International Law and the Use of Force

1. International Law and the Use of Force Observations from Naulilaa, Caroline, and Nicaragua

2. Traditional Laws of War • Development of the just war doctrine • St. Augustine (600s AD): Vengence-oriented; avenge against injuries… • Vittorio & Suarez (1500s), Hugo Grotius (1600s): refined the just war doctrine of St. Aug., noting that there is a need for both humane means and proper reasons for going to war. • Fell out of favor by the 19th-20th centuries. W. Hall and C. Hyde (p 504-505) said it’s well within a states rights to go to war for the purposes it so desires. … So who’s right here? • Jus in bello - limitation #1 on war • Deals with conduct during war, int’l humanitarian law • Jus ad bellum – limitation #2 on war • Concerns proper reasons for going to war at all

3. Naulilaa Case -1928 Germany vs. Portugal

4. Naulilaa Case -1928 • Facts: Germans enter Angola to negotiate the transportation of supplies. Argument ensues and the Germans are shot. Without any further communication, a number of Angola forts are destroyed by German military engagements. • Germany claimed they were engaged in a reprisal, but it was determined that German actions did not satisfy the requirements of a legal reprisal. • This reprisal was not legal b/c • the other nation’s authorities did not act contrary to the law of nations; • use of force is only justified by necessity and here there was no unsatisfied demand; • It was not a proportional response… and even if it were proportional, German actions would still be considered excessive. • To legally launch hostilities that fall short of going to war, there are lots of hoops to jump through.

5. Naulilaa Case -1928 • The primary rules developed out of this case are: • reprisals must be proportional to the original offense/harm/injury • Reprisals must be shown to be necessary/justified (as the result of an unsatisfied demand) • Reprisals (and retorsions) are seen as acts of self-help. • Entirely legal in the current international system. • Lawyers now more often refer to countermeasures

6. Naulilaa Case -1928 • Reprisals (and retorsions) are seen as acts of self-help • Self-help: Independent and self-directed action taken by an injured state against the transgressing state in order to gain redress. Until the middle of the 20th century the right of self-help was claimed by states as one of the essential attributes of sovereignty. In the absence of an international executive agency, an injured state undertook on its own account the defence of the claim it was making. Forcible measures falling short of war might prove sufficient; failing these, war might be resorted to as the ultimate means of self-help. Since self-help was regarded at international law as a legal remedy, the results secured by it were recognized by the international community as a final settlement of the case. • (Nolo’s Law Dictionary) • BUT, Article 51 does not clearly make mention of this concept (of proportionality) at all. The Nicaragua Case ruling admits this. • Observations?

7. The Caroline Dispute - 1838 U.S. vs. Britain

8. The Caroline Dispute - 1838 • Not a court case. Only a series of letters between American and British diplomats regarding the attack on an American vessel. • It was agreed on both sides that British actions did not constitute self-defense b/c it could not pass a specific test of self-defense: • That the reaction is required to be “instant, overwhelming, leaving no choice of means, and no moment for deliberation.” (511)

9. The Caroline Dispute - 1838 • Basis of dispute: U.S. citizens help Canada fight off GB • “The inviolable character of the territory of independent states is the most essential foundation of civilization.” • This principle can only be violated in the case of self-defense [narrow construction]. • Self-defense will justify an invasion of another country only when the danger is so great as to leave no alternative. • This doctrine is applicable in the case where you have no choice but to fight back.

10. The Caroline Dispute - 1838 • Major rule regarding use of force to emerge from this dispute: The right of self-defense is available only when the “necessity of that self-defense is instant, overwhelming, and leaving no choice of means, andno moment for deliberation.”

11. Henkin vs. Reisman on Codifications of the Limits of War Similarities and Differences

12. Codification of Limits of War • Articles 2(3) and 33 impose obligations that states settle disputes peacefully. • Article 2(4) states that states may not use force (or threaten to use force) “against the territorial integrity or political independence of any state.” • Article 51 codifies the inherent right of individual or collective self-defense • However, problems abound in interpretations.

13. Henkin essay on Article 2(4) • Ambiguities: • What is meant by “territorial integrity” • How do we know when “political independence” has been breached by an external act of force? • 1974 UN Definition of Aggression • Possible exceptions to Art. 2(4) • Humanitarian Intervention and Intervention to support self-determination • NOT to preserve/support political doctrines (Brezhnev and Reagan Doctrines)

14. Henkin on Article 51 • Self-defense has been limited by concepts of “necessity” and “proportionality” • BUT it does allow the “war to be taken to the aggressor state in order to effectively terminate the attack” • Some say that the inherent right of self-defense predates the UN Charter and , thus, not limited to defense against “armed attack” • The Caroline test does not mean only if armed attack occurs. • This is a loose and permissive interpretation of Article 51. • Observations? How about preventative self-def.? How does/should this rule apply in a post-9/11 world? • Rules of Intervention and Counter-intervention

15. Reisman essay on Article 2(4) • Possible exceptions to 2(4) (pg 522) • Self-defense • Self-determination • Decolonization • Humanitarian intervention • Uses of the military within spheres of influence and critical defense zones • Treaty-sanctioned interventions within the territory of another state • Use of military to gather evidence on international proceedings • use of military to enforce international judgments • Counter-measures such as reprisals and retorsions

16. Reisman (continued) • Main concern is whether “a particular use of force, whatever its justification, enhance or undermine world order?” • If actions enhance world order, they are more likely to be granted blessings • Conditions? Mechanical treatment of all uses of force? • No! Must be taken on a case by case basis. • Idi Amin (Uganda) vs. Soviets in Czechoslovakia

17. Henkin vs. Reisman Two philosophies regarding the use of force: • Henkin is one extreme, requiring absolute provocation. Assistance not involving the use of force seems not to be covered by Article 2(4), although it may violate norms of nonintervention. • Reisman takes a value-based approach. He says 9 categories have emerged in which there is varying support for the use of force. But, a key and constant factor is the need for maintenance of minimum order in a precarious int’l system. Will a particular use of force, whatever the justification, enhance or undermine the world order?

18. Nicaragua vs. United States - 1986 But first, a remark on International Law: “International Law is the law which the wicked do not obey and which the righteous do not enforce.” (Abba Eban, Israeli Ambassador to the U.S. - 1957)

19. Nicaragua vs. United States, 1986 • Background of the case… • Nicaragua contested • the legality of U.S. intervention in Nicaragua by supporting the contra rebels who attacked the Nicaraguan gov’t • U.S. military laying mines in Nicaraguan territorial waters • U.S. military attacking Nicaraguan ports and oil installations. Even thought the U.S. Congress refused all funding for the Contra rebels, the Reagan administration developed plans with the CIA to recruit and support the contras with $19 million in military aid. A top secret National Security Decision Directive (NSDD-17) gave the CIA full authority to carry out assistance to Contras.

20. Nicaragua vs. United States, 1986 • In question: • What assistance may one state give to rebels fighting against another state? • What assistance may one state give another state that is attempting to suppress rebels aided by a third state? • ICJ Jurisdiction issue: • “Does the ICJ have jurisdiction to hear a case involving a provision of an international treaty, despite one party's refusal to concede jurisdiction over disputes under the treaty, if the provision represents the codification of customary int’l law?” Contra rebels, 1983 Exterior of The Hague's Peace Palace

21. Nicaragua vs. United States, 1986 • 176: Ct. explains how Article 51 is customary in nature. Says that there is an “inherent” or “natural” right of self-defense. • 176: Admits that the UN Charter does not go on the explain or define all aspects of this natural right. • “For example, it does not contain any specific rule whereby self-defense would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in international law.” Contra soldier in Honduras

22. Nicaragua vs. United States, 1986 • 186: the court makes an important observation about how citing exceptions to rules actually helps confirm the rule. • 188: Both parties (Nicaragua and the U.S.) agreed that the fundamental principle (regarding that states refrain from the use of force) is embodied in the UN Charter’s Article (4) • Opiniojurisalso analyzedin #189. • 191: Differences of opinion were seen in their interpretations of “armed attack.” The court made a distinction between the most grave forms of armed attacks and less grave forms of armed attacks. • Cited several treaties and conventions (also noted in 189) that demonstrated both U.S. acquiescence to a treaty regarding the use of force and how it had been a particular customary practice in the early 1900s • Demonstrates that the US absolutely violated obligations re: use of force.

23. Nicaragua vs. United States, 1986 • 193: “The general rule prohibiting force [see Article 2(4)] allows for certain exceptions.” • In stating this, the court places the burden of proof on Nicaragua. • The charter recognizes the right of collective self defense in customary international law. • The parties disagreed as to the conditions governing the use of force in self-defense or collective self-defense. • 193: The ICJ then takes on the task of “defin[ing] the specific conditions which may have to be met for [the exercise of self-defense], in addition to the conditions of necessity [as shown in Caroline] and proportionality [as shown in Naulilaa] to which the Parties have referred. • SO… when can collective self-defense be used? (listed in 194) • Depends on the SPECIFIC CONDITIONS which surround it’s use • If it is proven to be NECESSARY • If it is a PROPORTIONAL RESPONSE to the threat

24. Nicaragua vs. United States, 1986 • 195: The court defines what “armed attack” means • that IL prohibits “the sending by or on behalf of a State of armed bands, groups, irregulars, or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to” and actual armed attack conducted by regular forces” (UN Def. of Aggression 1976); • … as well as the action by regular armed forces across an international border, • … and when assistance to rebels in the form of provision of weapons or logistical or other support. President Reagan in the Oval Office with White House staff advisors: (left to right) Secretary of Def. C. Weinberger, Sec. of State G. Shultz, Att. Gen. E. Meese, and Chief of Staff Don Regan.

25. Nicaragua vs. United States, 1986 • 195: The court defines what “armed attack” means… • Further, the court says it is NOT PERMITTED that any body/state/group, other than the state which is attacked, can evaluate whether an armed attack has occurred to that state • Determination/declaration of whether a state is a victim of an armed attack belongs solely to the victim. • 199: Further still, the court affirmed that there is no rulein I.L. that permits the exercise of collective self-defense without a request by the State that is attacked. "... The United States refused to participate in the merits phase of the proceedings, but the Court found that the US refusal did not prevent it from deciding the case. The United States argued that the Court did not have jurisdiction, with U.S. ambassador to the United Nations JeaneKirkpatrick dismissing the Court as a "semi-legal, semi-juridical, semi-political body, which nations sometimes accept and sometimes don't.“ (source)

26. Nicaragua vs. United States, 1986 • 227: Discusses the principles that the U.S. had violated (as outlined in Article2(4)) • The laying of mines in Nicaraguan internal or territorial waters in early 1984 • Certain attack on Nicaraguan ports, oil installations and a naval base • 227: The existence of military maneuvers held by the U.S. near Nicaraguan borders was NOT deemed as a violation of 2(4) • 228: Nicaragua claimed that the U.S. violated 2(4) by “recruiting, training, arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding and directing military and paramilitary actions in and against Nicaragua” by supporting the contras. • The ICJ agreed on most counts with the particular exception of supplying funds, confirming that such financing did not constitute a use of force. • ICJ also said that US military maneuvers near the Nicaraguan border also do not constitute an illegal use of force.

27. Nicaragua vs. United States, 1986 • 229: The ICJ begins addressing whether or not there was a valid claim (by the U.S.) that it was acting in a manner of collective self-defense, which is supported by Article 51 of the UN Charter. • 230: ICJ found that Nicaragua shipped arms to the armed opposition of El Salvador between 1979-1980 ( normally a violation of 2(4)). • But the ICJ was not convinced that the arms support to El Salvadoran rebels was of any substantial amount. • Oddly, it seems the court contradicts itself by stating: “the Court is unable to consider that, in customary I.L., the provision of arms to the opposition in another State constitutes an armed attack on that State.” But they then say it is only due to a lack of evidence regarding the actions and circumstances on either side.

28. Nicaragua vs. United States, 1986 • 231: regarding Honduras and Costa Rica • The court admits that there were cross-border incursions into the territory of those two states done by Nicaragua. (in 1982-‘84) • The court states that there is not enough evidence to determine the nature and motivations for those “incursions,” therefore making it impossible to determine whether they constituted a legal use of force or an illegal armed attack. • ICJ: Just because there was an “alleged” supply of arms to El Salvadoran rebels (by Nic.) and incursions (by Nic.) into Costa Rica and Honduras, it is not enough to justify the exercise of the right to collective self-defense (by the U.S.). • The word alleged contradicts paragraph 229.

29. Nicaragua vs. United States, 1986 • Regarding Collective Self-Defense: • 232-235: express requests for help are generally made by States which are attacked. This was not the case for Costa Rica and Honduras; and there is a timeline issue for the request by El Salvador. • There is nothing, however, in Article 51 that says that states must report such attacks on their territorial integrity. “The reporting obligation… does not exist.” (ICJ) • 237: The court finds that “necessity” and “proportionality” are not present to justify the U.S. claim of collective self-defense. • 238: The Article 51 arguments of the U.S. are not upheld.

30. Nicaragua vs. United States, 1986 • 249: • How do we feel about 249? Note the extents of the limits implied here – as concerns allied responses – and ask yourself whether the court is trying to establish rules too far removed from the actual practice of nations to have any moral or legal effect. • 290: ICJ states that Article 33 is also customary IL • 292: ICJ renders its decision. • U.S. loses • The court stated that the US was "in breach of its obligations under customary international law not to use force against another State", "not to intervene in its affairs", "not to violate its sovereignty", "not to interrupt peaceful maritime commerce", and "in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956."

31. Nicaragua vs. United States, 1986 Major rules and considerations to emerge from this case: • Collective self-defense cannot justify hostile behavior on the part of a third party unless the aggrieved state requests aid, particularly when the actions of the other state do not constitute an armed attack. • The actions could only justify use of proportionate force by one of the injured countries, not by a third party state. • What constitutes an “armed attack”?