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The Law against War or Jus contra Bellum: A New Terminology for a Conservative View on the Use of Force?

Published online by Cambridge University Press:  05 August 2011

RAPHAËL VAN STEENBERGHE
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Extract

Inter-state use of force has always attracted much attention from international legal scholars. Many articles have been written on the subject. However, there are still a limited number of books addressing all the aspects of the contemporary prohibition on the use of force in a systematic way. Those written by Yoram Dinstein, Christine Gray, and Thomas Franck are certainly the best known in the English-speaking literature. This literature is now enriched following the publication of a new book entitled The Law against War by Olivier Corten. It is a translated and updated version of a book published in French and entitled Le droit contre la guerre, which explains why it has been published in the French Studies in International Law collection of Hart Publishing.

Type
REVIEW ESSAY
Information
Leiden Journal of International Law , Volume 24 , Issue 3 , September 2011 , pp. 747 - 788
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2011

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References

1 Y. Dinstein, War, Aggression and Self-Defence (2005).

2 C. Gray, International Law and the Use of Force (2008).

3 T. Franck, Recourse to Force: State Action against Threats and Armed Attacks (2002).

4 O. Corten, The Law against War: The Prohibition on the Use of Force in Contemporary International Law (2010).

5 O. Corten, Le droit contre la guerre: L'interdiction du recours à la force en droit international contemporain (2008).

6 For a summary of this view, see schema at p. 6 of the book.

7 Corten, supra note 4, at 11; the author mentions Franck (supra note 3) as one scholar following such an extensive approach.

8 Corten mentions Gray (supra note 2) as one scholar following such a restrictive approach.

9 Corten, supra note 4, at 28.

10 This reasoning is developed in ibid., 28–47.

11 See, e.g., ibid., at 6.

12 See, e.g., the convincing criticisms made by Akehurst, M. (‘Notes and Comments: Letter to the Editor in Chief’, (1986) 80 AJIL 147, at 147)Google Scholar against an extensive method.

13 This is acknowledged by the author: Corten, supra note 4, at 21; for a similar observation, see Akehurst, supra note 12, at 147.

14 See, e.g., the qualification by Franck of the military operation launched by Israel in Egypt on 5 June 1967 as a relevant precedent of preventive self-defence; such a qualification is made on the basis of both the ‘acts and words’ of the Israeli authorities (Franck, supra note 3, at 103); for a similar qualification, see A. M. Weisburd, Use of Force: The Practice of States since World War II (1997), 137. See, concerning the qualification of some other precedents on the basis of not only state material conduct, but also state political or moral declarations, F. R. Teson, Humanitarian Intervention: An Inquiry into Law and Morality (1988), 169, 192.

15 See, e.g., Weisburd, A. M., ‘Customary International Law: The Problem of Treaties’, (1988) 21 Vanderbilt Journal of International Law 1Google Scholar, at 45; Donaghue, S., ‘Normative Habits, Genuine Beliefs and Evolving Law: Nicaragua and the Theory of Customary International Law’, (1995) 16 Australian Yearbook of International Law 327Google Scholar, at 342.

16 Corten, supra note 4, at 27.

17 Ibid., at 44–5.

18 See, e.g., North Sea Continental Shelf (Federal Republic of Germany v. Denmark/The Netherlands), Judgment of 20 February 1969, [1969] ICJ Rep. 3, at 43.

19 It is intriguing in this regard that Corten only attributes such a role (i.e., making more obvious the sincerity of the opinio juris expressed by states in their declarations) to the requirement of repeated similar cases over time (Corten, supra note 4, at 41).

20 See, e.g., statements from the EU: Presidency of the EU, Statement on the Military Action Undertaken by Turkey in Iraqi Territory’, available online at www.eu2008.si/en/News_and_Documents/CFSP_Statements/February/0225MZZturkey.html.

21 See, e.g., the condemnations by the European states: Resolution of the European Parliament on the Kurdish situation in Turkey, 9 April 1992, Document d'actualité internationale, 15 June 1992, at 222; Resolution B3–1579 of the European Parliament on the situation in Iraqi Kurdistan, 19 November 1992, Document d'actualité internationale, 1 March 1993, at 84; Resolution of the European Parliament, 6 April 1995, Document d'actualité internationale, 1 June 1995, at 347; Resolution of the European Parliament on the political situation in Turkey, 19 September 1996, Document d'actualité internationale, 1 November 1996, at 866.

22 Cf., e.g., note 75, infra.

23 Corten, supra note 4, at 461; see also Corten's very strict approach with respect to the interpretation of declarations made by African states before the adoption of the World Summit Outcome for the 60th anniversary of the United Nations, at 392.

24 Ibid., at 29 (emphasis added).

25 See, e.g., for such a view, Distefano, G., ‘La pratique subséquente des Etats parties à un traité’, (1994) 40 AIDI 41Google Scholar, at 61–70; I. Brownlie, Principles of Public International Law (2008), 630.

26 See, e.g., statements from Chile, UN Doc. A/CONF.39/C.1/SR.37, para. 75; see, e.g., on this subject, P. Daillier, M. Forteau, and A. Pellet, Droit international public (2009), 325.

27 Adopted on 9 July 2002, available online at www.africa-union.org/about_au/constitutive_act.htm.

28 Adopted on 31 January 2005, available online at www.africa-union.org/root/au/Documents/Treaties/text/Non%20Aggression%20Common%20Defence%20Pact.pdf.

29 See, e.g., Kioko, B., ‘The Right of Intervention under the African Union's Constitutive Act: From Non-Interference to Non-Intervention’, (2003) 85 IRRC 821Google Scholar, at 852.

30 van Steenberghe, R., ‘Le Pacte de non-agression et de défense commune de l'Union africaine: Entre unilatéralisme et responsabilité collective’, (2009) 113 RGDIP 125Google Scholar, at 136–44.

31 Corten, supra note 4, at 342–3, 161, respectively.

32 See UNGA Res. 60/1 (2005).

33 See, e.g., Graham, T., ‘National Self-Defense, International Law, and Weapons of Mass Destruction’, (2003) 4 Chicago JIL 1Google Scholar, at 1; Nabati, M., ‘International Law at a Crossroads: Self-Defense, Global Terrorism, and Preemption (A Call to Rethink the Self-Defense Normative Framework)’, (2003) 13 TLCP 771Google Scholar, at 773; Greenwood, C., ‘International Law and the Pre-Emptive Use of Force: Afghanistan, Al-Qaida, and Iraq’, (2003) 4 San Diego ILJ 7Google Scholar, at 7; Sharma, S. P., ‘The American Doctrine of “Pre-Emptive” Self-Defence’, (2003) 43 Indian Journal of International Law 215Google Scholar, at 220; see also the Report of the High-Level Panel on Threats, Challenges and Change, 2 December 2004, UN Doc. A/59/565, para. 189.

34 Corten, supra note 4, at 334–5.

35 Cf., e.g., note 158, infra.

36 Corten, supra note 4, at 443.

37 Ibid., at 441.

38 Corten acknowledges that there is still a debate on whether the force prohibited must exclusively be a military force, excluding economic, political, or ideological forces (ibid., at 50).

39 Ibid., at 51–92.

40 Cf. subsection 4.2, infra.

41 Corten, supra note 4, at 52–5.

42 Ibid., at 55–60.

43 Ibid., at 60–6.

44 Ibid., at 67–76.

45 Ibid., at 76–84.

46 Ibid., at 67.

47 Ibid., at 84–90.

48 Corten refers to the actions that the ILC has considered as only infringing the sovereignty of the foreign state in its work on the state of necessity (ibid., at 84).

49 Ibid., at 91–2.

50 The adjective ‘armed’ seems better suited than the adjective ‘military’ to qualify the notion of force prohibited under the UN Charter. It is obvious that an armed force falls within the scope of Art. 2(4) of the Charter, even if it is not committed by ‘military’ means; see, on this subject, R. Kolb, Ius contra bellum: Le droit international relatif au maintien de la paix (2009), 246, 290; P. M. Eisemann, ‘Attaque du 11 septembre et exercice d'un droit naturel de légitime défense’, in K. Bannelier, T. Christakis, O. Corten, and B. Delcourt (eds.), Le droit international face au terrorisme: Après le 11 septembre 2001 (2002), 242.

51 Corten, supra note 4, at 86.

52 Ibid., at 84.

53 Ibid., at 76.

54 Cf. subsection 4.6, infra.

55 Corten, supra note 4, at 77.

56 See, e.g., the US limited interventions in Afghanistan and Sudan in 1998 in response to alleged attacks committed by al Qaeda against US embassies abroad.

57 See, especially, the debates preceding the adoption of the UNGA Resolution 3314 (XXIX); see also some precedents in which states argued that they had not intentionally resorted to force and that such use of force could not, therefore, be seen as an act of aggression: see statements of Vietnam in 1964 (UN Doc. S/PV.1121, at 2) and Portugal in 1972 (UN Doc. S/10810, at 1) attempting to disqualify their use of force in Cambodia and Senegal, respectively.

58 See, supporting such a view on the notion of frontier incidents, note 57, supra.

59 See declarations made by states in relation to the claimed frontier incidents between Vietnam and Cambodia in 1964 (Cambodia, UN Doc. S/PV.1119, at 15; China, UN Doc. S/PV.1121, at 10) and between Portugal and Senegal in 1972 (Sudan, UN Doc. S/PV.1667, at 8–9). See also declarations made by states during the preparatory works of the UNGA Resolution 3314 (XXIX), and, e.g., the declaration by the Russian representative (UN Doc. A/2638, para. 67).

60 See, e.g., I. Brownlie, International Law and the Use of Force by States (1963), 366.

61 See, nonetheless, the recent book published by N. Stürchler, The Threat of Force in International Law (2007).

62 Sadurska, R., ‘Threat of Force’, (1988) 82 AJIL 239CrossRefGoogle Scholar.

63 Corten, supra note 4, at 111.

64 Ibid., at 115–24.

65 See, e.g., for a general overview of all these points, d'Aspremont, J., ‘Mapping the Concept behind the Contemporary Liberalization of the Use of Force in International Law’, (2009–10) 31 University of Pennsylvania Journal of International Law 1089Google Scholar.

66 Corten, supra note 4, at 127–30.

67 Ibid., at 131–5.

68 Ibid., at 135–49.

69 Ibid., at 149–59.

70 Ibid., at 160.

71 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion of 22 July 2010, available online at www.icj-cij.org/docket/files/141/15987.pdf, para. 80 (emphasis added).

72 Corten, supra note 4, at 158.

73 Report, 30 September 2009, Vol. II, at 239–42, available online at www.ceiig.ch/pdf/IIFFMCG_Volume_II.pdf.

74 Corten, supra note 4, at, inter alia, 129, 134, 148.

75 See the numerous scholars quoted by Paust, J. J., ‘Self-Defence Targetings of Non-State Actors and Permissibility of US Use of Drones in Pakistan’, (2010) 19 JTLP 237Google Scholar, at 238–41, footnote 3.

76 Corten, supra note 4, at 162–9.

77 Ibid., at 162.

78 Ibid., at 170–2. Corten's reasoning on that issue is certainly debatable (see the three situations envisaged by the author); constraints of space, however, prevent us from addressing it here.

79 Ibid., at 172–4.

80 Ibid., at 174–86

81 Ibid., at 186–8.

82 Ibid., at 188–96.

83 See, e.g., in the United States, Devincenzi v. Faulkner (1959) 174 Cal.App.2d 250, at 254–5.

84 Cf. note 71, supra, about the ICJ Advisory Opinion in the Kosovo case.

85 See, e.g., the 9/11 attacks against which the United States responded by resorting to self-defence in Afghanistan in 2001.

86 See, e.g., the declarations made by Pakistan, speaking on behalf of the member states of the Organization of the Islamic Conference, UN Doc. A/C.6/62/SR.3, para. 47; Kuwait, para. 76; Bahrain, para. 97; Zambia, para. 104; Sudan, UN Doc A/C.6/62/SR.4, para. 28; Syria, para. 63; Qatar, para. 91; Cuba, para. 98; Yemen, A/C.6/63/SR.3, para. 30; Belarus, para. 36; Iran, para. 83.

87 See, for a clear view that a prohibition on international terrorism is unanimously agreed upon, Draft Report of the Ad Hoc Committee Established by General Assembly Resolution 51/210 of 17 December 1996, 25–26 February and 6 March 2008, UN Doc. A/AC.252/2008/L.1, Annexe I, para. 1.

88 See condemnations by those states of the many actions allegedly undertaken in self-defence by Israel, South Africa, and Portugal in response to attacks committed from abroad by the Palestinian Liberation Organization (PLO), the African National Congress (ANC) or the South-West African People's Organisation (SWAPO), and the people struggling against Portuguese colonial power, respectively; see, for a general comment on those condemnations, Gray, supra note 2, at 139.

89 Corten, supra note 4, at 177–83.

90 Ibid., at 183–4.

91 Ibid., at 184.

92 This is obviously the case with respect to the US reaction in Afghanistan to the 9/11 attacks in 2001.

93 Although the Israeli intervention in Lebanon in 2006 was condemned as being disproportionate, many states recognized, as a matter of principle, the right of Israel to resort to self-defence in response to the rocket attacks by Hezbollah: see, e.g., statements from Argentina (UN Doc. S/PV.5489, at 9); Japan (UN Doc. S/PV.5489, at 12); United Kingdom (UN Doc. S/PV.5489, at 12); Peru (UN Doc. S/PV.5489, at 14, and UN Doc. S/PV.5493 (Resumption 1), at 4); Denmark (UN Doc. S/PV.5489, at 5); Slovakia (UN Doc. S/PV.5489, at 16, and UN Doc. S/PV.5493, at 19); Greece (UN Doc. S/PV.5489, at 17, and UN Doc. S/PV.5493 (Resumption 1), at 3); the United States (UN Doc. S/PV.5493, at 17); Russia (UN Doc. S/PV.5493 (Resumption 1), at 2; Ghana (UN Doc. S/PV.5493 (Resumption 1), at 8; France (UN Doc. S/PV.5493 (Resumption 1), at 12); Finland speaking on behalf of the European Union (UN Doc. S/PV.5493 (Resumption 1), at 16); Switzerland (UN Doc. S/PV.5493 (Resumption 1), at 18); Brazil (UN Doc. S/PV.5493 (Resumption 1), at 19); Norway (UN Doc. S/PV.5493 (Resumption 1), at 23); Australia (UN Doc. S/PV.5493 (Resumption 1), at 27); Turkey (UN Doc. S/PV.5493 (Resumption 1), at 28); Djibouti (UN Doc. S/PV.5493 (Resumption 1), at 32); Canada (UN Doc. S/PV.5493 (Resumption 1), at 39); and Guatemala (UN Doc. S/PV.5493 (Resumption 1), at 41).

94 See, e.g., concerning the US reaction in Afghanistan to the 9/11 attacks in 2001, the statement from France in relation to the right of self-defence referred to by UNSC Resolution 1368 (2001) adopted after the attacks: ‘[Les membres du Conseil de sécurité ont] estimé, à l'unanimité, que 6000 personnes tuées par des avions civils devenus des missiles n’[était] plus un acte de terrorisme mais une véritable agression armée’, in ‘La question de la légitimité des ripostes aux attentats terroristes’, Le Monde, 18–19 November 2001, at 14 (emphasis added); see also the declarations made by member states of collective defensive pacts to which the United States were party (declaration of 2 October 2001 from the NATO Secretary General, Lord Roberston, available online at www.hq.nato.int/docu/speech/2001/s011002b.htm; see, e.g., concerning the Israeli reaction to the attacks by Hezbollah in 2006, the statements from France (UN Doc. S/PV.5489, at 17); Denmark (UN Doc. S/PV.5493 (Resumption 1), at 7); Ghana (UN Doc. S/PV.5493 (Resumption 1), at 8).

95 This contrasts with other precedents in which the host state was much more involved in the attacks committed by the non-state actors and in which the state acting in self-defence expressly accused this state of having committed an (indirect) act of aggression; see, e.g., statements from Israel in relation to attacks committed by non-state actors from Egypt in 1956 (UN Doc. S/PV.749, at 14–15) and Jordan in 1968 (UN Doc. S/PV.1409, at 13–14) and 1969 (UN Doc. S/PV.1467, at 11–12).

96 van Steenberghe, R., ‘Self-Defence in Response to Attacks by Non-State Actors in the Light of Recent State Practice: A Step Forward?’, (2010) 23 LJIL 183CrossRefGoogle Scholar, at 199–202.

97 Cf. subsection 4.5, infra, about that aspect of the condition of necessity.

98 See, in this way, Separate Opinion of Judge Kooijmans annexed to the judgment of the ICJ in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, [2005] ICJ Rep. 168, at 313–14, para. 28 (hereafter, ‘Armed Activities’).

99 Cf. sub-subsection 2.2.2, supra.

100 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, [2004] ICJ Rep. 136, at 194, para. 139 (emphasis added).

101 Ibid.

102 See, e.g., on this subject, Tams, C. J., ‘Light Treatment of a Complex Problem: The Law of Self-Defence in the Wall Case’, (2005) 16 EJIL 963CrossRefGoogle Scholar, at 970.

103 See, e.g., Spiermann, O., ‘Humanitarian Intervention as a Necessity and the Threat or Use of Jus Cogens’, (2002) 71 NJIL 530Google Scholar; Johnstone, I., ‘The Plea of “Necessity” in International Legal Discourse: Humanitarian Intervention and Counter-Terrorism’, (2004–05) 43 Col. JTL 337Google Scholar, at 365 ff.

104 See, e.g., T. Christakis, ‘Vers une reconnaissance de la notion de guerre préventive’, in K. Bannelier, O. Corten, T. Christakis, and P. Klein (eds.), L'intervention en Irak et le droit international (2004), 29 ff.

105 UN Doc. A/CN.4/318/Add.5–8, paras. 55–56.

106 Corten, supra note 4, at 204–7.

107 Ibid., at 211–13.

108 Ibid., at 217–25.

109 UN Doc. A/56/10, para. 21.

110 UN Doc. A/CN.4/498/Add.2, para. 287.

111 See, e.g., Art. 50 of the ILC's Articles on State Responsibility.

112 Corten, supra note 4, at 225–46.

113 See, e.g., statement from Mexico, A/C.6/35/SR.48, para. 17.

114 Separate Opinion of Judge Simma, annexed to the judgement of the ICJ in Oil Platforms (Islamic Republic of Iran v. United States of America), Judgement of 6 November 2003, [2003] ICJ Rep. 161, at 331–2, para. 12.

115 Corten, supra note 4, at 229–30.

116 The Court ruled out the argument put forward by the United States that the latter were acting in collective self-defence in response to the alleged military support given by Nicaragua to the anti-Salvadorean rebels, such support being not grave enough, according to the Court, to amount to an armed attack within the sense of Art. 51 of the UN Charter. The Court nonetheless wondered whether the United States could respond to this use of force of lesser gravity by invoking a right of counterintervention, encompassing a use of force short of an action in self-defence. The Court concluded in an ambiguous statement: ‘On the legal level the Court cannot regard response to an intervention by Nicaragua as such a justification. While an armed attack would give rise to an entitlement to collective self-defence, a use of force of a lesser degree of gravity cannot, as the Court has already observed (paragraph 211 above), produce any entitlement to take collective countermeasures involving the use of force. The acts of which Nicaragua is accused, even assuming them to have been established and imputable to that State, could only have justified proportionate counter-measures on the part of the State which had been the victim of these acts, namely El Salvador, Honduras or Costa Rica. They could not justify counter-measures taken by a third State, the United States, and particularly could not justify intervention involving the use of force’, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment of 27 June 1986, [1986] ICJ Rep. 14, at 127, para. 249 (hereafter, ‘Nicaragua’).

117 See, e.g., Kolb, supra note 50, at 271; Dinstein, supra note 1, at 193–4; Hargrove, J. L., ‘The Nicaragua Judgment and the Future of the Law of Force and Self-Defense’, (1987) 81 AJIL 135CrossRefGoogle Scholar, at 138; L. B. Sohn, ‘The International Court of Justice and the Scope of the Right of Self-Defense and the Duty of Non-Intervention’, in Y. Dinstein (ed.), International Law at a Time of Perplexity: Essays in Honour of Shabatai Rosenne (1989), 877; Farer, T. J., ‘Drawing the Right Line’, (1987) 81 AJIL 112CrossRefGoogle Scholar, at 113.

118 Corten, supra note 4, at 231.

119 Oil Platforms, supra note 114, at 192, para. 64.

120 Corten, supra note 4, at 253.

121 Ibid., at 257.

122 Ibid., at 259–76.

123 Ibid., at 277–87.

124 Ibid., at 288–309.

125 Nicaragua, supra note 116, para. 246.

126 The Principle of Non-Intervention in Civil Wars, 15 August 1975, Wiesbaden session, (1975) 56 Yearbook of the International Law Institute 536, at 546, Art. 2, para. 1.

127 See, e.g., the declarations of M. Žourek, (1975) 56 Yearbook of the International Law Institute 119, at 123–4; M. Münch, ibid., at 125; M. Castrén, ibid., at 126; M. Rousseau, ibid., at 127.

128 This view was expressed by one member of the International Law Institute, M. Skubiszewski, ibid., at 125.

129 Corten, supra note 4, at 290–6.

130 Ibid., at 301–9.

131 The relevance of some of this practice is nonetheless doubtful, as the debates surrounding it were especially concerned with the question of whether collective self-defence was correctly exercised; see, e.g., the debates surrounding the military support given to Lebanon and Jordan in 1958 and the Russian interventions in Hungary (1956), Czechoslovakia (1967), and Afghanistan (1979).

132 See, e.g., on this subject, Freudenschub, H., ‘Between Unilateralism and Collective Security: Authorizations of the Use of Force by the UN Security Council’, (1994) 5 EJIL 492CrossRefGoogle Scholar; Blokker, N., ‘Is the Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by “Coalition of the Able and Willing”’, (2000) 11 EJIL 541CrossRefGoogle Scholar; Sicilianos, L.-A., ‘L'autorisation par le Conseil de sécurité de recourir à la force: Une tentative d'évaluation’, (2002) 106 RGDIP 5Google Scholar.

133 Corten, supra note 4, at 314–16.

134 Ibid., at 316–29.

135 Ibid., at 329–48.

136 Ibid., at 349–89.

137 Ibid., at 390–4.

138 Ibid., at 394–8.

139 See, e.g., for recent books on self-defence in international law, T. Ruys, ‘Armed Attack’ and Article 51 of the UN Charter (2010); R. van Steenberghe, La légitime défense en droit international public (2012).

140 It is usually referred in that regard to the famous Caroline case (1837), in W. R. Manning, Diplomatic Correspondence of the United States: Canadian Relations, 1784–1860, Vol. 3 (1943), 145. One can also mention other precedents, such as the US interventions in Spanish territory in 1815 (in Wharton, F., A Digest of the International Law of the United States, Vol. 1 (1886), 226Google Scholar) or in the United States of Mexico in 1836 (ibid., 420).

141 Corten, supra note 4, at 402.

142 Ibid., at 403.

143 This question was one of the most debated questions during the discussions preceding the drafting of the resolution on self-defence (see (2007) 72 Yearbook of the International Law Institute 75, especially at 178–85, 206–9, 219–21, 228–9). The result of such discussion was an ambiguous provision that allows diverging interpretations; see the ambiguous point 5 of the resolution: ‘An armed attack triggering the right of self-defence must be of a certain degree of gravity. . . . In case of an attack of lesser intensity the target State may also take strictly necessary police measures to repel the attack’, available online at www.idi-iil.org/idiE/resolutionsE/2007_san_02_en.pdf (emphasis added).

144 See the letter, ‘Israel's Bombardment of Gaza Is Not Self-Defence – It's a War Crime’, published in the Sunday Times on 11 January 2009 and signed by numerous scholars, such as I. Brownlie, R. Falk, C. Chinkin, and M. C. Bassiouni, available online at www.timesonline.co.uk/tol/comment/letters/article5488380.ece. While the above-mentioned scholars considered that Hamas's attacks ‘[did] not, in terms of scale and effect amount to an armed attack entitling Israel to rely on self-defence’, they nonetheless recognized that Israel had ‘a right to take reasonable and proportionate means to protect its civilian population from such attacks’.

145 See, e.g., on this debate, Kolb, supra note 50, at 288–9.

146 Corten, supra note 4, at 416 ff.

147 The argument was, e.g., put forward by Japan in order to justify its invasion of China in 1931 (see Journal officiel de la Société des Nations, Acts of the Extraordinary Session of the Assembly, Vol. III, Spec. Suppl. N°111, at 105, 106). The invasion was condemned for reasons alien to this argument.

148 See, e.g., the treaties concluded in 1939 between the United Kingdom and Poland (text available in (1941) 35 American Journal of International Law Supplement 178, at 178) as well as between France and Poland (text quoted in J. A. S. Grenville, The Major International Treaties 1914–1973: A History and Guide with Texts (1974), 192).

149 See, e.g., on this subject, Waldock, C. H. M., ‘The Regulation of the Use of Force by Individual States in International Law’, (1952) 81 Collected Course of The Hague Academy of International Law 451Google Scholar, at 496; Schachter, O., ‘International Law: The Right of States to Use Armed Force’, (1984) 82 Mich. LR 1620Google Scholar, at 1634; Gordon, E., ‘Article 2(4) in Historical Context’, (1984–85) 10 Yale JIL 271Google Scholar, at 278; Mallison, W. T. and Mallison, S. V., ‘The Israeli Attack of June 7, 1981, upon the Iraqi Nuclear Reactor: Aggression or Self-Defense’, (1982) 15 Vand. JTL 417Google Scholar, at 420; McCormack, T. L. H., ‘Anticipatory Self-Defence in the Legislative History of the United Nations Charter’, (1991) 25 Israel Law Review 1CrossRefGoogle Scholar, at 8.

150 See the declaration made by the US and French special representatives at the San Francisco Conference, quoted in Corten, supra note 4, at 415.

151 The practice reveals that states, including those a priori opposed to the prohibition on preventive self-defence, are reluctant to invoke such legal basis in order to justify uses of force that nonetheless have apparently all the features of a preventive self-defence action; see, e.g., the legal arguments put forward by the United States in order to justify the blockade of Cuba in 1962 (see UN Doc. S/5181, at 2, and UN Doc. S/PV.1022, at 16–17) and their intervention in Iraq in 2003 (UN Doc. S/2003/351, at 1–2); these precedents were justified on the basis of collective (regional) security systems and not of (preventive) self-defence.

152 Those precedents include not only the unique precedent in which the argument of preventive self-defence was officially and elaborately invoked, i.e., the destruction by Israel of the Iraqi nuclear reactor Osirak in 1981, but also the other preventive non-authorized uses of force, which have been interpreted as possibly based on preventive self-defence or about which states have given their opinion on preventive self-defence (cf. note 151, supra). With regard to Israeli intervention in Iraq in 1981, one can notice that, although some states condemned it because they considered that preventive self-defence was prohibited under international law, many others disapproved the operations because Israel did not prove that it was facing a real threat and/or that it had resorted to force as a last resort – that is, having exhausted all the practical alternatives to its defence, such as the inspections of the reactor by the International Atomic Energy Agency (IAEA). Some scholars have therefore asked themselves about the UNSC condemnation of this precedent: ‘[W]as the Council rejecting the notion of anticipatory self-defence as such, or was it – as seems more likely – condemning its use in circumstances in which conditions of imminent danger were not present – this is what the debate was largely concerned with – or even any threat at all? It is possible to see the resolution, not so much as a global rejection of the notion of anticipatory self-defence, but as a casuistic contribution to the determination of the situations in which self-defence might be used pre-emptively’ (J. Combacau, ‘The Exception of Self-Defence in UN Practice’, in A. Cassese (ed.), The Current Legal Regulation of the Use of Force (1986), 24).

153 Corten, supra note 4, at 414.

154 Dinstein, supra note 1, at 190–1.

155 See, e.g., S. A. Alexandrov, Self-Defense against the Use of Force in International Law (1996), 164; Christakis, supra note 104, at 21.

156 Corten, supra note 4, at 426–35.

157 See, e.g., the Iranian declaration contesting the idea of a right of anticipatory self-defence (UN Doc. A/59/PV.87, at 17); such declaration clearly conflicts with other declarations in which Iran expressly recognized such a right (see the Iranian written pleadings before the ICJ in the Oil Platforms case, supra note 114, reply, at 152) or admitted more generally the right to use force before being attacked (Interview of the Iranian Defense Minister Ali Shamkani, 18 August 2004, Fed. News Serv., 19 August 2004).

158 See, e.g., the declaration made by Costa Rica: ‘On the use of force, we welcome the Panel's recommendation that art. 51 of the Charter should not be rewritten. However, as some other delegations have done before, we must express our concern for the introduction of the concept of imminent threat. Such concept could be subject to various interpretations, creating a dangerous grey area on the possible use of force. We advocate for a strict textual interpretation of article 51’ (‘Statement during the Informal Consultations on the Report of the High Level Panel’, 31 January 2004).

159 Cf. notes 154 and 155, supra.

160 Corten, supra note 4, at 485.

161 The qualification of such self-defence arose in two cases before the ICJ (see written pleadings in the Oil Platforms case, supra note 114, reply of Iran, at 151–5, and rejoinder of the United States, at 164; see oral pleadings in Armed Activities, supra note 98, public sitting of 12 April 2005, CR 2005/3, paras. 32–35, per M. Corten, and Uganda, public sitting of 18 April 2005, CR 2005/07, paras. 71–73, per M. Brownlie); the Court nonetheless did not pronounce on this issue.

162 Corten, supra note 4, at 444.

163 See, e.g., Ruys, supra note 139, at 368 ff.; Ferencz, B. B., ‘Defining Aggression: The Last Mile’, (1973) 12 Col. JTL 430Google Scholar, at 431; Verhoeven, J., ‘Les “étirements” de la légitime défense’, (2002) 48 AIDI 48Google Scholar, at 56; Kolb, supra note 50, at 274; see also, for a similar qualification, the preparatory works of the resolution adopted in 2007 by the International Law Institute, (2007) 72 Yearbook of the International Law Institute 75, especially at 180, 191, 206.

164 See, e.g., the invocation by Pakistan of an indirect aggression committed by India in 1971 with respect to East Pakistan (UN Doc. S/PV.1106, at 10).

165 It is indicative that the debates preceding the adoption of Resolution 3314 (XXIX) and concerning the inclusion in the resolution of aggressive acts committed by states through indirect means, i.e., support to armed bands, were classified under the title ‘indirect aggression’ in the many reports of the Special Committee on the question of defining aggression (see, e.g., UN Doc. A/2633, at 8; UN Doc. A/7185/Rev. 1, at 22); it is from such debates that the current Art. 3(g) of the resolution emerged, according to which is considered an aggression within the meaning of Art. 1 of the resolution ‘[t]he 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 the acts listed above, or its substantial involvement therein’.

166 Corten, supra note 4, at 444.

167 Ibid., at 466–9.

168 Ibid., at 455–66.

169 Ibid., at 450–4.

170 See R. van Steenberghe, supra note 96, at 195–6; see, in the same way, Verhoeven, supra note 163, at 59; Dinstein, supra note 1, at 206.

171 Corten, supra note 4, at 473.

172 Ibid., at 474–5.

173 Ibid., at 476.

174 Ibid., at 477–8.

175 Ibid., at 479.

176 See, e.g., UNSC Resolution 1227 (1999) imposing a ceasefire on Eritrea and Ethiopia, both claiming to act in self-defence.

177 See, in this respect, declarations made by some states suggesting a ‘conditional’ obligation for Israel to cease the hostilities in Lebanon against Hezbollah following the adoption of UNSC Resolution 1701 (2006) (United States, UN Doc. S/PV.5511, at 5, and Greece, UN doc. S/PV.5511, at 10).

178 See, e.g., in this respect, UNSC measures adopted in Resolutions 232 (1966), 418 (1977), 502 (1982), and 678 (1990) against South Africa, Rhodesia, Argentina, and Iraq, respectively.

179 See, e.g., Greig, D. W., ‘Self-Defence and the Security Council: What Does Article 51 Require?’, (1991) 40 ICLQ 366CrossRefGoogle Scholar, at 389 ff.; Dinstein, supra note 1, at 215; Gray, supra note 2, at 124; J. Brunnee, ‘The Security Council and Self-Defense: Which Way to Global Security?’, in N. Blokker and N. Schrijver (eds.), The Security Council and the Use of Force (2005), 130; A. Pellet and V. Tzankov, ‘L'Etat victime d'un acte terroriste peut-il recourir à la force armée?’, in Les nouvelles menaces contre la paix et la sécurité internationales (2004), 101; see also point 3 of the resolution adopted in 2007 by the International Law Institute on self-defence, supra note 143.

180 State practice reveals that even powerful UNSC measures, such as embargoes, do not seem to have entailed the end of the exercise of the right of self-defence; see, e.g., the UNSC Resolutions 546 (1984) and 574 (1985), imposing an arms embargo against South Africa, while recalling at the same time the right of self-defence of Angola; UNSC Resolution 661 (1990) imposing sanctions, including an arms embargo against Iraq, while recalling at the same time the right of individual or collective self-defence against the Iraqi invasion of Kuwait.

181 As far as the preparatory works of Art. 51 of the UN Charter are concerned, see the Russian and UK declarations, Minutes of the Thirty-Sixth Meeting of the United States Delegation, Held at San Francisco, 11 May 1945, in Foreign Relations of the United States, Diplomatic Papers, 1945, Vol. 1 (1967), 824.

182 Corten, supra note 4, at 480–3.

183 Ibid., at 484.

184 Ibid., at 486.

185 See, e.g., Oil Platforms, supra note 114, at 198, para. 76; see also Separate Opinion of Judge Kooijmans, annexed to the judgment of the ICJ in Oil Platforms, supra note 114, at 264, 265, paras. 60, 63.

186 See the declarations made by states in various precedents: e.g., statements from the United States in relation to the 1962 crisis of the nuclear missiles in Cuba, UN Doc. S/PV.1025, at 3; in relation to their intervention in North Vietnam in 1964, UN Doc. S/PV.1141, at 10–11; in relation to the Israeli intervention in Uganda in 1976, UN Doc. S/PV.1941, at 8; or in relation to their intervention in Libya in March 1986, UN Doc. S/PV.2668, at 22; see also statements from Argentina in relation to the Israeli intervention in Lebanon in February 1972, UN Doc. S/PV.1644, at 3; South Africa in relation to its intervention in Angola in 1985, UN Doc. S/PV.2597, at 6; Iran in relation to its intervention in Iraq in 1994, UN Doc. S/1994/1273, at 1 (one may note that the adjectives ‘nécessaires et appropriés’ in the French version were translated into ‘proportionate and necessary’ in the English version of the document); Russia in relation to the Israeli intervention in Lebanon in 2006, UN Doc. S/PV.5489, at 7.

187 Corten, supra note 4, at 488.

188 See also Corten's discussion on whether a disproportionate response in self-defence must be considered as a whole or only in its exceeding part as unlawful and can trigger the right of self-defence of the former aggressor state (ibid., at 490–2).

189 Ibid., at 489.

190 Apart from Israel (see, e.g., UN Doc. SPV.1461, at 11), states usually adopt a quantitative conception of proportionality; the states’ reaction to the 2006 Israeli intervention in Lebanon is a clear example thereof; see, in this respect, e.g., statements from Russia, UN Doc. S/PV.5489, at 7; Argentina, UN Doc. S/PV.5489, at 9; Qatar, UN Doc. S/PV.5489, at 10; China, UN Doc. S/PV.5489, at 11; Japan, UN Doc. S/PV.5489, at 12; Congo, UN Doc. S/PV.5489, at 13; Tanzania, UN Doc. S/PV.5489, at 13; Denmark, UN Doc. S/PV.5489, at 15; Greece, UN Doc. S/PV.5489, at 17; France, UN Doc. S/PV.5489, at 17; Ghana, UN Doc. S/PV.5493 (Resumption 1), at 8; Brazil, UN Doc. S/PV.5493 (Resumption 1), at 19; New Zealand, UN Doc. S/PV.5493 (Resumption 1), at 33.

191 See Nicaragua, supra note 116, at 122, para. 237; Oil Platforms, supra note 114, at 198, 223, paras. 76–77; Armed Activities, supra note 98, para. 147.

192 Most of the scholars who support such an understanding refer to the considerations held on this subject by the former ILC Special Rapporteur, R. Ago (UN Doc. A/CN.4/318/Add.5–8, at 67, para. 121).

193 Corten, supra note 4, at 489.

194 Ibid., at 489–90.

195 Numerous precedents have been condemned by states on the basis that the intervening state had not exhausted all the practical alternatives for its defence before acting in self-defence, such as the seizure of the Security Council (cf., e.g., note 152, supra).

196 See point 3 of the resolution adopted in 2007 by the International Law Institute on self-defence, supra note 143.

197 See, e.g., Krisch, N., ‘Legality, Morality and the Dilemma of Humanitarian Intervention after Kosovo’, (2002) 13 EJIL 323CrossRefGoogle Scholar; Charney, J. I., ‘Anticipatory Humanitarian Intervention in Kosovo’, (1999) 32 Vand. JTL 1231Google Scholar; J. M. Welsh, ‘Taking Consequence Seriously: Objections to Humanitarian Intervention’, in J. M. Welsh (ed.), Humanitarian Intervention and International Relations (2004), 52; Weckel, P., ‘L'usage déraisonable de la force’, (2003) 107 RGDIP 377Google Scholar; Kohen, M. G., ‘L'emploi de la force et la crise du Kosovo: Vers un nouveau désordre juridique international’, (1999) 32 RBDI 122Google Scholar; see also Dinstein, supra note 1, at 72–3; Gray, supra note 2, at 51.

198 See, e.g., oral pleadings of Belgium in Legality of Use of Force (Serbia and Montenegro v. Belgium), Provisional Measures, CR 1999/15, Public Sitting held on Monday 10 May 1999, per M. Foucart-Kleynen, at 15–17.

199 See, e.g., R. B. Lillich (ed.), Humanitarian Intervention and the United Nations (1973).

200 Corten, supra note 4, at 498–510.

201 Ibid., at 504.

202 This resolution provides that ‘[e]very State has the duty to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes’ (emphasis added).

203 This resolution defines aggression as any ‘use of force by a State against the sovereignty, territorial integrity or political independence of another State . . .’ (emphasis added); see the Russian declaration regarding the addition of the notion of sovereignty in the report of the Special Committee on the question of defining aggression, 11 March–12 April, UN Doc. A/9619, Annexe I.

204 This resolution provides that ‘states have the duty to abstain from armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements’.

205 Corten, supra note 4, at 499–500.

206 Ibid., at 501–2.

207 Ibid., at 506–7.

208 Ibid., at 507–9.

209 See the report of the Commission, available online at www.iciss.ca/report-en.asp.

210 See supra note 32, paras. 138–139.

211 Corten, supra note 4, at 511–23.

212 Ibid., at 515.

213 Ibid., at 521.

214 Ibid., at 517–20.

215 See, e.g., statement from Colombia, UN Doc. S/PV.6498, at 7; see, more generally, preamble of the UNSC Resolution 1973 (2011).

216 See, e.g., statement from Colombia, UN Doc. S/PV.6508, at 6; see, more generally, preamble of UNSC Resolution 1975 (2011).

217 The French troops and the United Nations Operation in Côte d'Ivoire (UNOCI) was already authorized to use force to protect civilians in Ivory Coast by UNSC Resolutions 1464 (2003) and 1528 (2004), respectively; such authorizations have been renewed. The last UNSC resolution on that issue is Resolution 1975 (2011), para. 6.

218 Corten, supra note 4, at 527–34, 537–46.

219 Ibid., at 542.

220 Ibid., at 542–3.

221 See, for authors supporting such a right but from another perspective, Teson, supra note 14.

222 See Corten, supra note 4, inter alia at 510, 534–7, 546–8.

223 Ibid., at 523–6.

224 See, on this subject, Kolb, R., ‘Sur l'origine du couple terminologique ius ad bellum/ius in bello’, (1997) 827 Revue de droit international de la Croix Rouge 593CrossRefGoogle Scholar.

225 P. d'Argent, J. d'Aspremont, F. Dopagne, and R. van Steenberghe, ‘Article 39’, in J.-P. Cot, A. Pellet, and M. Forteau (eds.), La Charte des Nations Unies. Commentaire article par article (2005), 1165.