Armed Attack on a State
The United Nations does not authorize any use of excessive force against another State without justifiable reason. However, there are exception to this statue where the Security Council evaluates the situation and advise the action to be taken to restore international security and peace (Ratner 2012). According to Stemmet (2013), this can also happen where the State exercises collective self-defence and the inherent right of an individual as recognised by the Article 51 outlined in the UN charter. The paper explores the proposition that armed attack is as a result of an attack by regular forces to another country. The principle set by the international body is for the purpose of explaining the application of international law concerning the right to defense of the State.
Understanding the Concept of Armed Attack in International Law
Self-defence of a sovereign State comprises more than the application of force when responding to attack. Article 51 allows States to use force for mounting self-defence. The country’s right to self-defence is contemplated when there is violation of nation’s security by the forces of another State (Stemmet 2013). However, the fact the right of a country to defend its sovereignty is inherent and can be utilized to deal with a threat or a real attack. This situation is known as ‘anticipatory self-defence’ (Bethlehem 2012). The perspective is widely accepted in the universe but in some cases viewed as unrealistic practically because the armed attack can happen in cases where there is no real attack.
Thus, article 51 of the charter holds that all sovereign States have inherent right to defend themselves as a result of ‘armed attack’ by another State (Stemmet 2013). According to Dinstein (2015), the UN charter does not define the concept of ‘armed attack,’ but the International Criminal Justice in the Nicaragua case set the term and made a distinction between its applications. In the process of establishing justice, the judges in the Court gave an explanation regarding what the level at which actions by another country’s military is classified as armed attacks and less grievous use of force by sovereign nations. The court agreed that armed attack is not defined by the actions of State forces across international boundaries but also included sending of regular forces to intrude into another State.
In addition, there is a universal acceptance that for action to be classified as an armed attack, there must be prove of more than aggression toward a State’s territory. For instance, it may extend to attacks directed toward State installations such as armed forces and foreign embassies (Solis 2016). As such, ‘armed attack’ refers to an aggression originating from external forces but aimed intentionally at the Victim State. The definition of the military in the international law focuses on the severity of the attack instituted by either regular or irregular forces of a particular State. The same is confirmed in the case of Oil Platforms.
Boyle and Chinkin (2007) argues that there are two concepts mostly used in the understanding of self-defence. The concepts are largely the source of confusion regarding the interpretation of international law. One source of confusion regarding the concept is a determination of ‘armed attack’ and the entity responsible for carrying attacks. There is a raging debate on whether non-State actor such as terrorist organization is capable of launching and sustaining an aggression toward particular States. Similarly, there are those who enunciate of a link of the non-State actor to the State to make it an armed attack.
For instance, the ICJ in Nicaragua case argues that the State played an instrumental role in assisting rebels by providing them with weapons and logistical help (Dixon, McCorquodale and Williams 2011). However, this did not qualify to an armed attack in the international law because there is no attribution to any State. In light of the court argument on what qualifies to be an armed assault, two ideas are explored.
First, not all types of force used against other nation are adequately grave to be eligible as an armed attack. This is because multiple incidences happen across borders triggered by the urge of the to defend the borders and population but, fails to meet the threshold required to prove the occurrence of armed attack. Secondly, the country will not take the blame for any use of force that does not have a link to it. Therefore, the Court argued that the State will be liable for an armed attack in cases which it has ‘effective control’ of the groups carrying those attacks (Dinstein 2015).
However, the above two incidences have different legal perspectives which should be treated as such. An entity is considered theoretically capable of conducting an ‘armed attack,’ which makes it necessary for the application of the right to defense (Higgins 1995). For example, a terrorist organization, which has a technology and logistics to conduct a continuing grave attacks, warrants the State to use the right of self-defence against the threats. Ratner (2012) adds that the application of attribution of a sanctuary State in the light of harm inflicted upon Victim State is a source of confusion. Accordingly, clarity is paramount when referring to the questions used to expound the concept of armed attacks.
Conditions in Which a State Can Use Force
There was no prohibition on the State use of force when dealing with another State until the beginning of the twentieth century. The concept of sovereignty has provided a legitimate use of force in the territorial acquisition and addressing the grievance emanating from the same (Armstrong 2009). The twentieth century is synonymous with the two concepts namely evidence of the atrocities and global war. These two can warrant the State to carry unchecked aggression toward another State. It can be said to be the first source of motivation to the formation of League of Nations in 1919 and use of force against another State (Armstrong, Farrell and Lambert 2012). However, despite this, the force used by the State remained a legal instrument, but this did not prevent the outbreak of force.
In fact, the World War II was witnessed in less than twenty years causing an estimated 70 million deaths and mass destruction of properties (Ratner 2012). Following the unfortunate event, there was a dire need to establish a body other than the League of Nations to restrain the use of excessive force in the international community. To that effect, Higgins (1995) argues that the United Nations was established to replace non-effective league of the nation, which failed to prevent the outbreak of war. Since the inception of the body, it has acted as a central actor in the regulation of relation between States. The UN charters Article 2(4) prohibits illegal force by States.
The articles prohibit the Members States from engaging in acts amounting to threat or interfering with the territorial integrity of any State. The article further extends to any mean contrary to the Purposes of the United Nations. Similar to the leagues of nations the articles has been ineffective in relation to international relations because the international community has experienced more than 100 destructive conflicts since its inception more than 70 years ago (Biersteker et al. 2006). However, it is still regarded as the cornerstones, a treaty obligation, and binding on all nation members under their customary law. This is despite disagreement on the scope of the article regarding expressing prohibition.
Boyle and Chinkin (2007) explains that the use of the term ‘force,’ as opposed to ‘war,’ makes the ban include situations of little violence in the international relations. The exact definition is not explicit in the Charter, and this makes it a gray area subjected to different interpretations by various actors. In response to the said gap, the United Nation General Assembly 1970 Declaration on Friendly Relations attempted to clarify actions that constituted use of force in war and dispute resolutions, reprisals, the violation of international boundaries, instigating and supporting a civil strife, terrorist activities, and infringing other States’ sovereignty. In contrary, the declaration is no binding on all members like the article, but it is an instrument of interpretation supported by all countries. Other than the UN charter, Nicaragua case made an essential evaluation of actions that constitutes force and ‘armed attack’ (Solis 2016).
Necessity, Proportionality, and Attribution in Exercise of Self-defence
The international law has put into place the requirement when exercising self-defence. The law requires the acts of self-defence against any armed attack to be proportionate and necessary. The said requirements emanate from an incident known as Caroline incident, which took place centuries ago (Solis 2016). However, the two concepts gained universal acceptance only after the UN Charter came into place. The 1837 incident involved British army personnel when it successfully infiltrated a US port and decimated a vessel (SS Caroline) because non-State actors used it to conduct attacks in the northern territories of Canada. Britain government defended the action as in the interest of self-defense when the US government used diplomatic means to term the response as unreasonable and excessive in nature (Dinstein 2015).
In reference to the principle of proportionality, the facts reviewed by ICJ concluded the infiltration as not proportionate. There are several cases where a State actor according to (Kretzmer 2013) has viewed the concept of proportionality in the light of exercising self-defense. In light of this, the court determines the proportionality by making a comparison to the nature of force utilized to attack a particular actor against the force use in reiteration or self-defence. A good example of this is Congo v Uganda decision made in 2005. The ICJ decision argued that Uganda actions of self-defence were disproportionate because it seized towns and airports located hundreds of miles from its international border (Ratner 2012).
Amongst the three terms used in the understanding of self-defense of a State, the most significant of all in international law is whether the issue the “armed attack” is attributable to the State (Kretzmer 2013). If the answer is affirmative, then how can the international community prove the attribution or what are the requirement might of such? Stemmet (2013) explain three views that have emerged in respect to this.
Firstly, the attribution proves must sufficiently satisfy the requirement of the Nicaragua. The court scenario in the case tests the attribution of the State by demonstrating that the State involved was capable of ‘effective control’ over the conduct of the State that initiated armed attacks. Secondly, there are those of the view that the aspects of attribution are not required. The explanation is that the State exercising self-defence within its border despite not be responsible for the armed attack. Thirdly, the test for attribution requires a low threshold of proving to warrant ‘effective control’.
The analysis of the options offered by Stemmet leads to a conclusion that the State exercising self-defence requires a low threshold to prove why they acted in self-defence. As such, looking at the three perspectives of State attribution to defense, the outcomes of ICJ process reveals that attribution threshold is considered the provision of the sanctuary and support of the attacker.
To fully understand the issue of attribution to the State as explained under article 51 the practices of the State must be considered. Armstrong (2009) holds that the UN Charter is vague as it does not explicitly affirm whether any case of an armed attack on a State must be attributed to it even before the exercise of self-defence. However, the issue is also understood by exploring the existing customary laws because it supplements the operation of the charter. In such a case where customary law complements international law, the exercise of defense must be proportionate and necessary. This is because the interaction of the two is osmotic as each draws fundamental principles from each other.
Models of Self Defense
There are various theories advanced by scholars to demystify the issue of the right to defense, but none of the models has all the variables required to offer a satisfactory explanation. Nevertheless, before proceeding to these theories, we need to understand that international relation describes the model as a paradigm (McMurtry, 2013). The concept paradigm refers to a way of thinking about an area of scientific that is widely embraced in a particular subject. It provides a map of reality by eliminating the complexity that makes the global practice look so isolated, complicated, and harder to understand (Arend and Beck 2014).
Social Theory of Self-Defense
One of the theories is the social theory of self-defense. The proponent argues that the inherent rights of defender State are compelled by acknowledging society’s’ interests. In light of this proposition, the practice of self-defense gains legitimacy only when taking care of the social welfare. In contrast, the use of force in the act of self-defense does not have at heart the interests of the society but promotes the interests of the defender (Bethlehem 2012). The theory has some limitation as it only views the actions of the defender as self-centered while dealing with aggressors but fails to acknowledge the possible benefits to the society as well.
Private Punishment Approach
Next, the private punishment approach justifies the defensive force utilized by the State because it inflicts harm on the wrongdoer. The theory reflects situations where the robber in the street is attacked and injured by the victim in the act of self-defense. In such a scenario, the aggressor got what he deserved (McMurtry 2013). In light of this, Dinstein (2015) uses the same analogy to explain the exercise of self-defense and consequent punishment by the State to the aggressor. However, the theory faces many critics for using a fault analogy where the petty thief is executed by the State (Boyle and Chinkin 2007). In comparison to the State self-defense, there is no warrant of lethal force when dealing with the aggressor.
Utilitarian Theory
Arguments borrowed from utilitarian justify the country to utilize defensive force. The theory supports violent confrontation in the view that the aggressor should die when the innocent defender lives (Dinstein 2015). In this case, the innocent individual life is considered more worth than that of the aggressor because the perpetrator’s punishment and death are viewed as lesser evil. However, the approach fails to consider that all human being are equal and that nobody or group of people who are more worth as compare other. In addition, the use of force to deter the aggressor is tantamount to using violence to quell another violence that led to an escalation of violence.
Personal Autonomy Theory
The theory of personal autonomy is also paramount to the understanding of armed attack and self-defense in the modern society. Immanuel Kant and Georg Hegel are central proponents of the models. The approach departs away from the devaluation of the aggressor and advocates for the enhancements of the rights of the State acting in defense of their people. It holds that any illegal aggression against other territories is tantamount to devaluating the rights of the population in that country (Dinstein 2015).
Therefore, the victim of the aggression has the inherent rights to repel the threats as a way of defending the right of the citizens and upholding the sovereignty (Arend and Beck 2014). Locke’s argument holds that the State of aggression is a threat to the social contract and causes a situation where the defender and aggressor go into war. Besides, any form of attack to a State leads to enslavement and therefore the victim has the right to use lethal force at disposal to prevent an assault on the State sovereignty. Critics of the theory hold that it supports the use of disproportional force to settle aggression (Dixon, McCorquodale and Williams 2011).
Applicable cases brought before the international court of justice
In determining whether an armed attack is justified by the presence of military, attacking the other State, the paper explores various cases such as Nicaragua case. The reason why the cases are analysed in the paper is that they are paramount due to its departure from the political approach to the understanding of the international relation between States. Before the final judgment was made, there is a consideration of the views of the affected States and various organs. Besides, its verdict is reached after well-reasoned legal interpretations. Above that, they will help justify the theses of the paper.
Nicaragua Case
The paper begins by considering the case decision delivered in 1986 by the ICJ. The decision arrived at the court is determining whether the armed attack occur only when State forces attack another State. It also highlights various important principles related to the law of self-defence resulting from military interference and non-State actors. The Nicaragua case was the claims brought before it for the use of force by the US and breaching of other State sovereignty (Kretzmer 2013).
An example of such includes mining of Nicaraguan ports and supporting groups to fight the Government. After analysis of the evidence, the Court acknowledged that the government of the United States violated the international law. In its response, the US cited the principle of collective self-defense prompted by the alleged support of armed rebels to fight in El Salvador soil. However, the claim was rejected by the court because supporting the rebels to operate in the country did not amount to an armed attack (Kretzmer 2013).
The fact is that both countries engaged in the court battle supplied arms and offered logistic supports to rebels, but the court argued that the actions did not constitute arms attacks. In other words, there was no attribution made to any of the States because the court did not view arming and supporting of bands as equivalent to ‘armed attack’ because the State did not have effective control. In addition, in case attribution was proved beyond reasonable doubt, the conduct of supporting militant group does not constitute the case of armed attack.
Israeli Wall Case
Israeli Wall case is an essential for the understanding when an armed attack occurs. In 2003, the United Nations requested for ICJ to offer an advisory regarding the construction of the separation wall by Israel (Arend and Beck 2014). Important to note is that the wall was inside Palestinian Territory. In the case, Israeli argued that the wall was in the interest of self-defense and response to the possibility of armed attacks by terrorists. Further, the country cited the resolutions passed by the UN Security Council following September 11 attacks (Stemmet, A., 2013.). The resolution affirmed the right of self-defense by the State to protect the country from terrorism. However, the court rejected the claim in the context of international terrorism and armed attack.
The case opinion matches with the concern identified in the Nicaragua case where there is some level of State attribution. In contrary the Nicaragua case, the State accused was identifiable while the Israeli case dealt with self-defense of unidentified State (Kretzmer, D., 2013). Therefore, according to the case, the court failed to identify any State attributable to the State and therefore the argument was that armed attack requiring self-defence must be against the invasion of another country.
Congo vs. Uganda Case
In the 2005 case, pitting Congo against Uganda the accusation level argues that Uganda engaged armed aggression and also aided rebel groups in attacking and destabilizing the government of Congo. Uganda, on the other hand, responded that its acts should be viewed as act of self-defence against organized group attacking its international territory within DRC. The issue of ‘armed attack’ in the situation where the State provides a sanctuary or tolerates is attributable to that State. In light of this, ‘toleration’ is also interpreted as the ‘failure to control.’ On the other hand, DRC argued that the purported level of armed group ‘toleration’ contradicted the Nicaragua case and that Uganda was substantially involved. The court rejected the claim on the basis that there was no proof that DRC was attributable because the attack emanated from bands and not regulars sent by the country or acting on behalf of the State (Kretzmer 2013).
The analysis of the three cases namely the Ugandan vs. Congo situation, the Israel wall and the Nicaraguan case are important because they clarify when the armed attack takes place and when not. An armed attack, therefore, is attributable to the State only when it sends regular forces to fight another State. According to Uganda and Nicaraguan case, the State provides arms and logistical support to the actor carrying armed attacks this cannot be attributed to the State. This is even when the State provides sanctuary or tolerates the band as seen in the Ugandan vs. Congo case where the court rejected the claim on that basis. Therefore, armed attack is attributable to the State when regulars sent by it attack anther country.
Conclusion
In essence, the paper has evaluated various arguments and theories purporting to explain armed attack of a State. In the modern society characterized by evolving technology, there are growing concerns of nations engaging in self-defense against State and non-State actors. This paper aimed at explaining why armed attack only happens when country’s regular forces attack another State. According to the cases analysed in the discussion, attributing state actor to armed attack requires a very high threshold that the state was involved. The Ugandan and Nicaraguan case were dismissed on the basis that provision of arms and logistics to a group does not constitute to armed attack situation that requires self-defense. Therefore, according to the evaluation of International court of justice, regular forces, not groups, and terrorist organizations operating in a state carry court of justice, armed attacked.
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