Note: the question remains to what extent certain uses of force (e.g., humanitarian interventions) may escape
from the ambit of Article 2(4) UN Charter because they are not ‘inconsistent’ with the Purposes of the UN
Charter. As indicated in the introduction, this question is beyond the scope of our analysis.
33
U.N.C.I.O. Vol. 6, at 334-335. See T.M. Franck, Recourse to Force: State action against threats and armed
attacks (Cambridge: CUP) (2002), at 12.
34
General Treaty for the Renunciation of War, 27 August 1928, 94 L.N.T.S. 57.
12
This general presumption also finds implicit support in the cascading relationship between
‘force’, ‘armed attack’, and ‘aggression’. By way of illustration, several statements made
throughout the negotiations over the UNGA Definition of Aggression35 indicate that the
notion of ‘force’ is broader in scope than the latter two,36 and that various minor incidents that
do not qualify as (an act of) ‘aggression’, may nevertheless constitute a use of force.
According to the Soviet Union, for instance, “a distinction had to be drawn between (…) acts
of aggression and minor incidents which did not constitute acts violating a State’s territorial
integrity and political independence. In other words it was essential to introduce the concept
of ‘intensity’ of the act, so that a distinction could be drawn between acts of aggression and
other forms of the use of force.”37 And according to the United States: “a criterion of intent
could help in distinguishing between an act of aggression and less serious forms of the use of
force.”38 The preamble of the Definition of Aggression explicitly considers aggression as ‘the
most serious and dangerous form of the illegal use of force’. In a similar vein, the Kampala
resolution on the ‘crime of aggression’ adopted by the ICC Assembly of States Parties in 2010
confirms that the notion of ‘use of force’ is broader than that of ‘aggression’. 39 The newly
introduced Article 8bis(1) of the ICC Rome Statute indeed defines the ‘crime of aggression’
as “the planning, preparation, initiation or execution, by a person in a position effectively to
exercise control over or to direct the political or military action of a State, of an act of
aggression which, by its character, gravity and scale, constitutes a manifest violation of the
Charter of the United Nations” (emphasis added). The preparatory works illustrate that the
term ‘manifest’ was introduced with the twofold purpose of excluding acts of insufficient
35
Definition of Aggression, Annex to GA Res. 3314 (XXIX) of 14 December 1974.
36
See e.g.: UN Doc. A/AC.134/SR.82, at 20 (Mexico); UN Doc. A/AC.134/SR.85, at 47 (France); UN Doc.
A/AC.134/SR.106; at 29 (Mexico); UN Doc. A/AC.134/SR.109, at 49 (Ghana).
37
UN Doc. A/AC.134/SR.105, at 16.
38
UN Doc. A/AC.134/SR.69, at 23.
39
Resolution RC/Res.6, adopted by the Assembly of States Parties to the Rome Statute of the International
Criminal Court at Kampala, on 11 June 2010.
13
seriousness (such as minor border skirmishes) and (more controversially) acts of questionable
legal status (e.g. unilateral humanitarian interventions).40 Understanding 6 annexed to the
Kampala resolution stresses that the notion of ‘aggression’ covers only ‘the most serious and
dangerous form of the illegal use of force’. A finding of aggression requires consideration ‘of
all the circumstances of each particular case, including the gravity of the acts concerned and
their consequences.’ In sum, the notion of aggression effectively presupposes a minimum
gravity. Absent proof to the contrary, the same is not necessarily true for the ‘threat or use of
force’ in the sense of Article 2(4) UN Charter.
b. The case-law of the International Court of Justice does not render
unequivocal support to the existence of a gravity threshold
If the general presumption is that Article 2(4) should be construed broadly, this presumption
is not rebutted by the case-law of the ICJ. The ICJ has indeed famously asserted that there
exists a gap between Articles 2(4) and 51, and that it is necessary “to distinguish the most
grave forms of the use of force (those constituting an armed attack) from other less grave
forms.”41 The Court explains that the difference between ‘armed attacks’ and ‘less grave
forms’ of the use of force is primarily one of ‘scale and effects’. 42 It again follows that
forcible acts must not necessarily be very ‘grave’ to qualify as a ‘use of force’. This finding is
corroborated by the fact that the ICJ does not necessarily set a very high threshold for ‘armed
40
C. McDougall, The crime of aggression under the Rome Statute of the International Criminal Court
(Cambridge: CUP)(2013), at 125; J. Trahan, ‘The Rome Statute’s amendment on the crime of aggression:
negotiations at the Kampala Review Conference’, (2011) J. Crim. L. Rev., pp. 49-104, at 58. See e.g., ICC
Assembly of States Parties, Informal inter-sessional meeting of the Special Working Group on the Crime of
Aggression, 5 September 2006, Doc. ICC-ASP/5/SWGCA/INF.1, at §§ 19-20.
41
ICJ, Nicaragua, loc. cit., supra n. 10, at § 191. In a similar vein: ICJ, Case concerning Oil Platforms (Islamic
Republic of Iran v. United States of America), Judgment of 6 November 2003, (2003) I.C.J. Rep., pp. 161-219,
at §§ 51, 64.
42
Ibid., § 195.
14
attacks’ either.43 In Nicaragua, the Court refrained from shedding further light on the concept
of ‘frontier incidents’, instead noting that “[v]ery little information is however available (…)
as to the circumstances of [the alleged] incursions or their possible motivations, which
renders it difficult to decide whether they may be treated (…) as amounting, singly or
collectively, to an ‘armed attack’.”44 In Oil Platforms, it ‘[did] not exclude the possibility that
the mining of a single military vessel might be sufficient to bring into play the ‘inherent right
of self-defence’.45 Furthermore, the Court’s broad reading of Article 2(4) UN Charter is
evident from its finding that the provision covers ‘assistance to rebels in the form of the
provision of weapons or logistical or other support.’46
Some have nonetheless suggested that the Court’s reasoning in the Corfu Channel case
renders support to the idea of a gravity threshold for the ‘use of force’. In Corfu Channel,
Albania suggested in passing that the unauthorized mine-sweeping operation by the British
Navy in Albanian waters contravened Article 2(4) UN Charter.47 The UK by contrast rejected
the accusation by reference to the limited character of its action, which, even if coercive, ‘did
not force on Albania any acceptance of a new state of things’.48 The Court eventually held
that the operation infringed Albania’s sovereignty, yet that it did “not consider that the action
of the British Navy was a demonstration of force for the purpose of exercising political
pressure on Albania.”49 Several authors conclude from the foregoing that the Court
43
But see, by contrast: Ethiopia-Eritrea Claims Commission, Partial Award Jus ad Bellum, Ethiopia Claims 1-8,
19 December 2005, reprinted in (2006) 45 I.L.M. 430. For a critique of the latter award, see: C. Gray, ‘The
Ethiopia/Eritrea Claims Commission oversteps its boundaries: a partial award?’, (2006) 17 E.J.I.L., pp. 699-721,
at 714-720.
44
ICJ, Nicaragua, loc. cit., supra n. 10, at § 231.
45
ICJ, Oil Platforms, loc. cit., supra n. 41, at § 72.
46
ICJ, Nicaragua, loc. cit., supra n. 10, at § 195.
47
Reply of the Government of Albania, 20 September 1948, (1950) I.C.J. Rep., 313, at par. 154.
48
See O. Corten, op. cit., supra note 1, at 69, note 131.
49
ICJ, Corfu Channel (UK v. Albania), Judgment of 9 April 1949, (1949) I.C.J. Rep., pp. 4-38, at 35.
15
considered the mine-sweeping operation not to be of sufficient gravity to qualify as a
violation of Article 2(4) UN Charter.50
It is, however, open to questioning whether such conclusion is justified. First, the case
resulted from a Special Agreement between the UK and Albania. The question put before the
Court was whether the UK had “violated the sovereignty of [Albania] by reason of the acts of
the Royal Navy in Albanian waters (…)”. The Court was not required to pronounce itself on
whether the acts also gave rise, in parallel, to a breach of Article 2(4) UN Charter – it may
even be questioned whether the Court was ultimately competent to do so. Furthermore, it is
hard to shake the feeling that the Court’s treatment of the mine-sweeping operation was both
‘light’51 and confusing. In the final paragraph of the judgment, the Court “does not consider
that the action of the British Navy was a demonstration of force for the purpose of exercising
political pressure on Albania.”52 The phrase is open to multiple interpretations. It does not
necessarily imply, however, that the action of the British Navy did not enter the scope of
Article 2(4) UN Charter, or – to take the logic one step further – that the scope of Article 2(4)
is limited to force used ‘for the purpose of exercising political pressure’ on another State.
Such interpretation would seem hard to reconcile with the all-encompassing nature of the
provision (see above). It is somewhat puzzling that the paragraph concerned is in essence an
obiter dictum. Indeed, it is only after finding that the mine sweep constituted a breach of
Albania’s sovereignty, thus answering the question in the Special Agreement, that the Court
next goes on to consider Albania’s criticism that the British Navy made use ‘of an
unnecessarily large display of force, out of proportion to the requirements of the sweep’ –
criticism which the Court rejects in the wording cited above. At the same time, the Court does
50
O. Corten, op. cit., supra note 1, at 69-70; O’Connell, loc. cit., supra n. 2, at 102-103.
51
The Court’s treatment of the issue takes up less than two pages of the 38-page judgment. See ICJ, Corfu
Channel, loc. cit., supra n. 49, at 34-35.
52
Ibid., at 35.
16
use the phrase ‘manifestation of a policy of force’ in connection with the British operation. It
follows from the foregoing that one should probably refrain from reading too much into the
Corfu Channel judgment.53
c. Silence is golden? Evidentiary value of the non-invocation of the rules
on the ‘use of force’ in specific cases
Absent ‘express authority’ on the matter,54 the burden of proof rests with those advocating the
exclusion of ‘minimal’ and/or ‘targeted’ from the scope of Article 2(4) to provide relevant
evidence from customary practice to support their views. In their respective contributions,
O’Connell and in particular Corten effectively adduce a substantial body of evidence in
support of such threshold.55 This evidence consists of examples of small-scale forcible acts
that have been condemned, for example, as violations of another State’s sovereignty, without,
however, being treated as infringements of Article 2(4) UN Charter, as well as examples of
small-scale forcible acts that have been regarded as permissible under international law, in
spite of the fact that they are not framed as reactions to an ‘armed attack’ in the sense of
Article 51 UN Charter. By way of illustration, in May 1960, Israeli agents abducted nazi
fugitive Adolf Eichmann from Argentina, without first seeking the approval of the
53
By way of comparison, one may recall that in DRC v. Uganda, the ICJ decided that Uganda’s intervention in
the DRC amounted to a ‘grave’ violation of Article 2(4) UN Charter (ICJ, Case concerning armed activities on
the territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005,
(2005) ICJ Rep., pp. 116-220, at 280). In spite of an explicit request to this end from the DRC, the Court
refrained from going as far as to simultaneously qualify the intervention as ‘aggression’. Clearly, it would be
rash to infer from this (regrettable) silence that the judges were of the opinion that Uganda’s conduct did not
amount to ‘aggression’. Such negative inference is all the more inappropriate when considering the Separate
Opinions of Judges Elaraby (at §§ 9-19) and Simma (at §§ 2 et seq). In the words of Judge Simma: “If there ever
was a military activity before the Court that deserves to be qualified as an act of aggression, it is the Ugandan
invasion of the DRC” (at § 2).
54
Cf. O’Connell, loc. cit., supra n. 2, at 102.
55
Ibid., at 102-107; O. Corten, op. cit., supra note 1, at 52 et seq.
17
Argentinian authorities.56 In reaction to the covert operation, Argentina complained before the
UN Security Council that its sovereignty had been violated, without, however, citing the
prohibition on the use of force.57 Other States intervening before the Council adopted a similar
approach, as did the Council itself: in resolution 138(1960), it ‘declared’ that “acts such as
that under consideration, which affect the sovereignty of a Member State and therefore cause
international friction, may, if repeated, endanger international peace and security” (our
emphasis). No mention was made of Article 2(4) UN Charter.58
Precedents such as the Eichmann abduction are manifold and should not be passed over
lightly. At the same time, caution is due when assessing their evidentiary value. The evidence
indeed essentially consists of ‘omissions’ – verbal omissions for that matter – as an element of
State practice and an implicit reflection of States’ opinio iuris. The problem here is that,
although omissions constitute an integral part of the customary law formation process, 59 they
are often ambiguous: an abstention may be motivated by a sense of legal conviction, but there
may also be other reasons, unconnected with international law.60 Consequently, as was
recognized in the Lotus case61 and in Nicaragua,62 when dealing with omissions, it is
56
Eichmann was taken to Jerusalem, where he was put on trial an ultimately executed.
57
UN Doc. S/4336.
58
SC Res. 138(1960); See also UN Doc. S/PV.865-868; (1960) U.N.Y.B., at 196-198.
59
E.g., ICJ, Nottebohm Case (Liechtenstein v. Guatemala), Judgement of 6 April 1955, (1955) I.C.J. Rep., pp. 4-
27, at 22. In a similar vein: e.g., International Law Association (ILA), ‘Final Report of the Committee. Statement
of Principles applicable to the formation of General Customary International Law’, Report of the Sixty-Ninth
Conference. London (London: ILA) (2000), pp. 712-777, at 726-727; M.E. Villiger, Customary international
law and treaties: a manual on the theory and practice of the interrelation of sources (The Hague: Kluwer Law
International) (1997; 2nd ed.), at 37; M. Akehurst, ‘Custom as a source of international law’, (1977) 47
B.Y.B.I.L., pp. 1-53, at 10.
60
See e.g. G.P. Buzzini, ‘Les comportements passifs des Etats et leur incidence sur la réglémentation de l’emploi
de la force en droit international général’, in E. Cannizzaro and P. Palchetti (eds.), Customary International Law
on the Use of Force (Dordrecht: Martinus Nijhoff) (2005), pp. 79-117, at 81-84. See also: ILA Report, loc. cit.,
supra n. 59, at 726.
61
PCIJ, The case of the ‘S.S. Lotus’ (France v. Turkey), Judgment of 7 September 1927, Series A No. 10, at 28.
62
18
imperative that (explicit) evidence of opinio iuris can be provided. In sum, omissions
constitute relevant State practice, but will generally not, of their own, suffice to give rise to
customary norms.63 Furthermore, given their ambiguity, they are often of limited use in
ascertaining the concrete content of a customary rule.64
The foregoing also holds true in relation to verbal omissions. Indeed, when confronted with a
small-scale forcible act, such as an aerial trespass by a military aircraft or a ‘targeted killing’
operation against a suspected terrorist residing on its soil, a State may have various reasons
not to publicly denounce such act as a ‘use of force’ in the sense of Article 2(4) UN Charter
(with the special stigma attached thereto), but to condemn it instead as a ‘mere’ breach of its
sovereignty and/or of the non-intervention principle, or, not to publicly respond at all.65
Take the Eichmann abduction for example. Several factors may explain why a State such as
Argentina would have refrained from invoking Article 2(4) UN Charter even IF (?) it would
have believed the operation to constitute a ‘use of force’. Consider the following: (a)
Eichmann played a key role in the persecution and extermination of the Jewish people in
Europe – no-one could reasonably contest that he should be brought to justice66; (b) Eichmann
63
E.g., G.P. Buzzini, loc. cit., supra n. 60, at 82.
64
Ibid.
65
Note : in his overview of customary practice, Corten refers among other things to the 1978 raid by Egyptian
commandos at the Cypriot airport of Larnaca. The operation aimed at freeing hostages held by two Palestinian
militants, but resulted in direct combat between the forces of the two States. Noting that the Cypriot government
condemned the Egyptian intervention (‘only’) as a violation of its sovereignty, Corten – believing the operation
ought to be regarded as an outright ‘use of force’ – suggests that this measured language may have essentially
been due to ‘diplomatic considerations’. Corten refers to the ‘particular circumstances’ of the case, notably the
fact that Cyprus had apparently given Egyptian forces authorization to land, but not to intervene militarily, as the
plausible reason why Cyprus spoke of a violation of its sovereignty (O. Corten, Le droit contre la guerre (Paris:
Pedone) (2008), 114 (and footnote 267). In relation to other operations, however, Corten regards the omission of
express references to Article 2(4) and/or Article 51 UN Charter as ‘highly significant’. No explanation is given
why ‘diplomatic considerations’ would play in one case, but not in others.
66
Cf. SC Res. 138(1960), preamble: “Mindful of the universal condemnation of the persecution of the Jews
under the Nazis, and of the ‘concern of people in all countries that Eichmann should be brought to appropriate
justice for the crimes of which he is accused.”
19
had been leading a quiet life in Argentina for many years, as had numerous fellow nazi
fugitives, raising painful questions as to Argentina’s possible responsibility in this context; (c)
Israel suggested repeatedly (yet unconvincingly) that the abduction had been carried out by a
‘volunteer group’ whose actions were not imputable to Israel; (d) Israel expressed regret – in
admittedly conditional terms – ‘if’ the operation had interfered with Argentinian
sovereignty,67 and refrained from trying to claim a legal justification for the operation.
In sum, many factors may explain why States refrain from using the Charter language on the
use of force. First, States may partially be to blame for the situation that has given rise to the
forcible acts concerned, e.g., by deliberately giving refuge to, or by failing to act against,
known terrorists. In the Corfu Channel case, for instance, the Court found Albania responsible
for the explosions which damaged two British warships and which inspired the mine sweep
(Albania neither notified the existence of the minefield, nor warned the British warships of the
danger they were approaching).68 In addition, Albania had sent out mixed signals as to
whether, and under what conditions, it would consent to a British mine-sweeping operation.69
In sum, shared responsibility may act as a factor urging restraint.
Second, the fact that States refrain from invoking Article 2(4) when confronted with forcible
acts may sometimes be explained (in part?) by the fact that the territorial State gave its prior
consent (even if on a confidential basis) for the acts concerned, or was itself involved in them.
An example that comes to mind concerns the clandestine kidnapping by CIA operatives of the
Egyptian cleric Abu Omar in Italy in 2003, which led to the conviction in absentia of over
twenty CIA operatives, but apparently took place with the support of the Italian intelligence
67
UN Doc. S/4342 (Israel).
68
ICJ, Corfu Channel, loc. cit., supra n. 49, at 22-23.
69
Ibid., at 33.
20
service.70 Or, to take a more recent example: on 6 October 2013, US forces carried out twin
operations in Libya and Somalia.71 The former raid resulted in the capture of Abu Anas al-
Liby, suspected of being involved in the 1998 bombings of the US embassies in Nairobi and
Dar Es Salaam. The latter operation was aimed against a leader of al-Shahaab (responsible for
the large-scale attack on a shopping mall in Kenya one week earlier) It ultimately proved
unsuccessful, as US special forces were forced to retreat after a gun battle. Neither operation
was denounced as a ‘use of force’ by the territorial State concerned. Somali authorities
expressed unequivocal support.72 The Libyan National Congress for its part adopted a
statement describing the US operation as a ‘flagrant violation of [Libya’s] national
sovereignty’.73 The statement was, however, adopted amidst accusations that the Libyan
government had in fact colluded with the raid, or had at least turned a blind eye. In sum, the
non-invocation of the Charter language on the ‘use of force’ in a specific case may (in part) be
related to the fact that the territorial State supports the forcible acts, acquiesces in them, or is
itself involved (even if below the radar). Similar considerations may well play in relation to
the recurrent US drone attacks within Pakistani territory.74
70
Over twenty CIA operatives were condemned in absentia to significant jail sentences by Italian courts. A
number of Italian intelligence officers were also convicted. Before the court in Milan, the lead prosecutor
described the kidnapping inter alia as “a serious crime against Italian sovereignty and human rights”. See e.g.,
C. Whitlock, ‘CIA rues is said to have damaged probe in Milan’, Washington Post, 6 December 2005; Italy’s ex-
spy chief convicted over 2003 CIA rendition, BBC News, 12 February 2013.
71
See: K. Rawlinson, ‘US special forces raids target Islamist militants in Libya and Somalia’, The Guardian, 6
October 2013; ‘Libya demands US return al-Qaeda suspect’, Al Jazeera, 9 October 2013; C. Stephen, A.
Ahmed, D. Smith, ‘Libya demands explanation for US ‘kidnapping’ of al-Qaida leader al-Liby’, the Guardian, 7
October 2013.
72
The Somali PM declared that: “We have close cooperation with the world (…) in the fight against al-Shabaab.
(…) We welcome any operation to hunt the terrorist leaders.” C. Stephen, A. Ahmed, D. Smith, ‘Libya demands
explanation for US ‘kidnapping’ of al-Qaida leader al-Liby’, the Guardian, 7 October 2013.
73
See: ‘Libya demands US return al-Qaeda suspect’, Al Jazeera, 9 October 2013.
74
In spite of repeatedly denouncing the CIA’s drone campaign as a violation of Pakistani sovereignty, top-secret
CIA documents and Pakistani diplomatic memos reportedly suggest that top officials in Pakistan’s government
have for years secretly endorsed the program and routinely received classified briefings on strikes and casualty
21
Third, especially when an incident takes place between States that generally maintain friendly
relations, it is not unrealistic that States refrain from using ‘use of force’ language in order not
to further escalate the matter and not to jeopardize that relationship. This may, for instance, be
the case when police officers of a neighbouring country pursue a criminal suspect across the
border. It is noteworthy in this context that one of the factors which Corten proposes to
condition Article 2(4) threshold eligibility is the hostile or friendly relationship between the
countries.75 In other words: the same objective facts reach the Article 2(4) threshold because
of the existence of political tension between the two countries, whereas they do not if
relations between the two are generally friendly.76 Without dismissing the relevance of the
contextual element, the matter can of course be approached from two sides. On the one hand,
one could argue that the (hostile/friendly) relationship between the States concerned is indeed
a constitutive factor to determine whether acts qualify as a ‘use of force’ (this inevitably
introduces a degree of subjectivity in the identification of ‘uses of force’). On the other hand,
the existence of a positive relationship may simply explain why, in certain situations, States
feel less need to invoke Article 2(4) – without this necessarily corresponding to an actual legal
belief that the acts concerned cannot qualify as such…
In the end, it is precisely the ambiguity of these verbal omissions, together with the fact that
small-scale forcible acts rarely provoke extensive exchanges of claims and counter-claims
within the international community, that makes it so difficult to grasp the scope of Article
counts. See: G. Miller and B. Woodward, ‘Secret memos reveal explicit nature of U.S., Pakistan agreement on
drones, Washington Post, 24 October 2013.
Consider also the mixed reactions to the killing of ‘OBL’ by US Special Forces as reflected in Pakistan’s
Abottabad Commission Report, available at http://www.documentcloud.org/documents/724833-aljazeera-bin-
laden-dossier.html#document/p230, at §§ 609 et seq. See also infra note 217.
75
O. Corten, op. cit., supra note 1, at 91.
76
This is, for instance, the reason, in Corten’s view, why the (failed) US attempt in 1980 to rescue the Tehran
hostages by force, as well as the killing of a PLO leader by Israeli commandos in Tunis in 1988, were – in spite
of their very/extremely limited character – viewed in an Article 2(4) context. Ibid., at 74.
22
2(4). The foregoing certainly does not mean that the non-invocation of the ‘use of force’
language in specific cases is not relevant for present purposes and can simply be ignored.
Still, caution is needed when finding opinio iuris through negative inference. In addition,
greater weight should probably be accorded to those situations where States have explicitly
invoked (rightly or wrongly) the language of Articles 2(4) and 51 UN Charter than to those
were they have refrained from doing so (the invocation of this language reflects a clear legal
conviction on the part of the States concerned; abstention from invoking it may be due to
different considerations).
4. Armed confrontations between States, even if small-scale, come within the
ambit of the Jus ad Bellum
a. Introduction
In the following sections, we attempt to go back to the drawing board and shed some light on
how Article 2(4) applies in different settings. The present section first deals with armed
confrontations, specifically small-scale confrontations, between military or police units of
different States. Such confrontations can result from unlawful incursions by land, sea or air
into a State’s territory, including its territorial sea and airspace. It is also possible that
localized hostile encounters take place between individual units, for instance, in international
airspace or on the high seas. The following sub-sections first observe that there exists general
agreement that States may, under certain circumstances, have recourse to lethal force in the
face of – even small-scale – territorial intrusions or in the context of localized hostile
encounters. It is subsequently argued that the proper legal basis for such action must
necessarily be found in the legal framework on the use of force. It follows that the application
of Article 2(4) is not subject to a general gravity threshold.
23
b. The permissibility of a forcible response
In spite of what one might think when examining different authors’ interpretation of the
notion of ‘armed attack’ and the right of self-defence, there is remarkable agreement as to
when States can respond with armed force to counter territorial incursions by military or
police units of another State by land, sea or air.77
Without engaging in an in-depth assessment of the legality of such forcible responses (which
is not the direct focus of the contribution), it is obvious that this depends first and foremost on
whether the incursion itself was unlawful in the first place. This will not be the case if the
affected State consented to the presence of foreign troops/units within its territory, or, for
foreign warships and submarines, when their presence within the territorial sea conforms to
the requirements of the 1982 UN Convention on the Law of the Sea (UNCLOS).78
77
For an insightful synopsis, see: T.D. Gill, ‘The forcible protection, affirmation and exercise of rights by States
under contemporary international law’, (1992) 23 Netherlands Yb. Int’l L., pp. 105-173, at 128-129. Note: the
present section is based on the general overview in T. Ruys, op. cit., supra n. 9, at, 184-199, 347-350. On aerial
incursions, see: O.J. Lissitzyn, ‘The treatment of aerial intruders in recent practice and international law’, (1953)
47 A.J.I.L., pp. 559-589; K.-G. Park, La protection de la souveraineté aérienne (Paris: Pedone) (1991), 403 p.
On naval incursions, see e.g.: F.D. Froman, ‘Uncharted waters: non-innocent passage of warships in the
territorial sea’, (1983-84) 21 San Diego L.Rev., pp. 625-689; D. Fleck, ‘Rules of engagement of maritime forces
and the limitation of the use of force under the UN Charter’, (1989) 31 G.Y.B.I.L., pp. 165-186; S.P. Henseler,
‘Self-defense in the maritime environment under the new standing rules of engagement/standing rules for the use
of force (SROE/SRUF)’, (2006) 53 Naval L. Rev., pp. 211-228; P. Jimenez Kwast, ‘Maritime law enforcement
and the use of force: reflections on the categorization of forcible action at sea in the light of the
Guyana/Suriname Award’, (2008) 13 J.C.S.L., pp. 49-91. On land incursions, see e.g.: N.M. Poulantzas, The
right of hot pursuit in international law (Leiden: Sijthoff) (1969), 451 p. See also e.g., Corten, op. cit., supra
note 1, at 60-61.
78
While ground and aerial incursions presuppose the agreement of the territorial State, the situation is more
complex when dealing with naval incursions. Entry of the territorial sea by foreign warships is in principle
permitted by the 1982 United Nations Convention on the Law of the Sea (1833 U.N.T.S. 31363.), provided that it
qualifies as ‘innocent passage’ (Articles 18-19(1)). Article 19(2) makes clear that this will not be the case if the
ship engages in a number of impermissible activities, such as military exercises, threats or uses of force in
violation of the UN Charter, willful and serious pollution, survey activities, et cetera. Article 21 furthermore
recognizes that the coastal State may adopt additional regulations, for instance, to guarantee the safety of
24
When faced with large-scale (unlawful) intrusions, it is uncontested that the territorial State
may have recourse to armed force – provided, of course that it complies with the requirements
of necessity and proportionality. In relation to more small-scale intrusions, the key is to verify
whether they reflect a ‘hostile intent’. The latter notion – not to be confused with the
‘motive(s)’ of the incursion79 – indeed plays a prominent role in national Rules of
Engagement.80 The importance of a ‘hostile intent’ (or ‘animus aggressionis’) finds support in
the preparatory works of the Definition of Aggression81 and (implicitly) in the case-law of the
ICJ.82 Evidence can also be found in actual State practice.83 The underlying idea is to filter out
incursions that are unintentional or otherwise completely harmless,84 and to limit forcible
navigation or for the preservation of the environment. In order to be able to verify innocent passage, submarines
are required to navigate on the surface and show their flag (Art. 20).
79
See O. Corten, op. cit., supra note 1, at 76-77; T. Ruys, op. cit., supra n. 9, at 166.
80
E.g., US Commander’s Handbook on the Law of Naval Operations, NWP 1-14M, Edition July 2007, available
at http://www.usnwc.edu/getattachment/a9b8e92d-2c8d-4779-9925-0defea93325c/, at 4-5, 4-6; ‘U.S. Rules of
Engagement in the Persian Gulf’, 25 September 1987, reproduced in (1988) Austl. Int’l L. News 71.
81
See the analysis in T. Ruys, op. cit., supra n. 9, at 158-168. See also: B. Broms, ‘The definition of aggression’,
(1977-I) 154 R.d.C., pp. 299-400, at 364. Consider e.g., UN Doc. A/AC.134/SR.56, at 27 (Canada); UN Doc.
A/AC.134/SR.57, at 41 (Japan), 44 (Turkey); UN Doc. A/AC.134/SR.68, at 20 (Canada), 21-22 (USA), 29
(Soviet Union).
82
ICJ, Oil Platforms, loc. cit., supra n. 41, at §§ 52, 61, 64; ICJ, Nicaragua case, loc. cit., supra n. 10, at § 230
(“Very little information is (…) available to the Court as to the circumstances of these incursions or their
possible motivations, which renders it difficult to decide whether they may be treated as amounting, singly or
collectively, to an ‘armed attack’ (…).”). Consider also: C. Gray, op. cit., supra n. 31, at 179.
83
On numerous occasions, States claiming to be the victim of an armed attack and/or justifying forcible
responses to territorial incursions indeed stressed the ‘premeditated’ or ‘deliberate’ character of the initial
attack/provocation. See e.g., UN Doc. S/PV.1107, at 2, § 3 (UK, re. the 1964 Harib fort raid); (1964) U.N.Y.B.,
at 147; UN Doc. S/6174 (US, re. the Gulf of Tunkin incident); (1967) U.N.Y.B., at 175 (re. the Six-Day War);
(1968) U.N.Y.B., at 191 (re. the Israeli campaign against Lebanon); (1976) 22 Keesing’s, 27548; UN Doc.
S/PV.4836, at 17 (Morocco, re. the 1993 Israeli aerial raid in Syrian territory); ICJ, Oil Platforms case, Counter-
memorial and counter-claim submitted by the United States of America, 23 June 1997, available at
http://www.icj-cij.org/docket/files/90/8632.pdf, at § 4.11. Conversely, several precedents can be identified where
the language of Article 2(4) UN Charter was not used and/or where no defensive action was undertaken, (in part)
due to a lack of hostile intent. See the examples listed in Section 3(g) below.
84
See e.g., UN Doc. A/AC.134/SR.79-91, at 36 (USSR), 48 (France).
25
reactions to situations whether the intruding State deliberately engages in forcible acts on the
territory of another State. The most obvious example of incursions that ostensibly lack hostile
intent are accidental incursions, e.g., whereby troops unknowingly enter foreign territory (see
also Section 3(g) below). Apart from accidental incursions, it is possible to conceive of other
incursions which are in essence harmless and do not reflect any ‘hostile intent’. Thus, a
military aircraft may enter another State’s territorial airspace solely to avoid bad weather. In
1946, for instance, the United States protested against the downing of a US plane by
Yugoslavia, precisely on the grounds that the plane been forced to fly over Yugoslav territory
due to bad weather and hence displayed no hostile intentions.85 Reference can also be made to
the towing of a damaged nuclear-powered Soviet submarine through Japanese territorial
waters in 1980 in spite of Japanese objections. At the time, Japan “deeply deplored the Soviet
Union’s violation of its territorial waters in spite of repeated warnings,” but undertook no
further action against the rescue operation.86 On the other hand, it is clear that a hostile intent
will be present when the intruding troops or military unit(s) intend to carry out attacks within
the State’s territory (attacks which may result in loss of life or damage to property).
In certain situations (e.g., when a troop of soldiers goes sun-bathing across the border),
incursions that are initially harmless may gradually come to display a hostile intent, in
particular, when requests to leave the territory are ignored. In such scenarios, States can
engage in a number of graduated measures, falling short of the actual recourse to armed force,
in order to force the intruder to either terminate its unlawful behavior or to reveal a hostile
intent.
In relation to small-scale land incursions, for instance, the appropriate reaction vis-à-vis a
trespassing border patrol would generally be to issue a warning and call on the intruders to
85
See O.J. Lissitzyn, loc. cit., supra n. 77, at 570-572.
86
For an elaborate analysis, see: R.J. Grammig, ‘The Yoron Jima Submarine incident of August 1980: a Soviet
violation of the law of the sea’, (1981) 22 H.I.L.J., pp. 331-354; Washington Post, 24 August 1980, at A 18.
26
withdraw; to fire warning shots if the call went unheeded, and; to submit diplomatic protests
after the incident. Only if the intruders would persist in their course of action and come to
pose a threat to the territorial State would limited recourse to armed force be permissible.
Analogous principles are applicable to forcible action against trespassing military aircraft. It is
generally accepted that the ‘victim’ State may lawfully take measures, short of the use of
armed force, to intercept a foreign military aircraft which makes an unauthorized passage
through its territorial airspace and force it to land. Intruding aircraft must obey all reasonable
orders of the territorial sovereign, including orders to land, to turn back, or to fly on a certain
course.87 If a military aircraft ignores orders to land, forcible measures may be undertaken.
Intruding aircraft whose intentions are known to be harmless must not be attacked even if they
disobey orders to land.88 In principle, no aircraft may be shot down unless prior warning has
been given and/or warning shots have been fired.89 The foregoing requirement does not,
however, apply, when the aerial intruder is the first to open fire, or when there are strong
indications that the intruder is on the verge of attacking one or more targets. 90 Finally, at least
in the context of aerial incursions, the permissibility of a forcible riposte arguably extends to
intrusions for intelligence-gathering purposes.91 Thus, when in 1960, Soviet forces shot down
a US spy plane over Soviet airspace, no State (not even the US) suggested that such action
87
On the interception of aerial intruders, see: O.J. Lissitzyn, loc. cit., supra n. 77; K.-G. Park, op. cit., supra n.
77, at 291-320; J. Sundberg, ‘Legitimate responses to aerial intruders: the view from a neutral State’, (1985) 10
A.A.S.L., pp. 251-273.
88
E.g., O.J. Lissitzyn, loc. cit., supra n. 77, at 587.
89
See e.g., UN Doc. S/PV.880, at § 42 (Turkey).
90
E.g., K.-G. Park, op. cit., supra n. 77, at 318; O.J. Lissitzyn, loc. cit., supra n. 77, at 579; J. Sundberg, loc. cit.,
supra n. 87, at 259-268.
91
See e.g., US Commander’s Handbook on the Law of Naval Operations, loc. cit., supra n.80, Section 4-4-2 (see
also the quote reproduced at note 145 below).
27
was unlawful under international law (albeit that an attempt to have the aerial incursion
condemned as an ‘aggressive act’ failed to gather support within the UN Security Council).92
As far as unlawful intrusions of the territorial sea by foreign military vessels are concerned,
Article 30 UNCLOS provides that a vessel that ignores a request to comply with coastal State
regulations or that engages in ‘non-innocent’ passage, can be demanded “to leave the
territorial sea immediately.” If the call is heeded, this concludes the incident. If not, the
coastal State may again take graduated and proportionate measures to compel the vessel to
92
See UN Doc. S/PV.857-860. At the end of the Security Council debates, a Soviet draft resolution that would
have condemned the US ‘aggression’ was rejected by 7 votes against (only the Soviet Union and Poland voted in
favour; two other States abstained).
Note: While military aircraft enjoy freedom of overflight in international airspace (see Art. 58(1) and Art.
87(1)(b) UNCLOS), there is discussion on the extent to which States may engage in surveillance activities or
military exercises within the Exclusive Economic Zone (‘EEZ’) of another State or in an Air Defence
Identification Zones (‘ADIZ’) established by other States (see e.g. the contributions of Pedrozo and Zhang in
(2010) 9 Chinese J.I.L.). In any event, State practice indicates that when coastal States discover within their EEZ
(or possibly ADIZ) military aircraft that are engaged in activities (e.g., surveillance) which they regard as
contrary to their interests or even outright unlawful, they have no more authority “than to intercept such flights
safely and inspect them to ensure their nonthreatening character” (P.A. Dutton, ‘Caelum Liberam: Air Defense
Identification Zones outside Sovereign Airspace’, (2009) 103 A.J.I.L., pp. 1-19, at 15.). Put differently, while the
coastal State is entitled to track and monitor the aircraft’s trajectory, it is not entitled to use actual force to halt its
activities. The same is true mutatis mutandis vis-à-vis the activities of warships in the EEZ.
It is interesting to note in this context, that, while States (including the United States) did not challenge the
legality of the shooting by Soviet forces of a US U-2 reconnaissance plane in Soviet airspace in 1960, the
shooting of an RB-47 reconnaissance plane allegedly over the high seas during the same year was condemned by
numerous States (see UN Doc. S/PV.880-883). Lissitzyn observes as follows: “From the legal point of view, the
most striking feature of the RB-47 incident is that none of the nations involved – the U.S.S.R., the United States,
and the members of the U.N. Security Council which discussed the incident – either claimed or admitted the
right of a state to shoot down a foreign aircraft over the high seas, even if it flies within close proximity of the
state’s territory and even if it is a military aircraft which may be engaged in military reconnaissance.” O.J.
Lissitzyn, loc. cit., supra n. 77, at 140. The Australian ‘Operations Law for RAAF Commanders’, for instance,
affirms that “[t]he declaration of an ADIZ does not confer on an intercepting pilot the right to engage an
aircraft” and indicates that force can only be used in self-defence (Royal Australian Air Force, AAP 1003,
Operations Law for RAAF Commanders, Section 2.19). It is also worth noting that China refrained from
responding with force to actions by US, Japanese and South Korean military aircraft in defiance of its newly
established ADIZ in the East China Sea. See e.g., B. Blanchard and R. Rampton, ‘China scrambles jets to new
defense zone, eyes U.S., Japan flights’, Reuters, 29 November 2013.
28
change its course or display a hostile intent. Although relevant practice is limited, an
appropriate response, short of the actual recourse to force, would consist in the use of an
escort ship or aircraft to accompany the ship outside territorial waters, or, possibly, the firing
of warning shots.93 In principle, the actual resort to proportionate lethal force against the
intruder should be confined to situations where the foreign ship would willfully ignore orders
to leave the territorial sea and would show a hostile intent – for example if the coastal State
were to acoustically detect the opening of missile tube doors. Nonetheless, exceptions may be
made when there are strong indications that an intruding vessel is on the verge of launching
an attack, and arguably in the context of intrusions by submerged submarines.94
In all, a certain interaction exists between ‘hostile intent’ and gravity. Indeed, as is evident,
for instance, from the negotiations on the Definition of Aggression,95 there may be situations
where the hostile intent is clear from the outset. In particular, absent indications to the
contrary, the gravity of the incursion (e.g., a large-scale intrusion by tanks or aircraft from a
neighbouring State) may itself betray the hostile intent, thus permitting the ‘victim State’ to
engage in a forcible reaction without undertaking further preventive steps. Conversely, in
relation to more small-scale incursions, the lesser gravity of the acts does not exclude a
93
E.g., F.D. Froman, loc. cit., supra n. 77, at 674 (footnote 230); S.R. Ratner, ‘The Gulf of Sidra incident of
1981: a study of the lawfulness of peacetime aerial engagements’, (1984) 10 Y J.I.L., pp. 58-76, at 71, footnote
58 (referring to an incident whereby Algeria escorted US warships out of claimed Algerian waters without
resistance by the United States).
94
Intrusions by submerged submarines pose specific problems in that it may be difficult, if not impossible, to
verify objectively whether the intrusion is caused by a navigation error or distress, or is undertaken deliberately,
for example, for purposes of surveillance. Furthermore, it is impossible for anyone outside a submarine to assess
its state of readiness. For this reason, Dinstein argues that the intrusion by a submerged submarined may be
regarded as an incipient armed attack, permitting the coastal State to employ forcible measures in self-defence.
See Y. Dinstein, op. cit., supra n. 29, at 213. See also: T. Ruys, op. cit., supra n. 9, at 195-198.
95
E.g., UN Doc. A/AC.134/SR.52-66, 134 (USSR); UN Doc. A/AC.134/SR.67-78, 22 (US); UN Doc.
A/AC.134/SR.79-91, 27 (Cyprus).
29
forcible reaction in absolute terms, on condition, however, that additional elements exist that
attest to the presence of a hostile intent on the part of the intruder. Such elements relate to:
- the general geopolitical and security context, and in particular the friendly or hostile
nature of the relationships between the territorial sovereign and the intruder State. By way
of illustration, on 22 October 1967, the United Arab Republic informed the Security
Council that it had spotted the Israeli destroyer Eilat speeding in its territorial waters off
Port Said in contravention of the ceasefire.96 The tense relationship between the two
States in the wake of the Six-Day War, and the fact that the destroyer had earlier
allegedly been involved in the sinking of two UAR boats in territorial waters, may
explain why the UAR saw itself fit to respond by force and sink the Eilat.97
- the repeated nature of the incursions: Thus, when in 1946 the US protested at the shooting
of a US plane in Yugoslav airspace, arguing that the plane been forced to fly over
Yugoslav territory due to bad weather (see also above), Yugoslavia replied that “[f]rom
the number of planes which daily and repeatedly fly over Yugoslav territory, it is clear
that in all cases this is not done owing to necessity or to bad weather, but that in a
majority of cases our territory was again deliberately crossed.”98 Likewise, in relation to
the downing of a US U-2 reconnaissance plane in Soviet airspace in 1960, the Soviet
Union laid much emphasis on the repeated nature of the violations of Soviet airspace.99
96
UN Doc. S/8205, 22 October 1967 (UAR).
97
See UN Doc. S/8205, 22 October 1967 (UAR). While Israel objected that the vessel was on a routine patrol on
the high seas, several States expressed support for the UAR’s self-defence claim, with others confining
themselves to urging both parties to show restraint. See references mentioned below at notes 147-149.
98
Quoted in O.J. Lissitzyn, loc. cit., supra n. 77, at 572.
99
See (1960) U.N.Y.B., at 40-42; UN Doc. S/PV.857, at §§ 24 et seq. (USSR). See also: UN Doc. S/4315, 19
May 1960 (USSR); UN Doc. S/4385, 13 July 1960 (USSR). Consider also the following UK statement
supporting the recourse to armed force by US naval units against Vietnamese torpedo boats in the context of the
1964 Gulf of Tunkin incident: “In the present case, there has not been merely one isolated attack on United
States warships in international waters; we have been told that there have been repeated attacks, the nature of
which is such as to indicate that they were deliberately mounted.” UN Doc. S/PV.1140, at § 80.
30
- the location of the intrusion: In 1982, for example, Swedish naval units spotted a foreign
submarine in Harsfjarden, near a top-secret Swedish naval base. In the following days,
search units made sonor contacts with a submarine and responded by dropping depth
charges as well as by detonating mines. Apart from the fact that this was the latest in a
long series of intrusions by submerged submarines, the location of the submarine’s unit
may explain why Swedish forces deemed it proper to respond by using force.100
- the nature of the intruding unit(s): following the aforementioned shooting of an unarmed
US military air transport over Yugoslavia in 1946, Marshal Tito informed the US that he
had ordered “our military authorities to the effect that no transport planes must be fired
at any more, even if they intentionally fly over our territory without proper clearance
(…)”.101 By contrast, when confronted with (repeated) incursions by fighter planes from
enemy nations, States feel little reluctance to invoke the right of self-defence.102
- specific indications, such as the locking on of fire control radars, the opening of bomb
bay doors, the acoustic detection of torpedo or missile tube doors, the distance and speed
of the opposing unit, the opposing unit’s maneuvering into a weapon launch profile,
etcetera.103
The foregoing elements, and in particular the last one, are also relevant in the context of
localized hostile encounters between individual military or police units of different States
beyond the national territory. Again, it appears (logical and) uncontested that in the latter
setting, military or police units are permitted to use lethal force to ward off an (unlawful)
attack by similar units of another State. What is more, the unit(s) concerned need(s) not
100
See R. Sadurska, ‘Foreign submarines in Swedish waters : the erosion of an international norm’, (1984) 10
Y.J.I.L., pp. 34-57, at 37 et seq.; (1982) 28 Keesing’s, 31512.
101
Quoted in O.J. Lissitzyn, loc. cit., supra n. 77, at 572-573.
102
For references, see note 143 below.
103
See e.g., D. Stephens, ‘Rules of engagement and the concept of unit self-defense’, (1998) 45 Naval L. Rev.,
pp. 126-151, at 148.
31
necessarily await until the first shot is fired, but may arguably take proportionate defensive
action against an ‘incipient’ attack.104 The US Commander’s Handbook of the Law of Naval
Operations, for instance, repeatedly asserts that: “Unit commanders always retain the inherent
right and obligation to exercise unit self-defense in response to a hostile act or demonstrated
hostile intent.”105 Of particular interest in this context is the tragic shooting by the USS
Vincennes of Iran Air Flight 655 in the Persian Gulf in 1988, killing all passengers on board.
While the US expressed regret at this ‘terrible human tragedy’, it insisted that its forces had
acted lawfully in accordance with Article 51 UN Charter as the aircraft had mistakenly been
perceived as a hostile Iranian military aircraft in attack modus.106 Following a detailed
examination, a Fact-Finding Investigation of the International Civil Aviation Organization
(ICAO) supported the thesis that “[the] aircraft was perceived as a military aircraft with
hostile intentions.”107 Interestingly, during the ICJ proceedings on the matter (prior to the
removal of the case from the ICJ’s docket), Iran agreed that a key question was “whether the
[US] not only misidentified the plane as an F-14, but also reasonably believed that it was
about to be attacked by that F-14.”108 The incident in other words reveals an underlying
consensus that individual units can lawfully use lethal force to intercept an incoming attack.
In practice, while it appears uncontested that individual military units can use armed force to
ward off an attack, when such incidents materialize, the States involved will typically claim
that their vessel/aircraft was first fired upon before opening fire in self-defence, and/or will
104
See on this: T. Ruys, op. cit., supra n. 9, at 350-355.
105
US Commander’s Handbook on the Law of Naval Operations, loc. cit., supra n.80, Sections 4-6, 4-9. See
also: ICJ, Aerial incident of 3 July 1988 (Islamic Republic of Iran v. United States of America), Preliminary
objections submitted by the United States of America, 4 March 1991, available at http://www.icj-
cij.org/docket/files/79/6639.pdf, at 203.
106
UN Doc. S/19989 (US).
107
Report of the ICAO Fact-finding Investigation on the destruction of Iran Airbus A300, November 1988,
(1989) 28 I.L.M., pp. 900-943, at § 3.2.1. Note that the aircraft was shot while in Iranian airspace.
108
ICJ, Aerial incident of 3 July 1988 (Islamic Republic of Iran v. United States of America), Memorial
submitted by Iran, 24 July 1990, available at http://www.icj-cij.org/docket/files/79/6629.pdf, at §§ 4.56-4.60.
32
dispute whether the incident took place beyond the coastal State’s territorial sea/airspace or
not.109 By way of illustration, reference can be made to the different factual accounts put
forward by the States concerned in respect of the 1964 Gulf of Tunkin incident (a naval
incident between the US and Vietnam),110 or the 1981 Gulf of Sidra incident (during which
American aircraft shot two Libyan aircraft).111
c. Different legal bases put forward in legal doctrine
In all, it is generally accepted that States may, in certain circumstances, have recourse to
armed force vis-à-vis unlawful territorial incursions by military or police units of another
State by land, sea or air, or in the context of localized hostile encounters between individual
units. Crucially, such forcible response is not reserved exclusively to large-scale territorial
incursions or large-scale confrontations only.
By contrast, considerable disagreement exists as to the proper legal basis for such forcible
response. Several possible legal bases have been put forward, with some applying exclusively
to forcible responses to unlawful territorial incursions and others also extending to ‘hostile
encounter’ scenarios.112
109
In situations where States have competing territorial claims, the application of the rules on the use of force
may be influenced by the question which of the two States holds valid title over the disputed territory. Still, even
if a State can ultimately prove to have a valid title, its sending of troops into disputed land may give rise to a
breach of the obligation to settle disputes by peaceful means (Article 2(3) UN Charter), and possibly also of the
prohibition on the use of force (insofar as the State initiates an actual armed confrontation to break the existing
status quo).
110
Compare for instance the US account (UN Doc. S/PV.1140, at §§ 36-38; UN Doc. S/.PV.1141, at §§ 45-46)
to that of Vietnam (UN Doc. S/5907). See also UN Doc. S/PV.1140, at § 56 (USSR); UN Doc. S/PV.1141, at §§
29-31 (Czechoslovakia).
111
Compare UN Doc. S/14632 (US) to UN Doc. S/14636 (Libya). See also (1981) U.N.Y.B. at 360-361. See
also the account of the shooting in 1954 of two US military aircraft by Soviet forces in T. Ruys, op. cit., supra n.
9, at 351.
112
Note: Brownlie, in his seminal book the use of force by States, deals with trespassing ships and vessels under
the heading ‘problems relating to self-defence’, but nonetheless remains vague as to the legal basis for action
33
First, a number of scholars have framed such forcible responses as an application of the right
of self-defence. Chief amongst these is Dinstein, who suggests, for instance, that the intrusion
by a submerged submarine or a military aircraft may be regarded as an ‘incipient armed
attack’, allowing the territorial State to respond in self-defence.113 On a related note, Dinstein
finds that the use of force in the context of localized encounters between military units can be
lawful as an ‘on-the-spot reaction in self-defence’.114
Other authors have struggled to reconcile the permissibility of such forcible response with the
ICJ’s distinction, in the Nicaragua case, between ‘the most grave uses of force, those
constituting an armed attack’ and less grave uses of force (and the Court’s reference to ‘mere
frontier incidents’). These authors have sought for an alternative legal basis, other than the
right of self-defence, yet part and parcel of the overarching framework of the Ius ad Bellum.
Various proposals can be identified. Judge Simma, for instance, in his Separate Opinion in the
Oil Platforms case, defends the idea that States can undertake proportional countermeasures
involving the use of force when confronted with ‘smaller-scale uses of force’, not amounting
to an ‘armed attack’.115 Another position is that of Gill, who defends the existence of a
against such incursions. I. Brownlie, International Law and the Use of Force by States (Oxford: Clarendon
Press) (1963), at 373.
113
Y. Dinstein, War, Aggression and Self-Defence (Cambridge: CUP) (2005; 4th ed.), at 198-199.
114
Such exercise of the right of self-defence is seen as being bound by a particularly strict application of the
criteria of necessity, proportionality and immediacy. ‘Genuine on-the-spot reaction closes the incident.’ Y.
Dinstein, op. cit., supra n. 29, at 244.
115
ICJ, Oil Platforms, loc. cit., supra n. 41, Separate Opinion of Judge Simma. Asserting that ‘the permissibility
of strictly defensive military action taken against’ Iranian mine, gunboat or helicopter attacks on US vessels
‘cannot be denied’, Judge Simma criticizes the fact that by distinguishing between ‘armed attacks’ and ‘less
grave’ uses of force, the Court created “the impression that, if offensive military actions remain below the –
considerably high – threshold of Article 51 of the Charter, the victim of such actions does not have the right to
resort to – strictly proportionate – defensive measures equally of a military nature.” Judge Simma continues:
“What we see in such instances is an unlawful use of force ‘short of’ armed attack (“aggression
armée”) within the meaning of Article 51, as indeed “the most grave form of the use of force”. Against
such smaller-scale uses of force, defensive action – by force also ‘short of’ Article 51 – is to be
regarded as lawful. In other words, I would suggest a distinction between (full-scale) self-defence
34
separate and distinct right to forcibly protect and affirm substantive rights which have been
unlawfully denied or violated.116 Still others have drawn attention to the existence of a
separate right of ‘unit self-defence’ in customary international law, allegedly distinct from
‘national self-defense’.117
within the meaning of the same Charter provision on the one hand and, on the other, the case of hostile
action, for instance against individual ships, below the level of Article 51, justifying proportionate
defensive measures on the part of the victim, equally short of the quality and quantity of action in self-
defence expressly reserved in the United Nations Charter.”
In sum: Judge Simma claims that there are ‘smaller-scale uses of force’, not amounting to an ‘armed attack’,
against which States can respond by similar smaller-scale uses of force (subject to a particularly strict application
of the necessity, proportionality and immediacy requirements). In terms of the legal basis for such action, Judge
Simma points at a potential loophole in the Nicaragua case, where the Court ruled out the possibility of forcible
counter-measures by third States, without, however, expressly ruling out the permissibility of forcible counter-
measures by the immediate victim of the ‘use of force’ concerned.
116
T.D. Gill, loc. cit., supra n. 77, at 111-115. Gill argues that subject to certain well-defined limitations, States
possess the right to use or threaten the use of force to protect, safeguard and affirm certain well-established and
recognized substantive rights which have been violated by another State, notably to safeguard their territory
against unlawful incursions and to affirm their respective rights in the maritime areas over which they exercise (a
certain degree of) jurisdiction.
Examining the possible legal bases for such action, Gill dismisses reliance on countermeasures, reprisals,
‘necessity’, or ‘law enforcement’. Furthermore, Gill stresses that there are ‘compelling policy reasons’ for not
viewing various forms of intrusion, interference, and abuse of rights involving the threat or use of force as
‘armed attacks’ in the sense of Article 51 UN Charter, since such broad interpretation of the latter notion would
in his view lead to the escalation of inter-State conflicts (inter alia because of the invocation of the right of
collective self-defense) (Ibid., at 111, 115). Gill does acknowledge that ‘if such low-scale violations of a State’s
territory were repeated over a period of time, forming part of a pattern of aggression and intimidation (…), (…)
such actions could cumulatively constitute an armed attack’ (at 111).
Having discarded (for policy reasons) the right of self-defense as a legal basis for forcibly responding to small-
scale territorial incursions, Gill, building on the Hague lectures of Sir Humphrey Waldock, construes it as a
‘separate and distinct right to forcibly protect and affirm substantive rights which have been unlawfully denied
or violated.’ Interestingly, while Gill does accept reliance on self-defense in the context of localized hostile
encounters between military units (in spite of the fact that the same desire to avoid escalation applies in such
scenario) (at 111). The difference between ‘on the spot reaction’ in self-defense and the use of force in the
protection of a right, Gill observes, is that in the latter case the forcible reaction must be restricted to the State’s
territory (at 129).
117
See e.g., D. Stephens, loc. cit., supra n. 103; C.P. Trumbull IV, ‘The basis of unit self-defense and
implications for the use of force’, (2012) 23 Duke J. of Comp. & Int’l L., pp. 121-148. But see: Y. Dinstein, op.
35
Finally, a number of authors have suggested that forcible action against intruding troops,
warships or military aircraft falls beyond the legal framework on the use of force, and is
merely a matter of ‘law enforcement’ or ‘police powers’.118 This appears to be the position
followed by the Institute of International Law in its 2007 resolution on self-defense: “[i]n
case of an attack of lesser intensity [than an ‘armed attack’] the target State may also take
strictly necessary police measures to repel the attack.”119
d. The Jus ad bellum as the proper normative framework – theoretical observations
The aim of the present contribution is not to take a final stance on the proper legal basis for
the recourse to armed force in the face of unlawful territorial incursions by military or police
units of another State or in the context of localized hostile encounters. From a conceptual
point of view, however, the idea that such armed force falls within the ‘law enforcement’
paradigm and does not enter the scope of Article 2(4) UN Charter is unconvincing.
cit., supra n. 29, at 244. According to Dinstein, ‘unit self-defense’, is part and parcel of the overarching regime
on the use of force in self-defense: ‘It must be grasped that, from the standpoint of international law, all self-
defence is national self-defence. There is a quantitative, but no qualitative difference between a single unit
responding to an armed attack and the entire military structure doing so.’
118
E.g., D. Fleck, loc. cit., supra n. 77, at 179-180.
119
Institut de Droit International, ‘Present Problems of the Use of Armed Force in International Law – self-
defence’, Resolution of 27 October 2007, available at http://www.idi-
iil.org/idiE/resolutionsE/2007_san_02_en.pdf, paragraph 5. The preceding phrases read as follows: “An armed
attack triggering the right of self-defence must be of a certain degree of gravity. Acts involving the use of force of
lesser intensity may give rise to countermeasures in conformity with international law. (…).” Consider also: O.
Corten, loc. cit., supra n. 13, at 857-858. Corten dismisses Judge Simma’s concept of ‘proportionate forcible
countermeasures’ by victims of small-scale uses of force. Instead, he emphasizes that “a State can in principle
use its sovereign powers to take police measures within its own territory. If State A arrest soldiers (…) of State B
within its borders, intercepts a foreign plane within its aerial space, or orders a foreign vessel to leave its
territorial waters, no problem arises a priori in relation to Article 2(4). We are rather in the framework of police
measures based on the territorial sovereignty of each State within its own territory. Therefore this State does not
need to rely on self-defence to justify its use of ‘force’, this use being considered as a normal exercise of its
sovereign powers.”
36
First, it has been suggested that by prohibiting the use of force between States in their
‘international relations’, Article 2(4) UN Charter “seeks to prohibit the use of force by one
State against another and not to regulate all cases of enforcement measures that may contain
some foreign element.”120 While it is true that not every forcible act that contains ‘some
foreign element’ (e.g., the arrest of a foreign national by a State’s police force) affects the
‘international relations’ between States, it cannot reasonably be disputed that armed
confrontations between military or police units do so. To hold otherwise would seem difficult
to reconcile with the logical meaning of the phrase and with the intention to construe Article
2(4) as an ‘all-inclusive prohibition’.
Second, there is a fundamental difference between the use of compulsion in enforcing a
State’s criminal and administrative laws against violations by private individuals, criminal
groups and other non-governmental entities, such as merchant ships and fishing vessels, and
the use of ‘force’ in a State-to-State relationship.121 Indeed, ‘law enforcement’ would seem to
connote a hierarchical relationship, which is at odds with the principles of State immunity and
equality.122 Warships and other government ships operated for non-commercial purposes
enjoy immunity pursuant to Articles 29-32 and 95-96 UNCLOS. In a similar vein, as the
Commentary to the HPCR Manual on International Law applicable to air and missile warfare
observes, ‘State aircraft’, i.e., aircraft owned or used by a State serving exclusively non-
commercial government functions123 enjoy sovereign immunity in peacetime.124 More
generally, Article 21 of the UN Convention on Jurisdictional Immunities of States and their
Property (not yet in force) confirms the sovereign immunity of “property of a military
120
121
T.D. Gill, loc. cit., supra n. 77, at 122.
122
Ibid., at 121.
123
Article 3(b) of the Chicago Convention states that “aircraft used in military, customs and police services shall
be deemed to be State aircraft”.
124
HPCR, Manual on International Law applicable to air and missile warfare (Cambridge: CUP)(2013), at 47.
37
character or used or intended for use in the performance of military functions.”125 The
immunity of warships and State aircraft cannot be overcome, simply by relying on domestic
legislation on the enforcement powers of the territorial State’s military or police. By the same
token, the suggestion that localized confrontations between individual soldiers, vessels or
planes of two different States constitute ‘a priori (…) a criminal problem with a criminal law
solution based on national legislation’126 must be dismissed. Indeed, by virtue of the rule that
national law cannot be invoked to justify breaches of international law (cf. Art. 27 VCLT), the
legal basis for the recourse to lethal force against intruding/opposing military or police units
must ultimately be sought and found in international law itself.
On a related note, the idea that ‘minimal’ use of armed force by way of ‘enforcement
measure’ within a State’s own territory would somehow find its legal basis in ‘particular (and
mainly conventional) legal regimes on land (such as the Schengen Convention), at sea (such
as the Montego Bay Convention), or in the air (such as the Chicago Convention)’127 cannot be
sustained. Indeed, none of the conventions cited provide a legal basis for forcible action
against unlawful territorial incursions by military or police forces of another State. For
instance, while the Chicago Convention on International Civil Aviation regulates the
interception of civil aircraft (Article 3bis – see also below), it is silent on possible
enforcement action against trespassing State aircraft. It merely states that “no aircraft of a
contracting State shall fly over the territory of another State or land thereon without
authorization by special agreement or otherwise, and in accordance with the terms thereof”
(Article 3(c)). Otherwise, Article 3 makes clear that the Convention does not apply to State
aircraft. In turn, the Convention on the Law of the Sea identifies several possibilities for
125
United Nations Convention on Jurisdictional Immunities of States and their Property, New York, 2 December
2004, UNGA Res. 59/38, not yet in force.
126
O. Corten, loc. cit., supra n. 13, at 859.
127
Ibid., at 857-858.
38
enforcement action against merchant vessels within a State’s territorial sea (and beyond).
Nonetheless, when confronted with a warship that breaches the laws and regulations of the
coastal State concerning passage through the territorial sea, all that Article 30 UNCLOS
permits is that the coastal State require the warship to leave the territorial sea immediately (in
other words, a measure that clearly falls short of the actual recourse to forcible action).
Furthermore, on a more conceptual note, insofar as the ‘law enforcement’ approach is seen as
a useful approach to circumvent the difficulties posed by the ICJ’s distinction between ‘armed
attacks’ and ‘lesser uses of force’ and, in particular, to explain the legality of forcible
responses against unlawful territorial incursions of seemingly lesser gravity while maintaining
a higher threshold for the exercise of the right of self-defence, this approach is ultimately
unhelpful:
- First, it does not ‘solve’ the ‘gap’ conundrum: even if one distinguishes between
‘enforcement action’ (not amounting to a use of force in the sense of Article 2(4) UN
Charter) against small-scale territorial incursions below the threshold of Article 2(4) UN
Charter on the one hand, and actual self-defence against (more large-scale) ‘armed
attacks’ on the other hand, a gap remains.128 In particular, the question remains how to
construe territorial incursions (and forcible responses thereto) that exceed the ‘threshold’
of Article 2(4) UN Charter, without, however, amounting to an actual ‘armed attack’. It is
noteworthy, for instance, that Corten acknowledges that when intruding ground troops
refuse to leave the State’s territory when requested to do so, “the State whose agents have
intruded can no longer claim to be mistaken and article 2(4) will indeed apply.”129 The
initial challenge which proponents of the de minimis threshold (and of the ‘law
enforcement’ paradigm) would seemingly seek to circumvent is thus revived: should one
128
Consider e.g., O’Connell, loc. cit., supra n. 2, at 102: “If the force used is not sufficient for the purpose, the
enforcing State is nevertheless required to stop short of force that would violate Article 2(4).”
129
39
in such scenario accept that there is a right, distinct from the right of self-defense, to use
armed force against ‘lesser uses of force’, or; should one instead adopt a more flexible,
functional reading of the right of self-defense (as the present author believes) warranting
‘on-the-spot-reaction’ to small-scale attacks, subject to a particularly strict application of
the proportionality and necessity criteria? The alternative would be to accept that States
can engage in forcible measures against incursions not amounting to a ‘use of force’
(under the ‘law enforcement’ paradigm), as well as to incursions reaching the level of an
‘armed attack’ (whatever the precise material threshold – pursuant to the right of self-
defense), but not to incursions that qualify as ‘lesser uses of force’. This can of course
hardly be what supporters of a de minimis threshold have in mind…
- Second, the ‘law enforcement’ paradigm cannot explain why, for instance, in the context
of a hostile encounter between two aircraft in international airspace, a military aircraft of
State A would be able to use armed force to ward off an attack by an aircraft of State B.
Such situation clearly has no nexus to the ‘enforcement of sovereign rights’. Nor can
national criminal law provide a satisfactory legal basis (see above). Again, logic dictates
that the legal basis must necessarily be sought in the existence of a right to use force
against certain ‘lesser uses of force’ distinct from the right of self-defence, or (as the
present author believes) in the acceptance of ‘on-the-spot-reaction’ in self-defence in the
context of such localized hostile encounters (again subject to a particularly strict
application of the proportionality and necessity criteria). If either of the two alternatives
must eventually be accepted to explain the legality of the actions of a military
aircraft/warship warding off an attack in international airspace/waters, one may wonder
why the same alternative could not also serve to explain the legality of forcible responses
to territorial incursions by military or police units of another State.
40
e. The legal discourse of States
Having found that there are theoretical difficulties with the idea that small-scale armed
confrontations between States remain outside the scope of Article 2(4) UN Charter, the
question next arises how such confrontations are treated in the legal discourse of States, viz.
the exchanges of claims and counter-claims relating to specific incidents.
On the one hand, various precedents exist where debate arose, for instance, in relation to the
interception of military aircraft without the incidents being framed by reference to Article 2(4)
UN Charter.130 This is particularly true for several precedents involving the downing of US
military aircraft by Soviet forces in the early days of the Cold War (1950-1960). Thus, in the
early 1950s, the United States instituted two separate proceedings against the Soviet Union
and Czechoslovakia respectively in relation to the shooting of US military aircraft allegedly
beyond the territorial airspace of the aforementioned States (and allegedly without the States
having given advance warning). While both cases were eventually withdrawn, neither
application made a direct reference to Article 2(4) UN Charter.131 In a similar vein, no such
references surface in the exchanges of claims and counter-claims concerning the shooting of a
US Navy Aircraft by Soviet forces in 1954.132 Finally, the same is to certain extent true in
respect of the cited shootings of a US U-2 spy plane (over Soviet airspace) and the RB-47
plane by the SU in 1960. In the relevant Security Council debates (which focused largely on
130
See e.g., O. Corten, op. cit., supra note 1, at 64.
131
ICJ, Aerial incident of October 7th, 1952 (United States v. USSR), Application, available at http://www.icj-
cij.org/docket/files/28/9071.pdf; ICJ, Aerial incident of March 10thh, 1953 (United States v. Czechoslovakia),
Application, available at http://www.icj-cij.org/docket/files/25/9057.pdf.
132
See (1954) U.N.Y.B., at 47-50; UN Doc. S/3287 (US); UN Doc. S/3288 (USSR, speaking of a violation of the
Soviet frontier); UN Doc. S/3304 (US); UN Doc. S/3308 (USSR, speaking of a violation of the Soviet frontier);
UN Doc. S/PV.679-680.
41
the factual accounts of the respective incidents), a majority rejected the idea that intrusions by
spy planes (which were rife at the time) constituted acts of ‘aggression’.133
On the other hand, the cited materials do not suggest that the discussions were framed in ‘law
enforcement’ terms either. Rather, the United States consistently condemned the shootings as
“hostile and belligerent acts under international law”.134 Furthermore, the language of ‘self-
defence’ was on occasion invoked, both by the Soviet Union (to justify the shooting of
intruding aircraft)135 and by the US (to justify the use of force in the context of a localized
133
See UN Doc. S/PV.857-860 (on the U2-incident) and UN Doc. S/PV.880-883 (on the RB-47 incident). In
both cases, the Soviet Union called upon the Security Council to label US infringements of its territorial airspace
as ‘aggression’ (e.g., UN Doc. S/PV.857, at §§ 24 et seq.; UN Doc. S/PV.880, at §§ 19, 38 (also referring to ‘the
use of force’). See in particular UN Doc. S/PV.860, at §§ 7-9. Its position was supported by Poland (UN Doc.
S/PV.858, at §§ 85, 90; UN Doc. S/PV.883, at §§ 8, 11, 17). A majority of States nonetheless dismissed the
suggestion that a territorial incursion by a spy plane could of itself amount to an ‘act of aggression’ (UN Doc.
S/PV.857, at § 115 (US); UN Doc. S/PV.858, at §§ 10 (France), 49 (Argentina), 64 (China); UN Doc. S/PV.859,
at §§ 8, 10 (Tunisia: no aggression, since the aircraft was unarmed), § 47 (Ecuador); UN Doc. S/PV.882, at § 31
(Italy). In so doing, some States expressed understanding for the US surveillance flights in light of Soviet
secrecy over its arms build-up as well as in light of similar acts by Soviet forces themselves. The UK and France
went as far as to suggest that a territorial incursion by a spy plane did not qualify as a ‘use of force’ in the sense
of Article 2(4) (UN Doc. S/PV.858, at § 25 (UK); UN Doc. S/PV.881, at § 80 (France – elsewhere France did
acknowledge that such incursions admittedly entailed interference in a State’s internal affairs (UN Doc.
S/PV.858, at § 9)).
134
See e.g., ICJ, Aerial incident of October 7th, 1952 (United States v. USSR), US Application, available at
http://www.icj-cij.org/docket/files/28/9071.pdf, at 20 (“hostile and belligerent acts under international law”);
ICJ, Aerial incident of March 10thh, 1953 (United States v. Czechoslovakia), US Application, available at
http://www.icj-cij.org/docket/files/25/9057.pdf, at 15, 18 (“effort to exert terror, threats and illegal force over the
area of Germany near the Czechoslovak border”), 24 (“aggressive action”). In relation to the 1954 incident: UN
Doc. S/3287; UN Doc. S/PV.679, at § 34 (US).
In relation to the 1954 incident, the US moreover did suggest that, by its ‘unprovoked attack in the air space over
the high seas’, the Soviet Union had committed a “clear violation of the obligations undertaken by [it] when it
adhered to the Charter of the United Nations. In its adherence to that Charter, the Soviet Union promised not to
resort to the use of force in any manner incompatible with the purposes of the United Nations.” UN Doc.
S/PV.679, at § 32.
135
E.g., (in relation to the 1954 incident): UN Doc. S/PV.679, at § 51 (Soviet Union: “Our aircraft (…) fully
[conformed] to, a principle of international law – the right of a State to defend its frontiers by whatever means
the circumstances require”); UN Doc. S/PV.680, at §§ 83-84 (on the recourse to force against aerial incursions:
42
confrontation between military aircraft).136 The resolution adopted at the end of the
consideration of the U2 case explicitly appealed to all States to refrain from the use or threats
of force in their international relations.137
Second, if the foregoing precedents reveal a certain hesitation to invoke the ‘use of force’
language in the context of small-scale armed confrontations between States, several other
incidents can be identified that were effectively discussed by reference to Article 2(4) and/or
51 UN Charter. In relation to the aforementioned shooting of an American military air
transport within Yugoslav airspace in 1946, for instance, the US argued that, since the plane
in no way constituted a threat to the sovereignty of Yugoslavia, the actions were “a plain
violation of the obligation under the Charter of the United Nations not to use force except in
self-defence.138 In a similar vein, in 1981, a confrontation between US and Libyan military
aircraft in the Gulf of Sidra (at a time when tension between the two States was high and the
US was conducting a military exercise off the Libyan coast), resulted in the shooting of two
Libyan aircraft.139 In reaction, Libya complained before the Security Council that by ‘using
force and direct threat’ against it, the US had committed “an act of aggression, thus violating
the United Nations Charter and the principles of international law”.140 The United States by
“This is natural and right. Every State which has any respect for its sovereignty, its independence and its
security in all cases has the right of self-defence (…).”). See also UN Doc. S/PV.883, at § 11 (referring to Article
51 UN Charter).
136
ICJ, Aerial incident of March 10thh, 1953 (United States v. Czechoslovakia), US Application, available at
http://www.icj-cij.org/docket/files/25/9057.pdf, at 21; UN Doc. S/3304, at 12.
137
SC Res. 135 (1960). Interestingly, in the Repertoire of the practice of the Security Council, the incident is
listed in the section ‘consideration of the provisions of Article 2 of the Charter’, sub-section ‘Article 2(4) of the
Charter’. United Nations Department of Political and Security Council Affairs, Repertoire of the Practice of the
Security Council 1959-1963 (New York) (1965), at 281-282.
138
See quote in O.J. Lissitzyn, loc. cit., supra n. 77, at 571.
139
See (1981) U.N.Y.B., at 360-361; S.R. Ratner, loc. cit., supra n. 93.
140
UN Doc. S/14642; UN Doc. S/14636. The League of Arab States similarly denounced the US conduct as
‘aggression’. See: UN Doc. S/14638/Rev.1.
43
contrast asserted that it had acted in accordance with Article 51 UN Charter.141 When Pakistan
brought proceedings before the ICJ pursuant to the shooting of a military aircraft by India
allegedly over Pakistani territory (claiming 16 lives), it claimed that India had infringed
Article 2(4) UN Charter.142 On various occasions, States such as Libya, Lebanon and Iraq,
have moreover complained of repeated incursions of their airspace to the UN Security
Council, thereby explicitly asserting their right of self-defence.143 In a letter to the Security
Council dated 4 February 2003, for instance, Lebanon declared that “given that the Israeli
violations of (…) Lebanese airspace constitute unlawful acts of aggression and provocation,
Lebanon will exercise its natural and lawful right of self-defence, opposing them with ground
anti-aircraft fire.”144 In a similar vein, it is worth noting that military doctrines often
explicitly construe the use of force against intruding military vessels or aircraft by reference
to the (Charter) rules on the use of force (in particular the right of self-defence), rather than as
a form of ‘law enforcement’. The US Commander’s Handbook on the Law of Naval
Operations, for instance, states that “[m]ilitary aircraft intruding into foreign airspace on a
military mission may constitute a sufficient threat to justify the use of force in self-defense.
This appears true both for tactical military aircraft capable of directly attacking the
overflown state and for unarmed military aircraft capable of being used for intelligence-
gathering purposes.”145 The Australian ‘Operations Law for RAAF Commanders’ similarly
141
UN Doc. S/14632. Note: O’Connell invokes the Gulf of Sidra incident as evidence in support of the existence
of a de minimis threshold (O’Connell, loc. cit., supra n. 2, at 106). This reasoning is nonetheless at odds with the
formal invocation of Article 51 UN Charter by the US before the UN Security Council.
142
E.g., ICJ, Case concerning the Aerial incident of 10th August 1999 (Pakistan v. India), memorial of the
government of Pakistan on jurisdiction, available at http://www.icj-cij.org/docket/files/119/8308.pdf.
143
UN Doc. S/2003/148 (Lebanon); UN Doc. S/2001/370 (re. US and UK violations of Iraqi airspace, explicitly
referring to Article 51 UN Charter) UN Doc. S/14094, Annex, at 2-3 (Libya, regarding US aerial incursions,
reserving the ‘right of legitimate defence’).
144
UN Doc. S/2003/148 (Lebanon).
145
Commander’s Handbook on the Law of Naval Operations, NWP 1-14M, loc. cit., supra n.80, at Section 4.4.2.
See also Sections 2.5.2.1 and 2.5.2.4 (on warships).
44
states that “[t]here is no general right to attack an intruder, whether civil or military. (…)
Thus an intruding aircraft may only be attacked where the right to invoke Article 51 self-
defence can be demonstrated.”146
In terms of naval incidents, mention can be made of the sinking of the Israeli destroyer Eilat
in UAR territorial waters in the aftermath of the 1967 Six-Day War (see also above).
According to the UAR, the naval incursion constituted an ‘aggressive act’ in flagrant violation
of the Security Council’s cease-fire resolution, which had compelled UAR naval units to act
in ‘self-defense’ to stop the vessel’s advance.147 In the ensuing Security Council debates,
some agreed that the UAR had acted in self-defence in the face of ‘aggression’,148 although
most States confined themselves to urging both parties to show restraint.149 Again, in 1968,
when North Korea seized the USS Pueblo,150 the United States (claiming that the arrest took
place in international waters), spoke of an ‘aggressive military action’ in violation of the UN
Charter,151 a position supported by the UK.152 Against this, North Korea claimed that the
vessel was caught spying in its in waters and centered its justification on self-defence and
security needs in light of the US ‘open aggression’, rather than on a law enforcement basis153
(a position backed by the Soviet Union).154 In relation to the notorious 1964 Gulf of Tunkin
incident, the US claimed that it its military vessels had allegedly taken defensive action in
146
RAAF, loc. cit., supra n. 92, Section 2.25.
147
UN Doc. S/8205. In spite of Israeli assertions, a Report of the UN Secretary-General confirmed that the
vessel was in UAR territorial waters at the time of the incident. UN Doc. S/7930/Add.49.
148
See in particular: UN Doc. S/PV.1369, at § 57 (Soviet Union); UN Doc. S/PV.1371, at § 35 (Soviet Union).
149
UN Doc. S/PV.1369-1371.
150
See (1968) U.N.Y.B., at 168 et seq.
151
UN Doc. S/8360; UN Doc. S/PV.1388, at §§ 87-87 (referring to a ‘premeditated armed attack’).
152
UN Doc. S/PV.1389, at § 9.
153
See: UN Doc. S/PV.1389, at §§ 63-64 (Soviet Union, quoting with approval the official statements of the
DPKR). See P. Jimenez Kwast, loc. cit., supra n. 77, at 84.
154
Ibid.
45
reaction to deliberate attacks by North Vietnamese torpedo boats.155 The US’ invocation of
Article 51 UN Charter156 was explicitly supported by the UK157 (other States questioned the
US version of the facts and suggested that it had gone beyond mere on-the-spot defensive
action).158 Finally, in 1982, Swedish naval units used depth charges and mines against a
foreign (presumably Soviet) submarine near a top-secret Swedish naval base. A report of the
Swedish Submarine Defence Commission concluded that the actions constituted lawful self-
defence under Article 51 UN Charter.159
On a related note, while it does not constitute State practice, the case before the International
Tribunal for the Law of the Sea relating to the detention by Ghana of the Argentine frigate
ARA Libertad merits attention. In its Order imposing provisional measures of 15 December
2012,160 the Tribunal unequivocally affirms the sovereignty immunity of foreign warships,
even when in the port or internal waters of another State, and orders Ghana to release the
frigate. The Order itself does not make express reference to the UN Charter provisions. It
does, however, note in passing that “any act which prevents by force a warship from
discharging its mission and duties is a source of conflict that may endanger friendly relations
among States” (§ 97). Interestingly, one Judge regretted that the Order failed to clearly state
“that even an attempt to threaten or use of force against a warship would be a matter
155
In casu, the United States claimed that two military vessels had been attacked in the Gulf of Tunkin by high-
speed North Vietnamese boats with machine guns and torpedoes. In response, the US had taken defensive action
against the torpedo boats and support facilities. See (1964) U.N.Y.B., at 147-149.
156
UN Doc. S/PV.1140, at §§ 39-46 (referring to a ‘deliberate armed attack’, ‘aggression’, and invoking Article
51 UN Charter).
157
UN Doc. S/PV.1140, at §§ 78-80 (UK). The operation was also supported by the Republic of China. Ibid., at
§ 83.
158
UN Doc; S/PV.1141, at §§ 24 et seq. (Czechoslovakia), 70 et seq. (Soviet Union). See also: UN Doc. S/5907
(Democratic Republic of Vietnam).
159
See R. Sadurska, loc. cit., supra n. 100, at 47-48; (1982) 28 Keesing’s, 31512.
160
ITLOS, The ‘ARA Libertad’ case (Argentina v. Ghana), Order of 15 December 2012.
46
impinging on the maintenance of international peace and security.”161 In so doing, Judge
Chandrasekhara Rao quotes the following excerpt from Oxman: “An attempt to exercise law
enforcement jurisdiction against a foreign warship is in fact an attempt to threaten or use
force against a sovereign instrumentality of a foreign State. That is primarily the subject
matter of the law regarding the maintenance of international peace and security, not the law
of the sea as such (…).”162
Last but not least, the language of self-defense and of Article 51 UN Charter is also regularly
invoked in relation to small-scale confrontations between ground troops. In 1976, for
example, China stated that a group of Indian troops had intruded into Tibet.163 When told to
withdraw by the staff of a civilian checkpost they had opened fire, whereupon the checkpost
staff had allegedly fired back in self-defense. In February 2007, Israel reported to the Security
Council that soldiers operating within Israeli territory had been fired upon by the Lebanese
army. According to Israel, returning fire was ‘entirely legitimate and in self-defence.’164
Furthermore, reference can be made to an armed incident between Thai and Cambodian
troops in the area of the Temple of Preah Vihear in 2008. Thailand, for its part, considered
“Cambodian soldiers’ intrusion into Thailand’s territory and their shooting at Thai soldiers a
serious violation of Thailand’s sovereignty and territorial integrity. Cambodia’s provocation
constitutes an act of aggression in blatant violation of international law. Thus, Thailand had
no choice but to exercise the inherent right of self-defence, as provided for under the Article
161
Ibid., Separate Opinion of Judge Chandrasekhara Rao, §§ 15-16.
162
Ibid., at § 16. Quote from B.H. Oxman, ‘The regime of warships under the United Nations Convention on the
Law of the Sea”, (1983-84) 24 Va. J. Int’L L., pp. 809, at 815.
163
See (1976) 22 Keesing’s 27548.
164
UN Doc. S/2007/69. Consider in a similar vein, the shooting by the Israeli Defence Forces of two Lebanese
soldiers, following the killing of an Israeli soldier by a Lebanese army sniper in December 2013. ‘Troops shot on
Israel-Lebanon border’, BBC News, 16 December 2013 (citing a statement by the IDF spokesman referring to the
right of self-defence).
47
51 of the [UN Charter].”165 According to Cambodia, however, Thai troops had entered its
territory and “fired guns on Cambodian soldiers, who had no choice but to exercise their right
to self-defence in accordance with Article 51 of the [UN Charter]. As a consequence, two
Cambodian soldiers were killed and two were injured.”166 And in 2006, Israel invoked Article
51 UN Charter in response to an (isolated) cross-border attack by Hezbollah on an Israeli
border patrol, during which two soldiers were captured and three were killed.167 While the
resulting Israeli intervention in Lebanon was widely seen as disproportionate, it is striking
that – in spite of its small-scale nature – most States did regard the original provocation as an
‘armed attack’ in the sense of Article 51 UN Charter.168 Even if it was carried out by a non-
State actor, the precedent illustrates that small-scale attacks can be sufficiently grave to
constitute an ‘armed attack’ and, by definition, grave enough to constitute a ‘use of force’.169
f. Intermediary conclusion
In light of the foregoing, it is concluded that any actual armed confrontation between two
States, even if small-scale and/or localized, comes within the ambit of the Jus ad Bellum. The
author thus agrees with Dinstein that the enforcement by a State of its territorial rights against
an illegal incursion cannot simply be excluded from the scope of Article 2(4) UN Charter.170
Rather, whenever State A deliberately uses (potentially) lethal force within its own territory –
including its territorial sea and its airspace – against military or police units of State B acting
in their official capacity, this amounts to inter-State use of force in the sense of Article 2(4)
165
UN Doc. S/2008/657.
166
UN Doc. S/2008/653.
167
UN Doc. S/2006/515.
168
See UN Doc. S/PV.5488; UN Doc. S/PV.5489; UN Doc. S/PV.5493. See also the overview of reactions of
the international community in T. Ruys, ‘Crossing the Thin Blue Line: an inquiry into Israel’s recourse to self-
defense against Hezbollah’, (2007) 43 Stanford J.I.L., pp. 265-294, at 268-271.
169
Recall that this suggestion is not necessarily to contrary to the case-law of the ICJ. See above.
170
Y. Dinstein, op. cit., supra n. 29, at 213, note 1230.
48
UN Charter.171 It flows from the foregoing that, in the context of armed confrontations
between States, the application of Article 2(4) UN Charter is not subject to any de minimis
threshold.
g. What about unlawful territorial incursions that do not result in actual armed
confrontation? An exercise in reverse engineering
The question nonetheless remains to what extent unlawful territorial incursions by military or
police units (by land, sea or air) that do not result in actual armed confrontations come within
the scope of Article 2(4) UN Charter or not. Interestingly, it has been suggested that one of
the constitutive criteria to determine whether the Article 2(4) threshold is reached, is whether
or not the initial act(s) gave rise to direct confrontations with troops of the territorial State.172
It is certainly true that if State practice sometimes shows a certain reluctance to invoke the
‘use of force’ language in the context of small-scale armed confrontations, this is all the more
so in relation to unlawful incursions that go by without any actual saber-rattling (recall that
this reluctance does not necessarily reflect an underlying legal conviction of the State
concerned – see Section 3(c)). A certain ‘unease’ is also implicit in the ICJ’s findings on
aerial trespass in the Nicaragua case. On the one hand, contrary to a variety of acts (e.g.,
mine-laying or the arming and training of rebels) that are examined under the rubric of the
principle of the use of force,173 the aerial trespass of US military aircraft into Nicaraguan
territory is treated in the section dealing with the sovereignty principle (and is effectively
found to infringe this principle).174 On the other hand, the Court elsewhere stresses that US
171
In similar vein: P. Jimenez Kwast, loc. cit., supra n. 77, at 84-85; J. Kammerhofer, ‘The Armed Activities
Case and Non-state Actors in Self-Defence Law’, (2007) 20 Leiden J.I.L., pp. 89-113, at 105; UN Doc.
A/AC.125/SR.110-114, at 43 (Italy).
172
See O. Corten, op. cit., supra note 1, at 76-77, 88-92.
173
174
Ibid., at § 251.
49
aerial incursions into Nicaraguan territory “cannot be justified either by collective self-
defence (…) nor by any right of the United States to take countermeasures involving the use of
force in the event of intervention by Nicaragua in El Salvador, since no such right exists
under international law.”175 If the Court believes aerial incursions by military aircraft cannot
of themselves qualify as a ‘use of force’, it is somewhat puzzling why it subsequently stresses
that such incursions cannot be justified as ‘countermeasures’ due to the fact that
countermeasures ‘involving the use of force’ are forbidden. In the end, the Court sometimes
acts in mysterious ways…176
In all, there appears to be an intrinsic difficulty with conditioning the application of Article
2(4) on whether the incursion results in actual armed confrontation with the territorial State.
Indeed, this criterion puts the cart before the horse, as it passes over the underlying question
whether the State whose territory is violated would be allowed to take forcible action against
the incursion. It would indeed seem a strange example of circularity if the actual reaction of
the territorial State were to determine the legal qualification of the initial act of the trespassing
State.
No one can seriously contest, for instance, that a large-scale territorial incursion by military
forces of a neighboring State – such as the Russian troop deployment in the Crimea in early
2014177 – can qualify as a ‘use of force’ in the sense of Article 2(4), even if no single shot has
been fired, and even if the incursion is ended (e.g., under political pressure of the international
community) without any actual hostilities. Such reading finds support, for instance, in Article
3(e) of the Definition of Aggression.178
175
Ibid., at § 252.
176
Note that, in the written proceedings, Nicaragua did claim that territorial incursions by US military aircraft
and armed vessels violated Article 2(4) UN Charter. Nicaragua, Memorial dated 30 April 1985, §§ 216 et seq.
177
A crisis still unfolding at the time of writing. See UN Doc. S/PV.7124-7125.
178
Article 3(e) lists as one of the examples of an ‘act of aggression’ “the 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
50
By the same token, the better seems view to be that, whenever more small-scale territorial
incursions by military or police units from another State that warrant, or would have
warranted, a forcible response, they can also be regarded as a ‘use of force’ in the sense of
Article 2(4) UN Charter. Thus, an unlawful territorial incursion (even if small-scale) that
reflects a manifest hostile intent may come within the ambit of Article 2(4) UN Charter
irrespective of whether or not the territorial State choses to respond by force. This is
illustrated, for instance, by the fact that States complaining of hostile incursions by military
aircraft have repeatedly stressed that they would be entitled to act in accordance with the right
of self-defence and have denounced such incursions as acts of aggression.179
If a manifest hostile intent is sufficient to label an unlawful incursion as ‘force’, is it also a
necessary ingredient to this end? A few observations are in order.
On the one hand, as explained above (See Section 4(b)), small-scale territorial incursions will
generally require the territorial State to first take graduated measures, short of the recourse to
armed force, to verify the existence of a hostile intent on the part of the intruder. If the
intrusion ultimately proves essentially harmless (and the intruder does not persist), no forcible
response is permitted.
Furthermore, State practice reveals that, when faced with territorial incursions ostensibly (or
allegedly) lacking a hostile intent, territorial States often refrain from invoking the language
of Article 2(4) and/or 51 UN Charter. Thus, a survey prepared by the ILC Secretariat in 1978
lists various examples of accidental incursions or incidents were shots were accidentally fired
conditions provided for in the agreement or any extension of their presence in such territory beyond the
termination of the agreement”. Clearly, if the mere ‘extension’ of another State’s troops on a State’s territory
after the consent for these troops’ presence has been withdrawn can sometimes qualify as an ‘act of aggression’,
the same must inevitably be true for a territorial incursion for which there was no consent in the first place. This
implicitly affirms that territorial incursions by another State’s armed forces may well come within the ambit of
the legal framework on the use of force.
179
See note 143 above.
51
across a border.180 Reference can be made, for instance, to an incursion by South African
police in 1961 into Basutoland, allegedly ‘by mistake’, and whereby it arrested several
persons; an attack by British forces on the Federation of South Arabia in 1965 due, according
to the UK, to a ‘pilot’s error’, or; the ‘involuntary violation of the Liechtenstein territory’
resulting from a Swiss military exercise whereby a number of shells exploded on
Liechtenstein territory. The incidents were frequently condemned as violations of the
territorial State’s ‘territory’ or ‘territorial sovereignty’,181 and, where appropriate, gave rise to
the payment of indemnities.182 By contrast, they were not labeled as violations of Article 2(4)
UN Charter. Other examples are legion. Reference can be made to a shooting incident in the
Suez Canal in 2008, when a container ship contracted by the US Navy fired warning shots at a
number of small boats approaching it, ‘accidentally’ killing an Egyptian cigarette vendor. 183
In a similar vein, following the destruction by NATO forces of the Chinese embassy in
Belgrade on 7 May 1999, killing four Chinese nationals and injuring 20 others, 184 – a tragic
intelligence mistake for which NATO and the US were quick to apologize –, China
condemned the action as “a gross violation of Chinese sovereignty and a random violation of
the Vienna Convention on Diplomatic Relations and norms of international relations.”185 The
US and China eventually reached a settlement under which the US agreed to pay USD 4.5
180
ILC Secretariat, ‘ “Force majeure” and “fortuitous event” as circumstances precluding wrongfulness: survey
of State practice, international judicial decisions and doctrine’, UN Doc. A/CN.4/315, (1978) Yb. I.L.C. Vol. II –
Part One, at 99-104. Corten cites many of the incidents to substantiate his argument that Article 2(4) is subject to
a de minimis threshold. See O. Corten, op. cit., supra note 1, at 80.
181
E.g., UN Doc. A/CN.4/315, at §§ 127, 128.
182
E.g., Ibid., at §§ 128, 130, 146.
183
E.g., ‘Bush gives apology for Suez shooting’, N.Y. Times, 28 March 2008; ‘Navy says Egyptian dies in Suez
clash’, N.Y. Times, 27 March 2008; ‘US examines Suez Canal shooting’, BBC News, 25 March 2008. The US
President offered apologies and pledged that the US would cooperate in the investigation of the incident. Despite
the strong public outcry in Egypt, nothing indicated that Egypt regarded the incident as coming within the scope
of Article 2(4) UN Charter.
184
See e.g., (1999) 45 Keesing’s, 42955.
185
UN Doc. S/1999/535 (China), 11 May 1999. Also: UN Doc. S/1999/541 (Sudan).
52
million in compensation to the victims of the bombing.186 Article 2(4) UN Charter was never
mentioned. In a similar vein, in November 2004, Japan protested against a territorial incursion
by a submerged Chinese submarine and insisted that the incident would not be repeated.187
China suggested that the submarine had entered Japanese territorial waters by mistake and
apologized for the events.
On the other hand, it is recalled that the reluctance to invoke the provisions on the ‘use of
force’ does not necessarily reflect an underlying legal conviction of the State concerned.
Furthermore, if the negotiations over the Definition of Aggression reveal support for the view
that intrusions lacking a hostile intent do not amount to ‘aggression’, some statements suggest
that ‘hostile intent’ is not a necessary ingredient for a ‘use of force’. At one point, for
instance, the US delegate suggested that the “criterion of intent could help in distinguishing
between an act of aggression and less serious forms of the use of force.”188 More generally, it
is well-known that State responsibility is predicated on a principle of ‘objective’ liability, and
that, unless the primary rules dictate otherwise, no ‘intention’ or ‘mens rea’ is needed to
engage the secondary consequences of responsibility.189 Clearly, it follows from Article 30 of
the ICC Rome Statute and from the ‘Amendments to the Elements of Crimes’ annexed to the
Kampala Resolution,190 that for purposes of the ‘crime of aggression’, the perpetrator must
have intended (that is, meant) to plan, prepare, initiate or execute an act of aggression.191 By
186
S. Faison, ‘U.S. to pay China for embassy bombing’, N.Y. Times, 31 July 1999.
187
See Y. Hamamoto, ‘The incident of a submarine navigating underwater in Japan’s territorial sea’, (2005) 48
Japanese Annual I.L., pp. 123-129.
188
UN Doc. A/AC.134/SR.69, at 23.
189
J. Crawford, op. cit., supra note 13, at 61.
190
Resolution RC/Res.6, loc. cit., supra note 39, Annex II. The ‘Elements of Crimes’ indicate that the
perpetrator must have been aware of the factual circumstances that established that the use of armed force
constituted a (manifest) violation of the Charter of the United Nations. By contrast, it is not required to prove
that the perpetrator made a legal evaluation as to whether the use of armed force was inconsistent with the UN
Charter.
191
See C. McDougall, op. cit., supra n. 40, at 189-198.
53
contrast, there is no express authority to support the view that ‘intent’ is needed to establish an
infringement of Article 2(4) UN Charter. Thus, in the case before the ICJ, Iran repeatedly
asserted that whether or not the shooting of Iran Air Flight 655 by the USS Vincennes resulted
from a mistake had no impact on the application of Article 2(4) and 51 UN Charter.192
In the end, while customary practice is not always consistent, it could be argued that a
distinction must be made between incursions that are essentially harmless (primarily
accidental incursions) and which are not accompanied by actual use of armed force (no loss of
life or destruction of property), on the one hand, and the accidental projection of armed force
(e.g., shots or shells fired) across a border, on the other hand. In the former scenario, State
practice indicates that the incursions can be regarded as a violating the territorial integrity of
the State concerned, but not as a ‘use of force’ in the sense of Article 2(4). In the latter
scenario, however, the territorial State is not necessarily precluded form qualifying the act as
a (small-scale) ‘use of force’ in the sense of Article 2(4) (even if it may well chose not to).
5. No general exclusion of ‘targeted operations’ from the scope of Article 2(4)
UN Charter
a. General observations
If actual armed confrontations between two States, even if small-scale and/or localized, come
within the ambit of Article 2(4) UN Charter, the question remains to what extent certain
‘targeted operations’ within the territory of another State, such as targeted killings, small-
scale counter-terrorist operations or rescue of nationals operations, escape from its scope.
Some have argued that operations of this nature do not achieve the minimum threshold to this
end.193 Corten claims, for instance, that ‘targeted operations’ remain beyond the scope of the
192
ICJ, Aerial incident, Memorial submitted by Iran, loc. cit., supra n. 108, at §§ 4.48 et seq.
193
O. Corten, loc. cit., supra n. 13, at 856; M.E. O’Connell, loc. cit., supra n. 2, at 102 (“limited armed force to
pluck hostages away from armed captors would (…) appear to be outside of the Article 2(4) prohibition.”), 106-
54
prohibition on the use of force provided they (1) remain small-scale; (2) do not result in direct
confrontations with troops of the territorial State, and; (3) do not ‘defy’ the territorial State.194
If Corten suggests that this position ‘undoubtedly reflects customary international law’,195 it
appears that, even if gaining ground, it is certainly not shared universally in legal doctrine. As
for ‘targeted killing’, for instance, Melzer finds that: “Authors generally agree that, in
principle, the resort by a State to targeted killings within another State falls under the
prohibition on interstate force expressed in Article 2(4) UN Charter and, in order to be
justified, requires either a situation of interstate self-defence, or an authorization on the part
of the territorial State, or the UN Security Council.”196 A similar position is implicit in the
Study on targeted killings of the UN Special Rapporteur on extrajudicial, summary or
arbitrary executions. In a similar vein, Kress notes that “[t]he majority of the discussants over
the last six decades has not been questioning the qualification of the forcible protection of
nationals abroad as a use of force within the meaning of Article 2(4) of the UN Charter.” 197
More generally, there are several reasons why the general exclusion of ‘targeted operations’
from the scope of Article 2(4) UN Charter cannot be accepted. Before having a closer look at
State practice, two general observations can be made.
First, as before, it is at least plausible that whenever one State deliberately sends military or
police forces into the territory of another (without the latter’s authorization) to take forcible
action, this automatically affects the ‘international relations’ between those States in the sense
107. A similar approach is reflected in the report of the Independent International Fact-Finding Mission on the
Conflict in Georgia (supra note 6).
194
O. Corten, op. cit., supra n. 1, at 55, 85.
195
196
N. Melzer, Targeted Killing in International Law (Oxford: OUP) (2008), at 51 (with references). Consider
also the approach of the UN Special Rapporteur on extrajudicial executions: Human Rights Council, Report of
the Speical Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston – addendum: study on
targeted kllings, UN Doc. A/HRC/14/24/Add.6, 28 May 2010, at §§ 34-36.
197
C. Kress, ‘Forcible protection of nationals abroad’, 2012, paper prepared for the ILA Committee on the Use
of Force, on file with the author, at 39-40.
55
of Article 2(4) UN Charter. The mere fact that the target of the operation are private
individuals, rather than State organs, does not alter this finding. This remains so, even if the
private individuals do not have the nationality of the territorial State in which the operation
takes place, and no actual damage is done to State infrastructure.
Second, as before, the suggestion that targeted operations would only constitute a ‘use of
force’ in the sense of Article 2(4) if they were to give rise to direct confrontations with the
territorial State, puts the cart before the horse. Clearly, subject to the immunities recognized
under international law, States have the sole competence to exercise enforcement jurisdiction
within their respective territories198 and should not sit by idly and watch as other States
engage in forcible action within their territory.199 More generally, it is uncontroversial that,
except when (and insofar as) a targeted operation constitutes a proper exercise of the right of
self-defence, the territorial State is fully entitled to deploy its military and police forces so as
to prevent another State from abducting or killing a person on its soil. As explained above, it
would appear to make more sense conceptually to link the qualification of a ‘targeted
operation’ as a ‘use of force’ with the question whether or not the territorial State would be
entitled to use force to prevent/halt the operation, rather than to have the legal qualification of
the original act determined by the actual choice of the territorial State to forcibly respond or
not.
b. State practice - weighing the evidence
As far as State practice is concerned, it must be acknowledged that there are various
precedents, for instance, of international abductions (e.g., the Eichman case), or unauthorized
198
E.g., Draft Declaration on Rights and Duties of States, (1949) Yb. I.L.C. 286, Article 2.
199
By way of illustration, when in 1978 Egyptian commandos raided the Cypriot airport of Larnaca, with a view
to freeing hostages held by two Palestinian militants, Cypriot forces clearly believed they were entitled to
intervene and forcibly abort the raid. See supra, note 65.
56
operations involving the hot pursuit of criminal suspects across a border, that were framed
without reference to the ‘use of force’ language. Reference can be made, for instance, to an
incident between Switzerland and France in 1986, when Swiss police pursued offenders into
French territory and opened fire on them.200 In a similar vein, when in 1985 French secret
agents sank the Greenpeace ship Rainbow Warrior in the port of Auckland (resulting in the
death of a Dutch national), New Zealand complained of a ‘serious violation of [its]
sovereignty and of the Charter of the United Nations’.201 Article 2(4) UN Charter was not
cited.
On the other hand, apart from the fact that the non-invocation of the ‘use of force’ language
may at times be due to diplomatic considerations, extensive counter-evidence exists. Thus,
throughout the colonial era, cross-border raids by Israel, South Africa and Portugal against
national liberation movements operating from abroad were generally condemned as acts of
‘aggression’. The relevant Security Council resolutions and debates left little doubt that these
attacks were seen as coming within the ambit of the Charter rules on the use of force. 202 For
instance, following an airborne raid into Botswana by South African security forces which
killed 12 people, including 5 ANC members, the UNSC ‘strongly [condemned] South
Africa’s recent unprovoked and uwarranted military attack on the capital of Botswana as an
200
O. Corten, op. cit., supra note 1, at 54. Corten refers to several cases where the accused relied on their
unlawful arrest in foreign territory as a defence (see e.g., the Joint Customs Post Case (1991) 86 ILR 525-32),
involving the arrest of a Dutch citizen by German customs officers in Dutch territory). Another example would
be the Toscanino case of 1974. In casu, a US Court of Appeals found that the abduction of Mr. Toscanino, an
Italian national suspected of importing narcotics into the United States, infringed the territorial sovereignty of
Uruguay. United States Court of Appeals, Second Circuit, USA v. Francisco Toscanino, 15 May 1974, 500 F.2d
267, (1981) 61 ILR 189 et seq.
201
Memorandum of the Government of New Zealand to the Secretary-General of the United Nations, (1986)
RIAA, Vol. XIX, at 201, 205.
202
S.-D. Bachmann, ‘Targeted killings: contemporary challenges, risks and opportunities’, (2013) J.C.S.L., pp.
1-30, at 24. See also T. Ruys, op. cit., supra n. 9, at 399-405; C. McDougall, op. cit., supra n. 40, at 84-85.
57
act of aggression against that country and a gross violation of its territorial integrity and
national sovereignty’.203
Of particular interest is the assassination of PLO Executive Committee member Khalil al-
Wazir by Israeli commandos in Tunis in 1988. Indeed, in spite of its ‘extremely limited’ 204
nature – the operations resulted in the killing of a Tunisian citizen and three Palestinians,
including al-Wazir – the operation was widely condemned, with numerous States explicitly
denouncing it as an aggression and/or a breach of Article 2(4) UN Charter.205 With 14 votes in
favour and one abstention (the US), the Security Council ‘vigorously condemned’ “the
aggression (…) against the sovereignty and territorial integrity of Tunisia in flagrant
violation of the Charter of the United Nations (…).”206 The preamble of the resolution
explicitly refers to Article 2(4).
In 1998, the US responded to the bombings by Al Qaeda of its embassies in Kenya and
Tanzania by conducting air strikes against an alleged chemical weapons plant in Sudan as
well as terrorist training camps in Afghanistan.207 The US reported the actions to the Security
Council as an exercise of its right of self-defence.208 A number of western States approved the
US actions without elaborating on their legal basis, or simply expressed understanding.209
203
SC Res. 568(1985).
204
205
(1988) U.N.Y.B., at 229-230. Consider, for example: UN Doc. S/PV.2807, at 6 (Tunisia), 17-18 (PLO), 42
(Jordan), 56 (Algeria); UN Doc. S/PV.2808, at 17 (Yugoslavia), 38-40 (Somalia); UN Doc. S/PV.2810, at 7
(Sudan), 21 (Zambia).
206
SC Res. 611(1988).
207
See J. Lobel, ‘The use of force to respond to terrorist attacks; the bombing of Sudan and Afghanistan’, (1999)
24 Y.J.I.L., pp. 537-57.
208
UN Doc. S/1998/780.
209
See S.D. Murphy, ‘contemporary practice of the United States relating to international law’, (1993) 93
A.J.I.L., pp. 161-94, at 164-5.
58
Other States condemned the operations, with the League of Arab States, for instance,
denouncing the strike against the El-Shifa plant in Sudan as an act of aggression.210
It is moreover striking that the United States has consistently relied on the right of self-
defence in order to justify targeted killings abroad. A US ‘Memorandum on Executive Order
12333 and Assassination’, promulgated in 1989, for instance, explicitly refers to Article 2(4)
UN Charter, and stresses that: “In peacetime, the citizens of a nation – whether private
individuals or public figures – are entitled to immunity from intentional acts of violence by
citizens, agents, or military forces of another nation.”211 The Memorandum notes that it is
possible to use targeted military force in peacetime against single individuals on the basis of
Article 51 UN Charter.212 In a similar vein, the right of self-defence (in combination with the
law of armed conflict) was invoked as the legal basis for targeted killings in the 2012 speech
by U.S. Attorney-General Eric Holder,213 as well as in the Department of Justice’s White
Paper on Targeted Killing.214 The same argument was also used to justify the US raid on the
compound in Abottabad, Pakistan, resulting in the killing of Osama Bin Laden.215
Conversely, in spite of the fact that there is some confusion as to whether the Pakistani
authorities condone(d) US drone strikes within their territory,216 a recent judgment of the
Peshawar High Court, expressly citing Article 2(4) UN Charter and the ‘use of force’ section
of the Friendly Relations Declaration, denounces the drone strikes as a ‘clear and naked
aggression on sovereign territory / airspace of Pakistan’ ‘in clear violation of the UN Charter
210
Ibid.; UN Doc. S/1998/879. See also the references in T. Ruys, op. cit., supra n. 9, at 426-427.
211
Colonel W. Hays Parks, ‘Memorandum on Executive Order 12333 and Assassination’, available at
http://www.hks.harvard.edu/cchrp/Use%20of%20Force/October%202002/Parks_final.pdf.
212
Ibid.
213
See the excerpts in (2012) 106 A.J.I.L., pp. 643-685, at 673-676.
214
See the excerpts in (2013) 107 A.J.I.L., pp. 431-477, at 463-466.
215
See the excerpts in (2011) 105 A.J.I.L., pp.568 -611, at 603-65.
216
See supra note 74
59
(…)’.217 On 10 December 2013, the Pakistani Parliament condemned the drone attacks on its
territory as a “violation of the principles of the Charter of the United Nations, international
laws and humanitarian norms.”218
Several other precedents exist where States have tried to justify more or less ‘targeted’
operations against non-State armed groups (allegedly) carrying out cross-border attacks by
reference to the right of self-defence and/or whereby such operations were denounced by the
‘victim’ State as acts of ‘aggression’, or as contrary to the prohibition on the use of force.
Thus, in September 2002, Russia warned that it would undertake ‘special operations designed
to eliminate bandit units’ operating from Gerogia’s Pankisi Gorge on the basis of Article 51
UN Charter.219 Georgia, by contrast, rejected the statement as an ‘overt threat to use military
force against a neighbouring sovereign State’.220
Reference can also be made to ‘Operation Phoenix’, a military raid by Colombian forces on a
remote camp of the Revolutionary Armed Forces of Colombia (FARC) located within
Ecuadiorian territory, some 1,800 meters from the frontier with Colombia. The operation,
which took place on 1 March 2008, resulted in the killing of 25 guerrillas, including senior
FARC commander Raúl Reyes (but in no way ‘targeted’ Ecuadorian troops or infrastructure).
Interestingly, the Colombia asserted that it ‘had (…) acted according to the principle of self-
217
Peshawar High Court, Dost Muhammad Khan, C.J., Judgment of 11 April 2013, available at
http://www.peshawarhighcourt.gov.pk/images/wp%201551-p%2020212.pdf. Paragraph 6 of the judgment
briefly tackles the role of the Pakistani authorities.
218
National Assembly of Pakistan, Resolution dated 10 December 2013, available at
http://www.na.gov.pk/en/resolution_detail.php?id=140. Note: a few days later, the parliament of Yemen adopted
a similar resolution condemning US drone attacks (in spite of the fact that these attacks are apparently carried
out with the consent of the Yemeni authorities) and stressing ‘the importance of protecting all citizens from any
aggression’ and ‘the importance of preserving the sovereignty of Yemeni air space.’ ‘Yemen parliament bans
drone attacks,’ The News, 16 December 2013; ‘Yemeni parliament votes to ban drone attacks’, Reuters, 16
December 2013.
219
UN Doc. S/2002/1012.
220
UN Doc. S/2002/1035. Note: on previous occasions, Georgia denounced Russian incursions (denied by
Russia) as ‘aggression’ incompatible with Article 51 UN Charter. See e.g., UN Doc. S/2002/950.
60
defence.’221 Ecuador and Venezuela responded furiously to the Colombian ‘aggression’ and
called for regional condemnation.222 Both the Rio Group and the Organization of American
States denounced the operation as a violation of Ecuador’s territorial integrity, while also
referring to the prohibition on the use of force and the non-intervention principle (as
enshrined in Art. 19 OAS Charter).223
In all, the idea that ‘targeted operations’ are as such outside the scope of Article 2(4) UN
Charter does not correspond to State practice.
c. Pandora’s box?
From a policy perspective, the acceptance that ‘targeted operations’ which remain small-scale
and allegedly do not ‘defy’ the territorial State remain below the ‘threshold’ of Article 2(4)
UN Charter may well be opening pandora’s box. Indeed, if this premise is accepted, the
implication is that States engaging in such operations may rely on the full range of ‘grounds
precluding wrongfulness’ – in particular necessity, distress, force majeure or countermeasures
– to (attempt to) justify them. Some have stressed that the cited grounds precluding
wrongfulness “are limited by very strict conditions, which are rarely met in practice.”224
However, reliance on, for instance, proportionality or necessity, may be difficult, but would
hardly be impossible in the scenarios envisaged here.
221
Comunicado No. 081 del Ministeria de Relaciones Exteriores de Colombia, Bogotá, 2 March 2008, at
http://web.presidencia.gov.co/comunicados/2008/marzo/archivo.html.
222
See e.g., ‘Ecuador seeks to censure Colombia’, BBC News, 5 March 2003; ‘Colombia raid “must be
condemned”’, BBC News, 6 March 2003; S. Romero, ‘Crisis at Colombia border spills into diplomatic realm’,
N.Y. Times, 4 March 2008. UN Doc. S/2008/146 (Ecuador).
223
Rio Group, ‘Declaration of the Heads of State and Government of the Rio group on the recent events between
Ecuador and Colombia’, Santo Domingo, 7 March 2008, Annex 2 to the ‘Report of the OAS Commission that
visited Ecuador and Colombia’, 16 March 2008, Doc. OEA/Ser.F/II.25, RC.25/doc.7/08; OAS, ‘Resolution of
the twenty-fifth meeting of consultation of ministers of foreign affairs’, 17 March 2008, Doc. OEA/Ser.F/iI.25,
RC.25/RES.1/08 rev.1 (denouncing the operation as a violation of both Article 19 and 21 of the OAS Charter).
224
61
Consider the following: Over the past few years, the US administration has substantially
bumped up the number of cross-border drone attacks. So far, the US position appears to be
that such operations are lawful under international law when they are conducted with the
approval of the territorial State, or in accordance with the right of self-defence.225 If it is
accepted that such (small-scale) ‘drone attacks’ remain below the scope of the prohibition on
the use of force, it is hard to see what would stop the United States – or any other State for
that matter – from claiming that such strikes constitute ‘countermeasures’ in the sense of
Article 49-54 DASR. Indeed, in many cases, a credible argument can be made that the
territorial State has committed ‘internationally wrongful conduct’, for example, by
deliberately allowing its territory to be used by non-State armed groups that pose a threat to
other States, by failing to exercise its duty to diligently act against such groups operating from
its territory, or simply by failing to comply with the duty to try or extradite individuals
suspected of having committed certain crimes. It could then be argued that the
countermeasures are proportional to the injury suffered and (at least partially) aim at inducing
the territorial State to cease its internationally wrongful conduct (e.g., to stop harbouring
terrorist groups). Subject to the procedural requirements of Article 52 DASR – which requires
States to notify their decision to take countermeasures and first offer to negotiate – it could be
claimed that targeted operations qualify as lawful countermeasures.
There may even be a more straightforward legal basis. Indeed, in spite of the usual insistence
that ‘necessity’ is subject to very stringent limitations, once it is accepted that certain
‘targeted’ cross-border operations remain below the threshold of Article 2(4) UN Charter,
reliance on ‘necessity’ could well become highly attractive. Contrary to what is the case for
‘countermeasures’, reliance on ‘necessity’ does not presuppose an unlawful conduct on the
225
Note: the present author believes that the US’ interpretation of the right of self-defence in this context often
stretches to the absurd the necessity and proportionality criteria, as well as the ‘armed attack’ criterion, yet this is
not the subject of the present contribution
62
part of the other State (e.g., the harbouring and supporting of a non-State armed group on its
soil). It could then be claimed that, in light of the threat posed by the specific target (e.g., a
terrorist leader) to the security of the acting State, the target’s elimination constitutes the ‘only
way for [that] State to safeguard an essential interest against a grave and imminent peril’ (cf.
Art. 25 DASR). In a similar vein, the State carrying out the operation could also claim that the
operation, given its targeted and small-scale nature, did not “seriously impair an essential
interest” of the territorial State. One can imagine that it may be far from obvious for the
territorial State to demonstrate that the target of the operation posed no ‘grave and imminent’
threat to the security of the intervening State, or that the cross-border operation was not the
‘only way’ to safeguard the intervening State’s interests.
In a similar vein, it is not unthinkable that grounds precluding wrongfulness226 would be
invoked in an attempt to justify the abduction of a criminal suspect (e.g., a high-profile
suspected war criminal such as Eichmann) or even the abduction or killing of an opposition
leader in exile campaigning against the government of his State of nationality.
In short, if it were accepted that small-scale targeted operations remain outside the scope of
the prohibition on the use of force, this would make it far easier for countries – and not just
the US – to come up with a (more or less credible) legal justification for such operations – in
spite of the absence of an ‘armed attack’ or consent of the territorial State.
One might object that, so far, attempts to justify such operations by reference to certain
grounds precluding wrongfulness (other than consent and self-defence) have been extremely
rare and that the risk should therefore not be exaggerated. This, however, is a chimera. On the
one hand, the reason why States have only very rarely attempted to justify forcible cross-
border operations by reference to one of the grounds precluding wrongfulness may precisely
consist in their conviction that the invocation of such arguments is simply excluded – notably
226
Other than self-defence or the consent of the territorial State.
63
because such operations come within the scope of Article 2(4) UN Charter. 227 On the other
hand, if, for instance, ‘necessity’ or ‘countermeasures’ have hardly ever been relied on to
justify such operations, nothing guarantees that this would remain a constant. Once the idea of
a de minimis threshold gains momentum, it may not take long for States to find new ways to
justify controversial operations through a (creative?) application of certain grounds precluding
wrongfulness.
The implication is that, while proponents of a de minimis threshold for Article 2(4) UN
Charter may well see this as a well-intentioned and useful construction, from a policy
perspective, to justify the legality of certain forcible acts whose legality is not in principle
contested (e.g., proportional forcible action against an intruding military aircraft – see supra),
while simultaneously keeping the bar for actual ‘self-defence’ relatively high (with a view to
avoiding escalation of inter-State conflicts), this quest may turn out counter-productive. On
the one hand, for the reasons spelled out in section 4, this approach cannot provide a credible
legal basis for certain forcible actions that are generally deemed lawful. At the same time, it
would tend to ‘legalize’ a variety of targeted operations generally considered unlawful (save
when flowing from the right of self-defence).
d. Intermediary conclusion
In the end, the suggestion that (unauthorized) ‘targeted operations’ in the territory of a third
State remain outside the scope of the prohibition of Article 2(4) UN Charter is both
undesirable from a policy perspective, and incompatible with State practice. The better view
227
It is striking that Corten, in relation to the failed US attempt to rescue the Tehran hostages, stresses that both
States and scholars discussed the operation ‘by reference to self-defence and not to necessity or to
countermeasures’. According to Corten, “it is significant that the concept of self-defence is preferentially
construed very broadly rather than having recourse to some other justification which, if admitted, might have
proved a more credible legal argument.” O. Corten, op. cit., supra n. 1, at 228.
64
is that any deliberate projection of lethal force onto the territory of another State (even if not
‘targeting’ the State itself) will normally trigger Article 2(4) UN Charter.
e. Additional food for thought: hostage rescue operations and the
‘protection of nationals’
By analogy to the prior discussion of unlawful territorial incursions, the question remains
whether certain ‘targeted operations’ nonetheless remain beyond the scope of Article 2(4) UN
Charter because they are essentially harmless and can therefore be deemed not to reflect a
‘hostile intent’. The main candidate in this context are small-scale operations aimed at the
rescuing of nationals abroad. While the legality of cross-border military operations for
purposes of rescuing nationals abroad (both in an armed conflict setting, but also in a hostage
scenario) remains controversial, there appears to be growing recognition that, under certain
conditions, so-called ‘non-combatant evacuation operations’ (NEOs) – as that term is
understood in military doctrines – do not contravene international law even if they are not
authorized by the territorial State.228 The NEO concept mainly refers to situations whereby
nationals abroad find themselves in a life-threatening situation which is due to internal unrest
or an outright armed conflict in their State of residence, and in which the territorial State is
unwilling or unable to protect them. It signals the readiness of the State of nationality to
intervene for purposes of extracting these individuals and bringing them to safety, even if the
territorial State refuses, or is unable, to give prior approval. NEO doctrines generally provide
that the use of force is only permitted with a view to protecting the military personnel
involved in the operation as well as the individuals being evacuated.
The suggestion that such NEOs do not display a ‘hostile intent’ and accordingly remain below
the suggested Article 2(4) threshold is not without merit. Indeed, it is obvious that in principle
228
See on this: T. Ruys, ‘The ‘protection of nationals’ doctrine revisited’, (2008) 13 J.C.S.L., pp. 233-271.
65
a NEO (properly speaking) cannot target the territorial State. In addition, it could also be
argued that it does not imply the commission of actual forcible acts within the territorial
State’s territory. Indeed, contrary to the situation where an intruding State kidnaps a criminal
suspect or kills a wanted terrorist, in the context of a genuine NEO the nationals concerned
voluntarily take part in their evacuation. In other words, it is (a) neither a territorial intrusion
which undermines the security of the territorial State; (b) nor a territorial intrusion aimed at
committing forcible acts within the territorial State’s territory. If this reasoning is followed,
the door would be open to relying on, for instance, ‘distress’ or possibly ‘necessity’ to justify
such operations.
At the same time, two reservations are due. First, in a nutshell, the suggestion that certain
NEOs are not covered by Article 2(4) UN Charter does not ‘solve’ the protection of nationals
conundrum. In particular, it does not provide a legal ‘solution’ in those scenarios where the
lives of a State’s nationals abroad are clearly under threat, but where their rescue/evacuation
would necessarily require a certain degree of armed force – this is especially so where the
threat to these nationals emanates from the territorial State itself (and the operation would
imply a direct confrontation with the forces of the territorial State). In such situations, the
question still remains to what extent a military operation would be permissible, whether as a
specific application of the right of self-defence, or on the basis of a separate (customary)
exception to the prohibition on the use of force. The alternative would imply accepting that
‘protection of nationals’ is only lawful when it is reasonably conceivable that no actual armed
force will be needed. Reality nonetheless dictates that even small-scale evacuation operations
may necessitate the threat or actual use of armed force.
Second, the suggestion that NEOs remain outside the scope of Article 2(4) UN Charter does
not necessarily correspond to State practice. Indeed, while precedents exist where rescue
operations were carried out absent consent of the territorial State, without this being framed
66
by reference to Articles 2(4) and 51 UN Charter,229 an analysis of State practice suggests that
hostage rescue operations and other ‘protection of nationals’ operations are frequently
justified/discussed by reference to those provisions. Thus, the right of self-defence has been
invoked by the UK to justify the Anglo-French intervention in the 1956 Suez crisis.230 It was
invoked by the United States in relation to the commando operation to achieve the release of
the Mayaguez and its crew after the vessel’s arrest by Cambodian forces in 1975.231 Israel
similarly used it as the legal basis to justify the famous raid at the Ugandan airport of
Entebbe, where Israeli commandos stormed a hijacked plane.232 In relation to the latter
operation – which a majority of States denounced as a violation of international law233 –, the
US argued before the Security Council that: “there is a well established right to use limited
force for the protection of one’s own nationals from an imminent threat of injury or death in a
situation where the State in whose territory they are located is either unwilling or unable to
229
Corten refers to the non-combatant evacuation operation in Liberia in 1990 in which some 300 US marines
were involved. The operation took place at a time when fighting had broken out between government and rebel
forces. Although the operation was notified in advance to the warring parties, it apparently took place without
prior consent of the Liberian authorities. See: O. Corten, op. cit., supra n. 1, at 88 (with references).
230
See G. Marston, ‘Armed intervention in the 1956 Suez crisis: the legal advice tendered to the British
government’, (1988) 37 I.C.L.Q., pp. 800-801; UN Doc. S/PV.749, at § 141. Several States nonetheless took a
negative stance to the intervention. See UN Doc. S/PV.750-751 (see e.g., the opinions expressed by the USSR,
Egypt, Iran Yugoslavia).
231
UN Doc. S/11689 (the US stressed that the original seizure of the vessel ‘involved a clear-cut illegal use of
force’. Therefore the US had taken ‘appropriate measures under Article 51 of the United Nations Charter.’).
Note that a number of States labeled the forcible recovery of the Mayaguez as an armed aggression. UN Doc.
S/PV.1941. For an extensive analysis of the case (and shedding doubt on the legality of the operation), see: J.J.
Paust, ‘The seizure and recovery of the Mayaguez’, (1975-76) 85 Yale L.J., pp. 774-806; J.J. Paust, ‘More
revelations about Mayaguez (and its secret cargo)’, (1981) 4 Boston College I.C.L.Rev., pp. 61-76.
232
UN Doc. S/PV.1939, at § 121.
233
See UN Doc. S/PV.1939-1943 (see e.g. the statements of China, the Soviet Union, India, Kenya, etc.). Note
that the Israeli operation not only ended freeing the hostages but also resulted in the killing of several Ugandan
soldiers and the destruction of several Ugandan aircraft. A number of States, such as Sweden, Japan or France
adopted a more ambiguous position. Germany and the UK simply expressed relief at the successful ending of the
rescue attempt.
67
protect them. This right, flowing from the right of self-defence, is limited to such use of force
as is necessary and appropriate to protect threatened nationals from injury.” 234 The attempt
to liberate the hostages at the US embassy in Tehran in 1980 was similarly regarded as
coming within the ambit of Article 2(4) by both the United States and Iran.235 Furthermore,
while a considerable number of small-scale applications of the ‘protection of nationals’
doctrine, mostly circumscribed non-combatant evacuation operations (‘NEOs’), have by and
large escaped international scrutiny, it is worth observing that both the British and Australian
NEO guidelines explicitly cite the right of self-defence as a legal basis for such operations
(when there is no prior consent by the territorial State).236 It is also observed that, few years
after the Entebbe raid, during the negotiations preceding the adoption of the 1979
International Convention against the Taking of Hostages, Algeria, Tanzania, Egypt, Guinea,
Kenya, Lesotho, Libya and Nigeria proposed to include the following provision: “States shall
not resort to the threat or use of force against the sovereignty, territorial integrity or
independence of other States as a means of rescuing hostages.”237 The proposed text was
eventually replaced by a more neutral formula (Article 14: “Nothing in this Convention shall
be construed as justifying the violation of the territorial integrity or political independence of
a State in contravention of the [UN] Charter”). If the resultant text ‘[left] the law concerning
the use of force, including the use of force to rescue hostages, exactly where it was before the
234
UN Doc. S/PV.1941, at §§ 77-81.
235
See in particular: UN Doc. S/13908 (United States); UN Doc. S/13915 (Iran). See also: O. Corten, op. cit.,
supra note 1, at 74. For the reactions of third States, see: N. Ronzitti, Rescuing nationals abroad through
military coercion and intervention on grounds of humanity (Dordrecht: Martinus Nijhoff) (1985), at 47-48.
236
UK Joint Warfare Publication 3-51, August 2000, available at http://www.mod.uk/NR/rdonlyres/D0302742-
2103-4C9D-9CE8-D6F2E6B1860F/0/20071218_jwp3_51_U_DCDCIMAPPS.pdf, Annex 4A ‘Legal issues and
Rules of Engagement’, at 4A2; Australian Defence Doctrine Publication ADDP 3.10, Evacuation Operations,
April 2004, Annex B to Chapter 5, ‘legal considerations’, at 5B/1.
237
UN Doc. A/AC.188/L.7, 12 August 1977. Consider also the amended version submitted by Syria on 16
August 1977: UN Doc. A/AC.188/L.11.
68
adoption of the Convention’238 – in other words, without expressly pronouncing on the
(il)legality of forcible hostage rescue operations –, it is clear that such operations were
generally regarded as coming within the ambit of the Charter rules on the use of force. By
analogy, attention can be drawn to the preparatory works of the ILC Draft Articles on
Diplomatic Protection, in particular to the debate that unfolded in reaction to Special
Rapporteur Dugard’s proposal to insert a provision stating that ‘the threat or use of force’ was
exceptionally permitted ‘as a means of diplomatic protection’ in the case of rescue of
nationals, subject to a series of cumulative preconditions.239 The draft provision elicited
diverging opinions from ILC members as to whether forcible protection of nationals was
prohibited by Article 2(4) UN Charter in absolute terms, or whether it was permissible under
certain conditions. In the debates within the UNGA Sixth Committee, numerous States in
general terms rejected the legality of the use of force as a means of diplomatic protection
and/or called for an express prohibition on the threat or use of force as an instrument of
diplomatic protection.240 Many others took a more cautious position.241 It was eventually
agreed to abandon the draft Article and to stress instead that diplomatic protection concerns
the invocation of State responsibility “through a diplomatic action or other means of peaceful
settlement” (Article 1).242 What is relevant for present purposes, however, is that no
238
R. Rostenstock, ‘International Convention against the taking of hostages: another international community
step against terrorism’, (1980) 9 Denver J. Int’l L. & Policy, pp. 169-196, at 186.
239
UN Doc. A/CN.4/506, at § 46.
240
UN Doc. A/C.6/55/SR.19, at § 30 (China), § 56 (Poland); UN Doc. A/C.6/SR.20, at §§ 47 (Mexico), 52
(Argentina), 78 (Venezuela), 85 (Iran), 90-91 (Iraq); UN Doc. A/C.6/SR.20, at § 16 (Slovenia); UN Doc.
A/C.6/55/SR.21, at § 7 (Jordan), 55 (Libya); UN Doc. A/C.6/55/SR.23, at § 5 (Colombia, on behalf of the Rio
Group); UN Doc. A/C.6/55/SR.24, at § 55 (Burkina Faso), 71 (Cuba).
241
Germany, for instance, “[w]ithout ruling out any use of force in the context of diplomatic protection,
[doubted] whether a discussion of the use of force was warranted in [this] context.” UN Doc. A/C.6/55/SR.19,
at § 64.
242
ILC, Draft Articles on Diplomatic Protection with Commentaries, 2006, at
http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_8_2006.pdf, at 24.
69
suggestions were made throughout the discussion that (in particular small-scale) forcible acts
aimed at the protection of nationals were not covered by Article 2(4) UN Charter.
6. Law enforcement
a. General
The two foregoing sections dealt with the armed confrontations between military or police
units and targeted operations within the territory of a third State. The present section in turn
tackles the use of ‘force’ against merchant vessels, civilian aircraft or private individuals
beyond the territory of a third State.
It is obvious that the scenarios are legally and conceptually different. Contrary to what is the
case for warships, international law provides an explicit legal basis for enforcement action
against merchant vessels within the territorial sea. The coastal State is permitted to “take the
necessary steps in its territorial sea to prevent passage which is not innocent” (Art. 25
UNCLOS). If the room for enforcement action is broadest in the territorial sea and the
contiguous zone, within certain jurisdictional limits, enforcement action is also permitted in
relation to the State’s exclusive economic zone and its continental shelf. On the high seas,
enforcement action is only possible in exceptional situations (e.g., when a ship is engaged in
piracy – see Art. 107, 110 UNCLOS).
As for the interception of civil aircraft, reference can be made to Article 3bis(b) of the
Chicago Convention, which acknowledges that “every State, in the exercise of its sovereignty,
is entitled to require the landing at some designated airport of a civil aircraft flying above its
territory without authority or if there are reasonable grounds to conclude that it is being used
for any purpose inconsistent with the aims of this Convention; it may also give such aircraft
any other instructions to put an end to such violations. (…).”The ICAO has moreover issued
70
specific guidelines on the interception of civil aircraft.243 At the same time, following the
tragic shooting by Soviet forces of flight KAL 007244 in 1983, a new Article 3bis(a) was
inserted in the Chicago Convention, which provides that “every State must refrain from
resorting to the use of weapons against civil aircraft in flight and that, in case of interception,
the lives of persons on board and the safety of aircraft must not be endangered.” The
provision further adds that it ‘shall not be interpreted as modifying in any way the rights and
obligations of States set forth in the Charter of the United Nations’, thus leaving an opening
for the invocation of the right of self-defense as a justification for the use of lethal force
against civil aircraft.245 As for enforcement action on land, reference can be made, for
instance, to the ‘Basic Principles on the Use of Force and Firearms by Law Enforcement
Officials’, which builds on the jurisprudence concerning the right to life.246 Merchant vessels
and civil aircraft (or private individuals) are moreover not protected by specific immunities
under international law, contrary to what is the case for military vessels or aircraft.
Furthermore, it is common sense that when States undertake enforcement action, within their
territory, against private persons, vessels or aircraft, this does not automatically engage the
‘international relations’ between the two States in the sense of Article 2(4) UN Charter.
Indeed, within their territory, States must of course be able to exercise their enforcement
243
See Annex 2 to the Convention on International Aviation, ‘Rules of the Air’, Section 3.8 (‘Interception’), and
Appendix 2 (‘Interception of Civil Aircraft’), available at
http://www.caa.govt.nz/ICAO/ICAO_Compliance.htm.
244
Soviet forces apparently mistook the aircraft for a spy plane.
245
See on this: R. Geiβ, ‘Civil aircraft as weapons of large-scale destruction: countermeasures, Article 3bis of
the Chicago Convention, and the newly adopted German “Luftsicherheitsgesetz”’, (2005) 27 Michigan J.I.L., pp.
227-256; G.F. Fitzgerald, ‘The use of force against civil aircraft: the aftermath of the KAL flight 007 incident’,
(1984) 22 Can.Y.B.I.L., pp. 291-311; B.E. Foont, ‘Shooting down civilian aircraft: is there an international law?’,
(2007) 72 J.A.L.C., pp. 695-725.
246
Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth
United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August
to 7 September 1990.
71
jurisdiction without distinction against private persons, irrespective of their nationality, or
private vessels, irrespective of which flag they carry. The nationality link cannot be sufficient
to automatically qualify such acts as affecting the international relations between States. The
foregoing is certainly true when enforcement action remains within the confines of what is
acceptable under the criteria of necessity and proportionality. Yet, even when these criteria
are disregarded, while the use of force may give rise to international responsibility of the
territorial State under human rights law (cf. the right to life), under the law of the sea or under
Article 3bis of the Chicago Convention, it remains hard to regard it as a ‘use of force in the
international relations’ between the two States. The same is arguably true in relation to
enforcement action within the coastal State’s exclusive economic zone, or in relation to its
continental shelf (when applicable).
b. Weighing the evidence
Turning our eyes to State practice and relevant case-law, numerous precedents indeed confirm
that States may (as a last resort) use necessary and reasonable force to halt, inspect and arrest
vessels within the confines prescribed by the law of the sea. The legality of such recourse to
force is affirmed, for instance, in the M/V Saiga case of the International Tribunal for the Law
of the Sea.247 The fact that enforcement actions which meet the foregoing requirements are
not labeled as a ‘use of force’ in the sense of Article 2(4) obviously provides no indication as
to the existence of a ‘de minimis’ threshold of Article 2(4) UN Charter. Indeed, action which
247
ITLOS, The M/V ‘Saiga’ Case (No.2) (Saint Vincent and the Grenadines v. Guinea), Judgement of 1 July
1999, (1999) 38 I.L.M., pp. 1323-1364, at §§ 155-156: “international law (…) requires that the use of force must
be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and
necessary in the circumstances. (…) These principles have been followed over the years in law enforcement
operations at sea.”
72
is lawful under the law of the sea will not contravene the Charter framework on the use of
force, since the domains of application of the two frameworks are distinct.248
Of greater relevance is that in several cases where enforcement action against merchant
vessels was deemed not to comply with the requirements of the law of the sea – e.g., because
there was no jurisdictional basis, because the ‘hot pursuit’ requirements of Article 101
UNCLOS were not met, or because disproportionate force was used – the Charter language on
the use of force was also not invoked. To take a recent example: while the Netherlands has
formally contested the legality of the boarding and the subsequent arrest of the Greenpeace
vessel Arctic Sunrise in the Russian Exclusive Economic Zone on 19 September 2013,
bringing the matter before the International Tribunal for the Law of the Sea (pursuant to a
request for provisional measures), it has cast its claims by reference to the law of the sea (in
particular the freedom of navigation) as well as (to lesser extent) international human rights
law, without mentioning the Charter rules on the use of force. 249 In a similar vein, in several
cases where a State was deemed to have used excessive force – most notably in the Red
Crusader250 and the I’m Alone cases251 –, such acts were qualified as violations of
international law (of the sea), but not as infringements of Article 2(4) UN Charter. 252 Another,
somewhat peculiar, example to be mentioned in this context concerns the Torrey Canyon
248
O. Corten, op. cit., supra note 1, at 56. See on the relation between the two frameworks: D. Guilfoyle,
‘Interdicting vessels to enforce the common interest: maritime countermeasures and the use of force’, (2007) 56
I.C.L.Q., pp. 69-82, at 81.
249
ITLOS, ‘Arctic Sunrise’ (The Kingdom of the Netherlands v. the Russian Federation), Request for the
prescription of provisional measures under Article 290(5) UNCLOS, 21 October 2013; Letter of the Dutch
Foreign Ministry to the Russian embassy dated 4 October 2013, ‘Submission of dispute to arbitration’, available
at
http://www.itlos.org/fileadmin/itlos/documents/cases/case_no.22/Request_provisional_measures_en_withtranslat
ions.pdf.
250
Red Crusader Case (Commission of Enquiry, Denmark v. United Kingdom, (1962) 35 I.L.Rep., 485.
251
I’m alone case (United Kingdom for Canada v. United States), (1935) 3 R.I.A.A. 1609, at 1617.
252
O’Connell concludes that force of this type is associated with law enforcement, and is not deemed to trigger
Article 2(4). M.E. O’Connell, loc. cit., supra note 2, at 102, 104.
73
case: in 1967, the Torrey Canyon, a Liberian tanker, ran aground outside British territorial
waters. In order to prevent massive oil spillage, the UK authorities decided to bomb the vessel
in order to burn the oil remaining inside the vessel. In the course of the debates on the legality
of the British operation, no-one made reference to the prohibition on the use of force. 253 It is
also worth recalling that New Zealand condemned the sinking of the Rainbow Warrior by
French secret service agents as a violation of its sovereignty, without citing Article 2(4).254
In a similar vein, several cases exist where States condemned the shooting of civil aircraft
without invoking Article 2(4) UN Charter. This is true for the aforementioned tragedy
involving the shooting of a Korean Air Lines aircraft (KAL 007) by Soviet forces in 1983,
killing all 269 persons on board.255 Before the UN Security Council, numerous States
condemned the Soviet conduct as contrary to basic norms of international law and practice in
international aviation, and contrary to elementary considerations of humanity. 256 No State
claimed that the Soviet Union had infringed the prohibition on the use force. A similar
situation unfolded in the wake of the shooting by the Cuban air force of two small civil
aircraft of the US-based ‘Brothers to the Rescue’ group, resulting in the deaths of four
persons, in 1996.257 A large majority of States found that the operation contravened the
253
See O. Corten, op. cit., supra note 1, at 58-59 (with references). Note: The operation inspired the adoption of
a specific treaty sanctioning enforcement action for purposes of avoiding pollution (International Convention on
the Intervention in the High Seas, 970 UNTS 211), as well as the inclusion of a specific legal basis to this end in
the UN Convention on the Law of the Sea (Art. 221 UNCLOS).
254
See supra, note 201.
255
As mentioned above, Soviet forces apparently mistook the aircraft for a spy plane.
256
See e.g., UN Doc. S/15948 (Korea); UN Doc. S/PV.2470-2474, 2476; (1983) U.N.Y.B., at 218-223. A draft
resolution stated that ‘such use of armed force against international civil aviation is incompatible with the norms
governing international behavior and elementary considerations of humanity’. UN Doc. S/15966/Rev.1, 12
September 1983. Nine Council members voted in favour; 3 abstained; 2 voted against. Due to a Soviet veto, the
draft was not adopted.
257
See (1996) U.N.Y.B., at 196-198; UN Doc. S/PV.3683; UN Doc. S/PV.3684. An ICAO report found the
events to have taken place outside Cuban territorial airspace.
74
principle enshrined in Article 3bis(a) of the Chicago Convention258 – albeit that several States
stressed the need to respect Cuba’s territorial integrity and expressed concern at the use of
civil aircraft for illegal purposes.259 The Security Council, paraphrasing Article 3(bis)(a),
eventually found that Cuba had ‘violated the principle that States must refrain from the use of
weapons against civil aircraft in flight and that, when intercepting civil aircraft, the lives of
persons on board and the safety of the aircraft must not be endangered.’260 No reference was
made to Article 2(4) UN Charter (neither in the resolution, nor in the preceding debates).
If the aforementioned examples indeed suggest that not all forcible acts against foreign
merchant vessels and civil aircraft come within the scope of Article 2(4) UN Charter, other
evidence nonetheless illustrates that forcible acts against merchant vessels and civil aircraft
are not excluded in absolute terms from its scope either. As mentioned earlier, in relation to
the shooting of an Iranian civilian aircraft by the USS Vincennes in 1988, the two States
involved agreed to recognize that the rule prohibiting the use of force was applicable to this
situation (Iran decried the act as a violation of Article 2(4) UN Charter, whereas the United
States relied on the right of self-defence).261 Likewise, in relation to the arrest by Cambodian
forces of the Mayaguez, the US stressed that the seizure of the vessel ‘involved a clear-cut
illegal use of force’ and justified the subsequent ‘rescue operation’ by reference to Article 51
UN Charter.262 Again, following an incident in 1959 in which the Guatemalan Air Force
machine-gunned three Mexican shrimp boats that, according to Guatemala, were illegally
258
See e.g., UN Doc. S/PV.3683, at 2-3 (US), 15-16 (UK), 17 (Germany), 18 (Guinee-Bissau).
259
See e.g., UN Doc. S/PV.3683, at 13 (Colombia), 14 (Laos), 15 (Vietnam), 17 (Botswana), 18 (Honduras), 19
(Poland, Korea, Indonesia), 22 (Italy), 23 (Russia).
260
SC Res. 1067(1996). Consider also the Presidential Statement adopted on 27 February 1996: UN Doc.
S/PRST/1996/9.
261
UN Doc. S/19989, 6 July 1988 (US); ICJ, Aerial incident, Memorial submitted by Iran, loc. cit., supra n. 108,
at § 4.46 (Iran claimed that the shooting violated both Article 3bis of the Chicago Convention and the prohibition
on the use of force).
262
UN Doc. S/11689 (US). See also supra note 231.
75
fishing in its territorial waters, Mexico publicly stated that the use of force to repel force
would have been authorized by Article 51 of the Charter.263
Furthermore, in the Fisheries Jurisdiction case, Germany asserted that incidents whereby
Icelandic coastguards had harassed German fishing vessels by cutting their nets, 264 by firing
warning shots and even firing live rounds (without, however, causing casualties), contravened
the prohibition on the use of force of Article 2(4) UN Charter. The Court ultimately did not
pronounce on the matter, as it found the claim for compensation on the basis of Article 2(4)
too abstract.265 Again, in a subsequent Fisheries Jurisdiction case between Spain and
Canada,266 Spain took the position that the Canadian Coastal Fisheries Protection Act went
beyond the minimum degree of force for law enforcement purposes permitted under the law
of the sea and accordingly gave rise to a breach of Article 2(4) UN Charter. Spain moreover
claimed that the arrest by Canadian forces of the Estai, a Spanish fishing vessel, on the high
seas amounted to a ‘use of force’. Eventually, the Court did not pronounce on the arrest of the
Estai: due to a Canadian reservation, the Court found it lacked jurisdiction. The Court did
suggest that the Canadian legislation remained within the limits of the concept of enforcement
of conservation and management measures.267
In the Guyana/Suriname case,268 Guyana, claimed that by handing an ultimatum to an oil rig
and drill ship ordering it to leave a disputed maritime area within twelve hours, the
Surinamese navy had violated Article 2(4) UN Charter. Suriname rejected these claims,
263
See (1959) 12 Keesing’s, at 16690; I. Brownlie, op. cit., supra n. 112, at 305.
264
The waters around Iceland were traditionally important fishing grounds for German fishermen.
265
ICJ, Fisheries Jurisdiction Case (Germany v. Iceland), Judgment of 25 July 1974, (1974) I.C.J. Rep., pp. 175-
216, at §§ 71-76. The Court merely held that Iceland was not entitled to unilaterally exclude German fishing
vessels from the areas concerned or to unilaterally impose restrictions on their activities.
266
The dispute was part of the broader ‘Tarbot war’, in which Canada claimed that EU ships were illegally
overfishing Greenland halibut just outside Canada’s EEZ.
267
ICJ, Fisheries Jurisdiction Case (Spain v. Canada), Judgment of 4 December 1998, (1998) I.C.J. Rep., pp.
432-469, at § 84.
268
Guyana and Suriname, loc. cit., supra note 15.
76
arguing that the measures undertaken ‘were of the nature of reasonable and proportionate law
enforcement measures to preclude unauthorized drilling in a disputed area of the continental
shelf’.269 The Arbitral Tribunal eventually followed the position of Guyana and concluded –
without much explanation – that “the action mounted by Suriname (…) seemed more akin to a
threat of military action rather than a mere law enforcement activity” and therefore
constituted a ‘threat of the use of force in contravention of (…) the UN Charter’. 270 The award
thus affirms that even (relatively) small-scale forcible measures against merchant vessels do
not necessarily escape from the scope of Article 2(4) UN Charter.
Reference can moreover be made to the controversy regarding the maritime interdiction of
vessels on the high seas in the wake of the 9/11 attacks. Indeed, following those attacks,
various States began jointly inspecting vessels in international waters with a view to tackling
WMD proliferation and terrorist activities. Various scholars have, however, taken the position
that, if there is no flag-State consent given in advance to interdicting a flag vessel in
international waters, or a (Chapter VII) Security Council authorization, or a specific exception
otherwise allowing the interdiction, it will be a prohibited use of force. 271 Against this
background, it is interesting to note that States contributing to NATO’s maritime interdiction
operations have construed these operations as an application of the right of self-defence.272 By
contrast, those States that felt the self-defence argument was no longer tenable (seeing as the
operations were too far removed from the ‘armed attack’ of 9/11 to meet the requirements of
necessity and immediacy), have restricted their activities to consensual boardings. To the
269
Ibid., § 441.
270
Ibid., § 445.
271
See e.g., D. Guilfoyle, Shipping interdiction and the law of the sea (Cambridge: CUP) (2009), at 277.
272
See: W. Heintschell von Heinegg, ‘Maritime Interception/Interdiction’, in T.D. Gill and D. Fleck (eds.), The
Handbook of the International Law of Military Operations (Oxford: OUP) (2010), pp. 375-393, at 390.
77
author’s knowledge, no attempts were made to justify ‘non-compliant’ boarding as
proportionate countermeasures or by reference to the state of necessity.273
Finally, the position that attacks against merchant vessels or civil aircraft can in certain
circumstances qualify as ‘armed attacks’ (and accordingly as ‘use of force’) finds support in
the wording of Article 3(d) of the Definition of Aggression,274 and of Article 6(1) of the North
Atlantic Treaty (referring to collective self-defence against “an armed attack on the territory
of any of the parties… or on the forces, vessels or aircraft in this area of any of the
parties”275), as well as (implicitly) in the ICJ’s Oil Platforms case.276 A similar position is
reflected in the US Commander’s Handbook on the Law of Naval Operations.277
c. Law enforcement within the State’s territory and EEZ
How then should one distinguish between law enforcement action (even if excessive or
otherwise unlawful) on the one hand, and the actual ‘use of force’ in the sense of Article 2(4)
UN Charter on the other hand? A useful clue is arguably provided in the cited
Guyana/Suriname case.278 Before the Arbitral Tribunal, Suriname relied on the 1998
Fisheries Jurisdiction case to argue that its actions did not imply an actual ‘threat or use of
force’. Guyana contested the relevance of the latter precedent. Apart from stressing that the
case merely concerned the interpretation of Canada’s reservation to the Court’s jurisdiction
(and did not directly pronounce on the scope of Article 2(4) UN Charter), Guyana contended
273
See e.g., the list of legal bases for maritime interception in the US Commander’s Handbook on the Law of
Naval Operations, loc. cit., supra n.80, Section 4.4.4.
274
Definition of Aggression, Annex to GA Res. 3314 (XXIX) of 14 December 1974.
275
North Atlantic Treaty, Washington, 4 April 1949, 34 U.N.T.S. 243.
276
ICJ, Oil Platforms, loc. cit., supra n. 41, at §§ 64, 72. See also e.g., N. Ochoa-Ruiz and E. Salamanca-
Aguado, ‘Exploring the limits of international law relating to the use of force in self-defence’, (2005) 16 E.J.I.L.,
pp. 499-524, at 513.
277
US Commander’s Handbook on the Law of Naval Operations, loc. cit., supra n.80, Section 3-10.
278
Guyana and Suriname, loc. cit., supra note 15.
78
“that that case concerned enforcement measures against fishing vessels on the high seas and
not the use of force directly arising from a maritime dispute between sovereign States.”279 The
Arbitral Tribunal eventually agreed with Guyana that “in the circumstances of the present
case (…) the action mounted (…) seemed more akin to a threat of military action rather than
a mere law enforcement activity” (§ 445).
An argument could therefore be developed that enforcement action undertaken by the
territorial State within its territory, and, by extension, against merchant vessels within its
exclusive zone or in relation to its continental shelf, (even if stained by illegality) is presumed
not to affect the ‘international relations’ between those States and accordingly remains
beyond the reach of Article 2(4) UN Charter. Only if it appears from the circumstances of the
case that the force used ‘directly arises from a dispute between sovereign States’ will this
presumption be rebutted. Thus, if a police officer of State A uses excessive lethal force
against a criminal suspect that is a national of State B, this incident undoubtedly does not
trigger Article 2(4). Conversely, if considerable tension exists between two neighboring States
A and B – e.g., because of a border dispute – and police officers of State A round up and
summarily execute a group of nationals of State B, this could be seen as a ‘use of force’ in the
sense of Article 2(4) (and potentially as an ‘armed attack’).280 Or contrast the following two
examples: (A) the coast guard of State A uses excessive force to arrest a vessel unlawfully
fishing in its exclusive economic zone; (B) warships of State A open fire without a warning
on merchant vessels from neighbouring State B in order to chase them away from a disputed
maritime zone.
279
Ibid., at § 444.
280
Note: while it is on occasion suggested that attacks against nationals abroad cannot be regarded as ‘armed
attacks’ in the sense of Article 51 UN Charter it may be observed, for instance, that the definition of 'aggression'
in Article 9 of the 1947 Inter-American Treaty of Reciprocal Assistance refers to the 'unprovoked attack by a
State against the territory, the people, or the land, sea or air forces of another State.'
79
At times it may be fairly straightforward to determine whether forcible action remains within
the ‘law enforcement paradigm’ or whether it arises from a dispute between sovereign States
(bringing Article 2(4) into play). The recent arrest of the Arctic Sunrise in the Russian
Exclusive Economic Zone, for instance, was clearly not connected to any pre-existing dispute
between Russia and the Netherlands. By contrast, the shooting of Mexican fishing vessels by
Guatemalan forces in 1959 took place against the background of a political dispute and
mounting tension between the two countries. The tragic incident concerning Iran Air Flight
655 in turn followed prior armed incidents between Iran and the United States in the Persian
Gulf. In other cases, qualifying an incident may be more difficult.281
Assessing whether forcible action falls within one paradigm or the other requires a case-by-
case assessment, taking into account a variety of factors, including, for instance:282
o the political context;
o the gravity/intensity of the acts (including the means used) as well as their
recurrent nature;
o the author (forcible acts by military units are more likely to trigger Article 2(4)
than forcible acts by police units), and;
o the level of decision-making (forcible acts ordered by the top of the command
chain are more likely to trigger Article 2(4) than acts initiated at the initiative of
the individual coast guard officer or police officer).
Note that, while gravity arguably constitutes a relevant criterion, it is but one of several
elements. Put differently: small-scale incidents are not necessarily beyond the scope of Article
281
In relation to the shooting of two civilian aircraft by Cuban forces in 1996, for instance, Cuba framed the
incident as part of the broader dispute between Cuba and the United States, stressing among other things that the
US failed to take action against recurrent aerial incursions into Cuba departing from the US. See UN Doc.
S/PV.3683, at 4 et seq. The United States, however, refused to be dragged into a broader political discussion.
282
Several of these factors also surface in the analyses of Corten (O. Corten, op. cit., supra n. 1, at 91-92) and
Jimenez Kwast (P. Jimenez Kwast, loc. cit., supra n. 77, at 72 et seq.).
80
2(4) (again, no absolute de minimis threshold exists). Otherwise, the reaction of the ‘victim’
State (e.g., the flag State of a sunken ship) arguably provides a useful indicator of the political
context. Hence, when this State frames the incident by reference to Article 2(4), this generally
suggests that the incident is part of a broader dispute between sovereign States. The reaction
of the State, and the wording chosen, is not, however, determinative of itself.
d. Law enforcement on the high seas
The presumption that forcible action by the coastal State against merchant vessels within the
maritime zones over which it exercises jurisdiction falls within the ‘law enforcement
paradigm’ arguably cannot be extended to forcible action beyond those zones (or, for that
matter, to forcible action against such vessels in the exclusive economic zone of another
State). Indeed, according to long-established custom, on the high seas, vessels are in principle
subject to the exclusive jurisdiction of their flag State. The UN Convention on the Law of the
Sea only provides for a handful exceptions to this axiom (see Art. 97 et seq., 221 UNCLOS)
where States other than the actual flag State can visit and arrest a vessel. In particular, Article
110 UNCLOS provides that “[e]xcept where acts of interference derive from powers
conferred by treaty, a warship which encounters on the high seas a foreign ship (…), is not
justified in boarding it unless there is reasonable ground for suspecting that: (a) the ship is
engaged in piracy; (b) the ship is engaged in the slave trade; (c) the ship is engaged in
unauthorized broadcasting (…); (d) the ship is without nationality; or (e) though flying a
foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the
warship.” Moreover, unauthorized boarding of foreign vessels in situations other than those
listed in the Convention has on occasion been construed as an application of self-defense (see
above). In light of the foregoing, it could be argued that, unless there is a possible nexus to
81
one of the jurisdictional grounds for enforcement action mentioned in the Convention,
forcible action against merchant vessels on the high seas283 normally comes within the ambit
of Article 2(4) UN Charter. The implication would be that no breach of Article 2(4) normally
takes place when a State uses excessive force when arresting a vessels genuinely suspected of
engaging in piracy, nor when making an arrest on the high seas in contravention, for instance,
to the requirement that a hot pursuit must be uninterrupted (Art. 111 UNCLOS). By contrast,
if a State were to forcibly arrest a foreign vessel on the high seas (without the approval of the
flag State or the UN Security Council) with a view, for instance, to intercepting a shipment of
arms, such conduct is not automatically removed from the scope of the prohibition on the use
of force. The same is all the more true for a premeditated attack against merchant vessels on
the high seas.
7. Concluding observations
The idea that Article 2(4) UN Charter is subject to a gravity threshold, and that ‘minimal’ uses
of force remain outside its scope, is as such nothing new under the sun. At the same time, this
argument is gaining ground, as evidenced by its adoption by the Independent International
Fact-Finding Mission on the Conflict in Georgia. It has been argued that it ‘undoubtedly
reflects customary international law’, and that Article 2(4) does not, for instance, extend to
the targeted killing of single individuals, to forcible abductions of individual persons, or to the
interception of a single aircraft.284 Others seem bent on raising the de minimis bar even
further.285 In recent years, Corten and O’Connell have substantiated the existence of this
alleged de minimis threshold by engaging in an analysis of relevant customary practice. Both
have identified a variety of examples of situations where forcible actions, such as abductions
283
Or forcible action against merchant vessels in the exclusive economic zone of another State.
284
O. Corten, loc. cit., supra n. 13, at at 856.
285
See, for instance, note 7 above.
82
of persons abroad, were condemned, yet absent invocation of Article 2(4) UN Charter, or of
situations in which forcible actions were deemed lawful in spite of the alleged absence of an
‘armed attack’. The body of evidence assembled is substantial and should not be passed over
lightly.
The present contribution has taken a critical look at the evidence relied upon and added some
conceptual observations. It was argued that the evidence adduced must be handled with care,
primarily because the non-invocation of the ‘use of force’ language may not always reflect an
underlying legal conviction on the part of the State(s) concerned. In addition, a considerable
body of counter-evidence exists: in various settings, the language of Article 2(4) and/or 51
UN Charter has indeed been invoked in spite of the small-scale or targeted character of the
forcible acts concerned.
On the basis of the above assessment, a number of conclusions can be put forward.
First, the idea of a general de minimis threshold, in the sense of a minimal gravity that must be
attained before forcible acts can qualify as a ‘use of force’, is not supported by State practice
and must be dismissed. Indeed, whenever a State deliberately uses (potentially) lethal force
within its own territory – including its territorial sea and its airspace – against military or
police units of another State acting in their official capacity, this amounts to inter-State use of
force in the sense of Article 2(4) UN Charter. In other words, any actual armed confrontation
between two States, even if small-scale and/or localized, comes within the ambit of the Jus ad
Bellum. By the same token, any incursion that would have warranted deliberate recourse to
lethal force (primarily because it demonstrates a manifest hostile intent) arguably constitutes a
‘use of force’ in the sense of Article 2(4) (irrespective of the actual response of the territorial
State).
Second, the suggestion that ‘targeted operations’ in the territory of a third State which are not
‘directed’ against that State (e.g., targeted killings abroad), remain outside the scope of the
83
prohibition of Article 2(4) UN Charter must be dismissed. Rather, the better view is that any
deliberate projection of lethal force onto the territory of another State – even if small-scale,
and even if not ‘targeting’ the State itself – will normally trigger Article 2(4) UN Charter. The
qualification of such operations as a ‘use of force’ is not contingent on whether they result in
actual armed confrontations with the territorial State or not.
Third, forcible action against civilian aircraft, merchant vessels or private individuals within
the State’s own territory, or, by extension, against merchant vessels within the maritime zones
over which it exercises jurisdiction, is presumed to remain beyond the scope of Article 2(4)
UN Charter. Only if it appears from the context that the use of force ‘directly arises from a
dispute between sovereign States’ will Article 2(4) come into play. This must be assessed on a
case-by-case basis, having regard to the political context, the gravity and frequency of the
acts, the author of the acts, and the level of decision-making. In other situations (e.g., if force
is used on the high seas), unless there is a possible nexus to one of the jurisdictional grounds
for enforcement action within the law of the sea, the forcible acts are not automatically
removed from the scope of the prohibition on the use of force.
Fourth, on a more general note, if some believe that the acceptance of a general de minimis
threshold constitutes as a useful approach to justify the legality of certain forcible acts whose
legality is not in principle contested (under the ‘law enforcement’ paradigm), while
simultaneously keeping the bar for actual ‘self-defence’ relatively high (with a view to
avoiding escalation of inter-State conflicts), this quest is ultimately counter-productive.
Indeed, the ‘law enforcement’ paradigm ultimately fails to provide a credible legal basis for
various forcible acts against foreign aircraft, vessels or troops, that are generally deemed
lawful in practice. At the same time, the acceptance of a de minimis threshold may well open
Pandora’s box by making it far easier for States to justify targeted killings, counter-terrorist
operations, and the like, by reference to e.g., ‘necessity’, ‘countermeasures’ or ‘distress’. In
84
the age of drone warfare, this is a very real concern, threatening to erode the legal constraints
on the use of force.
It is impossible, within the remit of this contribution, to do full justice to the intricacies of
maritime or aerial interception, or to provide a comprehensive analysis of the legal settings
which may arise. Still, even if the line between the ‘use of force’ and mere ‘law enforcement’
may at times be difficult to draw, the wholesale exclusion of small-scale and/or ‘targeted’
forcible acts from the scope of Article 2(4) UN Charter is (1) fraught with conceptual
difficulties; (2) does not correspond to actual customary practice, and; (3) is equally
undesirable from a more policy-oriented perspective.
END OF DOCUMENT
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THE MEANING OF ‘FORCE’ - SUBMISSION VERSION

USES OF FORCE EXCLUDED FROM UN CHARTER 2(4)?

APRIL 2014 ISSUE OF THE AMERICAN JOURNAL OF INTERNATIONAL LAW

2(4) UN Charter operates in different settings.

Electronic copy available at: http://ssrn.com/abstract=2463760

whether acts qualify as a ‘use of force’ or not.

2(4) prohibition.”2 A similar approach is taken by Corten.3

occasion been raised and appears to be gaining ground.5

sometimes deemed insufficiently ‘grave’ include operations aimed at rescuing nationals

Electronic copy available at: http://ssrn.com/abstract=2463760

abroad, ‘hot pursuit’ operations, small-scale counter-terrorist operations abroad or localized

hostile encounters between military units.

operates in different settings. The structure can be summed up as follows.

part of the State(s) concerned.

the territorial State).

by reference to the ‘use of force’ framework. Furthermore, the acceptance of a gravity

various ‘grounds precluding wrongfulness’, chiefly countermeasures and necessity, to justify

Article 2(4) UN Charter.

equally undesirable from a more policy-oriented perspective.

clarity: those advocating the (exceptional) legality of humanitarian interventions do not

(whether in self-defence or by reference to an alternative legal basis, if any). More

unlawful, qualify as ‘force’ within the meaning of Article 2(4).

2. Presenting the stakes

intervention, is not without import.

the threat or use of force. The inadmissibility of ‘forcible’ countermeasures is backed by a

the UN Charter.20 In sum, the possibility of relying on grounds precluding wrongfulness is in

principle excluded in relation to actual ‘use of force’.21 By contrast, if it is accepted that

strict) conditions for relying on a state of necessity are met.

there can be no ‘armed attack’ – and, accordingly, no recourse to self-defence. Conversely, it

a. The burden of proof rests with those advocating a restrictive

interpretation of Article 2(4) UN Charter

Pact of Paris34 to ‘prevent future generations from the scourge of war’.

seem to rest on those advocating a more restrictive interpretation.

as “the planning, preparation, initiation or execution, by a person in a position effectively to

legal status (e.g. unilateral humanitarian interventions).40 Understanding 6 annexed to the

their consequences.’ In sum, the notion of aggression effectively presupposes a minimum

force’ in the sense of Article 2(4) UN Charter.

b. The case-law of the International Court of Justice does not render

unequivocal support to the existence of a gravity threshold

as to the circumstances of [the alleged] incursions or their possible motivations, which

of self-defence’.45 Furthermore, the Court’s broad reading of Article 2(4) UN Charter is

provision of weapons or logistical or other support.’46

considered the mine-sweeping operation not to be of sufficient gravity to qualify as a

violation of Article 2(4) UN Charter.50

Corfu Channel judgment.53

c. Silence is golden? Evidentiary value of the non-invocation of the rules

on the ‘use of force’ in specific cases

O’Connell and in particular Corten effectively adduce a substantial body of evidence in

however, being treated as infringements of Article 2(4) UN Charter, as well as examples of

emphasis). No mention was made of Article 2(4) UN Charter.58

ascertaining the concrete content of a customary rule.64

In sum, shared responsibility may act as a factor urging restraint.

statement describing the US operation as a ‘flagrant violation of [Libya’s] national

the recurrent US drone attacks within Pakistani territory.74

belief that the acts concerned cannot qualify as such…

4. Armed confrontations between States, even if small-scale, come within the

ambit of the Jus ad Bellum

confrontations, specifically small-scale confrontations, between military or police units of

face of – even small-scale – territorial intrusions or in the context of localized hostile

of Article 2(4) is not subject to a general gravity threshold.

b. The permissibility of a forcible response

police units of another State by land, sea or air.77

‘motive(s)’ of the incursion79 – indeed plays a prominent role in national Rules of