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

The action must be necessitated by the unwillingness or inability of the territorial state to
afford the protections demanded by international law. This requirement links the duty of
protection of one’s nationals to the duty of state responsibility as discussed in chapter 3. This
condition has two basic elements. First, the territorial state does not have an absolute obligation
to protect foreigners in all circumstances. Crimes such as murders, assaults, robberies, and
kidnappings are indigenous to all societies and affect citizens and foreigners alike. Second, the
territorial state must fail in an obligation that it does have under international law. A state fails
when injury or death results to a foreign national “either from the acts of the territorial state and
its authorities or from the acts of individuals or groups of individuals which the territorial state is
unable, or unwilling, to prevent.” 47 Examples are “a breakdown of law and order in the territory
concerned, or from mob violence which the local authorities are unable to control.” 48
The action must be taken as a last resort. Writers describe this condition in different
words but see the use of armed force as the final choice. Bowett speaks of failed or inadequate
diplomatic efforts. 49 Thomas R. Krift talks of the “unavailability of any other less extreme
solution.” 50 Col Dennis Corrigan, US army judge and international law practitioner, writes that
intervention is “only justified when resort to all peaceful means of resolving the situation have
been tried and failed.” 51 As with so many other legal justifications for the use of force, all
peaceful means must be exhausted or found unavailable or fruitless.
This third condition became a central issue in the Iranian hostage case because the United
States attempted a rescue mission while the matter of the hostages was pending before the
International Court of Justice. Had the United States exhausted its peaceful remedies? The Court
did not find the United States action unlawful on this ground. Instead, the Court made a
distinction between unlawful action and action incompatible with respect for the judicial process.
The Court was of the opinion that so long as the case was pending, US action should be limited.
Prof Ted Stein, University of Washington School of Law and formerly with the legal
adviser’s office of the US Department of State, wrote, “A scrupulous regard for the Court and its
processes would have led the United States either to terminate proceedings once Iran’s attitude
became unmistakably clear or to forego a military solution.” 52 Columbia University’s Oscar
Schachter provided another view: “It is not unreasonable to conclude that the United States could
not be assured of the safety of the hostages simply because judicial proceedings were pending.
As a matter of principle, exhaustion of remedies cannot be required when the remedies’ are
likely to be futile. The state whose nationals are in peril must be given latitude to determine
whether a rescue action is necessary.” 53
The action must be taken in response to immediate danger to life or property. D. W.
Bowett states the rule in these words, “Not all cases of state responsibility will involve another
state’s right of protection by means of armed intervention, for many and indeed most forms of
breach do not carry any immediate threat of irreparable injury to the life or property of aliens.” 54
Physical injury or death are irreparable by definition. “No subsequent action, remedy, redress, or
compensation,” writes Sir Gerald Gray Fitzmaurice, judge of the International Court of Justice,
“can bring the dead to life or restore… limbs to the maimed. There is no remedy except
prevention. In this lies the ultimate justification for intervention of this kind.” 55 The difficulty is
in judging the immediacy of the threat in terms of whether lives are in imminent danger. 56