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Critically assess the limitations of ‘self-defence’ in International conflict, with reference to the influence of non-state actors

Introduction – 416/ 500

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Following the terrorist attacks in America on September 11 2001, there was an increased demand for the necessity of a state to be able to use force in an act of self-defence when faced with acts of aggression. However, some states were considered to be more interested in the use of pre-emptive force than merely acting in self-defence of threats. This raises the question: how is it possible to distinguish between pre-emptive use of force and self-defence? Similarly, under international law the use of force should be in response to an armed attack, this is defined by Definition of ‘armed attack’. Discussion/Conclusion.

There are number of international legislative guidelines towards the use of self-defence in conflict such as Article 51 under the United Nations Charter and Resolution 13681. Resolution 1368 was adopted on the 12th September 2001, just one day after the Twin Towers attack. discuss

This essay will evaluate the difference between self-defence and the use of pre-emptive force in conflicts. Whilst pre-emptive force is not typically regarded as an acceptable use of force in international conflict, it is necessary to question whether this is becoming a redundant concept. In recent years there has been an increase in attacks carried out by non-state actors, such as Islamic State. This throws into question the relevancy of current legislative approaches monitoring self-defence in international law, and whether there needs to be a change towards a more pre-emptive method of attack carried out in international conflict. However, it can be argued that allowing states a use of force encourages abuse of the system for the gain of the individual state. Natasja Duhem claims: “Many states have routinely called in their right to self-defence as justification for their use of force in the war on terror.”2 Consequently, it is necessary to evaluate a number of other factors, such as the methods of regulation for use of force, prior to establishing a conclusion towards the best use of force by a state in the current climate.

The purpose of this essay is to critically assess the current approach to self-defence in conflict in international law, both through its legislative approaches and the attitudes of international bodies such as the International Court of Justice. This essay will analyse the engagement of states in the use of force both in self-defence and in pre-emptive attacks, whilst evaluating the influence of non-state actors on the attitudes of states. Finally, this essay will conclude by assessing the limitations of self-defence in International conflict.

History

In order to understand the current international response to the use of force through both self-defence and pre-emptive action, it is necessary to establish the legal grounding for current legislation. At the end of the First World War, the League of Nations3 was created through the Versailles Peace Conference4. Under Article 10 of the League of Nations, it was intended that member states were “to respect and preserve as against external aggression the territorial integrity and existing political independence of all members of the League”5. At its height, the League of Nations had 58 member states. However, its failure to prevent conflict pre-empting the Second World War, such as example, resulted in a lack of confidence in the organisation. Consequently, the League of Nations can be seen to have collapsed pre-WW2, with its subsequent disbandment in 1946. Discuss. Article 2 of the League of Nations stated that members agreed “in no case to resort to war”6 analyse However, Article 2 of the League of Nations was never instigated, therefore, the agreement to not resort to war only came into effect in 1928 through the creation of the Kellogg-Briand Pact7. Conclude-LON

The Kellogg-Briand Pact was introduced in 1928 “condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another”8

“International law progressed from jus ad bellum to jus contra bellum”9

“Nothing in the new treaty restrains or compromises in any manner whatsoever the right to self-defence. Each nation in this respect will always remain free to defend its territory against attack of invasion”10 analyse – good points Conversely, by not providing any statutory limitations to the action taken under self-defence, the Kellogg-Briand Pact did not provide a standard for acceptable limit of force used through self-defence, whether to be considered proportionate or legal. Subsequently, conclude.

United Nations Security Council was created at the Second World War discuss – Chapter 7 articles 39 and 24

Article 51

Article 51 first states the United Nations’ position on acts of self-defence prior to any action having been taken by a country: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”11 When this is given greater scrutiny, the “inherent right” of the member states demonstrates the acknowledgement of the individual states’ right to defend themselves against armed attacks. However, it is also clear in specifying the actions taken by the state are in response to an armed attack that has occurred. Subsequently, it is possible to establish that Article 51 does not recognise pre-emptive use of force as a measure of self-defence to be taken by United Nation member states.

–          Security Council

–          Purpose: Maintain international peace and security

Following this, Article 51 outlines the Security Councils’ response to action taken in self-defence by member states: “Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”12

–          Immediately reported

–          Authority of the Security Council

–          Such action it deems necessary

–          Purpose: Restoration of peace

Pros/Cons of Article 51

Criticisms of article 51

2002 Bush Doctrine  – no distinction between terrorists and those who harbour them

Nicaragua

The end of the Second World War witnessed the introduction of the United Nations Charter13. Article 2 (4) under the United Nations Charter outlined the prohibition of the use of force: “the provision in the UN charter prohibits the use of force, whether it amount to war or not”14 analyse.

e.g. case for Article 2 (4) violation – Nicaragua In order to analyse the use of self-defence in international conflict, it is necessary to establish the historical Nicaragua

United States breached the use of force under art 2(4)

“For the United States to be legally responsible, it would have to be proved that that State had effective control of the operations in the course of which the alleged violations were committed”15

Unlawful use of force, U.S response was not proportional to the threat against it

The U.S. did not have enough responsibility for intervention despite role in the conflict, and there was no request from the involved parties for the U.S to intervene.

The United States could not rely on self-defence – violation of customary international law: “organizing or encouraging the organization of irregular forces and armed bands… for incursion into the territory of another state”16

“The use of force may not be used to support terrorist acts and civil strife carried out against other states”17

 U.S. went against customary international law and Article 2(4) through its use of force and violation of article 51.

Criteria for self-defence: the state must be victim to an armed attack, and subsequently declare itself a victim; the state must request assistance from other state/states if engaging in collective self-defence. Additionally, the state must (under treaty law) and preferable (under customary law) report to the Security Council18.

(keep here for precedent set? Or move to top?)

Self Defence vs Pre-emptive attacks – 182/

It is necessary to analyse the extent to which self-defence can be used as a justification for the actions of a state. In some instances, the conduct of a state may be considered a pre-emptive strike rather than the act of self-defence. Why? However, pre-emption is not considered in the same regard under international law. For example, example. This demonstrates explain. Therefore, Conclude

“The threat posed by terrorism today has become much bigger following the immense technological developments and increasingly globalized environment”19

Article 2 (4) – Can be used to allow state actors to tackle NSA’s internally through pre-emptive force but does not allow for international response

One example of the use of pre-emptive force was demonstrated by Japan example, explain, conclusion

In other instances, such as (United Kingdom) example, explain, conclusion

Point to consider – location of non-state actors – state location where there is no govt to hold accountability

 ‘ratione personae.’

Recent events

Conclusion – 500 words Conclusion – how is pre-emptive attacks different to self-defence, does the law view them differently? How are they monitored? Pros and Cons – Should pre-emption be considered an alternative to self-defence

1 Resolution 1368 full title

2 https://lib.ugent.be/fulltxt/RUG01/002/060/862/RUG01-002060862_2013_0001_AC.pdf

3 League of Nations Full Title

4 Versailles Peace Conference Full Title

5 Article 10 League of Nations full title

6 Article 2 League of Nations full title

7 The Briand-Kellogg Pact full title

8

9 ibid

10 French Note, July 14, 1928 in Foreign Relations 1928 – 1, Supra, Note III.10 at 107-108

11 Article 51, United Nations Charter

12 ibid

13 United Nations Charter full title

14 B. Simma and others (Eds), The Charter of the United Nations: a Commentary (Oxford University Press, Oxford, 2012) vol 1, 112. (‘Commentary to the Charter’); Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) (Merits) 1986 ICJ Rep 14, paras 188-190 and 228

15 Nicaragua Case Full Title

16

17 Para 195

18 Para 195-200

19 (n.2)

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