Part 2 The Post-Cold War Era (1990–2000), 42 The US Airstrike Against the Iraqi Intelligence Headquarters—1993

2018 ◽  
Author(s):  
Starski Paulina
Keyword(s):  
Cold War ◽  
Use Of Force ◽  
Post Cold War ◽  
The Us ◽  
State Practice ◽  
Observable State ◽  
The Right ◽  
President Bush ◽  
Intelligence Service ◽  
Self Defence

This contribution analyses the normative implications of the US raid against the headquarters of the Iraqi Intelligence Service in 1993 in reaction to a foiled assassination attempt against former President Bush. It examines the legality of the operation, its precedential value and its evolutive potential regarding the regime on the ius contra bellum and specifically the right to self-defence. After dissecting the multiple contentious dimensions of the US claim of justification, the article concludes that the raid constituted an illegal ‘armed reprisal’. In light of observable state practice, its precedent-setting nature should not be overstated. However, albeit qualified as an ‘one-off incident’ the US raid did not leave the prohibition on the use of force and the contemporary discourse surrounding it untouched. Hence, it appears essential to demystify its frequently asserted evolutive potential particularly regarding the temporal limitations of Article 51 UN Charter to which this article is dedicated.

Part 1 The Cold War Era (1945–89), 29 The US Intervention in Nicaragua—1981–88

2018 ◽  
Author(s):  
Kammerhofer Jörg
Keyword(s):  
Cold War ◽  
Use Of Force ◽  
Customary Law ◽  
The Us ◽  
State Practice ◽  
The Icj ◽  
The Right ◽  
The Cold War ◽  
Us Intervention ◽  
Self Defence

This chapter focuses on the US intervention in Nicaragua from 1981 to 1988, as a contribution to the state practice on the law on the use of force and the right to self-defence under both UN Charter and customary law. After an overview of the background of the so-called ‘contra war’ and of the salient facts regarding the US intervention in that conflict, it discusses the positions of the two parties on the facts and law, and takes note of the reaction of the international community, focusing on the debates at the UN. The next section focuses on the legality of the operation; the ICJ’s holdings in its 1986 Nicaragua judgment form the backbone of that discussion, while taking note of dissent and comment both inside and outside the Court. The contribution concludes by discussing the precedential value and effect of this conflict, and of the ICJ case.

Self-Defence in Response to Attacks by Non-state Actors in the Light of Recent State Practice: A Step Forward?

2010 ◽  
Vol 23 (1) ◽  
pp. 183-208 ◽  
Author(s):  
RAPHAËL VAN STEENBERGHE
Keyword(s):  
Use Of Force ◽  
Prima Facie ◽  
Operation Enduring Freedom ◽  
Armed Attack ◽  
The Us ◽  
State Practice ◽  
State Actors ◽  
The Law ◽  
The Right ◽  
Self Defence

AbstractThis article analyses the recent state practice in which the right of self-defence has been invoked in order to justify the use of force in response to attacks by non-state actors. The main purpose of this analysis is to determine whether the law of self-defence has evolved through this practice. It is submitted that the latter confirms the tendency, evidenced by the US operation ‘Enduring Freedom’ in Afghanistan in 2001, towards allowing states to respond in self-defence to private armed attacks, that is, attacks which are committed by non-state actors only. The article also aims to shed some light on other fundamental conditions of the law of self-defence which played a significant role in the legal assessment of the recent state practice. It is argued in this respect that this practice confirms that any armed attack must reach some level of gravity – which may be assessed by accumulating minor uses of force – in order to trigger the right of self-defence, and that proportionality of the action taken in self-defence may be assessed in quantitative terms, but only as a means of making a prima facie judgement about the necessity of this action.

Part 1 The Cold War Era (1945–89), 35 The US Strikes Against Libya—1986

2018 ◽  
Author(s):  
Kamto Maurice
Keyword(s):  
Cold War ◽  
Use Of Force ◽  
Legal Framework ◽  
The Us ◽  
West Berlin ◽  
Cold War Era ◽  
The Right ◽  
The Cold War ◽  
Night Club ◽  
Self Defence

This contribution discusses the US air strikes against Libya in 1986. It sets out the facts that led to the air strikes – notably the bombing of a West Berlin night club on 5 April 1986 –, the legal positions of the main protagonists (the US and Libya), and the international community’s reactions. It then tests the legality of the US strikes against the international legal framework governing the use of force as it stood at the time of the events, namely the rules governing the right to self-defence. The chapter concludes that the use of force in this particular case could not be convincingly justified under Article 51 of the UN Charter.

3 Direct Military Assistance on Request During Civil Wars

2020 ◽  
Author(s):  
De Wet Erika
Keyword(s):  
Civil War ◽  
Civil Wars ◽  
Military Intervention ◽  
Use Of Force ◽  
Organizational Practice ◽  
Military Assistance ◽  
Post Cold War ◽  
Current State ◽  
State Practice ◽  
The Right

This chapter examines whether the right to self-determination in international law prevents military intervention on the side of the recognized government during a civil war. Post-Cold War state and organizational practice does not convincingly support the claim that direct military assistance at the request of a recognized government is prohibited during a civil war, otherwise known as a ‘non-international armed conflict’ (NIAC). Attempts to explain current state practice by means of counter-terrorism and counter-intervention exceptions to a general prohibition of such assistance also is not grounded in state or organizational practice, nor are such exceptions viable in practice. Instead, state and organizational practice seems to confirm the right of recognized governments to request military assistance from third states, also during civil wars/NIACs, as long as they retain their recognized, de jure status. The potential lack of ‘representativeness’ in such a situation does not seem to limit the extent to which the de jure government can act on behalf of the state (and its people) in matters pertaining to the use of force.

Part 1 The Cold War Era (1945–89), 19 The Entebbe Raid—1976

2018 ◽  
Author(s):  
Kreß Claus ◽  
Nußberger Benjamin K
Keyword(s):  
Cold War ◽  
Security Council ◽  
Use Of Force ◽  
Good Faith ◽  
Popular Front ◽  
Rescue Operation ◽  
Legal Perspective ◽  
The Right ◽  
The Cold War ◽  
Self Defence

In 1976, Israel conducted a successful, but highly controversial military rescue operation in Entebbe, Uganda, to save its nationals taken hostage on Ugandan territory by members of the ‘Popular Front of Liberation of Palestine’. From an international legal perspective, this case revolves around the existence of a right of a state to take military action to protect its nationals abroad in mortal danger. Following an extensive legal debate in the Security Council on the incident, it appears safe to conclude that a rescue operation such as conducted in Entebbe passes the threshold for a use of force within the meaning of Article 2(4) UN Charter. In light of the ambiguous justification, however, it appears that an Entebbe-type situation falls within a grey area of the prohibition of the use of force. Still, the incident suggests that if states are willing to support the legality of a military rescue operation only the right of self-defence can conceivably justify such a use of force, and only in a case where the local state does not itself deal with the threat in good faith, and under strict conditions of proportionality.

Part 1 The Cold War Era (1945–89), 23 Operation Litani—1978

2018 ◽  
Author(s):  
Williamson Myra
Keyword(s):  
Cold War ◽  
United Nations ◽  
Security Council ◽  
Use Of Force ◽  
United Nations Security Council ◽  
The Third ◽  
The Us ◽  
The Cold War ◽  
Self Defence

This chapter examines Israel’s invasion of southern Lebanon on 14 March 1978, often referred to as ‘Operation Litani’. First, the chapter discusses the immediate and long-term causes of the Israeli invasion: the former includes the ‘Coastal Road Massacre’ that occurred on 11 March 1978, whilst the latter includes the effects of the Palestinian presence in southern Lebanon. The second section analyses the positions of the main antagonists, setting forth the positions adopted by Israel, Lebanon, the PLO, Jordan, the US, Syria, Egypt, Kuwait and the United Nations’ Security Council. The third section discusses the legality of this use of force, purportedly an act of anticipatory self-defence to prevent future attacks. Finally, the chapter offers a brief conclusion on the precedential value of this incident. It concludes that the Israeli use of force, which was unanimously condemned by the Security Council, was unlawful.

Part 2 The Post-Cold War Era (1990–2000), 44 The US Strikes in Sudan and Afghanistan—1998

2018 ◽  
Author(s):  
Cannizzaro Enzo ◽  
Rasi Aurora
Keyword(s):  
Cold War ◽  
Terrorist Attacks ◽  
Al Qaeda ◽  
Evolutionary Perspective ◽  
Post Cold War ◽  
The Third ◽  
The Us ◽  
Cold War Era ◽  
The U.S ◽  
Self Defence

This Chapter focuses on the aerial strikes of the U.S. against Afghanistan and Sudan in 1998, in response to terrorist attacks against the U.S. embassies in Tanzania and in Kenya, attributed to Al Qaeda. The events and the reactions thereto are presented in the first two sections. The third section is devoted to the assessment of the legality of the US strikes. In particular, the authors will discuss the qualification of the strikes as a form of pre-emptive self-defence. The last section contextualises the 1998 strikes in an evolutionary perspective. In the authors’ view, these interventions have constituted a trial run for the doctrine of pre-emptive war, fully developed by the US Administration after the 9/11 terrorist attacks.

Part 1 The Cold War Era (1945–89), 36 The US Intervention in Panama—1989

2018 ◽  
Author(s):  
Tsagourias Nicholas
Keyword(s):  
Cold War ◽  
International Law ◽  
Use Of Force ◽  
Panama Canal ◽  
The Us ◽  
Us Government ◽  
Legal Arguments ◽  
The Right ◽  
The Cold War ◽  
Us Intervention

This chapter examines the legality of the 1989 US intervention in Panama and assesses its impact on the use of force regime. After recalling the facts of the incident, it goes on to analyse the legal arguments provided by the US government to justify its action. More specifically, the US invoked its right to protect American citizens abroad as part of its right to self-defence; the right to intervene to protect the Panama Canal provided by the Panama Canal Treaties; and the invitation of the democratically elected Leader of the Opposition. The chapter then presents the reactions of states and the views of legal commentators. It concludes by saying that the incident affirms existing law but also contributes to the development of the rules regulating the use of force in international law.

Changing Jus Cogens Through State Practice? The Case of the Prohibition of the Use of Force and its Exceptions

2016 ◽  
Author(s):  
Alexander Orakhelashvili
Keyword(s):  
Cold War ◽  
International Law ◽  
Use Of Force ◽  
Post Cold War ◽  
State Practice ◽  
Strict Requirement ◽  
Jus Cogens ◽  
The Cold War ◽  
The Way

This chapter examines how international law treats state practice on the actual or claimed exceptions to and derogations from the peremptory prohibition of the use of force. It looks at attempts to fragment or alter the content of Article 2(4) of the UN Charter which prohibits the use of force, from the Cold War period to the post-Cold-War period. The discussion begins by assessing the nature and relevance of state practice before turning to the rules of jus cogens and the way in which they interact with state practice. More specifically, the chapter analyses the question of whether the conflict between state practice and jus cogens goes to derogation from, or modification of, jus cogens norms. Finally, it considers the argument against the jus cogens status of the prohibition of the use of force and the implications of the strict requirement of uniformity inherent in jus cogens and its non-derogability.

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