1.1. Internationalization of human rights law
With regards to the internationalization of human rights, the UN Charter
refers in several Articles to the human rights movement, of which 1(3)
contains an important principal objective: "The purposes of the UN are
[..] to achieve international co-operation in solving international
problems of an economic, social, cultural or humanitarian character and
in promoting and encouraging respect for human rights and for
fundamental freedoms for all, without distinction.." In this respect,
other articles worth noting are 13(1)(b), 55 (Eco-Soc operation), 62(2)
and 68 of the UN Charter.
2. Doctrine: categorization of human rights
2.1. Duty bearers v. rights holders
Traditionally, the State is the principal duty bearer, whereas the
individual is primary the rights holder. The State could ultimately be
held accountable or even responsible if acts that violate human rights
and which are performed by non-state actors, are attributable to the
State.
2.2. Generations of human rights
Proposed by K. Vasak is a division of human rights in three generations,
the first being the classic freedoms (negative State obligations, not
to interfere), the second ecosoc-cultural rights (positive obligations,
to pro-actively fulfil human rights). The third generation, solidarity
rights (peace and environmental rights), raises questions on the
position of bearers of duties and holders of human rights. Also, human
rights law still mainly emphasizes the universal acceptance of indiviual
rights.
2.3. Beneficiary
As the individual is traditionally the rights holder, it is important to
note that human rights can be enjoyed by the collective and by people
in an association. An example is the protection of persons belonging to a
minority group, as set out in Article 27 of the ICCPR (International
Convenant on Civil and Political Rights).
2.4. Negative v. positive obligations
The last category to discuss is one of importance. Whereas the classic
negative obligations (to a great extent stemming from the Age of
Enlightenment) impose on States the obligations to refrain from
interference and to respect human rights, a fundamental human right like
the right to life also requires that a state proactively promotes the
safety of its citizens. The obligation to "protect and fulfil" imposes
positive obligations on states.
2.4.1. Zooming in on negative vs. positive obligations: ECtHR, Judgment of 9 June 2009, application no. 33401/02
Alleged violation of Article 2(1) of the ECHR: the Right to life
The Court reiterates that the first sentence of Art. 2(1) enjoins the
State not only to refrain from the international and unlawful taking of
life, but also to take appropriate steps to safeguard the lives of those
within its jurisdiction. This involves a primary duty on the State to
secure the right to life by putting in place effective criminal-law
provisions (para 128).
Where there is an allegation that authorities have violated their
positive obligation to protect the right to life, it must be
established to its satisfaction that the authorities knew or ought to
have known at the time of the existence of a real and immediate risk to
the life (para 130).
Upon the alleged failure to protect life, the Court decides on questions
concerning the scope of the case (i), whether the local authorities
could have foreseen a lethal attack by the offender (ii), whether the
authorities have displayed due diligence to protect the right to life
(iii) and the effectiveness of the criminal investigation by the
authorities.
The Court reiterates that a failure to take reasonable measures which
could have had a real prospect of altering the outcome, is sufficient to
engage the responsibility of the State (para 136).
2.4.2. The duty to strike a balance between positive and negative obligations
Although there is no general consensus among States Parties regarding
the pursuance of criminal prosecution when a victim withdraws his or her
complaints, there seems to be an acknowlegdement of the duty on the
part of the authorities to strike a balance between the Article 2, 3 or 8
rights in deciding on course of action. Factors to be taken into
account are listed by the ECtHR (para 138).
Taking these factors into consideration, the prosecution should
continue in the public interest, even if a victim withdraws a complaint
(para 139).
In any event, the Court would underline that in this case, a
perpetrators' rights (as the authorities hold the view that interference
would amount to a breach of the victims' rights under Article 8 and that
private matters are incompatible with positive obligations) cannot
supersede victims' human rights to life and to physical and mental
integrity (para 147).
3. A clash of human rights: which right should prevail?
Well-known to States Parties to the ECHR and ICCPR is an ongoing
discussion on the clash of human rights. As people likely tend to forget
or wish to forget to alter the outcome of the debate on social and
cultural human rights, the provisions on the freedom of expression
contain a clause in the second or third paragraph.
For example, take Article 10(2) of the ECHR and Article 19(3) of the
ICCPR: "The exercise of the freedom of expression, since it carries with
it duties and responsibilities, may be subject to such formalities,
restrictions and penalties as are prescribed by law and are necessary in
a democratic society". From this follows that the rights holder is not
free of responsibility. These provisions aim to ensure the human rights
of other individuals.
Thus, the requirements for governmental interference are: the
interference has to be in accordance with the law (prescribed by law), a
legitimate aim has to be pursued (rights of others in a democratic
society) and interference should be necessary to ensure a democratic
society. Upon deciding whether certain measures, e.g. restrictions and
punishment should be deemed necessary, the ECtHR mentions the existence
of a "pressing social need" and the proportionality of the measures in
question.
On the freedom of expression, the ECtHR has decided in the Handyside case
that: " Freedom of expression is applicable, not only to "information"
or "ideas" that are favourably received or regarded as inoffensive [..]
but also to those that offend, shock or disturb the State or any sector
of the population. Such are the demands of pluralism, tolerance and
broadmindedness, without which there is no "democratic society".
3.1. ECtHR Judgment of 13 September 2005, application no. 42571/98
3.1.1. Alleged violation of Article 10 of the ECHR (Freedom of expression)
As paragraph 2 of Article 10 recognizes, the exercise of that freedom
carries with it duties and responsibilities. Among them, in the context
[..] may legitimately be included a duty to avoid expressions that are
gratuitously offensive to others and profane. This being so, as a matter
of principle it may be considered necessary to punish improper attacks
(para 24).
3.1.2. Margin of appreciation with respect to the necessity criterion: pressing social need
In examining whether restrictions to the rights and freedoms can be
considered "necessary in a democratic society", the Court has frequently
held that the Contracting States enjoy a certain but not unlimited
margin of appreciation. In case, the Contracting States have a wider
margin of appreciation as there is no uniform European conception of the
requirements (para 25).
The Court considers that the measure taken, was intented to
provide protection against offensive attacks. In that respect, it finds
that the measure may reasonably be held to have met a "pressing social
need". The authorities cannot be said to have overstepped their margin
of appreciation
(paras 30, 31).
As to the proportionality of the impugned measure, the Court is
mindful of the fact that the insignificant fine imposed was
proportionate to the aims pursued (para 32).
The Court decides that there has been no violation of Article 10 of the ECHR.
Contrary to this judgment, the dissenting judges state that the
"offense of the majority does not appear to be a sufficient reason in a
democratic society to impose the mentioned sanctions; otherwise, the
dictum from Handyside would be deprived of all effect. In our view, this
consistent case-law seems to place too much emphasis on conformism or
uniformity of thought".
4. Human rights protection: Charter-based and treaty-based enforcement mechanisms
Before discussing the Charter-based and treaty-based enforcement
mechanisms, a distinction between UN monitoring (enforcement) mechanisms
and regional monitory/ supervisory mechanisms (as is the ECtHR): the UN
monitoring mechanism is not such a strong enforcement mechanism.
4.1.1. Charter-based enforcement mechanisms
According to the UN Library, the general characteristics of charter-based bodies are:
a. their establishment derives from provisions, contained in the UN Charter;
b. these bodies hold broad human rights mandates;
c. charter-based bodies address an unlimited audience;
d. actions are based on majority voting.
The Human Rights Council (HRC) and its predecessor (Commission on Human
Rights) are Charter-based, as they were established by resolutions of
principal organs of the UN, whose authorities flow from the UN Charter.
In fact, the General Assembly has established the HRC and the task of
the HRC is to report its universal periodic review to the UNGA. The
current Subsidiary Bodies are the Universal Periodic Review Working
Group and the Human Rights Council Advisory Committee. The HRC has
responsibility for Special Procedure mechanisms.
The role of the UNGA is laid down in Article 13 of the UN Charter.
Articles 62(2) and 68 of the UN Charter provide that ECOSOC is able to
make recommandations and to set up commissions.
4.1.2. Treaty-based enforcement mechanisms
Treaty-based bodies share the following traits:
a. they derive their existence from provisions contained in a specific legal instrument;
b. treaty-based bodies hold narrow mandates, in accordance with the set
of issues, codified in the legal instrument (= treaty in question);
c. they address a limited audience: only the countries that have ratified the treaty;
d. decision-making is based on consensus.
Currently, there are nine UN human rights conventions with monitoring
bodies to supervise the implementation of the treaty provisions, among
which the mostly discussed are:
1. HRC (Human Rights Committee), monitoring the ICCPR;
2. CESCR (Committee on ECOSOC), monitoring the ICESCR;
3. CAT (Committee against torture), monitoring the CAT.
4.1.2.1. Human Rights Committee on ICCPR: the issuing of documents
Article 28 of the ICCPR stipulates the establishment of the HRC, which
shall be composed of nationals of the States Parties to the Convenant.
The types of issued documents are, as follows:
1. The ICCPR Convenant provides in Article 40 that reports shall be
submitted ("States parties reports" or "concluding observations");
2. General comments provide the Committee's interpretation of the content of human rights provisions;
3. Inter-state complaints may be issued in accordance with Art. 41 ICCPR;
4. In addition, the Committee may consider individual communications
relating to States parties to the First Optional Protocol. These
"views", based on Art. 1 OP, are not legally binding.
4.1.2.2. Committee on Economic, Social and Cultural Rights ( CESCR on ICESCR)
Established by the ECOSOC Resolution, Article 16 of the ICESCR
stipulates that reports shall be submitted to the Secretary General of
the UN, who shall transmit copies to the ECOSOC for considerations in
accordance with the provisions of the Convenant. By issuing general
comments, the
Committee provides the interpretation of the content of human rights
provisions. The State reporting mechanism, according to Article 16
ICESCR, implies that the Committee can address these reports by means of
concluding observations.
The Optional Protocol to the ICESCR provides an individual complaints
procedure, Art. 2 OP (non-binding views) and an inter-state complaints
procedure, Art. 10 OP.
4.2. Bill of Rights
The predecessor of the Human Rights Council sent its draft on the Bill
of Rights to the Charter-based ECOSOC. The UN General Assembly adopted
the Universal Declaration of Human Rights through Resolution 217 A III,
referred to as an instrument of "soft law", as this document is legally
not-binding. Together with the UDHR, the later on adopted treaties
ICCPR and ICESCR form the International Bill of Rights. The "soft law"
character of the resolutions notwithstanding, the human rights
conventions ultimately have a legally binding effect, as the UDHR
general standards are translated into treaties for universal and
regional protection.
5. Regional human rights protection: enforcement body of the ECHR
Articles
33 and 34 of the ECHR determine the jurisdiction of the ECtHR. The
admissibility conditions are to be found in Article 35 ECHR: these are
the exhaustion of local remedies and the condition that a complaint must
not be ill-founded.
As was said before, the UN monitoring
mechanisms are not quite as strong as the regional enforcement
mechanisms. The explanation of the distinction is simple: the monitoring
body of the ECHR is the European Court of Human Rights. As a judicial
body, the ECtHR is able to issue legally binding judgments, in
accordance with Article 46 ECHR. The treaty-based nature of the ECHR
implies that these judgments are, as an integral part, binding for
Member States, parties to this Convenant. Ultimately, the strong
enforcement mechanism stems from the parties' consent to be bound under
treaty law.
Sources
Hot topics 85, State Library of South Wales;
Moscrop, Enforcing International Human Rights Law, 2014;
Human Rights Enforcment Mechanisms, ESCR;
Human Rights Bodies, Office of the High Commissioner;
Treaty-based and Charter-based bodies, Dag Hammarskjöld Library (available via Research.un.org);
Lowe, International law, Oxford University Press (2007).
Posts tonen met het label UN. Alle posts tonen
Posts tonen met het label UN. Alle posts tonen
maandag 6 maart 2017
vrijdag 17 februari 2017
Use of force as a means of self-defence
1.1. Letter from Mr. Webster to Lord Ashburton, 6 August 1842
"Undoubtedly it is just, that while it is admitted that exceptions growing out of the great law of self-defence do exist, those exceptions should be confined to eases in which the necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for delibaration" (copy available from Yale, Avalon Project)
This clear and concise statement, the "Caroline test", provides the classic requirements for the invocation of self-defence. Before determining how the Caroline test applies to reactive self-defence and anticipatory self-defence, I am going to discuss the general prohibition of use of force under international law.
1.2. General prohibition of use of force and exceptions
The use of force is generally prohibited, as expressed in Article 2 (4) of the UN Charter. The right of self-defence as an exception is laid down in Article 51 of the UN Charter:
"Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain peace and security".
Note that "measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council".
The other exception to the general prohibition of use of force, is authorization by the UN Security Council, as Art. 42 UN Charter reads. As the last sentence of Article 51 UN Charter makes clear, the Security Council may at any time take action, if deemed necessary in order to maintain or restore international security.
1.3. Self-defence (Art. 51 UN Charter)
According to the definition as laid down in Article 51 UN Charter, for self-defence to be justified, an attack must have occurred; furthermore, the attack must have been an armed attack. It is not to say that an "attack" as meant in para 74 of the Diplomatic and Consular Staff case of 1980 cannot qualify as an "armed attack", or that the deliverance of arms in para 195 of the Nicaragua case justifies the invocation of self-defence in accordance with Art. 2 (4) of the UN Charter.
When is Art. 51 of the UN Charter applicable? As the International Court concludes, "the most grave forms of the use force (those constituting an armed attack) must be distinguished from other less grave forms", see para 191 of the Nicaragua case.
Assuming that an armed attack (1) has occurred, the requirements of necessity (2) and proportionality (3) must be met (see also: Nicaragua, para 194; Threat or use of nuclear weapons, para 41; Oil Platforms, para 74).
1.3.1. Customary international law
As can be learned from paras 41-44 from the Threat or use of nuclear weapons Advisory Opinion 1996, the submission of the exercise of the right of self-defence to the conditions of necessity and proportionality, is a rule of customary international law. As stated in the Nicaragua case, there is a "specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary law"(para 176 Nicaragua).
1.3.2. Reservations by the US do not obstruct the application of customary law (Nicaragua)
The Court does not consider that it can be claimed that all the customary rules which may be invoked, have a content exactly identical to that of the rules contained in the treaty which cannot be applied by virtue of the US reservation. Nor can the multilateral treaty reservation be interpreted as meaning that, once applicable to a given dispute, it would exclude the application of any rule of customary law (para 175). Even if the customary norm and the treaty norm were to have exactly the same content, the incorporation of the customary norm into treaty-law must not deprive the customary norm of its applicability (para 177).
However, the jurisdiction of the Court was limited in the Nicaragua and Oil Platforms cases, for the US had terminated the acceptance of the Court's jurisdiction. It did so by making a "multilateral treaty reservation"; when judging a dispute concerning multilateral treaties, as is the UN Charter, the Court could only apply norms of customary international law.
1.3.3. Armed Activities: use of force only justified within strict confines
What could, thus, be said about the difference between the UN Charter and customary international law regimes on the use of force? One main case where the ICJ could actually apply the provisions of the UN Charter is the Armed Activities Judgment (Congo vs. Uganda). The Court has found that:
"The prohibition against the use of force is a cornerstone of the UN Charter. Article 51 of the UN Charter may justify a use of force in self-defence only within the strict confines there laid down. It does not allow the use of force by a State to protect perceived security interests beyond these parameters. Other means are available to a concerned State, including recourse to the Security Council" (para 148).
1.3.4. State responsibility and the right to invoke self-defence
Art. 51 of the UN Charter does not expressly require that, for the right to to invoke self-defence, an occurred armed attack is attributable to another state. However, the Nicaragua case, the Armed Activities on the Territory of Congo Judgment, the Tadic case and Genocide case have questioned whether or not states can be held responsible for acts by non-state actors.
The effective control test was developed in the Nicaragua case: "For this conduct to give rise to legal responsibility of the US, it would have to be proved that the State had effective control [..]. The Court does not consider that the assistance given by the US [..] are imputable to that State" (paras 115, 116).
In the Armed Activities (Congo vs. Uganda, 2005) Judgment, the ICJ stated that "it did not find the acts by a rebel group could be attributable to Uganda, although providing training and support to a rebel group may violate obligations of customary international law" (para 161, 162). "While Uganda claimed to have acted in self-defence, it did not ever claim that it had been subjected to an armed attack by the armed forces of the DRC. (paras 146, 147).
A looser test than the "effective control" test was applied by the ICTY in the Tadic case of 1999:
an "overall control" test should suffice (paras 120-122 and 131, 132). This "overall control" test was rejected by the ICJ in the Genocide case of 2007 (Bosnia and Herzegovina vs. Serbia and Montenegro), for it stretched too far the connection which must exist between the conduct of a State's organs and its responsibility (para 406).
Can a state invoke the right of self-defence against non-state actors, assuming that their conduct cannot be attributable to a state? That is a controversial question, but not a hypothethical one.
It is rather unsure whether the traditionalist approach in the Nicaragua, Congo and Genocide still applies, when in practice the right to invoke self-defence against non-state actors is no longer categorically rejected.
2. Requirements of necessity and proportionality
The necessity of self-defence has to be determined by applying the "Caroline test", as derived from the letter from Webster to Ashburton: instant, overwhelming, leaving no choice of means and no moment for delibaration. Assumed that an act of self-defence meets the criterion of necessity, there is another condition of importance: the time between an armed attack and the measures taken to exercise the right of self-defence. On the question of necessity, the Court in the Nicaragua case observes that:
"The US measures taken, cannot be said to correspond to a "necessity" justifying the action [..]. First, these measures were only taken several months after the major offensive. [..] Finally, the Court must also observe that the reaction of the US (in the context of what it regarded as self-defence) was continued long after the period in which any presumed attack by Nicaragua could reasonably be contemplated" (para 237).
Proportionality. Although the invocation of self-defence had already failed in the Oil Platforms case of 2003, the Court states in para 77 that:
"Had the Court found that it [the attack] was necessary in response to the Sea Isle Incident as an armed attack [..] have been considered proportionate. The Court cannot close its eyes to the scale of the whole operation, which cannot be regarded as a proportionate use of force in self-defence".
3. Anticipatory self-defence and the Caroline test: an imminent threat?
Anticipatory self-defence refers to the situation where measures are to be taken, although an armed attack by another state has not yet occurred. The Caroline test must again be applied, now to decide whether an imminent threat justifies anticipatory self-defence. The 2005 Report of the Secretary-General of the UN confirms that the existence of an imminent threat has to be assessed along the line of the main requirements "instant and overwhelming" and "leaving no other means or a moment for deliberation".
Is preventive self-defence permitted? The Secretary-General of the UN has stated in 2003 that, regarding preventive self-defence, "This logic represents a fundamental challenge to the principles in which, however imperfectly, world peace and stability have rested for the last fifty-eight years. My concern is that, if it were to be adopted, it could set precedents that resulted in a proliferation of the unilateral and lawless use of force, with or without justification". The conclusion could thus be that permitting preventive self-defence would be incompatible with the object and purpose of the general prohibition of use of force as laid down in Article 2(4) of the UN Charter (and as reflected by customary international law).
3.1. UN Charter vs. customary international law (Caroline test)
While measures taken in either reactive or anticipatory self-defence would have to comply with the requirements of necessity and proportionality, Art. 51 of the UN Charter stipulates that self-defence can only be invoked after the occurrence of an armed attack.
The Caroline test, formulating the requirements of customary international law, leaves the possibility that one invokes a state of necessity if an imminent threat has been established, the necessity of the self-defence is instant and a state has no other means left to it than a use of force. Both the necessity and proportionality principle imply that states have to confine themselves to repelling the attack(er)- self-defence cannot be invoked in order to pursue or impose punishment on the attacker.
4. Collective self-defence
Article 51 of the UN Charter applied to both individual and collective self-defence. A state may use force in the defence of an attacked state, provided that the attacked state has made a request to other states to engage in collective self-defence.
As expressed in the Oil Platforms Judgment, "..The US has not claimed to be exercising collective self-defence on behalf of the neutral States engaged in [...]; this would have required the existence of a request made to the US by the State which regards itself as the victim of an armed attack" (para 51).
In the Nicaragua case, it is set out that "The exercise of the right of collective self-defence presupposes that an armed attack has occurred. It is [also] evident that if the victim State wishes another State to come to its help in the exercise of the right of collective self-defence, it will normally make an express request to that effect" (para 232). There is no rule permitting the exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an armed attack (paras 199, 200).
"Undoubtedly it is just, that while it is admitted that exceptions growing out of the great law of self-defence do exist, those exceptions should be confined to eases in which the necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for delibaration" (copy available from Yale, Avalon Project)
This clear and concise statement, the "Caroline test", provides the classic requirements for the invocation of self-defence. Before determining how the Caroline test applies to reactive self-defence and anticipatory self-defence, I am going to discuss the general prohibition of use of force under international law.
1.2. General prohibition of use of force and exceptions
The use of force is generally prohibited, as expressed in Article 2 (4) of the UN Charter. The right of self-defence as an exception is laid down in Article 51 of the UN Charter:
"Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain peace and security".
Note that "measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council".
The other exception to the general prohibition of use of force, is authorization by the UN Security Council, as Art. 42 UN Charter reads. As the last sentence of Article 51 UN Charter makes clear, the Security Council may at any time take action, if deemed necessary in order to maintain or restore international security.
1.3. Self-defence (Art. 51 UN Charter)
According to the definition as laid down in Article 51 UN Charter, for self-defence to be justified, an attack must have occurred; furthermore, the attack must have been an armed attack. It is not to say that an "attack" as meant in para 74 of the Diplomatic and Consular Staff case of 1980 cannot qualify as an "armed attack", or that the deliverance of arms in para 195 of the Nicaragua case justifies the invocation of self-defence in accordance with Art. 2 (4) of the UN Charter.
When is Art. 51 of the UN Charter applicable? As the International Court concludes, "the most grave forms of the use force (those constituting an armed attack) must be distinguished from other less grave forms", see para 191 of the Nicaragua case.
Assuming that an armed attack (1) has occurred, the requirements of necessity (2) and proportionality (3) must be met (see also: Nicaragua, para 194; Threat or use of nuclear weapons, para 41; Oil Platforms, para 74).
1.3.1. Customary international law
As can be learned from paras 41-44 from the Threat or use of nuclear weapons Advisory Opinion 1996, the submission of the exercise of the right of self-defence to the conditions of necessity and proportionality, is a rule of customary international law. As stated in the Nicaragua case, there is a "specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary law"(para 176 Nicaragua).
1.3.2. Reservations by the US do not obstruct the application of customary law (Nicaragua)
The Court does not consider that it can be claimed that all the customary rules which may be invoked, have a content exactly identical to that of the rules contained in the treaty which cannot be applied by virtue of the US reservation. Nor can the multilateral treaty reservation be interpreted as meaning that, once applicable to a given dispute, it would exclude the application of any rule of customary law (para 175). Even if the customary norm and the treaty norm were to have exactly the same content, the incorporation of the customary norm into treaty-law must not deprive the customary norm of its applicability (para 177).
However, the jurisdiction of the Court was limited in the Nicaragua and Oil Platforms cases, for the US had terminated the acceptance of the Court's jurisdiction. It did so by making a "multilateral treaty reservation"; when judging a dispute concerning multilateral treaties, as is the UN Charter, the Court could only apply norms of customary international law.
1.3.3. Armed Activities: use of force only justified within strict confines
What could, thus, be said about the difference between the UN Charter and customary international law regimes on the use of force? One main case where the ICJ could actually apply the provisions of the UN Charter is the Armed Activities Judgment (Congo vs. Uganda). The Court has found that:
"The prohibition against the use of force is a cornerstone of the UN Charter. Article 51 of the UN Charter may justify a use of force in self-defence only within the strict confines there laid down. It does not allow the use of force by a State to protect perceived security interests beyond these parameters. Other means are available to a concerned State, including recourse to the Security Council" (para 148).
1.3.4. State responsibility and the right to invoke self-defence
Art. 51 of the UN Charter does not expressly require that, for the right to to invoke self-defence, an occurred armed attack is attributable to another state. However, the Nicaragua case, the Armed Activities on the Territory of Congo Judgment, the Tadic case and Genocide case have questioned whether or not states can be held responsible for acts by non-state actors.
The effective control test was developed in the Nicaragua case: "For this conduct to give rise to legal responsibility of the US, it would have to be proved that the State had effective control [..]. The Court does not consider that the assistance given by the US [..] are imputable to that State" (paras 115, 116).
In the Armed Activities (Congo vs. Uganda, 2005) Judgment, the ICJ stated that "it did not find the acts by a rebel group could be attributable to Uganda, although providing training and support to a rebel group may violate obligations of customary international law" (para 161, 162). "While Uganda claimed to have acted in self-defence, it did not ever claim that it had been subjected to an armed attack by the armed forces of the DRC. (paras 146, 147).
A looser test than the "effective control" test was applied by the ICTY in the Tadic case of 1999:
an "overall control" test should suffice (paras 120-122 and 131, 132). This "overall control" test was rejected by the ICJ in the Genocide case of 2007 (Bosnia and Herzegovina vs. Serbia and Montenegro), for it stretched too far the connection which must exist between the conduct of a State's organs and its responsibility (para 406).
Can a state invoke the right of self-defence against non-state actors, assuming that their conduct cannot be attributable to a state? That is a controversial question, but not a hypothethical one.
It is rather unsure whether the traditionalist approach in the Nicaragua, Congo and Genocide still applies, when in practice the right to invoke self-defence against non-state actors is no longer categorically rejected.
2. Requirements of necessity and proportionality
The necessity of self-defence has to be determined by applying the "Caroline test", as derived from the letter from Webster to Ashburton: instant, overwhelming, leaving no choice of means and no moment for delibaration. Assumed that an act of self-defence meets the criterion of necessity, there is another condition of importance: the time between an armed attack and the measures taken to exercise the right of self-defence. On the question of necessity, the Court in the Nicaragua case observes that:
"The US measures taken, cannot be said to correspond to a "necessity" justifying the action [..]. First, these measures were only taken several months after the major offensive. [..] Finally, the Court must also observe that the reaction of the US (in the context of what it regarded as self-defence) was continued long after the period in which any presumed attack by Nicaragua could reasonably be contemplated" (para 237).
Proportionality. Although the invocation of self-defence had already failed in the Oil Platforms case of 2003, the Court states in para 77 that:
"Had the Court found that it [the attack] was necessary in response to the Sea Isle Incident as an armed attack [..] have been considered proportionate. The Court cannot close its eyes to the scale of the whole operation, which cannot be regarded as a proportionate use of force in self-defence".
3. Anticipatory self-defence and the Caroline test: an imminent threat?
Anticipatory self-defence refers to the situation where measures are to be taken, although an armed attack by another state has not yet occurred. The Caroline test must again be applied, now to decide whether an imminent threat justifies anticipatory self-defence. The 2005 Report of the Secretary-General of the UN confirms that the existence of an imminent threat has to be assessed along the line of the main requirements "instant and overwhelming" and "leaving no other means or a moment for deliberation".
Is preventive self-defence permitted? The Secretary-General of the UN has stated in 2003 that, regarding preventive self-defence, "This logic represents a fundamental challenge to the principles in which, however imperfectly, world peace and stability have rested for the last fifty-eight years. My concern is that, if it were to be adopted, it could set precedents that resulted in a proliferation of the unilateral and lawless use of force, with or without justification". The conclusion could thus be that permitting preventive self-defence would be incompatible with the object and purpose of the general prohibition of use of force as laid down in Article 2(4) of the UN Charter (and as reflected by customary international law).
3.1. UN Charter vs. customary international law (Caroline test)
While measures taken in either reactive or anticipatory self-defence would have to comply with the requirements of necessity and proportionality, Art. 51 of the UN Charter stipulates that self-defence can only be invoked after the occurrence of an armed attack.
The Caroline test, formulating the requirements of customary international law, leaves the possibility that one invokes a state of necessity if an imminent threat has been established, the necessity of the self-defence is instant and a state has no other means left to it than a use of force. Both the necessity and proportionality principle imply that states have to confine themselves to repelling the attack(er)- self-defence cannot be invoked in order to pursue or impose punishment on the attacker.
4. Collective self-defence
Article 51 of the UN Charter applied to both individual and collective self-defence. A state may use force in the defence of an attacked state, provided that the attacked state has made a request to other states to engage in collective self-defence.
As expressed in the Oil Platforms Judgment, "..The US has not claimed to be exercising collective self-defence on behalf of the neutral States engaged in [...]; this would have required the existence of a request made to the US by the State which regards itself as the victim of an armed attack" (para 51).
In the Nicaragua case, it is set out that "The exercise of the right of collective self-defence presupposes that an armed attack has occurred. It is [also] evident that if the victim State wishes another State to come to its help in the exercise of the right of collective self-defence, it will normally make an express request to that effect" (para 232). There is no rule permitting the exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an armed attack (paras 199, 200).
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