Principles of international law on the use of force by states in self-defence



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Greenwood, C. (2002) “International Law and the ‘War on Terrorism’”, International Affairs, Vol.78, Issue 2, April 2002, 301.

Hansard, 21 April 2004, column 370 “Statement by the Attorney General”.


Higgins, R. (1994) “Problems and Process: International Law and How We Use It”, Oxford University Press: OXFORD.
International Law Commission (2001) “Draft Articles on the Responsibility of States for Internationally Wrongful Acts”, Report of the International Law Commission on the work of its Fifty-third session, Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10), chp.IV.E.1.
Murphy, J.F. (2004) “The United States and the Rule of Law in International Affairs”, Cambridge University Press: CAMBRIDGE.
Murphy S.D. “Terrorism and the Concept of ‘Armed Attack’ in Article 51 of the UN Charter” (2002) 43 Harv.JIL, 41.
Myjer, E.and White, N. “The Twin Towers attack: an Unlimited Right to Self-Defence” (2002) 7 Journal of Conflict and Security Law 5.
National Security Strategy of the United States of America (2002), available at http://www.whitehouse.gov/nsc/nss.html, reprinted in 41 ILM 1478 (2002).
NATO “Statement by the North Atlantic Council”, Press Release (2001) 124.
Ratner, S. “Jus ad Bellum and Jus in Bello after September 11” (2002) 96 AJIL 905.
Roberts, A (2003) “International Law and the Use of Military Force: The United Nations, the United States and Iraq”, Europaeum: OXFORD.
Schachter, O. “The Use of Force against Terrorists in Another Country” (1989) 19 Is. YB HR 209.
Schwarzenberger, G. (1944) “Totalitarian Lawlessness and International Law”, Jonathan Cape: LONDON.
Simma, B. (ed.) (1994) “The Charter of the United Nations, A Commentary”, Clarendon Press: OXFORD.
Simpson, G. (2004) “Great Powers and Outlaw States”, Cambridge University Press: CAMBRIDGE.
Sofaer, A. “Terrorism as War” (2002) ASIL Proceedings 254.
Verhoeven, J. “Les ‘étirements’ de la légitime défense” (2002) 48 AFDI 49.
Waldock, Academie de droit international: Recueil des Cours, 1952( II) At p.456.
Walzer, M. (2000) “Just and Unjust Wars: A Moral Argument with Historical Illustrations”, (3rd edn.), Basic Books: NEW YORK.
Watts, A. “Physical Barriers to Armed Infiltration: Self-Defence and Israel’s Wall in the Occupied Palestinian Territories

1 The question whether there is also a right to take action in exceptional circumstances of humanitarian emergency, or to protect fundamental rights, is not dealt with here; nothing in this paper can be regarded as prejudicing the question one way or the other. Although Article 51 mentions the right of collective self-defence, this study deals only with individual self-defence.

2 The International Court of Justice (ICJ) expressly left open the issue of the lawfulness of a response to the threat of an imminent armed attack in the Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Merits, 1986 ICJ Rep. 14, at para. 194). When the question of the existence of an armed attack featured in the Court’s overall reasoning on the law of self-defence, it appeared before the treatment of the principles of necessity and proportionality. The same framework was followed by the Court some 17 years later in the Oil Platforms Case (Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America, 2003 ICJ Rep.) where it first investigated the existence of an armed attack (paras. 61 to 64 and 72) before it turned to the application of the principles of necessity and proportionality (paras. 73 and 74).

3 For the purposes of this document the term ‘anticipatory ‘ self-defence is preferred over ‘pre-emptive’ self-defence, although the latter is also in current use, for example in the report of the United Nations Secretary-General’s High-level Panel on Threats, Challenges and Change: ‘A More Secure World:Our Shared Responsibility’ para.189.

4 The United Nations Secretary-General’s response “In Larger Freedom” to the high-level panel report mentioned above states: “Imminent threats are fully covered by Article 51, which safeguards the inherent right of sovereign states to defend themselves against armed attack. Lawyers have long recognised that this covers an imminent attack as well as one that has already happened” (at para. 124). In the resolution adopting the World Summit Outcome the UN General Assembly reaffirmed that “the relevant provisions of the Charter are sufficient to address the full range of threats to international peace and security” and reaffirmed “the authority of the Security Council to mandate coercive action to maintain and restore internaitonal peace and security” but did not comment on the meaning of Article 51.

5 As in the Caroline incident, and in the case of the intervention in Afganistan in 2001, which was categorised by the US and the UK as the exercise of the right of anticipatory self-defence (see UN Doc. S/2001/946 and UN Doc. S/2001/947).

6 The exchange between the US and the UK agreed that there be “a necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation” and the use of force, “justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it”.

7 See commentary for section 4, below.

8 This study does not, however, deal with the rescue of citizens abroad, which raises different issues.

9 There are statements by the International Court of Justice which suggest that there may be instances of the use of force which are not of sufficient gravity as to scale and effect to constitute an armed attack for the purpose of self-defence. (Nicaragua case, note 2, at paras.191 and 195 and Oil Platforms Case,supra note 2, at paras. 51, 63-64 and 72.

But these statements are not generally accepted.



10 Note 2 above, at para. 64.

11 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ, 9 July 2004, at para. 139.

12 The criterion of ‘necessity’ if force is legally to be used in self-defence can be traced back to the language of the Caroline formula:

“[i]t will be for … [Her Majesty’s] Government to show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment of deliberation” and the action must not be “unreasonable or excessive, since the act, justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it.”



The ICJ held in the Nicaragua case (above note 2) that “the specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it” was “a rule well established under customary international law”, and re-affirmed this in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996 ICJ Rep. 226)

13 This formulation leaves open the question whether greater mechanised force can be justified by the reduction in risk to the lives of the defending State’s forces, a question which is more normally dealt with by the rules of international humanitarian law.

14 In its decision in the Oil Platforms case (above note 2), the ICJ elaborated on the ”necessity”criterion. It held that “the requirement of international law that measures taken avowedly in self-defence must have been necessary for that purpose is strict and objective, leaving no room for any ‘measure of discretion’ ” (para.73). In practice of course the assessment of the necessity of a particular action is far from straightforward, and can be undertaken only on the basis of the facts available at the time, but with a good faith assessment of those facts.


15 Nicaragua case ( note 2 above), para.176; see also, para.41 of the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (above note 12).

16 For example, the Attorney General stated in the House of Lords on 21 April 2004: “the force used must be proportionate to the threat faced and must be limited to what is necessary to deal with the threat.” (Lords, Hansard, col. 371).

17Note 2 above, at para. 77.

18 See note 22.

19 Note 11 above, at para. 139: “Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State.” But the European Union statement made upon the adoption of General Assembly resolution ES-10/18 (concerning the Wall Advisory Opinion) suggests that EU member states and the other states associated with the statement would not accept the possible implication of the Opinion that self-defence is not available unless the armed attack is by a state. “The European Union will not conceal the fact that reservations exist on certain paragraphs of the Court’s advisory opinion .We recognise Israel’s security concerns and its right to act in self-defence.” The matter came up again in a recent case in the ICJ; the Court stated that in the absence of attribution of the armed force to a State there is no right of self-defence against that State. (Case concerning Armed Activities on the territory of the Congo (Democratic Republic of the Congo v. Uganda)(Merits, 2005 ICJ Rep., at paras. 146,147)). In line with the Wall Advisory Opinion this should not be read as prohibiting action in self-defence against non-state actors as such.

20 While certain writers have argued that Article 51 concerns only responses to aggression against another state, their argument based on the French text is not persuasive. True, the French text of Article 51 uses the term aggression armée, and aggression is also the term used in Article 39, but the French Government accepted during the debates on the definition of aggression that aggression in Article 39 was not the same concept as aggression armée in Article 51; further, the English, Chinese and Spanish texts of the Charter use different terms for Articles 39 and 51.

21 It should however be noted that Security Council resolution 1368(2001) does not settle the matter entirely, as in that case there was already significant evidence of a degree of responsibility of a state (Afghanistan) for the continuing ability of the terrorists to carry out attacks.


22 The ICJ Judgement in the Case concerning Armed Activities on the territory of the Congo note 19 above, at paras. 146 and 147) implies that unwillingness or inability of a State to deal with irregular forces on its territory is insufficient to create a right in self-defence against the State. However, the Court does not answer the question as to the action a victim State may take in the case of an armed attack by irregular forces, where no involvement of the State can be proved. According to Judges Kooijmans and Simma the occurrence of an armed attack is sufficient to create a right of action in self-defence, whether or not the actions are attributable to a State (Separate Opinions of Judge Kooijmans, paras. 26-30 and of Judge Simma, paras.7-.12).


23 It is in this context (rather than that of an attack by a state itself) that it is relevant to consider the ICJ’s remarks in the Nicaragua judgment (supra note 2). At para. 195 the Court stated that: “… it may be considered to be agreed that an armed attack must be understood as including not merely action by regular armed forces across an international border, but also “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces, “or its substantial involvement therein. ” … The Court sees no reason to deny that, in customary law, the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces.” (italics added)

24 Waldock, Recueil, 1952 II, p 461.

25 International Court of Justice, Judgment (Merits) of 27 June 1986, “Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of Americ)a”.

26 International Court of Justice, Judgment of 6 November 2003, “Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America)”.

27 International Court of Justice, Order of 2 June 1999 on Request for Provisional Measures, “Legality of Use of Force (Yugoslavia v. United States of America/Spain)”.

28 International Court of Justice, Advisory Opinion of 9 July 2004 on “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory”.

29 Note 2 supra, para.195.

30 See Nicaragua, note 2 supra at para. 191 and Oil Platforms, note 3 supra at paras. 51, 63-64 and 76.

31 See, for example Dinstein, “War, Aggression and Self-Defence”, Cambridge University Press, at p. 172.

32 See Gray “International Law and the Use of Force: Foundations of Public International Law”, pp.130-131; and Franck, “Fairness in International Law and Institutions”, pp.101-105.

33 This response and his others are made in a personal capacity and do not necessarily represent the views of Her Majesty’s Government.

34 Exchange of letters between US Secretary of State Daniel Webster and Lord Ashburton, Foreign Secretary of Great Britain, relating to the case of the SS Caroline, 1837; 29 BFSP 1137-1138; 30 BFSP 195-196; See Jennings (1938) 32 AJIL 82 and Rogoff and Collins (1990) 16 Brooklyn JIL 493.

35 See, for example, decisions of the UN Security Council, NATO, and the OAS, etc..

36 Albrecht Randelzhofer in Bruno Simma (ed.) (1994) “The Charter of the United Nations, A Commentary”, p. 802.

37 Note 5 supra, para.139.

38 Ibid.

39 My criticisms here of the ICJ’s Wall Advisory Opinion should not be taken to imply support for Israel on the wall generally. I am on record as supporting the application of international humanitarian norms to the Israeli-occupied territories. My concern is simply that the Advisory Opinion includes some general statements that are based on weak reasoning, show little understanding of realities on the ground on both the Israeli and Palestinian sides, and offer poor guidelines for the future.


40 See UN Security Council Resolution 1368 “Threats to international peace and security caused by terrorist acts”, S/RES/1368 (2001).

41 See, for example, Alain Pellet, “Non, ce n'est pas la guerre!”, Le Monde, 20 September 2001; “No, this is not war!” in EJIL discussion forum on ‘The Attack on the World Trade Center: Legal Responses’ at http://www.ejil.org/forum_WTC/ny-pellet.html.

42 ILC (2001) “Draft Articles on Responsibility of States for Internationally Wrongful Acts”, see Report of the International Law Commission on the work of its Fifty-third session, Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10), chp.IV.E.1.

43 See the Nicaragua Judgment (1986), note 2 supra, at 62, para.101.

44 See UN SC Resolution 1368 (2001), note 17 supra.

45 United Nations General Assembly Resolution 3314 (XXIX) “Definition of Agression” (1974).

46 Simpson, G. “Great Powers and Outlaw States”, p.332.

47 See also later in paragraph 139, “imputable to”.

48 Note 5, supra. Necessity, considered and rejected by the Court at para.140, and was perhaps potentially more relevant.

49 Ibid, para.33.

50 See also criticism of this reasoning by Judge Higgins in her academic capacity in Higgins, R. “Problems and Process: International Law and How We Use It”, pp.250-251.

51 Separate Opinion of Judge Higgins on “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory”, ICJ Reports (2004), para.34.

52 Separate Opinion of Judge Buergenthal on “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory”, ICJ Reports (2004), para.6.

53 Eick, C. “Präemption’, ‘Prävention’ und Weiterentwicklung des Völkerrechts”, ZRP 2004, 200 at 201 (my translation). See also Watts, “Physical Barriers to Armed Infiltration: Self-Defence and Israel’s Wall in the Occupied Palestinian Territories”.

54 See “Statement by the North Atlantic Council” NATO press release (2001) 124.

55 40 ILM(2001), 1267 and 1270.

56 Statement of Attorney General, Lord Goldsmith, to the House of Lords, Hansard, 21 April 2004, column 370.

57 Franck, T (2001) “Terrorism and the Right of Self-Defence”, 95 AJIL 839.

58 Greenwood, C. (2002) “International Law and the ‘War on Terrorism” (2002) International Affairs Vol.78, Issue 2, April 2002, 301.

59 Murphy S.D. (2002) “Terrorism and the Concept of ‘Armed Attack’ in Article 51 of the UN Charter” 43 Harv. JIL 41, though Murphy also suggests that the links between Al-Qaeda and the Taliban Government were sufficiently close for the former’s acts to be imputable to the latter.

60 Sofaer, A. (2002) “Terrorism as War” ASIL Proceedings 254: see also J. Murphy The United States and the Rule of Law in International Affairs (2004) at p. 169.

61 Verhoeven, J. “Les ‘étirements’ de la légitime défense” (2002) 48 AFDI 49.

62 Byers, M. “Terrorism, the Use of Force and International Law after 11 September” (2002) 51 ICLQ 401.

63 Ratner, S. “Jus ad Bellum and Jus in Bello after September 11” (2002) 96 AJIL 905.

64 See Gray, loc.cit., note 9, supra, at pp.164-179.

65 Cassese, A. “Terrorism is also Disrupting some Crucial Legal Categories in International Law” (2001) 12 EJIL 993.

66 Charney, J. “The Use of Force Against Terrorism and International Law” (2001) 95 AJIL 835.

67 Corten, O. and Dubuisson, F. “Opération ‘liberté immuable’: une extension abusive du concept de légitime défense” (2002) 106 RGDIP51.

68 Myjer, E.and White, N. “The Twin Towers attack: an Unlimited Right to Self-Defence” (2002) 7 Journal of Conflict and Security Law 5.

69 Schachter, O. “The Use of Force against Terrorists in Another Country” (1989) 19 Is. YB HR 209

70 Note 19, supra.

71 53 ICLQ (2004) 785 at p.795 and footnote 58. In the case of ‘state failure’, the authors say, ‘the simple presence of terrorists may be enough to justify a carefully targeted armed response, addressed at the terrorists alone. This approach would of course amount to a limited extension of self-defence to resist the armed attacks or imminent attacks of non-State actors, but only in the rare situations where no state authority exists. ’

72 National Security Strategy of the United States of America (2002), available at http://www.whitehouse.gov/nsc/nss.html, reprinted in 41 ILM 1478 (2002)..

73 Randelzhofer in Simma, B. (ed.) (1994) “The Charter of the United Nations, A Commentary”, p.803.

74 Ibid., p.806.

75 Note 49, supra.

76 Condoleezza Rice, 2002 Wriston Lecture, New York, 1 October 2002.

77 Note 11, supra.

78 Foreign Affairs Select Committee (2004), para.429.

79 Note 33, supra.

80 Roberts, A (2003) “International Law and the Use of Military Force: The United Nations, the United States and Iraq”, Europaeum: OXFORD. This is the text of a Europaeum Lecture that I delivered at Leiden University, 6 June 2003.

81 See e.g. Financial Times, 6 March 2004, p. 2, PM defends pre-emptive attacks on rogue states”.

82 Hansard, 21 April 2004, column 370.

83 See, for example, UN Security Council resolutions adopted on 12 September 2001 and subsequently.

84 See National Security Strategy of the United States of America, note 49 supra.

85 Jessup, P in Schwarzenberger, G. (1944) “Totalitarian Lawlessness and International Law”, Jonathan Cape: LONDON, at p.39. Note also Schwarzenberger’s rebuke to those with, “the all-too-ready and frequent tendency to pin the label of novelty on anything which does not happen to have come to one’s individual attention”, p.39.

86 Ibid.

87 Note 33, supra.

88 Quoted from written evidence submitted by Professor Philippe Sands QC to the House of Commons Foreign Affairs Committee, 1 June 2004.

89 See Walzer, M (1977) “Just and Unjust Wars: A Moral Argument with Historical Illustrations Allen Lane: LONDON.

90 Ibid., p.81

91 Although as Michael Byers points out, Israel claimed that Egypt’s blocking of the Straits of Tiran was a prior act of aggression thereby justifying self-defence under Article 51 of the Charter. See Byers, M. ‘Preemptive Self-defense: Hegemony, Equality and Strategies of Legal Change’, 11 Journal of Political Philosophy (November 2003), p.180.

92 National Security Strategy of the United States (2002), note 49 supra.

93 Ibid.

94 Ibid (emphasis added).

95 Ibid. (emphasis added).

96 Note 56, supra, pp.78-80.

97 Ibid. p.77.

98 Evans, G. “When is it Right to Fight? Legality, Legitimacy and the Use of Military Force”, 2004 Cyril Foster Lecture, Oxford University, 10 May 2004.

99 See http://lcil.law.cam.ac.uk/lectures/hersch_lectures_2004.php

100 International Court of Justice, Advisory Opinion of 8 July 1996 on “Legality of the Threat or Use of Nuclear Weapons”, ICJ Reports 1996.

101 Bowett, D. “Reprisals Involving Recourse to Armed Force”, 66 AJIL 1 (1972)


102 Note 77, supra.

103 Note 33, supra.

104 Franck, T.M. (2002) “Recourse to Force: State Action against Threats and Armed Attacks”, Hersch Lauterpacht Memorial Lectures Series, Cambridge University Press: CAMBRIDGE

105 See Nuclear Weapons Advisory Opinion, note 77, supra, at p.245

106 See Nuclear Weapons Advisory Opinion, note 77, supra, at para.41

107 See Nicaragua Case, note 2, supra, at para.176

108 See Statement by the Attorney General, note 33, supra.

109 International Court of Justice, Judgment of 25 September 1997 in the “Case Concerning the Gabcikovo-Nagymaros Project (Hungary v. Slovakia)”

110 See Myjer & White, note 45, supra, at p.8.

111 However, I do not suggest that its categories supplant state practice in the field of the use of force.

112 Though Judge Fleischauer, in his separate opinion in the ICJ Nuclear Weapons Advisory Opinion, was saying that this limit may not apply in cases of extreme necessity. Note 77, supra.

113 See response to question 2, supra.

114 See note 2, supra, quoted in Simpson (2004), p.333.



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