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

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American Society of International Law, Proceedings of the 77th Annual Meeting, 14-16 April 1983 (Washington, D.C.:1985), 176. 54. McDougal, 600. 55. See Headquarters USAF/JACI ltr, para. 4. 56. Schachter, “The Right of States,” 1634. 57. Harlow, 93. 58. See Bowett, 185. 59. See Brierly, 416-19; and Digest of International Law, vol. 12:1-2. 60. Bowett, 183. 61. “Pact of Paris” (Kellogg-Briand Pact), 27 August 1928, Statutes at Large. vol. 46:2343; League of Nations Treaty Series (LNTS), vol. 94:57. 62. 23 July 1928 note quoted in Brownlie, “Use of Force,” 206. For text, see also William W. Bishop, Jr., International Law: Cases and Materials, 2d ed. (Boston: Little, Brown and Co., 1962). 776-77. 63. Brierly, 410. 64. For a discussion of the Caroline case, see Bishop, 777. 65. Bowett, 187-92; Higgins, 299; Nydell. 485-86. 66. Myres McDougal quoted by Lt Col Uri Shoham, Israeli Air Force, “The Israeli Aerial Raid upon the Iraqi Nuclear Reactor and the Right of Self-Defense,” Military Law Review, no. 109 (1985), 199, n. 143. 67. Franck, 820. See also George Bunn, “International Law and the Use of Force in Peacetime: Do U.S. Ships Have to Take the First Hit?” Naval War College Review 39, no. 3 (May-June 1986): 69-80; and Nydell, 488-90. 68. See Maizel, 72-73; W. Thomas Mallison, “Limited Naval Blockade or Quarantine— Interdiction: National and Collective Defense Claims Valid under International Law,” George Washington Law Review 31(1962): 348; and Schachter, “International Rules,” 135-36. 69. See Maizel, 47-86; and Shoham, 199-223. 70. See Waldock, 497-98. See also Bender, 134-35. 71. See Farer, 65. 72. Yehuda Z. Blum, “State Response to Acts of Terrorism,” in State Terrorism and the international System, Proceedings of the International Security Council, Tel Aviv, Israel, 26 January 1986 (New York: CAUSA International, 1986), 46. See also Terrorism: How the West Can Win, ed. Benjamin Netanyahu (New York: Farrar, Straus, and Giroux for the Jonathan Institute, 1986), 136. 73. See statement of Ambassador Herbert S. Okun, acting US permanent representative to the United Nations, in “Self-Defense against Terrorism” (US Digest, chap. 14, sec. 1), Contemporary Practice of the United States Relating to International Law, American Journal of International Law 80, no. 3 (July 1986): 632-33. See remark of Julia Willis, deputy assistant legal adviser for European Affairs, Department of State, on 16 February 1979: It is clear that the United States recognizes that patterns of attack or infiltration can rise to the level of an “armed attack’ thus justifying a responding use of force in the exercise of the right of self-defense. The United States made this determination both in its legal defense of the United States participation in the Viet Nam war, and it’ the Cambodian incursion of May, 1970.
Quoted in Department of State. Office of the Legal Adviser, Digest of United States Practice in International Law, 1979, ed. Marian Lloyd Nash (Washington. D.C.: 1983), 1751, State Department, 9374. 74. See Bowett, 9-10. 75. “Committee on the Use of Force,” 207. 76. See Bender. 134; Bowett, 53; Higgins. 298; Kelsen, 80; Schachter, “International Rules,” 132; and George Schwartzenberger, “The Fundamental Principles of International Law,” Recueil des Cours 87, pt. 1 (1955), 333. 77. “Charter of the United Nations,” art. 33. 78. Farer, 28. See also Bowett, 269; Kelsen, 80; Nydell, 478; and Schachter, “The Right of States,’’ 1635-36. 79. As Schachter writes, These considerations indicate the legal dilemma faced in cases where an attack has already occurred and the victim state has a choice between using force and seeking redress through peaceful means. In my view, a categorical answer to the problem is not warranted. It would be unreasonable to lay down a principle that armed action in self-defense is never permissible as long as peaceful means are available. It would also be unreasonable to maintain that self-defense is always a right when an attack has occurred, irrespective of the availability of peaceful means or the time of attack. The difficulty in proposing a general rule does not mean that a reasonable answer cannot be given in particular cases. In a case involving imminent danger to the lives of captured persons, as in Entebbe or arguably in Tehran, it would be unreasonable to maintain that the continued pursuit of peaceful measures must preclude armed rescue action. Schachter, “The Right of States,” 1637. 80. See Bowett, 269; Brownlie, “Use of Force,” 265; Farer, 28; Maizel, 71; and Sofaer, “Terrorism and the Law,” 920. 81. See Farer, 28; Schwartzenberger, 334; and Shoham, 193. 82. Oscar Schachter, “Self-Help in International Law: U.S. Action in the Iranian Hostage Crisis,” Journal of international Affairs 37, no. 2 (Winter 1984): 242. 83. Ibid., 243. 84. See Bowett, 53; Carl Q. Christol and Comdr Charles R. Davis, USN, “Maritime Quarantine: The Naval Interdiction of Offensive Weapons and Associated Materiel to Cuba, 1962,” American Journal of international Law 57, no. 3 (July 1963): 540; Farer, 28—30; Higgins, 303; and Kelsen, 83. 85. See Bowett, 269. Regarding how much force can be used, Brownlie notes, It remains to comment on the element of danger in the doctrine of proportionality. If a State is faced with a small-scale attack across its frontier at a time of tension, in circumstances which do not clearly indicate whether the attack is the result of a mistake or unauthorized act of a subordinate officer, or is the herald of an offensive, its reaction might be proportionate to the threat even if it were slightly more forceful that the actual attack, the extra force being a guarantee of decisiveness.
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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.
Page 10 and 11:
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
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international law establishing indi
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Another issue is the choice and use
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NOTES 1. Department of State, “Li
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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 122 and 123: Reasonable Response This element re
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 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
Page 172 and 173: NOTES 1. Joint Chiefs of Stall, Uni
Page 174 and 175: 3. The action is taken to protect e
Page 176 and 177: Option 4: Collective Anticipatory S
Page 178 and 179: 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
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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
Page 200 and 201:
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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