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The ‘Unwilling or Unable’ Test: Has it Been, and Could it be, Accepted?

  • OLIVIER CORTEN
Abstract

On 23 September 2014, the United States of America sent a letter to the Security Council justifying the launch of an air campaign against the Islamic State of Iraq and the Levant (ISIL) on Syrian territory. In this letter, the US referred to a formula that appeared a few years ago in certain scholarly writings: the ‘unwilling or unable’ test. The aim of this article is to show that this test has not been accepted by the international community of states as a whole in the Syrian case. It is also to stress that such an acceptance would lead to a radical transformation of the jus contra bellum regime, one that a large majority of states is probably not ready to accept.

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1 Letter dated 23 September 2014 from the Permanent Representative of the United States of America to the United Nations addressed to the Secretary-General, UN Doc. S/2014/695, 23 September 2014 (emphasis added).

2 For example, see Security Council Meeting on the Situation Concerning Iraq, UN Doc. S/PV.7271, 19 September 2014, at 43; Security Council Meeting on Threats to International Peace and Security caused by Terrorist Acts, UN Doc. S/PV.7316, 19 November 2014, at 33; Identical letters dated 26 February 2015 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. A/69/804–S/2015/152, 3 March 2015; Identical letters dated 25 May 2015 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. A/69/912–S/2015/371, 1 June 2015.

3 Report of the Secretary-General on the Implementation of Security Council Resolutions 2139 (2014) and 2165 (2014), UN Doc. S/2014/696, 24 September 2014, at 6; Report of the Secretary-General on the Implementation of Security Council Resolutions 2139 (2014), 2165 (2014) and 2191 (2014), UN Doc. S/2015/206, 23 March 2015, at 13; Report of the Secretary-General on the Implementation of Security Council resolutions 2139 (2014), 2165 (2014) and 2191 (2014), UN Doc. S/2015/264, 17 April 2015, at 4; Report of the Secretary-General on the Implementation of Security Council Resolutions 2139 (2014), 2165 (2014) and 2191 (2014), UN Doc. S/2015/368, 22 May 2015, at 4; Report of the Secretary-General on the Implementation of Security Council Resolutions 2139 (2014), 2165 (2014) and 2191 (2014), UN Doc. S/2015/561, 23 July 2015, at 4.

4 See however the French denunciation of a ‘tactical partnership’ or ‘tactical alliance’ between the Assad regime and ISIL, without any further explanation (or proof); Letter dated 2 June 2015 from the Permanent Representative of France to the United Nations addressed to the President of the Security Council, UN Doc. S/2015/404; Security Council Meeting on the Maintenance of International Peace and Security, UN Doc. S/PV.7527, 30 September 2015, at 22–3. See some ambiguous statements by the US and UK, ibid.

5 See for example Keesings World News Archives (2015).

6 See for example The House, Chatham, ‘Principles of International Law on the Use of Force by States in Self-Defence’, (2006) 55 ICLQ 963 , point 6; or, more recently, Schrijver, N. and van den Herik, L., ‘Leiden Policy Recommendations on Counter-terrorism and International Law’, (2010) 57 NYIL 531 . Even if the ‘unwilling or unable’ formula was, as far as I know, not used as such previously, the theory according to which it would be allowed to target a State harbouring a terrorist group dates back to the 1980’s. It was used by Israel to justify actions abroad against the PLO, and also by the US, notably with the ‘Shultz doctrine’, with little support by other states in both cases; see Ruys, T., Armed Attack’ and Article 51 of the UN Charter (2010), 421–8.

7 Cf. Sections 4 and 5, infra; Starski, P., ‘Right of Self-defense, Attribution and the Non-State Actor – Birth of the “Unable or Unwilling” Standard?’ (2015) 75 Zaörv 455 .

8 Of course, as it is essentially linked to necessity, the ‘unwilling or unable’ test could be viewed as a contemporary expression of the ‘Webster’ formula. Deeks, A., ‘“Unwilling or unable”: Toward a Normative Framework for Extraterritorial Self-Defense’, (2002) 52 VJIL 483 , at 502.

9 Ibid., at 482–550.

10 Ibid., at 488.

11 Ibid., at 519.

12 Ibid.

13 Ibid., at 520.

14 Ibid., at 533.

15 Letter dated 23 September 2014, supra note 1.

16 Letter dated 31 March 2015 from the Chargé d'affaires a.i. of the Permanent Mission of Canada to the United Nations addressed to the President of the Security Council, UN Doc. S/2015/221, 31 March 2015.

17 Letter dated 9 September 2015 from the Permanent Representative of Australia to the United Nations addressed to the President of the Security Council, UN Doc. S/2015/693, 9 September 2015.

18 Letter dated 24 July 2015 from the Chargé d'affaires a.i. of the Permanent Mission of Turkey to the United Nations addressed to the President of the Security Council, UN Doc. S/2015/563, 24 July 2015; see also Letter dated 14 June 2015 from the Permanent Representative of Turkey to the United Nations addressed to the President of the Security Council, UN Doc. S/2015/434, 15 June 2015.

19 Letter dated 10 December 2015 from the Chargé d'affaires a.i. of the Permanent Mission of Germany to the United Nations addressed to the President of the Security Council, UN Doc. S/2015/946, 10 December 2015.

20 See the different letters just cited.

21 ‘The Fight against ISIS – Official Position of States (January 2014–January 2016)’, available at iusadbellum.files.wordpress.com/2011/07/isistatespositions.pdf (emphasis added); see also ‘Islamic State: Government to Decide in Coming Days on Joining Iraq Strikes’, 26 September 2014, available at www.abc.net.au/news/2014-09-26/government-to-decide-in-coming-days-on-joining-iraq-strikes/5770874.

22 ‘Islamic State: Tony Abott hints Australia will join the US in carrying out air strikes in Syria’, 20 August 2015, available at www.abc.net.au/news/2015-08-21/islamic-state-tony-abbott-hints-air-strikes-syria/6713720.

23 ‘Is it Legal for Australia to Bomb Syria? Five facts you need to know’, 9 September 2015, available at www.theguardian.com/australia-news/2015/sep/09/is-it-legal-for-australia-to-bomb-syria-five-facts-you-need-to-know; ‘US Laid out Legal Basis for Syria acts against Islamic State, Government says’, 23 August 2015, available at www.abc.net.au/news/2015-08-23/more-signs-government-will-send-war-planes-to-syria/6718460; ‘Australia's military involvement in Syria is a war of self-defence, not a plan to topple the Assad regime’, 10 September 2015, available at www.businessinsider.com.au/australias-military-involvement-in-syria-is-a-war-of-self-defence-not-a-plan-to-topple-the-assad-regime-2015-9.

24 Letter dated 9 September 2015 from the Permanent Representative of Australia to the United Nations addressed to the President of the Security Council, UN Doc. S/2015/693, 9 September 2015; see also Security Council Meeting on the Maintenance of International Peace and Security, supra note 4, at 69.

25 Government orders – Military Contribution against ISIL, House of Commons Debates, 41st Legislature, Second session, 123, Parliament of Canada, 6 October 2014, available at www.parl.gc.ca/HousePublications/Publication.aspx?Mode=1&Parl=41&Ses=2&DocId=6717243&Language=E, at 1225 (emphasis added).

26 Letter dated 31 March 2015, supra note 16.

27 North Sea Continental Shelf Cases (Germany v. Denmark; Germany v. Netherlands), Judgment of 20 February 1969, [1969] ICJ Rep. 2, at 44, para. 77.

28 ‘Summary of the government legal position on military action in Iraq against ISIL’, 25 September 2014, available at https://www.gov.uk/government/publications/military-action-in-iraq-against-isil-government-legal-position/summary-of-the-government-legal-position-on-military-action-in-iraq-against-isil.

29 Identical letters dated 25 November 2014 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2014/851, 26 November 2014.

30 Letter dated 7 September 2015 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the President of the Security Council, UN Doc. S/2015/688, 8 September 2015.

31 Letter dated 3 December 2015 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the President of the, Security Council, UN Doc. S/2015/928, 3 December 2015.

32 Identical letters dated 8 September 2015 from the Permanent Representative of France to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2015/745, 9 September 2015. No legal precision was brought in the following months; ‘Déclaration du gouvernement sur l'engagement des forces aériennes - Intervention de Laurent Fabius au Sénat’, 15 September 2015, available at www.diplomatie.gouv.fr/fr/le-ministre-les-secretaires-d-etat/laurent-fabius/discours/article/declaration-du-gouvernement-sur-l-engagement-des-forces-aeriennes-intervention; ‘Déclaration officielle de François Hollande, Président de la République - 27 septembre 2015 – ONU’, 27 September 2015, available at www.franceonu.org/Syrie-D-autres-frappes-contre-Daech-auront-lieu-si-necessaire; see also Security Council Meeting on Threats to International Peace and Security caused by Terrorist Acts, UN Doc. S/PV. 7565, 20 November 2015, at 2.

33 It simply stated that: If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter; Council of the EU, Outcome of the Council Meeting, 3426th Council Meeting, Foreign Affairs, Brussels, 14120/15, 16-17 November 2015.

34 Ruys, T. and Verlinden, N., ‘Digest of State Practice (1 July-1 December 2014)’, (2015) 2 JUFIL 119 , at 143. See for example Security Council Meeting on the Maintenance of International Peace and Security, supra note 4.

35 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment of 27 June 1986, [1986] ICJ Rep. 14, at 105, para. 199.

36 Ibid.; see also Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), Judgment of 19 December 2005, [2005] ICJ Rep. 168, at 222, para. 145.

37 24th Arab Summit Issues Doha Declaration, 26 March 2013, available at arableaguesummit2013.qatarconferences.org/news/news-details-17.html (emphasis added).

38 See Letter dated 12 May 2015 from the Permanent Representative of Qatar to the United Nations addressed to the President of the Security Council, UN Doc. S/2015/332, 14 May 2015.

39 O. Corten, The Law Against War (2010), at 126ff.; Corten, O., ‘La rébellion et le droit international. Le principe de neutralité en tension’, (2014) 374 Hague Academy Collected Courses 53 , at 129 ff.

40 Letter dated 24 July 2015 from the Chargé d'affaires a.i. of the Permanent Mission of Turkey to the United Nations addressed to the President of the Security Council, UN Doc. S/2015/563, 24 July 2015.

41 Security Council Meeting on the Situation Concerning Iraq, UN Doc. S/PV.7589, 18 December 2015, at 5 (emphasis added).

42 Resolution No. 7987 adopted at the Ministerial Meeting of the Council of the League of Arab States, ‘Unified Arab Position on the Violation by Turkish Forces of the Sovereignty of Iraq’, 24 December 2015, annexed to Letter dated 7 January 2016 from the Permanent Representative of Egypt to the United Nations addressed to the President of the Security Council, UN Doc. S/2016/16, 11 January 2016 (emphasis added).

43 Letter dated 25 June 2014 from the Permanent Representative of Iraq to the United Nations addressed to the Secretary-General, UN Doc. S/2014/440, 25 June 2014.

44 Annex to the Letter dated 20 September 2014 from the Permanent Representative of Iraq to the United Nations addressed to the President of the Security Council, UN Doc. S/2014/691, 22 September 2014.

45 Military and Paramilitary Activities in and against Nicaragua, supra note 35, at 120, para. 232.

46 Security Council Meeting on the Maintenance of International Peace and Security, supra note 4, at 22. UN Doc. S/PV.7527, 30 September 2015, 22.

47 Ibid., at 69.

48 Ibid., at 9 (France), 23–4 (UK), 8 (Jordan), 37 (Turkey), 41–2 (Qatar), 52–3 (United Arab Emirates), 76 (Saudi Arabia).

49 Kamerbrief inzake Nader advies Extern Volkenrechtelijke Adviseur geweldgebruik tegen ISIS in Syrië, 26 June 2015, available at www.rijksoverheid.nl/documenten/kamerstukken/2015/06/26/kamerbrief-inzake-nader-advies-extern-volkenrechtelijke-adviseur-geweldgebruik-tegen-isis-in-syrie.

50 See for example Security Council Meeting on the Letter dated 24 March 1999 from the Permanent Representative of the Russian Federation to the United Nations addressed to the President of the Security Council, UN Doc. S/PV.3988, 24 March 1999; Security Council Meeting on the Situation between Iraq and Kuwait, UN Doc. S/PV.4726 (Resumption 1), 26–-27 March 2003; Security Council Meeting on the Situation in Libya, UN Doc. S/PV.6498, 17 March 2011.

51 K. Bannelier, ‘The Military Interventions Against the Islamic State in Syria, Iraq and Libya: Jus ad Bellum Issues’, Università degli Studi di Napoli Federico II, 26 October 2015.

52 See Identical letters dated 26 September 2014 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. A/69/411–S/2014/705, 1 October 2014, at 2; Identical letters dated 29 June 2015 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2015/487, 2 July 2015; Identical letters dated 28 December 2015 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2015/1044, 31 December 2015.

53 Identical letters dated 28 October 2014 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2014/769, 7 November 2014, at 6; Identical letters dated 8 June 2015 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. A/69/930–S/2015/414, 11 June 2015.

54 Identical letters dated 8 December 2014 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. A/69/646–S/2014/874, 8 December 2014; Identical letters dated 9 February 2015 from the Chargé d'affaires a.i. of the Permanent Mission of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2015/98, 9 February 2015; Identical letters dated 25 February 2015 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. A/69/799–S/2015/143, 27 February 2015.

55 Identical letters dated 3 October 2014 from the Chargé d'affaires a.i. of the Permanent Mission of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. A/69/426–S/2014/719, 8 October 2014; Identical letters dated 18 May 2015 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed the Secretary-General and the President of the Security Council, UN Doc. A/69/905–S/2015/346, 18 May 2015; Identical letters dated 18 January 2016 from the Chargé d'affaires a.i. of the Permanent Mission of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2016/45, 22 January 2016.

56 Identical letters dated 17 September 2015 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2015/719, 21 September 2015.

57 Identical letters dated 21 September 2015 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. A/70/385–S/2015/727, 22 September 2015.

58 Security Council Meeting on the Maintenance of International Peace and Security, supra note 4, at 30; see also Identical letters dated 9 November 2015 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2015/851, 16 November 2015; Identical letters dated 7 December 2015 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2015/933, 8 December 2015; Identical letters dated 27 December 2015 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. A/70/671, UN Doc. S/2015/1043, 30 December 2015; Identical letters dated 22 December 2015 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. A/70/654, UN Doc. S/2015/1014, 7 January 2016.

59 Identical letters dated 29 December 2015 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. A/70/673, UN Doc. S/2015/1048, 4 January 2016; see also Identical letters dated 11 January 2016 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2016/31, 12 January 2016.

60 Before the beginning of the military operations, Syrian authorities already stressed that ‘[a]ny action of any type without the approval of the Syrian government is aggression against Syria. . . . There must be cooperation with Syria and coordination with Syria and there must be a Syrian approval of any action whether it is military or not’. See Ruys and Verlinden, supra note 34, at 135. In the following weeks and months, Syria also regularly stressed the necessity to cooperate in the fight against terrorism and to respect its sovereignty. Security Council Meeting on the situation concerning Iraq, supra note 2, at 43; Security Council Meeting on Threats to International Peace and Security caused by Terrorist Acts, supra note 2, at 33; Security Council Meeting on the Situation in the Middle East, UN Doc. S/PV.7433, 24 April 2015, at 29; Security Council Meeting on the Situation in the Middle East, UN Doc. S/PV.7476, 29 June 2015, at 4.

61 In September 2014, German higher authorities, for example, mentioned the absence of protest by the Syrian government, ‘Germany, Britain say won't take part in anti-IS air strikes in Syria’, available at www.reuters.com/article/2014/09/11/iraq-crisis-germany-britain-idUSB4N0QV00920140911; as did incidentally the UN Secretary General Ban Ki-moon, 23 September 2014, available at www.un.org/apps/news/infocus/sgspeeches/statments_full.asp?statID=2356#.VgwD–m26Qs.

62 ‘Russia Says Air Strikes in Syria Would Be Act of Aggression without UN Vote’, Reuters, 11 September 2014, quoted in Ruys and Verlinden, supra note 34, at 135.

63 ‘Russia Condemns U.S. Strikes on Islamic State Without Syria's Approval’, The Moscow Times, 25 September 2014, available at www.themoscowtimes.com/news/article/russia-condemns-u-s-strikes-on-islamic-state-without-syria-s-approval/507784.html; ‘Arab backing for U.S.-led airstrikes in Syria widens front against Islamic State’, The Washington Post, 23 September 2014, available at www.washingtonpost.com/world/arab-backing-to-us-led-airstrikes-in-syria-widens-front-against-islamic-state/2014/09/23/85664a44-430c-11e4-b437-1a7368204804_story.html. See also Security Council Meeting on the Maintenance of International Peace and Security, supra note 4, at 4.

64 Security Council Meeting on the Situation in the Middle East, UN Doc. S/PV.7504, 17 August 2015, at 4; see also Security Council Meeting on the Situation in the Middle East, UN Doc. S/PV.7419, 27 March 2015, at 24; Security Council Meeting on the Situation in the Middle East, UN Doc. S/PV.7501, 7 August 2015, at 6; Security Council Meeting on the Maintenance of International Peace and Security, supra note 4, at 16; ‘Venezuela's Nicolas Maduro Calls Re-Founding of UN; Slams US-Led Air Strikes in Iraq and Syria’, International Business Times, 25 September 2014, available at www.ibtimes.com/venezuelas-nicolas-maduro-calls-re-founding-un-slams-us-led-airstrikes-iraq-syria-1694699.

66 Loveday Moris, ‘Arab backing for U.S.-led airstrikes in Syria widens front against Islamic State’, The Wqashibgton Post, 23 September 2014, available at www.washingtonpost.com/world/arab-backing-to-us-led-airstrikes-in-syria-widens-front-against-islamic-state/2014/09/23/85664a44-430c-11e4-b437-1a7368204804_story.html; Heather Saul, ‘Syria air strikes: Iran “says US attacks on Isis are illegal”’, The Independent, 23 September 2014, available at www.independent.co.uk/news/world/middle-east/syria-air-strikes-iran-says-us-attacks-on-isis-are-illegal-9751245.html.

67 ‘Cuba Advocates Political Solution to Crisis in Syria’, Ahora, available at www.ahora.cu/en/sections/world/1931-cuba-advocates-political-solution-to-crisis-in-syria.

68 Starski, supra note 7, at 34 (citing Buenos Aires Herald).

69 Security Council Meeting on the Situation in the Middle East, supra note 60, at 19; Security Council Meeting on Threats to International Peace and Security caused by Terrorist Acts, UN Doc. S/PV.7272, 24 September 2014, at 17; see also Security Council Meeting on the Maintenance of International Peace and Security, supra note 4, at 6;and ‘Russia Says Air Strikes in Syria Would Be Act of Aggression without UN Vote’, Reuters, 11 September 2014, quoted in Ruys and Verlinden, supra note 34, at 136.

70 Security Council Meeting on Threats to International Peace and Security caused by Terrorist Acts, supra note 69, at 7.

71 Security Council Meeting on Threats to International Peace and Security caused by Terrorist Acts, supra note 2, at 37; see also Security Council Meeting on the Maintenance of International Peace and Security, supra note 4, at 48–9.

72 Security Council Meeting on the Maintenance of International Peace and Security, supra note 4, at 57.

73 ASEAN Foreign Ministers’ Statement on the Rise of Violence and Brutality Committed by Terrorist/Extremist Organisations in Iraq and Syria, ‘The Fight against ISIS – Official Position of States (January 2014–January 2016)’, available at iusadbellum.files.wordpress.com/2011/07/isistatespositions.pdf (emphasis added).

74 Security Council Meeting on the Maintenance of International Peace and Security, supra note 4, at 65.

75 Ibid., at 80.

76 Ibid., at 77.

77 Ibid., at 18 (Angola).

78 Ibid., at 50 (Kazakhstan).

79 UN Security Council, Security Council Resolution 2178 (2014) on Threats to International Peace and Security Caused by Terrorist Acts, (15-0-0), UN Doc. S/RES/2178 (2014), 24 September 2014 (emphasis added).

80 UN Security Council, Statement by the President of the Security Council on Threats to International Peace and Security Caused by Terrorist Acts, UN Doc. S/PRST/2014/23, 19 November 2014.

81 UN General Assembly, General Assembly Resolution 69/189 (2015) on the Situation of Human Rights in the Syrian Arab Republic (127-13-48), UN Doc. A/RES/69/189, 29 January 2015.

82 UN Security Council, Security Council Resolution 2195 (2014) on Threats to International Peace and Security, UN Doc. S/RES/2195 (2014), 19 December 2014 (emphasis added).

83 UN Security Council, Statement by the President of the Security Council on the Middle East, UN Doc. S/PRST/2015/10, 24 April 2015; UN Security Council, Statement by the President of the Security Council on the Middle East, UN Doc. S/PRST/2015/15, 17 August 2015.

84 See also UN Security Council, Security Council Resolution 2254 (2015) on the Middle East (Syria), UN Doc. S/RES/2254 (2015), 18 December 2015 (emphasis added).

85 Starski, supra note 7, at 35–6.

86 This resolution was considered as expressing customary international law (emphasis added); Military and Paramilitary Activities in and against Nicaragua, supra note 35, at 98–101, para. 187–90; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, [2004] ICJ Rep. 136, at 171, para 87; Armed Activities on the Territory of the Congo, supra note 36, at 226, para 162; see also Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, [1996] ICJ Rep. 226, at 264, para 102. A similar phrasing appears in UN General Assembly, General Assembly Resolution 42/22 (1987) on Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations, UN Doc. A/RES/44/22, 18 November 1987, at point 6: ‘States shall fulfil their obligations under international law to refrain from organizing, instigating, or assisting or participating in paramilitary, terrorist or subversive acts, including acts of mercenaries, in other States, or acquiescing in organized activities within their territory directed towards the commission of such acts’ (emphasis added).

87 Military and Paramilitary Activities in and against Nicaragua, supra note 35, at 101, para. 191.

88 United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Judgment of 24 May 1980, [1980] ICJ Rep. 3, at 35, para. 74.

89 Starski, supra note 7, at 19–20.

90 Supra, Section 1.

91 Armed Activities on the Territory of the Congo, supra note 36, at 262, para. 276 (emphasis added).

92 Corfu Channel (United Kingdom v. Albania), Judgment of 9 April 1949, [1949] ICJ Rep. 4, at 22.

93 Armed Activities on the Territory of the Congo, supra note 36, at 268, para. 301 (emphasis added).

94 Ibid., at 269, para. 303 (emphasis added).

95 See Starski, supra note 7, at 27.

96 Koivurova, T., ‘Due Diligence’, (2012) III EPIL, 238 , para. 8.

97 Military and Paramilitary Activities in and against Nicaragua, supra note 35, at 103, para. 195; Armed Activities on the Territory of the Congo, supra note 36, at 222–3, para. 46; see also, Oil Platforms (Iran v. United States), Counter-Memorial and Counter-Claim Submitted by the United States, 23 June 1997, at 131, para 4.12, and fn 293.

98 1998 Rome Statute of the International Criminal Court, 2187 UNTS 3, Art. 8 bis; Assembly of State Parties, Resolution RC/Res.6, The Crime of Aggression, 11 July 2010, available at asp.icc-cpi.int/iccdocs/asp_docs/RC2010/RC-Res.6-ENG.pdf.

99 Military and Paramilitary Activities in and against Nicaragua, supra note 35, at 126–7, para. 247.

100 Ibid., at 101, para. 191.

101 Annexed to UN General Assembly, General Assembly Resolution 3314 (XXIX) on the Definition of Aggression, 14 December 1974; O. Corten, The Law Against War, supra note 39, at 445 ff.

102 Military and Paramilitary Activities in and against Nicaragua, supra note 35, at 101, paras.1 91, 118 ff., 227 ff., 126–7, 195; Armed Activities on the Territory of the Congo, supra note 36, at 222–3, para. 146.

103 See notably Separate Opinion of Judge Simma, Oil Platforms (Iran v. United States), Judgment of 6 November 2003, [2003] ICJ Rep. 161, at 331ff, paras 12 ff.

104 Corten, O., ‘Judge Simma's Separate Opinion in the Oil Platforms case: To What Extent are Armed ‘Proportionate Defensive Measures’ Admissible in Contemporary International law?’ in Fastenrath, U. et al. (eds.), From Bilateralism to Community Interest. Essays in Honour of Bruno Simma (2011), 843–61.

105 Bethlehem, D., ‘Principles Relevant to the Scope of a State's Right to Self-Defense Against an Imminent or Actual Armed Attack by Non-State Actor’, (2012) 106:000 AJIL 1, at 67 ; Deeks, supra note 8, at 494–5; Trapp, K.N., ‘Can Non-State Actors Mount an Armed Attack?’ in Weller, M. (ed.), The Oxford Handbook of the Use of Force in International Law (2015), 694–5.

106 See Annex to UN General Assembly Resolution 3314 (XXIX), supra note 101, Art. 1, referring to the use of force by one state against another state. This inter-state criterion was reaffirmed in 2010 when the crime of aggression was defined at the Kampala Conference. The definition refers to Resolution 3314 (XXIX) and expressly requires that the author of the crime of aggression must be a state organ, excluding the prosecution against individuals leading a non-state group.

107 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra note 86, at 194, para. 139; see Starski, supra note 7, at 7–8.

108 Corten, The Law Against War, supra note 39, at 127 ff.

109 See for example, UN General Assembly Resolution 3314 (XXIX), supra note 101, Art. 3(b); Starski, supra note 7, at 8–9.

110 Corten, O., ‘Necessity’, in Weller, M (ed.), The Oxford Handbook of the Use of Force in International Law (2015), 868–74.

111 Corten, The Law Against War, supra note 39, at 470 ff.

112 ILC Documents of the 32nd Session (excluding the Report of the Commission to the General Assembly, 1980 YILC, Vol. II, (Part One), at 69, para. 120–1 (emphasis added); see also ILC Summary Records of the Meetings of the 32nd Session, 1980, YILC, Vol. I, 1619th Session, 25 June 1980, at 183, para. 24.

113 Military and Paramilitary Activities in and against Nicaragua, supra note 35, at 141, para. 282.

114 Oil Platforms, Counter-Memorial and Counter-Claim Submitted by the United States, supra note 97 at 24, para. 43.

115 Ibid., at 196, para. 73.

116 Bethlehem, supra note 105, at 2–3.

117 Moore, J., Digest of International Law (1906), at 412 .

118 Starski, supra note 7, at 30.

119 Corten, The Law Against War, supra note 39, at 138 ff., 151 ff., 164 ff.

120 See Letter dated 7 September 2015, supra note 30; Letter dated 3 December 2015, supra note 31; Identical letters dated 8 September 2015, supra note 32.

121 Starski, supra note 7, at 44–6.

122 See Brownlie, I., International Law and the Use of Force by States (1968), 41 ; Kolb, R., Ius contra bellum. Le droit international relatif au maintien de la paix (2009), 33 ; d'Aspremont, J., ‘The Collective Security System and the Enforcement of International Law’, in Weller, M. (ed.), The Oxford Handbook of the Use of Force in International Law (2015), 138–42.

123 Wilmshurst, E. and Wood, M., ‘Self-Defense Against Non-state Actors: Reflections on the “Bethlehem Principles”’, (2013) 107 AJIL 390 , at 393; see also Noir, L., ‘Action Against Host States of Terrorist Groups’, in Weller, M. (ed.), The Oxford Handbook of the Use of Force in International Law (2015), at 731 .

124 The prohibition on the threat or use of force (and non only of an ‘aggression’) has been recognized as peremptory by a large majority of States during both the preparatory works of the Vienna Convention on the Law of Treaties and the debates having led to the adoption of General Assembly Resolution 1625 (XXV). Many other statements can be found in practice in the same sense; see Corten, The Law Against War, supra note 39, at 201–10.

125 See Corten, The Law Against War, supra note 39, at 739–53; Starski, supra note 7, at 32–4.

126 The National Security Strategy of the United States of America, September 2002, at 15, available at www.state.gov/documents/organization/63562.pdf; High-Level Panel Report, ‘A More Secure World: Our Shared Responsibility’, Report of the Secretary General's High-level Panel on Threats, Challenges and Change, UN Doc. A/59/565 (2004), at paras. 188–9.

127 UN General Assembly, ‘In larger Freedom: Towards Development, Security and Human Rights for All’, Report of the Secretary General, UN Doc. A/59/2005, 24 March 2005, at 33, para. 124.

128 See Corten, The Law Against War, supra note 39, at 430–5; see Comments of the Non-Aligned Movement (NAM) on the Observations and Recommandations contained in the Report of the High-Level Panel on Threats, Challenges and Change (UN Doc. A/59/565 and UN Doc. A/59/565CORR.1), New York, 28 February 2005, paras. 23–4; NAM, Informal Thematic Consultations of the General Assembly on the Report of the Secretary General (UN Doc. A/59/2005), Cluster II: Freedom from Fear, 21 April 2005, paras. 15–16, Statement by H.E. Ambassador Rastam Mohd Isa, Permanent Representative of Malaysia to the United Nations, in his capacity as Chairman of the Coordinating Bureau of the Non-Aligned Movement, on behalf of the NAM; Permanent Mission of Malaysia to the United Nations; Special Meeting of the Ministers of Foreign Affairs of the NAM, Declaration, NAM/2005/SFMM/05, 13 June 2005, paras. 16–17; NAM, Informal Meeting of the Plenary of the GA Concerning the Draft Outcome Document of the High-Level Plenary Meeting of the GA (delivered by by H.E. Ambassador Radzi Rahman, Chargé d'affaires A.I. of the Permanent Mission of Malaysia to the UN), 21 June 2005, statement by Chairman of the Coordinating Bureau of the NAM on behalf of the NAM; NAM, ‘14th Summit Conference of Heads of State or Government of the NAM’, 11–16 September 2006, 2006/Doc.1/Rev.3, para 20.2.

129 UN General Assembly, General Assembly Resolution 60/1 (2005) on the 2005 World Summit Outcome, UN Doc. A/RES/60/1, 24 October 2005, at paras. 77–9.

130 Ibid., at para. 79.

131 NAM, ‘16th Summit of Heads of State or Government’, Final Document, 31 August 2012, para. 28.2 (emphasis added).

* Professor at the Université libre de Bruxelles, Centre de droit international. Author of The Law against War [2010]/Le droit contre la guerre [2014] []. I would like to express my gratitude to Vaios Koutroulis in the finalization of this text.

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Leiden Journal of International Law
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  • EISSN: 1478-9698
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