Legitimate use of military force against state-sponsored - Air University

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Reasonable Response This element requires an overall assessment that demands a bringing together of all of the elements of self-defense to determine if the contemplated response is appropriate. The Caroline formula holds that self-defense actions must be neither unreasonable nor excessive. That test may be stated as follows: the injured state is authorized to act unilaterally with armed force in self-defense when it reasonably judges, considering all relevant elements, that it may do so. The injured state initially makes this judgment based upon the best information available to it at the time. 90 States Must Report Response Article 51 requires that measures taken in self-defense be reported immediately to the Security Council. States are also obligated to report any preparatory actions to the Security Council; they do not have to report their actions to any other body or organ of the United Nations other than the Security Council. Reports to the General Assembly or any of its committees or to the secretary general are not required. 91 This obligation to report self-defense actions gives the Security Council the opportunity to act and to judge the actions of the delictual and injured states. More frequently than not, the Security Council focuses attention on the actions taken in self-defense by the injured state because they usually appear to precipitate the crisis and because a determination of the viability of the self-defense claim generally will dispose of the entire affair. Following World War II, the victorious allied nations set down the rule at the Nuremberg International Military Tribunal that “whether action taken under the claim of self-defense was in fact aggressive or defensive must ultimately be subject to investigation and adjudication if international law is ever to be enforced.” 92 That rule has been carried over into the UN Charter. A state may make the initial decision invoking the right, but the final decision must be made by an international body. 93 In accordance with article 51, this determination would be made by the Security Council. But because of its voting rules, the Council, in practice, has been precluded from doing so. The General Assembly, which possesses recommendatory powers only, has assumed this responsibility. Although the General Assembly cannot direct or mandate a course of action to the parties involved in the crisis, if the vote significantly represents the universal interests of the world community it can have a substantial effect. 94 Secretary Shultz summed it up when he said, “Governments that overreact, even in self-defense, may only undermine their own legitimacy, and they unwittingly serve the terrorists’ goals.’’ 95 Response Must Cease If Security Council Acts Effectively Article 51 authorizes self-defense only “until the Security Council has taken measures necessary to maintain international peace and security.” Self-defense, therefore, is an interim mechanism that must be terminated when, but only when, the Security Council takes effective, positive, and affirmative action. A Security Council veto of proposed measures would result in Security Council in action. Ineffective action or inaction on the part of the Council is not sufficient to end a state’s right of self-defense. As D. W. Bowett writes,
whether the necessary measures have been taken must be determined objectively, as a question of fact, arid that both the [Security Council] and the defending state are able to reach their own decisions on this. Should these decisions conflict then the individual member admittedly runs the risk of its continued action being characterized as a “threat to the peace, breach of the peace, or act of aggression” under [Article 39], but this is only a somewhat greater hazard than it runs in any event by resorting to self-defence and would probably be undertaken in preference to annihilation by the attacking state. 96 The right of self-defense is unique. Prior Security Council approval is not required before a state can resort to its use (in contrast to regional enforcement actions under chapter VIII of the Charter) and, if Security Council action on proposed measures is blocked by veto, then the right of continued self-defense remains unimpaired. 97 In short, states retain the right of self-defense so long as the United Nations Organization through the Security Council is unable or unwilling to deal with the situation giving rise to the self-defense action in the first place.
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LEGITIMATE USE OF MILITARY FORCE AG
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CONTENTS Page Disclaimer ii Forewor
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Chapter 7 USE OF MILITARY FORCE: TE
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ABOUT THE AUTHOR Lt Col Richard J.
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INTRODUCTION THE RELEVANCE OF INTER
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Chapter 7 summarizes the lessons le
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This Study, How Meaningful? States
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The international arena has seen so
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Combating terrorism accents this is
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7. Many scholars and jurists have f
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Jenkins, “Combatting Terrorism Be
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Thoughts toward an International Co
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29. See Vice President, Report on C
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CHAPTER 1 WHAT IS TERRORISM AND HOW
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If a general definition would be so
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Terrorism is the unlawful use or th
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International Terrorism: A Working
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there is evidence that President Id
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The Vice President’s Task Force o
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A Threat More Serious Than Numbers
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Diplomatic relations between countr
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And what has the challenge become?
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physically or by neutralizing their
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27. UN General Assembly, resolution
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44. L. C. Green of the University o
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65. Information provided by L. Cart
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105. See Stephen Sloan, Beating int
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The law of armed conflict approach
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But, as regards terrorism, the arme
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1. If the law of armed conflict is
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Although both approaches, law enfor
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crime involved. This initiative has
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Symbionese Liberation Army (SLA) wa
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eaches, prosecution, and extraditio
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the latter instance, no one claimed
Page 72 and 73: international law establishing indi
Page 74 and 75: Another issue is the choice and use
Page 76 and 77: NOTES 1. Department of State, “Li
Page 78 and 79: 28. Paul A. Tharp, Jr., “The Laws
Page 80 and 81: 1919 a process has been under way t
Page 82 and 83: 66. See Geneva Convention IV, artic
Page 84 and 85: CHAPTER 3 STATES HAVE RESPONSIBILIT
Page 86 and 87: International Terrorism and the Dut
Page 88 and 89: government exercises within its ter
Page 90 and 91: few states, although they do not vi
Page 92 and 93: to establish the linkage required u
Page 94 and 95: chapters 4-6 examine the second. Te
Page 96 and 97: all Members shall refrain in their
Page 98 and 99: valuable tools of self-help and of
Page 100 and 101: object the removal or destruction o
Page 102 and 103: 10. Jordan J. Paust, “Entebbe and
Page 104 and 105: 34. See “Terrorism’s Grim Upsur
Page 106 and 107: through activities that involve for
Page 108 and 109: CHAPTER 4 INDIVIDUAL SELF-DEFENSE A
Page 110 and 111: Strictly speaking, the right of ind
Page 112 and 113: Clearly, however, states may not re
Page 114 and 115: Although the degree of control that
Page 116 and 117: The expansive school’s belief tha
Page 118 and 119: What is the customary law on self-d
Page 120 and 121: await the arrival on scene of an ar
Page 124 and 125: Summary and Transition Individual s
Page 126 and 127: Security; Implications of Israel’
Page 128 and 129: In response to this line of reasoni
Page 130 and 131: American Society of International L
Page 132 and 133: Brownlie, “Use of Force,” 231.
Page 134 and 135: avoided if the focus is put properl
Page 136 and 137: The danger of conceding to individu
Page 138 and 139: Fifth, and finally, article 52, par
Page 140 and 141: 12. See Rosalyn Higgins, “The Leg
Page 142 and 143: CHAPTER 6 OTHER LEGAL ARGUMENTS TO
Page 144 and 145: conditions necessary for invitation
Page 146 and 147: The action must be taken for a puni
Page 148 and 149: …Yet, essentially for reasons of
Page 150 and 151: The action must be necessitated by
Page 152 and 153: emained so once the operations were
Page 154 and 155: Perhaps the best ease for humanitar
Page 156 and 157: The state contemplating interventio
Page 158 and 159: Many have criticized the modern law
Page 160 and 161: NOTES 1. See J. E. S. Fawcett, ‘I
Page 162 and 163: 27. Bowett writes, ‘‘Reprisals
Page 164 and 165: 49. See Bowett, Self-Defence, 88. 5
Page 166 and 167: An International Journal 7, no. 2 (
Page 168 and 169: This study has considered each of t
Page 170 and 171: Piracy, which is limited to illegal
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NOTES 1. Joint Chiefs of Stall, Uni
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3. The action is taken to protect e
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Option 4: Collective Anticipatory S
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Option 8: Peacetime Reprisal Source
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8. The action is for a limited dura
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APPENDIX B UNITED NATIONS CHARTER (
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APPENDIX C STATUTE OF THE INTERNATI
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Crelinsten, Ronald D., Danielle Lab
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Almond, Harry E., Jr. “Using Law
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Clark, Roger S. “Humanitarian Int
Page 192 and 193:
Harlow, Bruce, Lt Comdr, USN. “Th
Page 194 and 195:
Livingstone, Neil C., and Terrell B
Page 196 and 197:
Paust, Jordan 5. “Entebbe and Sel
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______. “Problems with the Applic
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Blum, Yehuda. State Terrorism and t
Page 202 and 203:
“European Convention on the Suppr
Page 204 and 205:
______. Arms Control and Disarmamen
Page 206 and 207:
______. “Terrorist Attacks on US
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