scholarly journals The True Meaning of Force—A Reply to Mary Ellen O’Connell

AJIL Unbound ◽  
2014 ◽  
Vol 108 ◽  
pp. 148-152
Author(s):  
Tom Ruys
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Small Scale ◽  
Armed Attack ◽  
Extensive Reading ◽  
Central Thesis ◽  
Self Defense ◽  
Broad Interpretation ◽  
The Right ◽  
Considerable Damage

In her comment on my piece in the latest issue of the American Journal of International Law (The Meaning of “Force” and the Boundaries of the Jus ad Bellum: Are “Minimal” Uses of Force Excluded from UN Charter Article 2(4)? ), Mary Ellen O’Connell expresses strong objections to the piece’s central thesis, notably that small-scale or “targeted” forcible acts are not as such excluded from the scope of the prohibition on the use of force in UN Charter Article 2(4). What is more, she sees the central thesis and narrative of the piece as a mere veil, behind which hides the true aim of the article, notably to set forth an extensive reading of the right of self-defense—which was allegedly also the point of my book on armed attack of 2010. In other words, an argument pleading for a broad interpretation of the prohibition on the use of force is in reality used as a Trojan horse, to lure the unsuspecting reader into accepting a broader right of states to use force, doing considerable damage to the Charter regime on the use of force.

scholarly journals The Challenge of Cyber Attacks in the “Information Age” and the Jus Ad Bellum

2019 ◽  
Vol 5 (2) ◽  
pp. 79
Author(s):  
Pshtiwan Mohammed Qader
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Information Age ◽  
Cyber Attacks ◽  
Armed Force ◽  
Critical Infrastructures ◽  
Cyber Attack ◽  
Armed Attack ◽  
Self Defense ◽  
The Right

The present paper examines the problem of cyber-attacks under existing international law. It takes the view that the (United Nations) UN Charter provisions on the use of force can be extended to cyber-attacks by means of interpretation although the relevant provisions do not explicitly address such issue. This Article argues that cyber-attacks resulting in material damage or destruction to property, death or injury to persons, or severe disruption of the functioning of critical infrastructures can be characterized as use of armed force and therefore violate the prohibition contained in article 2(4) of the Charter. However, cyber-attacks not resulting in the above consequences may be illegal intervention in the internal affairs of other states if such attacks are coercive in nature. In addition, the current study discusses that a cyber-attack which amounts to a use of armed force per se is not sufficient to give the victim state the right to self-defense, unless its scale and effects are equivalent to those of a conventional armed attack. Finally, the study concludes that an international cyber treaty is truly necessary to more effectively address cyber-attacks.

scholarly journals The True Meaning of Force

AJIL Unbound ◽  
2014 ◽  
Vol 108 ◽  
pp. 141-144 ◽  
Author(s):  
Mary Ellen O’Connell
Keyword(s):  
United States ◽  
International Law ◽  
Use Of Force ◽  
The United States ◽  
Armed Attack ◽  
Central Thesis ◽  
Cross Border ◽  
True Meaning

Tom Ruys’s article in the latest issue of the American Journal of International Law is an erudite study of the prohibition on the use of force in UN Charter Article 2(4). Ruys makes many points with which I wholeheartedly agree. In note 241, he says that the case for cross-border drone attacks by the United States “verges on stretching criteria for necessity, proportionality, and armed attack to the point of absurdity . . . .” He is also right to reject emerging claims that the defense of necessity provides a basis for the lawful resort to force. Indeed, there is much that is truly excellent about the article—just not, unfortunately, its central thesis.

After Bangladesh: The Law of Humanitarian Intervention by Military Force

1973 ◽  
Vol 67 (2) ◽  
pp. 275-305 ◽  
Author(s):  
Thomas M. Franck ◽  
Nigel S. Rodley
Keyword(s):  
Human Rights ◽  
International Law ◽  
Humanitarian Intervention ◽  
Use Of Force ◽  
Self Determination ◽  
Military Force ◽  
Armed Attack ◽  
Self Defense ◽  
The Law

In the Bangladesh crisis, two important objectives of international law appeared to be in conflict: that of peace and that of justice. The former objective is set out in the rules of the U.N. Charter against the use of force by states except in self-defense against an armed attack. The second is found in the provisions of the Charter and in various resolutions, declarations, and covenants pertaining to fundamental human rights and self determination.

Self-Defense

2012 ◽  
Author(s):  
Mary Ellen O’Connell
Keyword(s):  
World War Ii ◽  
International Law ◽  
Computer Network ◽  
Use Of Force ◽  
Government Policies ◽  
Military Force ◽  
Self Defense ◽  
History Of ◽  
The Right ◽  
Computer Network Attacks

Humanity has always recognized that individuals should have the right to defend themselves from violence. In international law this basic normative intuition is codified for states in the Charter of the United Nations, Article 51 (see Randelzhofer 2002, cited under Conditions in Article 51). Article 51 is an exception to the Charter’s general prohibition on the use of force found in Article 2(4). The prohibition on the use of force is at the heart of the Charter, given that the most fundamental aim of the Charter and the UN organization created by the Charter is to “save succeeding generations from the scourge of war” (Preamble). It stands to reason that any right to use force as an exception to the general prohibition on resort to force would be narrow. Article 51 permits a state to act in unilateral or collective self-defense only “if an armed attack occurs.” This article concerns the international law exception to the prohibition on force for self-defense. The commentary on Article 51 is extensive and generally falls into one of two categories: first, scholarship, judicial decisions, and government policies that support Article 51’s plain terms; second, scholarship and government policies that advocate expanding the right to use force beyond Article 51’s provisions. The writers in these two categories have various labels but are most commonly referred to as the “strict” interpreters versus the “broad” interpreters. One author refers to the groups as the “restrictivists” versus the “antirestrictivists.” The divergence of views can be explained to some extent by the differing assessments writers make about the utility of resort to military force. The UN Charter was drafted at the end of World War II, when confidence in military force was certainly low and commitment to ending the use of force was high. Fifty years later, perhaps frustrated by the lack of success with other means, writers (especially in a few militarily powerful states) urged relaxing the rules against force to respond to terrorism, weapons programs, and computer network attacks. Some try to justify force under the principles of necessity and proportionality, rules beyond the UN Charter but equally important in the long history of normative thinking on killing in self-defense.

scholarly journals Dois pesos, duas medidas: a aplicação da necessidade e da proporcionalidade no jus ad bellum

2019 ◽  
Vol 1 (41) ◽  
Author(s):  
Julia Macedo ◽  
Marinês Assmann
Keyword(s):  
International Law ◽  
Legal Framework ◽  
The State ◽  
Customary Law ◽  
Primary Role ◽  
Armed Attack ◽  
Customary International Law ◽  
Self Defense ◽  
Current State ◽  
The Right

RESUMOEstabelecido no artigo 51 da Carta das Nações Unidas, o direito à legítima defesa não é absoluto, devendo o Estado-vítima de ataque armado respeitar os requisitos pré-determinados pela estrutura legal internacional. Os princípios da necessidade e proporcionalidade da defesa exercem função primordial nesse sentido, uma vez que, segundo o direito costumeiro internacional, o Estado deve conformar sua conduta a eles. O presente trabalho tem por objetivo estabelecer o atual estado da arte no que respeita à necessidade e à proporcionalidade, como limitadoras do direito à legítima defesa no direito internacional público. Os mencionados princípios, apesar de bem consolidados e de fazerem parte do direito consuetudinário internacional, não têm seus contornos bem delimitados, causando discordâncias entre a prática estatal e a doutrina. PALAVRAS-CHAVEDireito internacional público. Legítima defesa. Necessidade. Proporcionalidade. ABSTRACTThe right to self-defense, established in the article 51 of the Charter of the United Nations, is not absolute, and the State victimized by an armed attack must comply with the requirements determined by the international legal framework. In this sense, the principles of necessity and proportionality of the defense play a primary role since, according to customary international law, the State must shape its conduct to these principles. The present work aims to outline the current state of the art of necessity and proportionality as limits to the right to self-defense in public international law. These principles, although well-established and part of international customary law, do not have their boundaries well-defined, causing disagreements between State practices and doctrine. KEYWORDSPublic international law. Self-defense. Necessity. Proportionality.

scholarly journals Conditions for the lawful exercise of the right of self-defence in international law

2018 ◽  
Vol 40 ◽  
pp. 01008
Author(s):  
V. Upeniece
Keyword(s):  
United Nations ◽  
International Law ◽  
Use Of Force ◽  
International Peace ◽  
Armed Attack ◽  
The United Nations ◽  
Normative Order ◽  
Definition Of ◽  
The Right ◽  
Self Defence

The Charter of the United Nations wasthought to establish a normative order, maintain international peace and security. According to the Article 51 of the Charter of the United Nations “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs”[1]. However the Article 51 doesnot propose a legal definition of the conduct which is considered as an armed attack or the commencement of such an attack. It does not propose strict criterions for the use of force for self-defence. As a result different interpretations of this norm have been arising and continuing to change in response to new situations and threats.

Part IV Transnational Organised Crime as Matter of Certain Branches of International Law, 18 International Humanitarian Law and Transnational Organised Crime

2016 ◽  
Author(s):  
Peterke Sven ◽  
Wolf Joachim
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Organised Crime ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Armed Attack ◽  
International Legal Order ◽  
Criminal Groups ◽  
The Right ◽  
Do So

This chapter analyses the interplay of the use of force in international law and transnational organised crime (TOC). It suggests understanding organised criminal groups as addressees of certain parts of the international legal order that deal with the use of force. For instance, Article 51 United Nations (UN) Charter gives states the right to self-defence following an armed attack without specifying that the armed attack must be carried out by a state. Such an attack can equally emanate from organised criminal groups which, in turn, makes them partial subjects of international law. If gangs engage in TOC, often their action also poses a threat to international peace and security under Article 39 UN Charter. It lies thus within the mandate of the Security Council to deal with such action. The Council has started to do so in recent years and it is called upon to continue this line of work.

scholarly journals Cyber Warfare and Self - Defense from the Perspective of International Law

2017 ◽  
Vol 10 (4) ◽  
pp. 40 ◽  
Author(s):  
Nazanin Baradaran ◽  
Homayoun Habibi
Keyword(s):  
International Law ◽  
Critical Infrastructure ◽  
Cyber Attacks ◽  
The Other ◽  
Cyber Warfare ◽  
Attribution Of Responsibility ◽  
Armed Attack ◽  
Jus Ad Bellum ◽  
Self Defense ◽  
The Right

Cyber warfare represents new kinds of weapons in the present era that have the potential to change the battlefields. The different nature of these types of weapons and their ability to create massive and widespread damage to critical infrastructure of a state, subject the traditional means of resort to force to change and is indicative of the importance that the international community must come to some consensus on the meaning of cyber warfare with in the existing jus ad bellum paradigm and legislate its governing rules, On the other hand, the inherent rights of victim states in self-defense must be supported and by detailed explanations of the governing rules for the method of attribution of responsibility to governments committing cyber-attacks, actions must be taken to prevent escape of these governments from the consequences of their illegal actions. In fact, in this article with an analytical method we will examine the issue of whether cyber attacks could be considered as an armed attack trigger the right to self defense for victim states.

THE RIGHT OF SELF-DEFENSE AND THE ORGANIC UNITY OF HUMAN RIGHTS

2021 ◽  
pp. 1-36
Author(s):  
David Little
Keyword(s):  
Human Rights ◽  
Use Of Force ◽  
Preliminary Evidence ◽  
Cross Cultural ◽  
Legal Concept ◽  
Organic Unity ◽  
Cultural Rights ◽  
Self Defense ◽  
Legal Justification ◽  
The Right

Abstract The article challenges the fashionable but finally unsupportable opinion in political and academic circles that there exists no compelling, unitary, universally resonant moral and legal justification of human rights. The argument is intimated by two overlooked passages in the preamble to the Universal Declaration of Human Rights that presuppose the right of self-defense against arbitrary force, understood as both a moral and legal concept, and as relevant both to personal and collective life. It shows how the logic of defensive force underlies the three formative human rights instruments: the UDHR, and the two covenants on political, legal, economic, social, and cultural rights. The underlying claim is that good reasons of a particular kind are required to justify any use of force, a claim that makes perfect sense against the backdrop of the atrocities committed by the German fascists and their allies in the mid-twentieth century. The article also refers to compelling, if preliminary, evidence of the widespread cross-cultural acceptance of the moral and legal right of self-defense, suggesting a basis for the worldwide comprehensibility and appeal of human-rights language.

11. Use of force

2019 ◽  
pp. 144-159
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
International Law ◽  
Security Council ◽  
Use Of Force ◽  
Armed Force ◽  
Responsibility To Protect ◽  
Collective Security ◽  
Armed Attack ◽  
Customary International Law ◽  
Significant Achievement ◽  
Self Defence

This chapter examines under what circumstances States may use armed force under customary international law and Arts 2(4) and 51 UN Charter. After noting that the use of armed force is generally prohibited and only limited to self-defence, and then only if the target State is under an armed attack, we show that several States have expanded the notion of armed attack. Besides self-defence, the Security Council may authorize the use of armed force through a process of collective security. Several examples of collective security are offered, as well as the ICJ’s position on what constitutes an armed attack. In recent years, the range of actors capable of undertaking an armed attack has included terrorists. Moreover, the development of the doctrine of the responsibility to protect is a significant achievement.

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