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

More documents

Recommendations

Info

The action must be taken for a punitive purpose. This condition distinguishes reprisal from self-defense. The purpose of self-defense is protection; the purpose of reprisal is punishment. Reprisals are not taken in response to actual or imminent armed attack. They are taken to extract reparations or to compel the delinquent state to comply with international norms in future conduct. Although this difference seems clear enough, in practice it may not be so. Whether a state acts to protect itself or punish the delinquent state is not always so evident. D. W. Bowett, president of Queen’s College, Cambridge University, and lecturer in law at Cambridge and Manchester universities, describes the problem thusly: To take what is now perhaps the classic case, let us suppose that guerrilla activity from State A, directed against State B. eventually leads to a military action within State A’s territory by which State B hopes to destroy the guerrilla bases from which the previous attacks have come and to discourage further attacks. Clearly, this military action cannot strictly be regarded as self-defense in the context of the previous guerrilla activities; they are past, whatever damage has occurred as a result cannot now be prevented and no new military action by State B can really be regarded as a defense against attacks in the past. But if one broadens the context and looks at the whole situation between these two states, cannot it be said that the destruction of the guerrilla bases represents a proper, proportionate means of defense—for the security of the state is involved—against future and (given the whole context of past activities) certain attacks? 17 The initial determinative factor is the way in which the acting state seeks to characterize its own action. Does the state view its use of force as self-defense in accordance with the customary rules of international law governing self-defense and in compliance with article 51 of the Charter or does the state see its use of force as an act of reprisal? The action must be preceded by a demand to redress the wrong. The delinquent state must be advised of the wrong, demand must be made for reparations or changed conduct, and the delinquent state must be given reasonable time to comply. Elements of this requirement are publication of the demand and a conclusion, through action or inaction, that the demand has been refused. 18 The action must be taken as a last resort. This condition may be viewed as another way of looking at the previous condition but it stresses the importance of peaceful settlement. Reprisals “are not to be started unless and until efforts at a peaceful settlement of the dispute have failed.” 19 Reprisals are admissible only after negotiations have taken place. The action must be halted as soon as its objective is attained. The purpose of reprisal is to obtain redress through satisfaction of demands. When those demands are satisfied, be they reparations or altered conduct, the reprisal must cease. 20 The action must be proportional to the original injury suffered. On the one hand, armed reprisal is not available for redress of trivial rights. On the other hand, when armed reprisal is available it must be measured and not excessive in the sense of being out of proportion to the
original wrong nor disproportionate in achieving its redress. Relevant factors are size of force used, targets selected, and weapons and tactics employed. 21 The action must show due regard for third states. A reprisal must be employed in such a manner as not to injure third states intentionally. If a reprisal damages property of a third state or injures or kills third state nationals, the state taking the reprisal may be liable for the resulting damages. 22 The action must not be taken against protected persons. Certain acts of reprisal are never justified, as for example, reprisals against diplomatic personnel whose person and property are universally protected. Some writers see this restriction extending to any act that would violate human rights or certain standards of safety and life, such as those in the air or at sea. 23 The action cannot be in response to a prior (lawful reprisal. Needless to say, a state that is the object of a lawful reprisal cannot itself take a reprisal since one of the conditions of a reprisal is a prior unlawful act. Of course, the conundrum is whether a reprisal is lawful. 24 Status of Reprisal in Contemporary International Law What is the legal status of reprisal today? It has a very low level of acceptability. The general view is that articles 2(3) and 2(4) of the UN Chatter have outlawed peacetime reprisals. UN General Assembly resolutions have called on states to refrain from its use. 25 When states have relied upon it, the UN Security Council has condemned their action soundly. 26 Bowett, Brierly, Brownlie, Falk, Harlow, Higgins, McDougal, Wright, and most other recognized scholars agree that peacetime reprisals are forbidden by contemporary international law. 27 The United States has supported this view. On 29 May 1974 Kenneth Rush, acting secretary of state, in responding to a suggestion from Prof Eugene Rostow, Yale University Law School, that the United States endorse the right of peacetime reprisal, argued as follows: You would add a complementary principle, namely, that where a state cannot or will riot fulfill its international legal obligations to prevent the use of its territory for the unlawful exercise of force, the wronged state is entitled to use force, by way of reprisal, to redress, by self-help, the violation of international law which it has suffered. As you know, [UN General Assembly] Resolution 2625 also contains the following categorical statement, ‘ States have a duty to refrain from acts of reprisal involving the use of force.” That injunction codifies resolutions of the Security Council which have so affirmed. The United States has supported and supports the foregoing principle.
Page 2 and 3:
LEGITIMATE USE OF MILITARY FORCE AG
Page 4 and 5:
CONTENTS Page Disclaimer ii Forewor
Page 6 and 7:
Chapter 7 USE OF MILITARY FORCE: TE
Page 8 and 9:
ABOUT THE AUTHOR Lt Col Richard J.
Page 10 and 11:
INTRODUCTION THE RELEVANCE OF INTER
Page 12 and 13:
Chapter 7 summarizes the lessons le
Page 14 and 15:
This Study, How Meaningful? States
Page 16 and 17:
The international arena has seen so
Page 18 and 19:
Combating terrorism accents this is
Page 20 and 21:
7. Many scholars and jurists have f
Page 22 and 23:
Jenkins, “Combatting Terrorism Be
Page 24 and 25:
Thoughts toward an International Co
Page 26 and 27:
29. See Vice President, Report on C
Page 28 and 29:
CHAPTER 1 WHAT IS TERRORISM AND HOW
Page 30 and 31:
If a general definition would be so
Page 32 and 33:
Terrorism is the unlawful use or th
Page 34 and 35:
International Terrorism: A Working
Page 36 and 37:
there is evidence that President Id
Page 38 and 39:
The Vice President’s Task Force o
Page 40 and 41:
A Threat More Serious Than Numbers
Page 42 and 43:
Diplomatic relations between countr
Page 44 and 45:
And what has the challenge become?
Page 46 and 47:
physically or by neutralizing their
Page 48 and 49:
27. UN General Assembly, resolution
Page 50 and 51:
44. L. C. Green of the University o
Page 52 and 53:
65. Information provided by L. Cart
Page 54 and 55:
105. See Stephen Sloan, Beating int
Page 56 and 57:
The law of armed conflict approach
Page 58 and 59:
But, as regards terrorism, the arme
Page 60 and 61:
1. If the law of armed conflict is
Page 62 and 63:
Although both approaches, law enfor
Page 64 and 65:
crime involved. This initiative has
Page 66 and 67:
Symbionese Liberation Army (SLA) wa
Page 68 and 69:
eaches, prosecution, and extraditio
Page 70 and 71:
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 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 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 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
Page 180 and 181: 8. The action is for a limited dura
Page 182 and 183: APPENDIX B UNITED NATIONS CHARTER (
Page 184 and 185: APPENDIX C STATUTE OF THE INTERNATI
Page 186 and 187: Crelinsten, Ronald D., Danielle Lab
Page 188 and 189: Almond, Harry E., Jr. “Using Law
Page 190 and 191: 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
Page 198 and 199:
______. “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
show all

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

Create successful ePaper yourself

Delete template?

Save as template?