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

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27. Bowett writes, ‘‘Reprisals involving the use or threat of force are generally considered to be illegal.“ Bowett, Self-Defence, 13. James L. Brierly notes that “today it is beyond argument that armed reprisals… would be flagrant violations of international law.’’ Quoted by Lillich, 132. See also Ian Brownlie, International Law and the Use of Force by States (Oxford, England: Oxford University Press, 1963). 281-82. Brownlie also writes that the “provisions of Article 2, paragraph 4, of the United Nations Charter have finally prohibited reprisals involving the use of force.” Brownlie, ‘‘The Use of Force in Self-Defence,’’ in British Year Book, vol. 37:197. Falk writes (p. 429), “It does seem appropriate to conclude that the UN Charter prohibits all forms of forcible self-help other than the exercise of self-defense within the meaning of Article 51.” Harlow writes (p. 91), “It is submitted that the better view, and one deserving United States support and adherence, is that reprisals, involving the use of force, are illegal in any situation short of a legal state of war” Rosalyn Higgins (p. 314) writes, “It is now generally considered that reprisals involving the use or threat of force are illegal.” Myres McDougal and Florentine P. Feliciano write, “It may suffice to register that we share the common view that the prescriptions and policies embodied in the U.N. Charter forbid the unilateral use of force and violence by way of reprisal.” McDougal and Feliciano, Law and Minimum World Public Order (New Haven, Conn.: Yale University Press, 1961). 208. Quincy Wright writes, “it was the object of Article 2, paragraphs 3 and 4, of the Charter to eliminate all military reprisals from international relations.” Q. Wright, ‘‘The Goa Incident,” American Journal of International Law 56, no. 3 (1962): 628. 28. Acting Secretary of State Kenneth Rush, letter, 29 May 1974, to Yale law professor Eugene Rostow reprinted in Department of State, Office of the Legal Adviser, Digest of United States Practice in international Law, 1974, ed. Arthur W. Rovine (Washington, D.C.: 1975), 700, State Department, 8809. 29. 16 February 1979 opinion of Julia W. Willis quoted in Digest of US Practice, 1979, 1752. See also Schachter, ‘‘Self-Help,” 245. 30. See Yehuda Slum, State Terrorism and the International System. Proceedings of the International Security Council, Tel Aviv, Israel, 26-28 January 1986 (New York: CAUSA International, 1986), 43-44; and Falk, 429, 31. See Falk, 438-40. 32. Falk (pp. 441-42) suggests the following 12 principles: (1) That the burden of persuasion is upon the government that initiates an official use of force across international boundaries: (2) That the governmental user of force will demonstrate its defensive character convincingly by connecting the use of force to the protection of territorial integrity, national security, or political independence; (3) That a genuine and substantial link exists between the prior commission of provocative acts and the resultant claim to be acting in retaliation; (4) That a diligent effort be made to obtain satisfaction by persuasion and pacific means over a reasonable period of time, including recourse to international Organizations; (5) That the use of force is proportional to the provocation and calculated to avoid its repetition in the future, and that every precaution be taken to avoid excessive damage and unnecessary loss of life, especially with respect to innocent civilians; (6) That the retaliatory force is directed primarily against military and para-military targets and against military personnel; (7) That the user of force make a prompt and serious explanation of its conduct before the relevant organ(s) of community review and seek vindication there from of its course of action; (8) That the use of force amounts to a clear message of communication to the target government so that the contours of what constituted the unacceptable provocation are clearly conveyed; (9) That the user of force cannot achieve its
etaliatory purposes by acting within its own territorial domain and thus cannot avoid interference with the sovereign prerogatives of a foreign state; (10) That the user of force seek a pacific settlement to the underlying dispute on terms that appear to be just and sensitive to the interests of the adversary; (11) That the pattern of conduct of which the retaliatory use of force is an instance exhibits deference to considerations 1-10, and that a disposition to accord respect to the will of the international community be evident: and (12) That the appraisal of the retaliatory use of force take account of the duration and quality of support, if any, that the target government has given to terroristic enterprises. These guidelines are criticized by Yehuda Z. Blum. “The Beirut Raid and the International Double Standard,” American Journal of International Law 64, no. 1 (January 1970): 94 and 104. 33. See Bowett, “Reprisals,” 33-36. 34. Ibid., 10-11. 35. See Air Force Pamphlet (AFP) 110-31, International Law—The Conduct of Armed Conflict and Air Operations, November 1976, para. 10-7; Naval Warfare Instruction Publication (NWIP) 10-2, Law of Naval Warfare, para. 300; and Harlow, 90-91. 36. Philip C. Jessup, A Modern Law of Nations, vol. 1 (New York: Macmillan Co., 1948), 169-70. 37. Judge Max Huber quoted by Bowett, Self Defence, 87. See also Netanyahu, 52. 38. See Slaughterhouse cases, 16 Wall. 36 (1873) and Lana it United States, 231 US 9 (1913). 39. Ian Brownlie quoted by Lohr, 7. See also Bowett, Self Defence, 92. 40. See Bunn, 72; John R. D’Angelo, “Resort to Force by States to Protect Nationals: The U.S. Rescue Mission to Iran and Its Legality under International Law,” Virginia Journal of International Law 21, no. 3 (1981): 485-519; L. C. Green, “International Law and the Control of Terrorism,” Dalhousie Law Journal 7, no.2 (April 1983): 249; Maizel, 60; Moore, 153-54; and Jordan J. Paust, “Entebbe and Self-Help: The Israeli Response to Terrorism,” Fletcher Forum 2, no. 1 (January 1978): 91. 41. See D’Angelo, 498; and Digest of international Law, vol. 12:192. 42. Concerning United States Diplomatic and Consular Staff in Tehran (United States it Iran), merits, 1980 ICJ 3. See also Maizel, 60; and Ted L. Stein, ‘‘Contempt, Crisis, and the Court: The World Court and the Hostage Rescue Attempt,” American Journal of International Law 76, no. 3 (July 1982): 499-531. 43. Ambassador Vernon Walters quoted in Department of State, ‘‘US Exercises Right of Self-Defense against Libyan Terrorism,” Department of State Bulletin 86, no. 2111 (June 1986): 21. See also Department of State, “Counterterrorism Policy,” statement of John Whitehead, deputy secretary of state, before the House Committee on Foreign Affairs, Washington, D.C., 22 April 1986, Current Policy 823, 2. 44. Rivers, 24, 45. See Abraham B. Sofaer, “The War Powers Resolution and Antiterrorist Operations,’’ Department of State Bulletin 86, no. 2113 (August 1986): 71. 46. See Bowett, Self Defence, 95. 47. Ibid., 88. See also Col Dennis M. Corrigan, USA. ‘‘Legal Use of Military Force to Counter Terrorism,” strategic study, no. 86-1 E-85 (Washington. D.C.: National War College, February 1986), 12-13; Maizel, 57-58; Moore, 154; and Sir Humphrey Waldock quoted in Digest of International Law, vol. 12:198. 48. Fitzmaurice. 172-74.
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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
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1919 a process has been under way t
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66. See Geneva Convention IV, artic
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CHAPTER 3 STATES HAVE RESPONSIBILIT
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International Terrorism and the Dut
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government exercises within its ter
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few states, although they do not vi
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to establish the linkage required u
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chapters 4-6 examine the second. Te
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all Members shall refrain in their
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valuable tools of self-help and of
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object the removal or destruction o
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10. Jordan J. Paust, “Entebbe and
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34. See “Terrorism’s Grim Upsur
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through activities that involve for
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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 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 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
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