james a. green the international court of justice and self-defence in international law studies in...

THE INTERNATIONAL COURT OF JUSTICE AND SELF-DEFENCE IN INTERNATIONAL LAW

The legal rules governing the use of force between states is one of the mostfundamental, and the most controversial, aspects of international law. Anessential part of this subject is the question of when and to what extent astate may lawfully use force against another in self-defence. The parame-ters of this inherent right remain obscure, despite the best efforts of schol-ars and, notably, the International Court of Justice.

This book examines the burgeoning relationship between the ICJ andthe right of self-defence. Since 2003 there have been three major decisionsof the ICJ that have dealt directly with the law governing self-defenceactions, in contrast to only two such cases in the preceding fty years. This,then, is an opportune moment to reconsider the jurisprudence of the Courton this issue. This book is the rst of its kind to comprehensively drawtogether and then assess the merits of this jurisprudence. It argues that thecontribution of the ICJ has been confused and unhelpful, and compoundsinadequacies in existing customary international law. The ICJs funda-mental conception of a primary criterion of armed attack as constitutinga qualitatively grave use of force is brought into question. The book thengoes on to examine the underlying causes of the problems that haveemerged in the jurisprudence on this crucial issue.

Studies in International Law: Volume 25

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Studies in International Law

Volume 1: Between Light and Shadow: The World Bank, the International MonetaryFund and International Human Rights LawMac DarrowVolume 2: Toxics and Transnational Law: International and European Regulation ofToxic Substances as Legal SymbolismMarc PallemaertsVolume 3: The Chapter VII Powers of the United Nations Security CouncilErika de WetVolume 4: Enforcing International Law Norms Against TerrorismEdited by Andrea BianchiVolume 5: The Permanent International Criminal CourtEdited by Dominic McGoldrick, Peter Rowe and Eric Donnelly.Volume 6: Regional Organisations and the Development of Collective Security AdemolaAbassVolume 7: Islamic State Practices, International Law and the Threat from Terrorism: A Critique of the Clash of Civilisations in the New World OrderJavaid RehmanVolume 8: Predictablity and Flexibility in the Law of Maritime DelimitationYoshifumi TanakaVolume 9: Biotechnology and International LawEdited by Francesco Francioni and Tullio ScovazziVolume 10: The Development of Human Rights Law by the Judges of the InternationalCourt of JusticeShiv BediVolume 11: The Environmental Accountability of the World Bank to Third-Party Non-state ActorsAlix Gowlland-GualtieriVolume 12: Transnational Corporations and Human RightsEdited by Olivier De SchutterVolume 13: Biotechnologies and International Human RightsEdited by Francesco FrancioniVolume 14: Human Security and International Law: Prospects and ProblemsBarbara Von TigerstromVolume 15: The Arms Trade and International LawZeray YihdegoVolume 16: Africa: Mapping New Boundaries in International LawEdited by Jeremy LevittVolume 17: Forced Migration, Human Rights and SecurityEdited by Jane McAdamVolume 18: The Use of Nuclear Weapons and the Protection of the Environment dur-ing International Armed ConictErik KoppeVolume 19: The Shifting Allocation of Authority in International Law: ConsideringSovereignty, Supremacy and SubsidiarityEdited by Tomer Broude and Yuval ShanyVolume 20: Counterterrorism: Democracys ChallengeEdited by Andrea Bianchi and Alexis KellerVolume 21: Amnesty, Human Rights and Political TransitionsLouise MallinderVolume 22: Property Rights and Natural ResourcesRichard BarnesVolume 23: Human Dignity and the Foundations of International LawPatrick CappsVolume 24: Sovereignty and the Stateless Nation: Gibraltar in the Modern LegalContextKeith Azopardi

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The International Courtof Justice and

Self-Defence inInternational Law

James A Green

OXFORD AND PORTLAND, OREGON2009

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James A Green 2009

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Preface

I was just about to embark on my doctoral studies in the autumn of 2003when the International Court of Justice produced its merits decision in theCase Concerning Oil Platforms. That decisionwith its implications for andplace in the development of the jurisprudence of the Court on self-defencehelped to shape a research agenda that ran for the next veyears. This work therefore began life as a PhD thesis, which was ultimatelysubmitted at the University of Nottingham in the autumn of 2007.

During the writing of that thesis and its subsequent morphing in to thismonograph form, I beneted from the help and support of numerouspeople. The most important amongst them are my PhD supervisors, Dino Kritsiotis (University of Nottingham) and Robert McCorquodale(University of Nottingham and now also Director of the British Institute ofInternational and Comparative Law), to whom I express my deepest grati-tude for all of their advice and encouragement. I also would like to acknow-ledge the support offered more generally by the University of Nottingham(particularly the School of Law) during my time there and to thank staff andfriends at the University. I would similarly like to thank friends and col-leagues at the University of Reading and other academic colleaguesthroughout the United Kingdom and beyond. I would especially like tohighlight the contributions of Sandy Ghandhi (University of Reading) andChristopher Waters (University of Windsor) in terms of their support andguidance over recent years. I also want to express my gratitude to my PhDexaminers, Christine Gray (University of Cambridge) and Colin Warbrick(University of Birmingham), whose comments on and criticisms of my the-sis were invaluable contributions to its development into this nal form.

I wish to acknowledge the nancial assistance of the Arts and HumanitiesResearch Council. The production of my doctoral thesisand therefore thismonographwould have not been possible were it not for the support gen-erously provided by that body between 2003 and 2006. This work benetedgreatly from the time I spent conducting research at the University ofMichigan in 2005. I would like to thank the University for awarding me aresearch scholarship and for all the support I received from staff and fellowresearchers whilst I was in Ann Arbor. This research visit was also spon-sored by the Arts and Humanities Research Council, which I again wouldlike to acknowledge.

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Finally, I want to thank my parents for their unwavering love and sup-port in all of my endeavours, academic or otherwise, and Lia, for makingme happy.

It is my intention that, so far as possible, the material herein is current asof 1 December 2008. Any errors in this work, be they small or not so small,are mine and mine alone.

James A GreenUniversity of Reading

December 2008

vi Preface

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Contents

Preface vTable of Cases xiTable of International Treaties and Conventions xv

INTRODUCTION 1I. The International Court of Justice and Self-Defence 1II. Facts and Rulings of the Primary Cases 9

A. The Nicaragua Case 10B. The Oil Platforms Case 13C. DRC v Uganda 15D. The Nuclear Weapons Advisory Opinion 18E. The Israeli Wall Advisory Opinion 20

1 THE CRITERION OF AN ARMED ATTACK IN THEJURISPRUDENCE OF THE INTERNATIONAL COURT OF JUSTICE 23I. Assessing the Jurisprudence of the Court 24II. Armed Attack as the Condition Sine Qua Non for

Self-Defence 25A. The Requirement of an Armed Attack 25B. Armed Attack in the Context of Preventative Action 28

III. Identifying an Armed Attack: A Question of Gravity 31A. Relating Armed Attack, Use of Force and

Non-intervention 31B. Specic Actions 33C. A Variable Standard 41

IV. Armed Attack as an Accumulation of Events 42V. The Level of State Involvement in an Attack 44VI. Armed Attack in Collective Self-Defence 51VII. The Concept of Forcible Countermeasures 54VIII. Conclusion 60

2 THE CRITERIA OF NECESSITY AND PROPORTIONALITY 63I. The Caroline Incident: Facts and Legal Claims 64II. The Applicability of the Caroline Formula 67

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A. A Mythical Authority 67B. Limited Applicability to Certain Types of Self-Defence 68C. Customary International Law in 1837 70D. Adoption of the Caroline Formula since 1842 72E. Aspects of the Caroline Formula within Customary

International Law 74III. The Contemporary Content of the Caroline Criteria 75IV. Necessity 76

A. Necessity as Last Resort 76B. Procedural Exhaustion of Non-forcible Measures 80C. A Reasonableness Test for Assessing Last Resort 85

V. Proportionality 86VI. Temporal Aspects of Self-Defence 96

A. Imminence 96B. Immediacy 101C. Temporal Aspects of Self-Defence in the Modern World 104

VII. The Marginalisation of Necessity and Proportionality by the ICJ 105

VIII. Conclusion 107

3 THE TROUBLE WITH ARMED ATTACK AND THE MERGEDCONCEPTIONS OF SELF-DEFENCE 111I. Armed Attack as a Grave Use of Force: An Accurate

Reection of the Law? 112II. Armed Attack as a Self-Fullling Prophesy? 121III. The Merged Conceptions of Self-Defence 129IV. The Overlapping Functions of the Merged Conceptions 135V. The Different Functions of the Merged Conceptions 137VI. The Gap between a Use of Force Simpliciter and an Armed

Attack 138VII. The Overall Indeterminacy of Self-Defence 143VIII. Conclusion 145

4 A PROPOSAL FOR REDEFINING ARMED ATTACK 147I. Dening Armed Attack Differently: Proposals Old and New 147II. The General Suitability of Necessity and Proportionality 153III. Implications for the Accumulation of Events Problem 155IV. Implications for the Level of State Involvement Problem 156V. Pre-empting the Issue of Preventative Self-Defence 159VI. Additional Support for a Different Interpretation of Armed

Attack 161VII. Conclusion 162

viii Contents

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Contents ix

5 THE ICJ: ROLES AND RESTRICTIONS 165I. Non-appearance 166

A. Non-appearance in Nicaragua 166B. Non-appearance in Use of Force Disputes Generally 169

II. The Underlying Roles of the ICJ 170A. The Settlement of Disputes through the Application of

Existing Law 170B. The Development of International Law 172C. Is the Development of the Law Desirable? 174

III. Politicisation and Decision-Making 176A. The Hive Mind Fallacy 176B. Judicial Bias and Politicisation 178C. Dworkinian Principles and Decision-Making 182

IV. The Suitability of the ICJ for Dealing with Use of Force Issues 188A. The Justiciability of Political Disputes and the

Separation of Powers 189B. The Need for a Legal Approach 191C. Evidence-Gathering 194

V. Consent and the Limited Number of Self-Defence Cases 196VI. Consent and Partial Jurisdiction 199VII. Conclusion 205

CONCLUSION 207

Bibliography 211Index 227

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Table of Cases

Aegean Sea Continental Shelf case (Greece v Turkey), jurisdiction of the court (1978) ICJ Reports 3...........................................................169

Aerial Incident of 3 July 1988 (Iran v United States), application instituting proceedings (1986) ICJ Pleadings vol 1, ...............................5

Aerial Incident of 3 July 1988 (United States v Soviet Union), order (1956) ICJ Reports 4 ....................................................................................5

Aerial Incident of 4 September 1954 (United States v Soviet Union) (1958) ICJ Reports 158 ................................................................................6

Aerial Incident of 7 November 1954 (United States v Soviet Union), order (1959) ICJ Reports 276 .....................................................................5

Aerial Incident of 10 August 1999 (Pakistan v India), jurisdiction of the court (2000) ICJ Reports 10 .................................................................5

Aerial Incident of 10 March 1953 (United States v Czecholosvakia), order (1956), ICJ Reports 4 ........................................................................5

Aerial Incident of 27 July 1955 (Israel v Bulgaria), preliminary objections (1959) ICJ Reports 127 .............................................................6

Aerial Incident of 27 July 1955 (United Kingdom v Bulgaria), order (1959) ICJ Reports 264 ................................................................................6

Aerial Incident of 27 July 1955 (United Kingdom v Bulgaria), order (1960) ICJ Reports 146 ................................................................................6

Anglo-Iranian Oil Co Case (United Kingdom v Iran), preliminaryobjection (1952) ICJ Reports 93 .............................................................169

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia Herzegovina v Serbia andMontenegro), merits (2007) .......................................................................5

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Yugoslavia), application instituting proceedings (1999) ..................................................................5

Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation),provisional measures order (2008)...........................................................5

Armed Activities on the Territory of the Congo (DRC v Burundi)application instituting proceedings (1999)............................................5, 16order .......................................................................................................17, 198

Armed Activities on the Territory of the Congo (DRC v Rwanda)application instituting proceedings (1999)............................................5, 16order (2001) ICJ Reports 6 ...........................................................................17

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Armed Activities on the Territory of the Congo (DRC v Uganda)application instituting proceedings (1999)................................................16counter-memorial of Uganda......................................................................17merits (2005) ...............................................5, 7, 10, 15, 16, 17, 23, 25, 27, 28,

29, 30, 43, 46, 47, 49, 51, 52, 64, 93, 103, 106, 107, 127, 140, 145, 198, 200, 205, 207

provisional measures order (2000) ICJ Reports 110.........................17, 191rejoinder submitted by Uganda (2002)..............................................17, 197

Armed Activities on the Territory of the Congo (New Application: 2002) (DRC v Rwanda), jurisdiction of the court and admissibility of the application (2006)...............................5, 17, 197, 198

Asylum (Columbia v Peru), merits (1950) ICJ Reports 266 ..................24, 72Border and Transborder Armed Actions (Nicaragua v Costa Rica)

application instituting proceedings (1986) ICJ Pleadings 3......................5jurisdiction of the court and admissibility of the application

(1988) ICJ Reports 69 ..................................................................................5Border and Transborder Armed Actions (Nicaragua v Honduras),

jurisdiction of the court and admissibility of the application (1988) ICJ Reports 69 ..............................................................................196

Case Concerning Certain German Interests in Polish Silesia, merits (1926) PCIJ Reports, Series A 7 ...................................................24

Case Concerning the Gabcikovo-Nagymaros Project (Hungary vSlovakia), merits (1997) ICJ Reports 3....................................................60

Case Concerning Trial of Pakistani Prisoners of War (Pakistan v India), order (1973) ICJ Reports 347.....................................................169

Corfu Channel (United Kingdom v Albania)merits (1949) ICJ Reports 4 ..........................................5, 10, 50, 59, 126, 169reply to the United Kingdom (1948) ICJ Pleadings vil II 241 .........10, 126

Effects of Awards of Compensation Made by the United NationsAdministrative Tribunal, advisory opinion (1954) ICJ Reports 47 ................................................................................................171

Fisheries Jurisdiction (Federal Republic of Germany v Iceland), merits (1974) ICJ Reports 3 ....................................................................169

Fisheries Jurisdiction (Spain v Canada), jurisdiction of the court (1998) ICJ Reports 430 ................................................................................5

Fisheries Jurisdiction (United Kingdom v Iceland), merits (1974) ICJ Reports 3........................................................................................6, 169

Frontier Dispute (Burkina Faso/Mali), merits (1986) ICJ Reports 554 ..................................................................................................5

Jones v Ministry of Interior of the Kingdom of Saudi Arabia (Secretary of State for Constitutional Affairs Intervening) [2007] 1 All ER 113..................................................................................183

Land, Island and Maritime Frontier Dispute (El Salvador/Honduras:Nicaragua intervening), merits (1992) ICJ Reports 351.....................199

xii Table of Cases

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Land and Maritime Boundary between Cameroon and Nigeria(Cameroon v Nigeria: Equitorial Guinea intervening)

application instituting proceedings .........................................................203counter-memorial (1999)..............................................................44, 195, 203merits (2002) ICJ Reports 9 ..................................................5, 10, 43, 44, 203preliminary objections (1998) ICJ Reports 296 ...............................195, 202preliminary objections of Nigeria (1995).................................................195

Legal Consequences of the Construction of a Wall in the OccupiedPalestinian Territory, advisory opinion (2004) ICJ Reports 135 ....................................................................7, 10, 20, 2022, 22, 27, 45,

46, 47, 49, 121, 122, 145, 175Legality of Use of Force (Serbia and Montenegor v Belgium),

preliminary objections (2004)....................................................................5Legality of Use of Force (Serbia and Montenegro v Canada),

preliminary objections (2004)....................................................................5Legality of Use of Force (Serbia and Montenegro v France),

preliminary objections (2004)....................................................................5Legality of Use of Force (Serbia and Montenegro v Germany),

preliminary objections (2004)....................................................................5Legality of Use of Force (Serbia and Montenegro v Italy),

preliminary objections (2004)....................................................................5Legality of Use of Force (Serbia and Montenegro v Netherlands),

preliminary objections (2004)....................................................................5Legality of Use of Force (Serbia and Montenegro v Portugal),

preliminary objections (2004)....................................................................5Legality of Use of Force (Serbia and Montenegro v United Kingdom),

preliminary objections (2004)....................................................................5Legality of Use of Force (Yugoslavia v Spain), provisional measures

order (1999) ICJ Reports 761 .....................................................................5Legality of Use of Force (Yugoslavia v United States)

provisional measures order (1999) ICJ Reports 915...................................5Legality of the Use of Nuclear Weapons, advisory opinion (1996)

ICJ Reports 226.............................................6, 7, 18, 19, 20, 22, 23, 26, 28, 64, 77, 91, 92, 93, 96, 130, 145, 173, 178

Maritime Delimitation between Nicaragua and Honduras in theCaribbean Sea (Nicaragua v Honduras)

application instituting proceedings (1999)..................................................5Military and Paramilitary Activities in and against Nicaragua

(Nicaragua v United States of America)application instituting proceedings (1984) ICJ Pleadings vol I, 3-26 ....10counter-memorial of the United States (1984) ICJ Pleadings,

Part II, 57 ......................................................................11, 12, 127, 190, 195jurisdiction of the court and admissibility of the application (1984) ICJ

Reports 392 ................................................................11, 190, 191, 193, 195

Table of Cases xiii

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merits (1986) ICJ Reports 14 .......................4, 5, 7, 10, 11, 12, 13, 23, 24, 25, 26, 29, 31, 32, 33, 35, 36, 37, 38, 39, 41, 43, 44, 45, 46, 48, 49, 50, 52, 53, 54, 55, 56, 58, 59, 60, 61, 62, 63, 64, 74, 77, 81, 91, 92, 93, 96, 101, 102, 105, 106, 115, 119, 120, 121,

122, 126, 127, 129, 130, 131, 133, 134, 135, 136, 141, 145, 154, 166, 167, 168, 169, 186, 189, 192, 194, 195, 199, 200, 206, 207

oral arguments on provisional measures submitted by Nicaragua(1984) ICJ Pleadings, vil I, 50.................................................................127

Mitchell v Al-Dali [2007] 1 ALl ER 113........................................................183Nottebohm (Liechtenstein v Guatemala), merits (1955) ICJ

Reports 4 ..................................................................................................169Nuclear Tests Case (New Zealand v France), questions of jurisdiction

and admissibility (1974) ICJ Reports 253 ............................................169Oil Platforms, Case Concerning (Islamic Republic of Iran v

United States of America)application instituting proceedings ...........................................................13counter-memorial and counterclaim (1997)......................................14, 202merits (2003) ICJ Reports 161 ...................1, 6, 13, 14, 15, 25, 26, 28, 29, 31,

32, 35, 38, 39, 40, 41, 42, 44, 54, 55, 61, 62, 64, 77, 80, 81, 86, 87, 106, 122, 123, 136, 137, 145, 175,

178, 200, 201, 202, 203, 204, 205, 206, 207South West Africa Cases (Ethiopia v South Africa, Liberia v

South Africa)preliminary objections (1962) ICJ Reports 319 .......................................193second phase (1966) ICJ Reports 4 ...................................................173, 193

Territorial Dispute (Libya/Chad), merits (1994) ICJ Reports 6 ...................5Treatment in Hungary of Aircraft and Crew of the United States of

America (United States v Hungary) (1954) ICJ Reports 103.................5Treatment in Hungary of Aircraft and Crew of the United States of

America (United States v Soviet Union) (1954) ICJ Reports 99............5Trial of Pakistani Prisoners of War (Pakistan v India) (1973)

ICJ Reports 328............................................................................................6United States Diplomatic and Consular Staff in Tehran (United

States v Iran), merits (1980) ICJ Reports 3...............5, 169, 170, 179, 191

xiv Table of Cases

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Table of International Treaties and Conventions

Charter of the Organisation of American States ..........................................12Art 18 ..............................................................................................................11Art 20 ..............................................................................................................11

Convention Concerning the Duties and Rights of States in the Event of Civil Strife

Art 1(3) ...........................................................................................................11Convention on the Prevention and Punishment of the Crime of

Genocide (1948).........................................................................................19Convention on the Rights of the Child (1989) ..............................................21Convention on the Rights and Duties of States............................................11European Convention on Human Rights (1950)

Art 20 ............................................................................................................178International Convention on the Elimination of All Forms of Racial

Discrimination (1965) .................................................................................5International Covenant on Civil and Political Rights (1966)................19, 21International Covenant on Economic, Social and Cultural Rights

(1966) ..........................................................................................................21International Law Commission Articles on the Responsibility of

States for Internationally Wrongful ActsArt 8 ................................................................................................................50Chap.I .............................................................................................................49

Statute of the International Court of JusticeArt 1 ..................................................................................................................4Art 2 ......................................................................................173, 178, 179, 199Art 3 ..............................................................................................................178Art 31 ............................................................................................................178Art 36(2) ...........................................................11, 12, 196, 197, 198, 200, 202Art 38 ................................................................................................................2Art 38(1) ...............................................................................................171, 172Art 38(1)(c) ...................................................................................................186Art 38(2) .......................................................................................................172Art 53 ....................................................................................................166, 167Art 59 ............................................................................................................171Art 65(1) .........................................................................................................21

Statute of the International Law CommissionArt 1(1) .........................................................................................................172

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Treaty of Amity, Economic Relations and Consular Rights between the United States and Itan (1955)......................................13, 14

Art X(1).....................................................................................................14, 15Art XX(1)(d) .............................................................................................14, 15

Treaty of Friendship, Commerce and Navigation (with Protocol)between the United States of America and Nicaragua (1956)

Art XXIV.........................................................................................................11Treaty of Navigation and Commerce between United States and Iran

Art XX(1)(d) .................................................................................................201Art XXI(2).....................................................................................................201

UN Charter ..........................................12, 30, 128, 129, 130, 131, 132, 133, 140Chap VII .........................................................................................................58Art 2(4) 11, 15, 18, 21, 29, 32, 55, 56, 107, 113, 114, 115, 116, 117, 119, 120,

131, 138, 139, 141, 142, 145, 146, 147, 149, 161, 187, 204, 207Art 2(6) .........................................................................................................132Art 20 ..............................................................................................................11Art 24 ............................................................................................................190Art 51 .....................2, 7, 14, 21, 22, 25, 27, 28, 31, 44, 45, 47, 63, 64, 85, 113,

114, 115, 117, 124, 126, 128, 129, 130, 132, 133, 139, 141, 142, 144, 145, 146, 147, 148, 150, 151, 152, 153, 161, 190, 208

Art 92 ................................................................................................................4Art 96 ........................................................................................................19, 20

xvi Table of International Treaties and Conventions

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Introduction

The conditions for the exercise of self-defence are well settled.

International Court of Justice, Case Concerning Oil Platforms (2003)1

Self-defence is still largely obscure from a legal point of view.

HE Judge Pieter Kooijmans, International Court of Justice (19972006)2

I. THE INTERNATIONAL COURT OF JUSTICE AND SELF DEFENCE

INTERNATIONAL EVENTS SINCE the turn of the century havehad a signicant impact on the perception, academic and public, of theinternational law on the use of force (the jus ad bellum).3 More speci-cally, it is certainly arguable that the attacks of 11 September 2001, the subsequent intervention of coalition forces in Afghanistan (2001) and Iraq (2003) and the emergence of a contentious doctrine of pre-emption(the so-called Bush Doctrine)4 have inuenced the content of this area ofinternational law.5

An essential aspect of the jus ad bellum is the inherent right of self-defence. Indeed, it represents one of only two universally accepted excep-tions to the legal prohibition on the use of military force and is the onlyindisputable basis under which a state may resort to force unilaterally.Given the current potential for paradigmatic shifts in the law on the use offorce, it is crucial that the rules governing actions taken in self-defence be

1 Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America) merits(2003) ICJ Reports 161, para 76.

2 P Kooijmans, The International Court of Justice in the Twenty-First Century: What LiesAhead? British Institute of International and Comparative Law Annual Lecture, 12December 2006. A version of this lecture has since appeared in print, although the quotedpassage is absent: P Kooijmans, The ICJ in the 21st Century: Judicial Restraint, JudicialActivism, or Proactive Judicial Policy (2007) 53 International and Comparative Law Quarterly741.

3 As Gray has put this, 11 September led to a fundamental reappraisal of the law on self-defence. C Gray, International Law and the Use of Force, 3rd edn (Oxford, Oxford UniversityPress, 2008) 193.

4 First articulated by the United States in 2002. See, eg, the National Security Strategy of the United States of America, September 2002, available at www.whitehouse.gov/nsc/nss.pdf. We will return to this document in ch 2, section VI-A.

5 Eg, it has been argued that 11 September and the forcible responses to it represent a newparadigm in the international law relating to the use of force. D Brown, Use of Force againstTerrorism after September 11th: State Responsibility, Self-Defence and Other Responses(200304) 11 Cardozo Journal of International and Comparative Law 1, 2.

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carefully scrutinised. Running parallel to this increased scrutiny and inu-ence of the law in this area has been a greatly increased jurisprudentialcontribution from the International Court of Justice (ICJ) with regard tothe specic circumstances under which force may be lawfully used in self-defence; there have been a succession of post-millennial decisions of theCourt that relate to this issue. This book focuses on the law of self-defencethrough an examination of the relationship between the ICJ and the legalrules in this fundamental area of international law.

No state would deny that a right of unilateral self-defence exists in inter-national law.6 The existence of the right in the period following the incep-tion of the United Nations (UN) is conrmed by Article 51 of the UNCharter. That Article provides a codication of the right of self-defence,both individual and collective:

Nothing in the present Charter shall impair the inherent right of individual orcollective self-defence if an armed attack occurs against a Member of the UnitedNations, until the Security Council has taken measures necessary to maintaininternational peace and security. Measures taken by Members in the exercise ofthis right of self-defence shall be immediately reported to the Security Counciland shall not in any way affect the authority and responsibility of the SecurityCouncil under the present Charter to take at any time such action as it deemsnecessary in order to maintain or restore international peace and security.

Article 51 therefore sets out the basic UN-era rules on self-defence.However, it is also undeniable that the right of self-defence is, at least tosome extent, governed by customary international law. There are crucialand universally accepted legal criteria that appear in customary inter-national law but are not set out in Article 51 at all, most notably therequirements of necessity and proportionality. The relationship betweenArticle 51 and the customary rules on self-defence will be a central themeof this work, and the question of how treaty law and custom interrelate inthis area will be returned to.7 For the present, however, it is simply neces-sary to keep in mind that self-defence derives from two different sourcesof international law.8

2 Introduction

6 Here unilateral is used to indicate the lack of authorisation by the United NationsSecurity Council, and not necessarily that the defensive action was taken by a single state;action in self-defence can be collective.

7 See especially ch 3.8 The traditional reference point for the sources of international law in the UN era is Art

38 of the Statute of the ICJ:

1. The Court, whose function is to decide in accordance with international law such dis-putes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rulesexpressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;c. the general principles of law recognized by civilized nations; cont. over/


The ongoing importance of the right of self-defence can be seen from the fact that in the UN era, states have justied international uses of force(as opposed to wholly internal conicts) as being lawful instances of self-defence on a consistent and regular basis. In 1961, Rosalyn Higgins stated,The plea of self-defence is perhaps the most frequently heard justicationfor a particular use of force.9 In the intervening years since then, little haschanged in terms of the regularity of the invocation of the right. AsChristine Gray put it more recently, States using force against anotherstate almost invariably invoke self-defence (emphasis added).10

It is impossible to quantify conclusively the number of international disputes involving the use of force since 1945, let alone to specify with any certainty the number of such instances in which a legal claim of self-defence was made. What may be said is that in the majority of dis-putes involving the use of force, at least one claim is made under the rightof self-defence. Writing in 1987, Oscar Schachter contended that the num-ber of use of force disputes since 1945 was surely in the hundreds.11 Evena cursory glace at this plethora of state practice clearly demonstrates theregularity and consistency of self-defence claims in the UN era.12

In contrast to the numerous invocations of self-defence by states in theUN era, the ICJ has produced only a handful of merits decisions in con-tentious cases that substantially deal with this area of the law. Given theregularity of self-defence claims made by states, this discrepancy is

The International Court of Justice and Self Defence 3

d. subject to the provisions of Art 59, judicial decisions and the teachings of the mosthighly qualied publicists of the various nations, as subsidiary means for thedetermination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo etbono, if the parties agree thereto.

9 R Higgins, The Legal Limits to the Use of Force by Sovereign States: United NationsPractice (1961) 37 British Yearbook of International Law 269, 297. Similarly, Schachter has said:When [states] have used force, they have nearly always claimed self-defence as their legaljustication. Governments disputing that claim have usually asserted that the legal condi-tions of self-defence were not met in the particular case. O Schachter, Self-Defence and theRule of Law (1989) 83 American Journal of International Law 259, 259.

10 Gray, International Law and the Use of Force (n 3) 114.11 O Schachter, Disputes Involving the Use of Force in LF Damrosch (ed), The

International Court of Justice at a Crossroads (New York, Transnational, 1987) 223. In 1997,Weisburd asserted that in the period between the end of the Second World War and the Iraqiinvasion of Kuwait in 1990, there were over 110 distinct instances in which force was used inan international context. AM Weisburd, Use of Force: The Practice of States Since World War II(University Park, Pennsylvania State University Press, 1997) 308. The current author wouldargue that this estimate is somewhat conservative. More recently, Gray has contended thatover a hundred major conicts [have occurred] since 1945 (emphasis added). C Gray, TheUse of Force and the International Legal Order in MD Evans (ed), International Law, 2nd edn(Oxford, Oxford University Press, 2006) 589, 589.

12 This is not to say that in all cases in which a claim of self-defence could be advanced,such a claim has in fact been put forward. Eg, one may reference the somewhat mysteriousIsraeli raid into the Tall al-Abyad region of Syria in 2007: Israel simply did not set out anylegal justication for the action. See JA Green, An Unusual Silence (2007) 157 New LawJournal 1478. However, such incidents are notable by reason of their comparative uniqueness.


particularly notable. The ICJ is the principal judicial organ of the UnitedNations,13 and as the UN itself is the closest thing that international rela-tions has to a central organisational structure, the ICJ therefore representsthe primary organ for inter-state adjudication.14 The position of the Courtregarding self-defence, or indeed any issue of international law, is of greatimportance to the application and development of that law. As has beenpointed out:

Although in principle the Courts judgments are binding only with respect tothe particular case and the parties involved, their impact and inuence in statepractice and judicial and arbitral decisions are well known, so any statementmade by the Court could become a landmark in the current debate on self-defence.15

However, in the context of self-defence the involvement of the Court hastraditionally been limited.16 Before 1986, the view of the ICJ on the law gov-erning self-defence was almost nonexistent. Because of this, BhupinderSingh Chimni stated in 1986 that in the past 40 years the InternationalCourt has not played a very signicant role in containing major conictswhich have affected international society.17

On 27 June of that same year, the ICJ delivered its merits judgment inthe case of Military and Paramilitary Activities in and against Nicaragua (here-after Nicaragua).18 In that decision, the Court didfor the rst timetackle much of the law of self-defence head on, delivering an extensivedecision that undoubtedly provides a conception of the law in this area.The Nicaragua decision is therefore crucial for our analysis, still represent-ing, as it does, the Courts rst and most complete assessment of self-defence. Moreover, the Nicaragua decision had the effect of beginning a

4 Introduction

13 UN Charter, Art 92; Statute of the International Court of Justice 1945, Art 1. The ICJ wasestablished by the UN Charter and is the successor to the Permanent Court of InternationalJustice. The statute under which it functions is based upon the Permanent Courts Statute(UN Charter, Art 92).

14 ND White, The United Nations System: Towards International Justice (London, LynneRienner, 2002) 11114 and 11719.

15 N Ochoa-Ruiz and E Salamanca-Aguado, Exploring the Limits of International LawRelating to the Use of Force in Self-Defence (2005) 16 European Journal of International Law 499,501.

16 Of course, it may be said that the number of cases heard by the ICJ relating to any areaof international law is but a small percentage of the total number of disputes that have arisenbetween states since the Courts inception. On this basis, it has been argued that once a dis-pute has been identied, there is a presumption against states turning to the ICJ as a settle-ment mechanism. See MW Janis, The International Court in MW Janis (ed), InternationalCourts for the Twenty-First Century (Dordrecht, Martinus Nijhoff, 1992) 1920. However, itwould seem that this discrepancy is particularly pronounced in relation to disputes con-cerning the use of force, such as those relating to self-defence.

17 BS Chimni, The International Court and the Maintenance of Peace and Security: TheNicaragua Decision and the United States Response (1986) 35 International and ComparativeLaw Quarterly 960, 969.

18 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States ofAmerica) merits (1986) ICJ Reports 14.


relationship between the law on the use of force and the ICJ that had pre-viously not existed.

Since Nicaragua, there has been a notable increase in the number ofapplications to the Court that relate in some measure to aspects of the jusad bellum. There have been twenty-six contentious applications on mattersrelated to a use of force by at least one state party since 1986.19 This isalmost double the number of such applications led with the CourtsRegistry in the forty-year period between the ICJs inception and 1986.20


19 These were: Border and Transborder Armed Actions (Nicaragua v Costa Rica) applicationinstituting proceedings (1986) ICJ Pleadings 3; Aerial Incident of 3 July 1988 (Iran v UnitedStates) application instituting proceedings (1989) ICJ Pleadings vol I, 3; Border and TransborderArmed Actions (Nicaragua v Honduras) jurisdiction of the court and admissibility of the appli-cation (1988) ICJ Reports 69; Territorial Dispute (Libya/Chad) merits (1994) ICJ Reports 6(though this decision at no point directly referred to the use of force); Fisheries Jurisdiction(Spain v Canada) jurisdiction of the court (1998) ICJ Reports 430; Application of the Conventionon the Prevention and Punishment of the Crime of Genocide (Croatia v Yugoslavia) application insti-tuting proceedings (1999) www.icj-cij.org/docket/les/118/7125.pdf; Maritime Delimitationbetween Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras) application insti-tuting proceedings (1999) www.icj-cij.org/docket/les/120/7083.pdf; Legality of Use of Force(Yugoslavia v Spain) provisional measures order (1999) ICJ Reports 761; Legality of Use of Force(Yugoslavia v United States) provisional measures order (1999) ICJ Reports 915; Aerial Incidentof 10 August 1999 (Pakistan v India) jurisdiction of the court (2000) ICJ Reports 10; ArmedActivities on the Territory of the Congo (DRC v Rwanda) application instituting proceedings(1999) www.icj-cij.org/docket/les/117/7071.pdf; Armed Activities on the Territory of theCongo (DRC v Burundi) application instituting proceedings (1999) www.icj-cij.org/docket/les/115/7127.pdf; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon vNigeria: Equatorial Guinea intervening) merits (2002) ICJ Reports 9; Oil Platforms merits (n 1);Eight more Legality of Use of Force cases (Serbia and Montenegro v Belgium; Canada; France;Germany; Italy; Netherlands; Portugal and the United Kingdom) all preliminary objections (2004)all available from www.icj-cij.org/docket/index.php?p1=3&p2=3; Armed Activities on theTerritory of the Congo (Democratic Republic of the Congo v Uganda) merits (2005) www.icj-cij.org/docket/les/116/10455.pdf; Armed Activities on the Territory of the Congo (NewApplication: 2002) (DRC v Rwanda) jurisdiction of the court and admissibility of the applica-tion (2006) www.icj-cij.org/docket/les/126/7070.pdf; Application of the Convention on thePrevention and Punishment of the Crime of Genocide (Bosnia Herzegovina v Serbia and Montenegromerits (2007) www.icj-cij.org/docket/les/91/13685.pdf (though the initial request con-tained in the Application of Bosnia-Herzegovina that the Court adjudge and declare on useof force aspects of the dispute was ultimately dropped from the submissions of that State);and Application of the International Convention on the Elimination of All Forms of RacialDiscrimination (Georgia v Russian Federation) provisional measures order (2008) www.icj-cij.org/docket/les/140/14801.pdf (though, whilst Georgia raised various issues relatingto the use of force in its pleadings, the sole base of the Courts jurisdiction is the InternationalConvention on the Elimination of All Forms of Racial Discrimination of 1965. As such, theCourt is not directly able to examine use of force issues).

20 Fourteen such applications were led between 1945 and 1986. Of these, only fourresulted in merits decisions: Corfu Channel (United Kingdom v Albania) merits (1949) ICJReports 4; United States Diplomatic and Consular Staff in Tehran (United States v Iran) merits(1980) ICJ Reports 3; Frontier Dispute (Burkina Faso/Mali) merits (1986) ICJ Reports 554; andNicaragua merits (n 18) itself. The remaining ten applications were either dismissed or dis-continued. These were: Treatment in Hungary of Aircraft and Crew of the United States of America(United States v Soviet Union) (1954) ICJ Reports 99; Treatment in Hungary of Aircraft and Crewof the United States of America (United States v Hungary) (1954) ICJ Reports 103; Aerial Incidentof 7 October 1952 (United States v Soviet Union) order (1956) ICJ Reports 9; Aerial Incident of 10 March 1953 (United States v Czechoslovakia) order (1956) ICJ Reports 4; Aerial Incident of 7 November 1954 (United States v Soviet Union) order (1959) ICJ Reports 276; Aerial Incident


Further, it is evident that in many instances, these pre-1986 cases wereonly indirectly related to a use of force, or in the event resulted in littleexamination by the Court of the relevant substantive law.21 In contrast, theapplications since the Nicaragua judgment have for the most part explicitlyrequested a nding that a state party has used force unlawfully. Therefore,it can be seen that the ICJ is not only being called upon more regularly to resolve disputes that relate to the use of force but also to determinewhether force has been used by one or more state party and whether thatforce amounts to a lawful or an unlawful action.

This increase is arguably symptomatic of a growing perception that theCourt has an important role to play in the cessation of violent conicts andthe maintenance of international peace and security, or at least a growingwillingness on the part of states to turn to the Court in such circumstances.Indeed, it is very telling that during her speech to the General Assemblyregarding the annual report of the ICJ in October 2006, the CourtsPresident, Judge Higgins, stated: Another category of cases which is fre-quently referred to the Court concerns the use of force (emphasis added).22It is unthinkable that such a statement would have been made when JudgeHiggins rst came to the Court in 1995.

It would be reasonable to assume that the increased reliance on theCourt in the context of the use of force, and specically with regard to self-defence claims, may lead to a corresponding increase in the contributionmade by the Court in this area of international law. Indeed, this has cer-tainly been the case, although it was a further ten years on from Nicaraguabefore the Court again dealt substantively with self-defence. This was inits advisory opinion on the Legality of the Threat or Use of Nuclear Weapons(hereafter Nuclear Weapons).23 Moreover, it was not until 2003 that theCourt again decided a contentious case on the merits by way of referenceto the law governing self-defence, in the Case Concerning Oil Platforms(hereafter Oil Platforms).24

Notably, since the turn of the century there have been three decisions inwhich the Court has contributed to its jurisprudence on the issue of self-defence: Oil Platforms (2003), Legal Consequences of the Construction of a Wall

6 Introduction

of 4 September 1954 (United States v Soviet Union) (1958) ICJ Reports 158; Aerial Incident of 27 July 1955 (United Kingdom v Bulgaria) order (1959) ICJ Reports 264; Aerial Incident of 27 July1955 (United States v Bulgaria) order (1960) ICJ Reports 146; Aerial Incident of 27 July 1955 (Israelv Bulgaria) preliminary objections (1959) ICJ Reports 127; and Trial of Pakistani Prisoners of War(Pakistan v India) (1973) ICJ Reports 328. In addition, obiter remarks relating to the law on theuse of force have been made in other cases, eg, the Fisheries Jurisdiction (United Kingdom vIceland) jurisdiction of the court (1973) ICJ Reports 3, 14.

21 Schachter, Disputes Involving the Use of Force (n 11) 22327.22 Speech by HE Judge Rosalyn Higgins, President of the International Court of Justice, to the

General Assembly of the United Nations, 26 October 2006, http://www.icj-cij.org/presscom/index.php?pr=1874&p1=6&p2=1&search=%22higgins+speech+2006%22.

23 Legality of the Threat or Use of Nuclear Weapons advisory opinion (1996) ICJ Reports 226.24 Oil Platforms merits (n 1).


in the Occupied Palestinian Territory (2004) (hereafter Israeli Wall)25 andArmed Activities on the Territory of the Congo (Democratic Republic of theCongo v Uganda) (2005) (hereafter DRC v Uganda).26 In contrast, only twocases (Nicaragua and Nuclear Weapons) appeared in the preceding fty-eightyears of the Courts existence. Whilst the Nicaragua case was examined byscholars to a certain extent when it emerged, a comprehensive assessmentof the relationship between the ICJ and the international law governingforcible responses taken in self-defencetaking into account recent decisionshas not as yet been produced, and a number of factors make itmore desirable than ever that this is done. These include the unprece-dented emergence of three judgments that deal substantively with self-defence in a three-year period; the corresponding increase of applicationsto the Court relating to the use of force since the Nicaragua case; and the general scrutiny of forcible intervention and the international legalsystems (in)ability to restrain it following 11 September 2001.

This work aims to clarify the position taken by the Court with regard tothe law governing self-defence and to test the validity and coherence ofthat position. Its purpose is not to provide a comprehensive study of thelaw governing self-defence. Nor does this book offer a general examina-tion of the ICJ as an institution of the UN. Instead, the following representsan attempt to identify the crucial aspects of the jurisprudence of the Courtgoverning self-defence and to analyse the picture that emerges through anassessment of both the law and the ICJ.

Albeit through a limited number of decisions, the Court has clearly con-tributed a conception of the right of self-defence to international law.Whilst this conception is not always consistent, it is certainly evident that,for the Court, the fundamental aspect of the law on self-defence is the cri-terion of an armed attack, which is seen as having a particular normativecontent. As such, chapter one does not begin with an exhaustive overviewof the Courts pronouncements with regard to self-defence but insteadfocuses upon the criterion of an armed attack and its content, as expressedby the ICJ across the relevant decisions. The chapter draws together andcritiques this conception of the criterion.

Chapter two then moves to an assessment of the criteria of necessity andproportionality. As these criteria are not present in Article 51 of the UNCharter or in other treaties that deal with self-defence, this involves anassessment of customary international law, through an examination ofstate practice and opinio juris sive necessitatis. It is worth noting at the out-set that when examining the content of customary international law inchapter two and beyond, this work predominantly takes an incident-based approach to assessing the content of customary international law.


25 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory advi-sory opinion (2004) ICJ Reports 135.

26 DRC v Uganda merits (n 19).


This is to say that the analysis focuses on incidents of state practice, cou-pled with the corresponding legal claims made by states, as well as theresponses of other states to such legal claims (the opinio juris element). Thecurrent author takes the view that an examination of actual instances ofthe use of force in action and the legal consequences of such incidentsprovides a stronger indication of the state of customary law than a relianceon, for example, more abstract debates over declarations relating to theuse of force adopted by the General Assembly.27 The position taken hereis that, as has been noted by Ruth Wedgwood, incidents have a centralimportance in the formation of customary international law, particularlyin the area of self-defence.28

The downside of this incident-based approach is that it is difcult to becomprehensive. As has already been noted, there have been literally hun-dreds of incidents involving military force since 1945. A full study of thepractice relevant to the development and current state of the customaryinternational law governing self-defence would represent an entire bookin itself, or more.29 One of the aims of this book, however, is to use the cus-tomary international law position to highlight, reect and contrast theposition taken by the ICJ. Therefore, where reference is made to the cus-tomary international law governing self-defence, what is actually beingreferred to must be seen as a sketch of self-defence in practice and of theopinio juris of states with regard to this practice.30 The claims being madeherein with regard to the content of customary international law are notset forward as being necessarily authoritative: they are better viewed asinterpretations of the state practice.

8 Introduction

27 Though this is not to say that debates of this kind have been wholly ignored, and theydo feature in the analysis in this work on occasion.

28 R Wedgwood, The ICJ Advisory Opinion on the Israeli Security Fence and the Limitsof Self-Defence (2005) 99 American Journal of International Law 52, 52.

29 Compare the study on the customary aspects of the jus in bello prepared for theInternational Committee of the Red Cross, J-M Henckaerts and L Doswald Beck (eds),Customary International Humanitarian Law: Vol I, Vol II (Parts 1 and 2), ICRC Study (Cambridge,Cambridge University Press, 2005). That study had more than two hundred contributors andcomprised two volumes that together ran to over ve thousand pages of text.

30 As such, a number of particular incidents of state practice have been chosen and focusedupon. It is acknowledged that selecting any particular incident for legal analysis whilstdeclining to examine others in the same way, runs the risk of orchestrated selection, repre-senting the bias of the scholar (a fact noted by AR Willard, Incidents: An Essay in Method(198485) 10 Yale Journal of International Law 21, 2123; and WM Reisman, InternationalIncidents: Introduction to a New Genre in the Study of International Law (198485) 10 YaleJournal of International Law 1, 13). To attempt to limit this risk somewhat, the specic incidentsselected have been chosen so as to provide as diverse a view as possible of the practice ofstates, for the most part since the inception of the UN system in 1945. Thus, the incidentsselected relate to different aspects of the law on self-defence and in general cover a temporalrange from 1945 to the present. Equally, they have been chosen to represent geographicallydisparate practice, involving states from every continent and major legal system. From this,a number of threads highlighting the development and current status of the customaryinternational law on self-defence have been identied.


Based on such interpretations of customary international law, it isargued in chapter two that, at least in custom, the primary aspect of a self-defence claim is not in fact the criterion of an armed attack at all but ratherthe dual requirements of necessity and proportionality. Chapter two isdesigned to highlight both the discrepancy between the importance of the criteria in practice and their marginal treatment by the ICJ, and analternative conception of self-defence against which the Courts own con-ception, as set out in chapter one, may be contrasted.

Having examined the law as it would seem to be applied in practice,chapters three, four and ve expand upon the problems with the Courtsconception of self-defence. In chapter three, these problems are discussedin more detail through further examination of the lex lata of self-defence.This expands upon chapters one and two and indicates that the notion oftwo competing conceptions of self-defence is too simplistic: in actualitythese conceptions interrelate. It is contended that the law in itself is unclearand contradictory. Thus the view is put forward that, whilst the juris-prudence of the Court regarding self-defence has compounded theseproblems, the ICJ is far from solely responsible for them. Chapter threesets out the argument that many of the difculties inherent in the law ofself-defence stem from the development of armed attack as constitutinga particularly grave use of force. Following on from this, chapter four isprescriptive in nature: it suggests possible reform to attempt to improveupon some of the deciencies in the law of self-defence that the ICJ hasfaced when making its decisions, through a reinterpretation of the conceptof armed attack.

Coupled with the problems inherent in the law, is the argument, set outin chapter ve, that many of the difculties with the Courts positionregarding self-defence stem from the inherent nature of the ICJ and thevarious internal limitations that the Court faces, particularly with regardto disputes involving the use of force. The tension between the politicalaspects of the Court and the purely legal conception of the ICJ is explored,as are issues such as the Courts jurisdictional and evidential restraints.

The ultimate goal of this work is to contribute a clearer understandingof the law governing uses of force in self-defence and of the position thathas been, and should be, taken by the ICJ with regard to it.

II. FACTS AND RULINGS OF THE PRIMARY CASES

Before we move to chapter one and the Courts conception of an armedattack, it is useful at this introductory stagegiven that this book is exam-ining the jurisprudence of the ICJ on self-defenceto briey set out thefactual background to and the ruling made in each of the key cases. Thiswill underpin all subsequent discussion.

Facts and Rulings of the Primary Cases 9


It was noted in the previous section that there have been ve decisionsof the Court that have dealt directly with the rules governing self-defence:three merits decisions (Nicaragua, Oil Platforms and DRC v Uganda) andtwo advisory opinions (Nuclear Weapons and Israeli Wall). A summary ofeach of these decisions is set out below. However, it is also worth notingthat, in addition, there are a number of other judgments of the Court incontentious cases that relate to self-defence issues in some limited manner.The classic example of such a decision is Corfu Channel (United Kingdom vAlbania),31 in which the United Kingdom asserted that it had been actingunder a right of self-help.32 Whilst the decision does not strictly deal witha claim of self-defence in the contemporary sense, there are a number ofparallels between that right and the UK claim of self-helpcertainly thefact that the case dealt directly with issues concerning the use of forcemeans that it has some bearing on this book. A more recent example is theCase Concerning the Land and Maritime Boundary between Cameroon andNigeria.33 In that case, both parties accused the other of breaching prin-ciples of the jus ad bellum,34 and Nigeria explicitly claimed to have beenacting in self-defence.35 Ultimately, the ICJ did not examine the use offorce aspects of the dispute on the meritsnonetheless, the decision is stillof some use to us.

For the most part, however, the analysis herein is based upon the vekey pronouncements of the Court, the main features of which will now beset out in turn.

A. The Nicaragua Case

The case came before the ICJ following an application made on 9 April1984 by Nicaragua,36 alleging that the United States had supported andwas continuing to support military and paramilitary actions of contraforces opposing the Nicaraguan government. Nicaragua asserted that thissupport amounted to a sustained use of force on the part of the United

10 Introduction

31 Corfu Channel merits (n 20).32 Corfu Channel reply of the United Kingdom (1948) ICJ Pleadings vol II 241, 284.33 Cameroon v Nigeria merits (n 19).34 Eg, Cameroon asked the Court to adjudge and declare, inter alia, that by using force

against the Republic of Cameroon, the Federal Republic of Nigeria has violated and is vio-lating its obligations under international treaty law and customary law. Cameroon v Nigeriaapplication instituting proceedings (1994) www.icj-cij.org/docket/les/94/7201.pdf, para20. For the corresponding counterclaims of Nigeria, see Cameroon v Nigeria counter-memor-ial submitted by Nigeria (1999) www.icj-cij.org/docket/les/94/8602.pdf, Part VI.

35 Cameroon v Nigeria counter-memorial of Nigeria (ibid) Part V, para 24.49. See alsoCameroon v Nigeria, CR 2002/14, www.icj-cij.org/docket/les/94/5029.pdf, para 41 and CR2002/18, www.icj-cij.org/docket/les/94/5045.pdf, para 68.

36 Nicaragua application instituting proceedings (1984) ICJ Pleadings vol I, 326.


States, contrary to international law.37 Further, Nicaragua alleged that theUnited States had used force in a more direct manner against it by way ofattacks, such as the mining of ports and aerial incursions into Nicaraguanterritory, carried out by persons in the pay of the United States govern-ment, and under the direct command of United States personnel, who alsoparticipated to some extent in the operations.38 These actions took placeagainst the background of revolutionary change in Nicaragua. In 1979 theSandinista regime had toppled the previous government, which had beenheaded by President Anastasio Somoza. The new government was threat-ened by the contrasirregular military forces comprised largely of theformer National Guard and other supporters of the deposed Somoza gov-ernment. Relations between the United States and the new SandinistaGovernment had soured by 1981, and by the end of that year the UnitedStates had begun to aid the contra forces.39

Once the Court had ruled that it could entertain the dispute,40 theUnited States made it clear that it would participate no further in the case.41 Thus, it led no pleadings on the merits, nor was it representedat the oral proceedings of 1220 September 1985.42 However, before itsabstention from the proceedings, the United States indicated in itscounter-memorial on jurisdictional issues that its actions with regard toNicaragua, while uses of force, were lawful actions of collective self-defence. This was claimed to be in response to uses of force by Nicaraguaagainst neighbouring states. It was alleged, for example, that Nicaraguahad provided support to the armed opposition in El Salvador.43 The Courtconcluded that there had been a certain amount of aid from Nicaraguanterritory to the Salvadorian rebels up to early 1981.44 However, the scale of


37 Specically contrary to Art 2(4) of the UN Charter; Arts 18 and 20 of the Charter of theOrganisation of American States; Art 8 of the Convention on the Rights and Duties of States;and Art I, Third, of the Convention Concerning the Duties and Rights of States in the Eventof Civil Strife.

38 Nicaragua merits (n 18) para 20.39 Ibid, paras 1819. For an exploration of the factual background to the Nicaragua case, see

C Dickey, With the Contras: A Reporter in the Wilds of Nicaragua (New York, Touchstone, 1987);R Kagan, A Twilight Struggle: American Power and Nicaragua, 19771990 (New York, FreePress, 1996); and Z Modabbler, Collective Self-Defence: Nicaragua v United States (1988) 10Loyola of Los Angeles International & Comparative Law Review 449, 45153.

40 The Court held that it had jurisdiction to entertain the dispute on two grounds: basedon declarations of the parties accepting the jurisdiction of the Court under Art 36(2) of theStatute of the ICJ, and based upon Art XXIV of the Treaty of Friendship, Commerce andNavigation (with Protocol) between the United States of America and Nicaragua, signed inManagua on 24 April 1956, which came into force 24 May 1958. See Nicaragua jurisdiction ofthe court and admissibility of the application (1984) ICJ Reports 392, especially the operativepart of the judgment, para 113.

41 Nicaragua merits (n 18) para 10.42 Ibid, para 17.43 Nicaragua counter-memorial of the United States (1984) ICJ Pleadings vol II, Part II, esp

5759.44 Nicaragua merits (n 18) para 152.


this was viewed as minimal, and evidence for continued aid after the ini-tial months of 1981 was insufcient for the Court to accept its existence.45In addition to its claims concerning indirect support, the United States alsoindicated that Honduras and Costa Rica had been the victims of directarmed intervention by Nicaraguan agents.46 The Court found that thesetrans-border incursions were imputable to the Nicaraguan government.47

A notable aspect of the Nicaragua decision was the effect of a reservationentered by the United States when it declared its acceptance of the ICJsjurisdiction under Article 36(2) of the Courts Statute. In its declaration of 26 August 1946, the United States in general accepted the jurisdiction of the ICJ but made a number of reservations to this acceptance.48 One ofthese was that it did not recognise the jurisdiction of the Court over dis-putes arising under a multilateral treaty, unless . . . all parties to the dispute affected by the decision are also parties to the case before theCourt.49 The ICJ took the view that a decision on the merits would neces-sarily affect El Salvador,50 in that this would reect upon any measuresEl Salvador had taken in individual self-defence against Nicaragua.51 Assuch, the ICJ concluded that the United States reservation essentially pre-cluded it from applying multilateral treaty law in the case.52 Therefore, ineffect, the law that the Court was able to apply to the dispute was cus-tomary international law alone,53 at least with regard to the aspects of thecase relevant to our discussions.54

The Court therefore outlined and applied the customary internationallaw on self-defence, specically collective self-defence. It concluded that itwas not satisfactorily established that the requirements for a lawful exer-cise of self-defence in customary international law had been met.Therefore, the justication supplied by the United States that it had been

12 Introduction

45 Nicaragua merits (n 18) para 160.46 Nicaragua counter-memorial of the United States (n 43) Part II, 6061.47 Nicaragua merits (n 18) paras 16364.48 For the US declaration, see S Rosenne, Documents on the International Court of Justice, 2nd

edn (Alphen aan den Rejn, Sijthoff & Noordhoof, 1979) 415.49 Ibid.50 Indeed, the United States argued that a decision by the Court would affect not only El

Salvador but also Costa Rica and Honduras: Nicaragua counter-memorial of the United States(n 43) Part III, 8689. The ICJ reached a conclusion on this question only regarding ElSalvador. However, the Court made it clear that this was because it was unnecessary toexamine the possible effect of a merits decision upon the other states, as its conclusionregarding El Salvador was enough in itself to mean that the US reservation was applicable:Nicaragua merits (n 18) para 48.

51 Nicaragua merits (n 18) paras 4256, esp para 51.52 This meant, eg, that the Court could not apply either the UN Charter or the Charter of

the Organisation of American States. Ibid, paras 4256.53 It was the contention of the United States that the reservation precluded the Court from

examining the dispute at all. Nicaragua counter-memorial of the United States (n 43) Part III,9197.

54 The Court could, of course, apply bilateral treaties between the parties, such as the 1956Friendship, Commerce and Navigation Treaty. Nicaragua merits (n 18) para 271.


acting in collective self-defence was rejected. The Court found that by sup-porting the contra forces, the United States had violated the principle ofnon-intervention and in some circumstances the prohibition on the use offorce. It was further held that the direct incursions by people controlledby the United States constituted unlawful uses of force.55

B. The Oil Platforms Case

As with Nicaragua, the Oil Platforms case also had the United States as itsrespondent party. The case involved military action taken by the US Navyagainst offshore Iranian oil production complexes, which were situated inthe Persian Gulf.56 The rst set of attacks against Iranian oil platformsoccurred on 19 October 1987. US destroyers attacked the Iranian Reshadatcomplex, completely demolishing one platform of that installation andseverely damaging another. Further, these attacks caused damage to a sec-ond complex, the Resalat. Neither complex was producing oil at the timeof the attacks, due to previous damage done to them by Iraqi forces.57Naval forces of the United States took military action against Iranian oilinstallations again on 18 April 1988. This second set of attacks led to thealmost total destruction of two further installations, the Salman and theNasr.58 The attacks on the Salman and the Nasr formed part of a wider USoperation codenamed Operation Preying Mantis.59 However, the ques-tion of the legality of the wider aspects of the operation was not examinedby the Court.60

These incidents led to Iran instituting proceeding against the UnitedStates before the ICJ on 2 November 1992,61 alleging that they amountedto a violation of provisions of the 1955 Treaty of Amity, Economic


55 Ibid, para 292. However, the Court did nd that the breaches of human rights andhumanitarian law by the contra forces were not imputable to the United States.

56 These incidents occurred in the context of the IranIraq conict of 198088. For back-ground to this conict, see C Gray, The British Position in Regard to the Gulf Conict (1988)37 International and Comparative Law Quarterly 420; R Leckow, The IranIraq Conict in theGulf: The Law of War Zones (1988) 37 International and Comparative Law Quarterly 629; HHG Post, Border Conicts Between Iran and Iraq: Review and Legal Reections in IF Dekker and HHG Post (eds), The Gulf War of 19801988: The IranIraq War in InternationalLegal Perspective (Dordrecht, Martinus Nijhoff, 1992) 738. For useful factual reports from therelevant period, see Newsweek, 2 May 1988, 11; and Time, 2 May 1988, 2223.

57 The earlier damage occurred between October 1986 and August 1987. Oil Platforms mer-its (n 1) para 46.

58 In consequence, oil production from these complexes was interrupted for a number ofyears. Ibid, paras 65 and 66.

59 Ibid, para 68. This operation not only involved the destruction of the Nasr and Salmancomplexes but also included attacks on Iranian naval vessels and aircraft.

60 As this was not at issue before the Court. Ibid, para 77.61 Oil Platforms, application instituting proceedings, www.icj-cij.org/docket/les/90/

7211.pdf.


Relations, and Consular Rights between the United States and Iran.62 Thepertinent question before the ICJ on the merits was whether there hadbeen a breach by the United States of Article X(1) of the 1955 Treaty.63 ThatArticle provided

Between the territories of the two High Contracting Parties there shall be free-dom of commerce and navigation.

The Court rst examined whether Article XX(1)(d)providing thatnothing in the Treaty precluded the application by either state of measuresnecessary to protect its essential security interestscould constitute asufcient defence for the attacks on the oil installations. In interpreting thescope of the Article, the Court concluded that if the actions of the UnitedStates could be justied as acts of self-defence under international law,then they equally would amount to measures necessary to ensure itsessential security interests.64

Following the rst set of attacks on 19 October 1987, the United Statesreported to the Security Council that its actions were justied as self-defence under Article 51 of the Charter. It claimed that a Kuwaiti-ownedUS ag vessel, Sea Isle City, had been struck by a Silkworm missile on 16October 198765 and that this attack was attributable to Iran. It stressed thatthis was an armed attack and further contended that the Sea Isle Cityincident was the latest in a series of armed attacks against US vessels instigated by Iran.66 In front of the ICJ, the United States maintained itsposition that the attacks were a lawful response in self-defence.67 Yet, itshould be noted that at nal submissions stage, the United States made itclear that this was not a question which it felt the Court had jurisdiction toexamine,68 and, as Judge Higgins rightly pointed out, self-defence wasinvoked as a nal submission in the alternative, arising only should theCourt nd its other arguments do not avail (emphasis added).69

14 Introduction

62 Signed in Tehran on 15 August 1955 and entered into force on 16 June 1957. The UnitedStates instituted a corresponding counterclaim based on the same treaty. Oil Platformscounter-memorial and counterclaim submitted by the United States (1997) www.icj-cij.org/docket/les/90/8632.pdf, Part VI, esp paras 6.016.02. It was the position of the UnitedStates that Irans actions during the conict had caused signicant damage to US commer-cial and military vessels and had generally created extremely dangerous conditions for ship-ping in the Persian Gulf. On this basis it was claimed that Iran was in breach of provisionsof the Treaty of 1955.

63 Due to the US counterclaim, the Court also had to assess whether Iran was in breach ofthe same provision of the 1955 Treaty.

64 Oil Platforms merits (n 1) para 43.65 Silkworm missiles are land-launched HY-2 cruise missiles, in this case of Chinese man-

ufacture. Ibid, para 53.66 UN Doc S/19219. For details of the additional incidents that the United States attributed

to Iran before the Court, see Oil Platforms counter-memorial and counterclaim of the UnitedStates (n 62) Part VI, para 6.08.

67 Oil Platforms counter-memorial and counterclaim of the United States, ibid, Part IV.68 See, eg, Oil Platforms CR 2003/11, www.icj-cij.org/docket/les/90/5153.pdf, 1115.69 Oil Platforms merits (n 1) separate opinion of Judge Higgins, para 50.


However, the Court determined that while the evidence presented bythe United States was indicative of Iranian responsibility, it was not suf-cient to support the contentions of the United States. On the basis of theevidence, it had not been established that the missile attack of 16 October1987 was imputable to Iran.70

In relation to the second set of attacks, the United States contended,again before both the Security Council71 and then before the Court, thatthese were lawful responsesboth in self-defence and under ArticleXX(1)(d)to the mining of the USS Samuel B Roberts, a US warship, whichoccurred on 14 April 1988, being the latest in a series of Iranian attacksagainst US vessels. The main evidence supporting the view that this minewas laid by Iran was that mines were found in the same area bearingIranian serial numbers. However, as both parties in the IranIraq conictwere laying mines at this time, this evidence was viewed by the ICJ ashighly suggestive, but not conclusive.72 Again, the inadequacy of theevidence attributing the attack on the USS Samuel B Roberts to Iran meantthat, in the view of the ICJ, the United States had not discharged its bur-den of proof that it had been the victim of an act giving rise to the right ofself-defence.73

On this basis, the Court determined that the oil platform attacks couldnot be justied as measures taken in self-defence and, as such, could notbe justied under Article XX(1)(d) of the 1955 Treaty of Amity. However,notably, the United States was not explicitly found to be in breach ofArticle 2(4) of the UN Charter. Ultimately, the Court concluded that therewas no actual direct commerce between the parties at the time of either setof US attacks, and therefore the United States was not in breach of ArticleX(1) of the Treaty in any event.74

C. DRC v Uganda

The DRC v Uganda case related to aspects of an extremely complex con-ict that took place in central Africaone that is, to some extent, still


70 Oil Platforms merits (n 1) para 61.71 UN Doc S/19791.72 Oil Platforms merits (n 1) para 71.73 Ibid, para 72.74 Ibid, paras 92 and 97. For more on this, see JA Green, The Oil Platforms Case: An Error

in Judgment? (2004) 9 Journal of Conict and Security Law 357, 36470. Regarding the US coun-terclaim, the Court examined the question of whether acts attributable to Iran had impairedthe freedom of either commerce or navigation between the two parties. None of the vesselsthat the United States alleged had been attacked by Iran were, in the view of the Court,engaged in commerce or navigation between the two parties at the time of any of the inci-dents (Oil Platforms merits (n 1) paras 11921). Therefore continued trade between the partiesduring the conict and the lack of specic evidence of actual impediment to that commercialactivity attributable to Iran meant that the counterclaim of the United States was dismissed.


ongoing.75 On 2 August 1998, troops of Uganda, Rwanda and Burundientered the territory of the Democratic Republic of the Congo (DRC).76These forces joined with troops from those states that were already presentin the DRC, initially with the consent of the DRC government.77 The forcesof Uganda, Rwanda and Burundi acted in support of a number of rebelgroups, comprised largely of Banyamulenge Tutsis78 who opposed thedictatorship of President Laurent Kabila.79 Fifteen months before, thesesame states had aided Kabilas rise to power and the overthrow of the previous totalitarian President, Mobutu Sese Seko.80 Yet once he was inpower, Kabila began to pursue a more independent policy. This fact, coupled with the increase in actions from various militant rebel groupsoperating from within the DRC against neighbouring states,81 was per-ceived to constitute a threat to the territories of these states, particularlyUganda and Rwanda. The former allies of the DRCs President thus beganaiding those in the Congo who sought to remove the new government.Following the intervention of Uganda, Rwanda and Burundi, a number of other foreign states initiated military action in support of the Kabilagovernment, adding to the scale of the conict.82

On 23 June 1999 the DRC led three linked applications in the registryof the ICJ, initiating proceedings against Uganda, Burundi and Rwanda.83In these applications it was alleged that the three states involved in theconict on the side of the rebels had each committed an armed aggres-sion against the territory of the DRC in agrant violation of the UnitedNations Charter and the Charter of the Organisation of African Unity84and that their forces had committed various breaches of internationalhumanitarian law.85 The applications initiating cases against Burundi and

16 Introduction

75 For background and the general development of the Congo conict, see The Economist, 6 July 2002, 55; and Power and Interest News, 5 August 2003. On the legal issues arising from theconict specically, see PA Kasaija, International Law and Ugandas Involvement in theDemocratic Republic of Congo (200102) 10 Miami International and Comparative Law Review 75.

76 UN Doc A/53/232 and DRC v Uganda application instituting proceedings (1999)www.icj-cij.org/docket/les/116/7151.pdf, 5. It should be noted that the DRC was calledZaire between 1971 and 1997.

77 Consent that had been withdrawn in July 1998. DRC v Uganda merits (n 19) para 49.78 Most prominently, the Rassemblement Congolais pour la Dmocratie (RCD) and the

Mouvement de Libration du Congo (MLC).79 The Financial Times, 4 August 1998, 18.80 The Guardian, 30 May 1997, 16; and The Financial Times, 26 May 1997, 21.81 The Financial Times, 4 August 1998, 18.82 These states were Zimbabwe, Angola, Namibia and Chad. news.bbc.co.uk/1/hi/

world/africa/country_proles/1072684.stm.83 DRC v Uganda application instituting proceedings (n 76); DRC v Rwanda application

instituting proceedings (n 19); and DRC v Burundi application instituting proceedings (n 19).84 DRC v Uganda application instituting proceedings (n76) esp 5.85 Ibid, 5, 79 and 1517. These aspects of the decisionUgandas belligerent occupation

of areas of eastern Congo, issues concerning alleged human rights violations and claimsregarding the appropriation of the DRCs mineral wealthwill not be discussed here, as theydo not have a bearing on this work. For the Courts ndings on these issues, see DRC vUganda merits (n 19) paras 167250.


Rwanda were later withdrawn by the DRC.86 More recently, the DRC alsoled a second application initiating proceedings against Rwanda in rela-tion to the conict. However, in 2006 the Court found that it did not havethe jurisdiction to hear the case on the merits.87 As such, the DRC v Ugandacase was the only dispute arising from the conict to reach the meritsphase of proceedings.88

For its part, Uganda claimed that, at the very least from when Kabilacame to power (in May 1997) to 11 September 1998, it had the consent ofthe DRC to have forces on its territory89 and, in any event, that it did notparticipate in many of the activities alleged by the DRC.90 Further, Ugandaargued in counterclaim that there had been a resumption of attacks byanti-Ugandan militant groups, particularly the Allied Democratic Forces(ADF), emanating from the DRC against the territory of Uganda.91 Thus,Uganda additionally claimed that, following 11 September 1998, it hadbeen acting in self-defence in intervening in the DRC and supporting rebelgroups acting against the government.92 The DRC responded to this byarguing that it was not responsible for the attacks of any militant groupsagainst the territory of Uganda.93 In the alternative, the DRC additionallyclaimed that it was entitled to respond in self-defence in any event due tothe Ugandan intervention.94 Thus, both parties claimed to have been actingin self-defence.

The Court found that Uganda was responsible for the majority of theactions attributed to it by the DRC95 and that the consent of the DRC could


86 DRC v Rwanda order (2001) ICJ Reports 6; and DRC v Burundi order (2001) ICJ Reports3. It may be speculated that this was because the basis of jurisdiction was much weaker inrelation to the DRCs claims against these states as opposed to its case against Uganda. See C Gray, The Use and Abuse of the International Court of Justice: Cases Concerning the Useof Force since Nicaragua (2003) 14 European Journal of International Law 867, 869.

87 DRC v Rwanda (New Application: 2002) jurisdiction of the court and admissibility of theapplication (n 19) esp the dispositif, para 128.

88 Prior to its decision on the merits in DRC v Uganda, the Court issued an order indicat-ing provisional measures. This required both parties to 1) refrain from military action; 2) com-ply with their obligations under international law; and 3) respect fundamental human rightsin the zone of conict. DRC v Uganda provisional measures order (2000) ICJ Reports 110, esppara 47. See D Kritsiotis, Armed Activities on the Territory of the Congo (Democratic Republicof Congo v Uganda): Provisional Measures (2001) 50 International and Comparative LawQuarterly 662.

89 DRC v Uganda rejoinder submitted by Uganda (2002) www.icj-cij.org/docket/les/116/8314.pdf, paras 89105.

90 Ibid, paras 10660 and 55195.91 DRC v Uganda counter-memorial submitted by Uganda (2001) www.icj-

cij.org/docket/les/116/8320.pdf, paras 1147. Such attacks had occurred prior to Kabilasascendance to power, and Uganda argued that in a strategic shift, the DRCs governmentagain began to support groups such as the ADF, as Zaire had done before.

92 Eg, see DRC v Uganda counter-memorial of Uganda (ibid) paras 5254.93 See, eg, DRC v Uganda CR/2005/16, http://ww