Select Committee on Foreign Affairs Minutes of Evidence

Written evidence submitted by Daniel Bethlehem QC, Director of Lauterpacht Research Centre for International Law, University of Cambridge



  1.  This Memorandum addresses the following issues:

    (a)  principles of international law relevant to the use of armed force;

    (b)  tensions within and shortcomings of this body of law;

    (c)  the effect of recent events on the adequacy and coherence of the law; and

    (d)  elements warranting attention as part of a re-evaluation of the law.

  2.  The central thesis of this Memorandum is that there are significant shortcomings in the traditional body of legal rules relevant to the use of armed force by States in contemporary international society and in the operation of international institutions charged with the application of those rules. Recent events—in Iraq, the former Yugoslavia, Rwanda, the United States on 11 September 2001, Afghanistan, and elsewhere—pose a challenge to the adequacy and coherence of the law in this area. While these challenges are not new, the scale of recent events, and the potential severity of the threat posed in the future, suggests that the international community ignores these issues at its peril.

  3.  The focus of the Memorandum is on systemic issues of international law relating to the use of force. The Memorandum does not address the legality or otherwise of the use of force by the United States, the United Kingdom and other States in Iraq beginning on 20 March 2003. As I have been in the past, and am presently, engaged in a number of cases before the International Court of Justice and other tribunals in which these issues have been, are, or may be in issue, I emphasise that the views expressed in this Memorandum are entirely personal. For reasons of professional commitments, I note also that there are issues that may arise in the course of the Committee's enquiry on which I will be unable to comment.

  4.  Addressing the General Assembly on 23 September 2003, the United Nations Secretary-General painted a sober picture for the international community. He said:

    "Since this Organisation was founded, States have generally sought to deal with threats to the peace through containment and deterrence, by a system based on collective security and the United Nations Charter.

    Article 51 of the Charter prescribes that all States, if attacked, retain the inherent right of self-defence. But until now it has been understood that when States go beyond that, and decide to use force to deal with broader threats to international peace and security, they need the unique legitimacy provided by the United Nations.

    Now, some say this understanding is no longer tenable, since `armed attack' with weapons of mass destruction could be launched at any time, without warning, or by a clandestine group.

    Rather than wait for that to happen, they argue, States have the right and obligation to use force pre-emptively, even on the territory of other States, and even while weapons systems that might be used to attack them are still being developed.

    According to this argument, States are not obliged to wait until there is agreement in the Security Council. Instead, they reserve the right to act unilaterally, or in ad hoc coalitions.

    This logic represents a fundamental challenge to the principles on which, however imperfectly, world peace and stability have rested for the last 58 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.

    But it is not enough to denounce unilateralism, unless we also face up squarely to the concerns that make some States feel uniquely vulnerable, since it is those concerns that drive them to take unilateral action. We must show that those concerns can, and will, be addressed through collective action.

    Excellencies, we have come to a fork in the road. This may be a moment no less decisive that 1945 itself, when the United Nations was founded.

    At that time, a group of far-sighted leaders, led and inspired by President Franklin D Roosevelt, were determined to make the second half of the twentieth century different from the first half. They saw that the human race had only one world to live in, and that unless it managed its affairs prudently, all human beings may perish.

    So they drew up rules to govern international behaviour, and founded a network of institutions, with the United Nations at its centre, in which the peoples of the world could work together for the common good.

    Now we must decide whether it is possible to continue on the basis agreed then, or whether radical changes are needed.

    And we must not shy away from questions about the adequacy, and effectiveness, of the rules and instruments at our disposal."[19]

  5.  These observations cogently describe the challenge faced by the international community in the area of the law relating to the use of force. The question might be asked whether the Secretary-General was painting too rosy a picture of the effectiveness of the law in this area over the past 58 years with his reference to "world peace and stability". The law in this area has long been under strain, a matter not aided, in my view, by the propensity towards doctrinal purity in the restatement of the law by both commentators and courts. And the last 58 years have hardly been free from armed conflict. This apart, however, I am fully persuaded of the central importance of the need for the international community to face up to the concerns that make some States feel uniquely vulnerable and of the Secretary-General's injunction not to shy away from difficult questions about the adequacy and effectiveness of the rules and instruments on which the international community presently relies.

  6.  The Prime Minister echoed these concerns in his Sedgefield speech on 5 March 2004 when he described "international law as presently constituted" and asked whether this is as it should be.[20]While an international lawyer might, unsurprisingly, given the nature of the speech, take issue here or there with the Prime Minister's characterisation of the law, the question he posed is clear. Is international law adequate to the task required of it in contemporary international society?

  7.  Aspects of this question were addressed more fully by the Foreign Secretary in his Mansion House speech on 21 April 2004. He said:

    "Though the text of what is Chapter VII of the UN Charter has remained unchanged for 60 years, the international understanding of it has evolved in the face of today's threats. During the Cold War, the UN adopted Resolutions under Chapter VII in only seven situations, but since 1990, it has done so in 22. We have recognised in the Security Council that those harbouring terrorists, such as the Taleban of Afghanistan, may be legitimate targets for military action in self-defence, if they fail to take action to avert further terrorist attacks. And in situations of overwhelming human catastrophe, a consensus for collective military action has also begun to appear, as we saw, albeit retrospectively, in Kosovo in 1999. Ten years on from the horrific tragedy of the Rwandan genocide, I do not believe that the international community would today refuse to intervene.

    This evolving consensus represents important progress. But we need to take the debate further forward.

    One aspect of that must be a discussion on when the Security Council should authorise action in response to massive violations of humanitarian law and crimes against humanity. Britain posed in 1999 some guidelines on this for discussion.

    But just as important, and perhaps even more sensitive, is the question of threats to international peace and security under Chapter VII. That was the source of the Resolutions on which we based military action in Iraq.

    I respect the position of those who took a different view from ours on that action, and who resile at what they see, I suggest wrongly, as some doctrine of pre-emption. And I know that some fear that talk of collective military action in extreme cases will always be an agenda of the strong against the weak, or a threat to the independent sovereignty which has lain at the centre of states' relationships with each other since the Treaty of Westphalia in 1638, and which some countries only won a few decades ago.

    I understand those fears. But our response to our differences over Iraq cannot be a doctrine of paralysis, where we simply shelve the difficult questions and hope that the threats will go away. Global security is our collective responsibility, and we must all engage in this debate.

    In the face of threats such as that posed by Iraq, there will sadly be times when influence, persuasion and pressure are insufficient. We must be able to use force collectively in extreme cases. If those who would threaten us know that we are prepared to use force, we are more likely to achieve results without having to do so.

    The difficulty for many comes not with that general principle, but with its application in specific and always different cases. So we have to build an understanding of the collective threats which we face, and a discussion of the circumstances in which, as a last resort, we would be prepared to use military force collectively. We could agree that the benefits of intervention must outweigh the likely costs. Military action should be collective and in accordance with international law. And we must recognise that those who intervene have a responsibility to support reconstruction and rehabilitation for as long as it takes—as we are doing in Iraq.

    I also want to be clear that I am not arguing for a redrafting of the UN Charter. We already have a flexible text, in Chapter VII of the Charter, which deliberately leaves the Security Council a wide scope for determining what constitutes a threat to international peace and security. That [sic] circumstances in which it is prepared to make that determination have evolved over time in response to changing threats. We need to build on that evolution of international practice and jurisprudence which has already begun."[21]

  8.  The Foreign Secretary was here addressing issues primarily in the context of collective action authorised by the UN Security Council. I subscribe fully to the Foreign Secretary's identification of issues as well as to his declared preference for addressing these issues within the framework of collective action authorised by the UN Security Council. Difficult questions concerning the circumstances in which a State may resort to armed force unilaterally, absent authorisation from the Security Council, will however be equally important.


  9.  It is well known that the UN Charter prohibits the use of armed force in international relations subject to only two Charter-based exceptions, namely, individual or collective self-defence, in accordance with Article 51 of the Charter, and action authorised by the Security Council under Chapter VII of the Charter to maintain or restore international peace and security. The prohibition of the use of force in Article 2(4) of the Charter takes the following form:

    "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." (Emphasis added.)

  10.  In contrast to the language of "threat or use of force" in Article 2(4), Article 51 of the Charter affirms "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 international peace and security" (emphasis added). As will be evident, there is some linguistic discordance between the prohibition on the use of force and the circumstances in which a State may legitimately resort to force by way of self-defence. This matter is addressed further in section III below.

  11.  The key provisions of Chapter VII of the Charter concerning action authorised by the Security Council are Articles 39 and 42. These provide:

  Article 39. "The Security Council shall determine the existence of any threat to the peace, breach of the peace or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Article 41 and 42, to maintain or restore international peace and security."

  Article 42. "Should the Security Council consider that measures provided for in Article 41 [not involving the use of armed force] would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such actions may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations."

  12.  Voting on any proposal before the Security Council to authorise action under these Articles is subject to the veto of any one of the five permanent Members of the Security Council.

  13.  Other provisions of Chapter VII require Members of the United Nations to make available to the Security Council armed forces for the purposes of maintaining international peace and security and to hold immediately available national air-force contingents for combined international enforcement action. These provisions have not, by-and-large, been implemented.

  14.  In addition to self-defence and UN authorised action, it is increasingly, although by no means commonly, accepted that the unilateral use of force by a State may be justified on grounds of overwhelming humanitarian necessity where there is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale which requires immediate and urgent relief. Criteria relevant to this principle were set out by the United Kingdom in October 1998 in response to the developing humanitarian crisis in Kosovo.


  15.  Various tensions within and shortcomings of the law on the use of armed force are evident and potentially of relevance to the Committee's present enquiry.

  16.  First, as noted above, there is discordance between the language of Article 2(4) of the Charter, prohibiting the threat or use of force, and Article 51 of the Charter, affirming the inherent right of individual or collective self-defence if an armed attack occurs. The difficulty is not simply linguistic. In its 1986 Judgment in the Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), the International Court of Justice expressed the view that, while an "armed attack" may be triggered by action by armed bands and irregular forces on a significant scale, the concept of "armed attack" did not include either acts of armed bands which would be classified as "mere frontier incident[s]" or "assistance to rebels in the form of the provision of weapons or logistical or other support" (ICJ Reports, 1986, at para 195). While the Court went on to accept that action falling short of an armed attack may nevertheless constitute a prohibited use of force or an unlawful intervention in the affairs of another State giving rise to a right to take "counter-measures", it is not clear that such "counter-measures" would otherwise rise to the level of action available to a State by way of self-defence. In particular, the Judgment of the Court appears to preclude the exercise of a right of collective self-defence by third States in response to a use of force against a State that does not amount to an armed attack (Judgment, at para 211).

  17.  This Judgment must probably now be read in the light of developments in the Security Council following the September 11th attacks which affirm the inherent right of individual and collective self-defence in the specific context of those attacks (see, for example, Security Council resolutions 1368 (2001) and 1373 (2001)). The relevant elements of the Nicaragua Judgment were, however, expressly affirmed by the International Court in its Judgment of 6 November 2003 in the Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America). The effect of this latter decision is to further narrow the scope of the law on self-defence insofar as it expressly rejects, as amounting to an "armed attack", a cumulative series of attacks against US owned vessels and aircraft by Iranian interests (Judgment, at paras.63-64). The Court also rejected, in this Judgment, the contention that, in deciding whether it is entitled to act in self-defence, a State has a margin of appreciation in assessing the threat, viz, "the requirement of international law that measures taken avowedly in self-defence must have been necessary for that purpose is strict and objective, leaving no room for any `measure of discretion'." (Judgment, at para 73)

  18.  In the light of this jurisprudence, significant questions remain concerning the law applicable to the conduct of States in response to the threat or use of force by terrorist or other groups which may amount to something less than an "armed attack". For example, what is the scope of a State's ability to respond by way of lawful "self-defence" to such attacks? What about the latitude of third States to assist a State which is the victim of such an attack? What of the latitude of States to act in the face of assistance and logistical support from third States to terrorist or other groups? At the very least, the law in this area is unclear. At worst, it is seriously problematic.

  19.  Second, the fact that self-defence has for long been the only lawful basis for the unilateral use of force by States has led to various attempts to stretch the concept over the years. Thus, for example, it is now widely, though not universally, accepted that a State may use force to protect its nationals abroad from imminent threat of injury or death. An acceptance of this principle appears to have been the reason for the refusal by the Security Council to condemn Israel for its use of force in Uganda in July 1976 to rescue its nationals held hostage at Entebbe. While the affirmation of such a principle is to be welcomed, it is difficult to square such a principle with the restrictive interpretation given to the law on self-defence more generally. The justification of protection of nationals abroad has also been relied upon in less than compelling circumstances, such as the Anglo-French invasion of Suez in 1956 and the United States invasion of Grenada in 1983.

  20.  Other significant uses of armed force justified by reference to an enlarged notion of the right of self-defence include India's invasion of Bangladesh in 1971 and Tanzania's invasion of Uganda in 1979. Both actions are now commonly cited as examples of humanitarian intervention. In the absence of a Charter right of humanitarian intervention, both India and Tanzania evidently felt compelled to stretch the concept of self-defence to justify their actions.

  21.  While these cases may be quoted as examples of how the law of the UN Charter is being adapted to meet new exigencies, the reality is less compelling. The reliance by States on self-defence in virtually every conceivable circumstance has led, on the one hand, to normative drift, as attempts have been made to stretch the concept, and, on the other hand, to a propensity towards doctrinal purity in the restatement of the concept by courts and commentators. The result has been the crystallisation of a law on self-defence today which is materially out of step with the reality of contemporary international life.

  22.  This element of tension within the law on self-defence has also had a further consequence. The propensity towards doctrinal purity, to preserve the integrity of the concept of self-defence, has also meant that conduct which might otherwise have been regarded as lawful, being in response to a prior armed attack or a series of such attacks and proportionate thereto, has been condemned. An example of perhaps just such a case was the Harib Fort Incident of 1964 in which the United Kingdom took limited military action against the Harib Fort in the Yemen in response to a series of shootings incidents and cross-border raids against Bedouin in the South Arabian Territory from persons in the Yemen. Speaking in the Security Council, the United Kingdom representative explained the UK attack on the Harib Fort as a defensive action which took the form of a counter-attack to deter further attacks from the Yemeni side. The UK action was, however, condemned in the Security Council as an unlawful reprisal.

  23.  These examples may appear remote from the issues with which the Committee is concerned. They go, however, to the adequacy and effectiveness of the rules and instruments concerning the use of force and self-defence to which the UN Secretary-General referred as requiring close scrutiny.

  24.  Third, in the light of the apparent failure of the UN system of collective security to secure compliance with the prohibition on the threat or use of force, States have increasingly resorted to the use of force outside the Charter framework. The circumstances of such action, the condemnation by the Security Council in some cases but its failure to condemn in other cases, led one distinguished commentator, Professor, now Sir, Derek Bowett, to describe what he termed a "credibility gap" in the law relating to armed reprisals. Writing in 1972, he put the matter in the following terms:

  "Not surprisingly, as states have grown increasingly disillusioned about the capacity of the Security Council to afford them protection against what they would regard as illegal and highly injurious conduct directed against them, they have resorted to self-help in the form of reprisals and have acquired the confidence that, in doing so, they will not incur anything more than a formal censure from the Security Council. The law on reprisals is, because of its divorce from actual practice, rapidly degenerating to a stage where its normative character is in question." (Bowett, Reprisals Involving Recourse to Armed Force, 66 AJIL 1 (1972))

  25.  In my view, these observations are reflective of a wider malaise in the law relating to the use of force by States. There is an evident discordance between the letter of the law, affirmed by courts and commentators, and the reality of the conduct of States in response to actual or perceived threats of sufficient moment as to warrant pre-emptive or responsive military action even if such action would fall outside the narrow strictures of the law. While there may be some who would suggest that the task of the law, and of courts and commentators affirming its principles, should be to hold the line against the drift in State practice, I have long had a concern that the credibility gap in the law in this area encourages rather than discourages the unilateral use of force by States.[22] I agree fully with the observation by the UN Secretary-General that "it is not enough to denounce unilateralism, unless we also face up squarely to the concerns that make some States feel uniquely vulnerable, since it is those concerns that drive them to take unilateral action. We must show that those concerns can, and will, be addressed through collective action." This, in my view, is the challenge for policy makers and international lawyers today. If the law in this area is to work, it must reflect the exigencies of international society in a manner that will give States confidence that their interests, and those of their nationals, will be protected.

  26.  A fourth, and final, area of tension within the law on self-defence requires comment as it goes to the heart of the current debate. It concerns the scope of the right of self-defence and the entitlement of States to take anticipatory action in the face of a credible threat of attack.

  27.  As is by now very well known, the classical iteration of the law on self-defence is to be found in the statement by US Secretary of State Webster in correspondence with the British Government in respect of the Caroline Incident of 1837. The statement will be familiar but is worth quoting again as it is widely accepted today as an authoritative statement of the law on self-defence. Webster stated as follows:

  "It will be for . . . (Her Majesty's) Government to show the necessity of self-defence, instant, over-whelming, leaving no choice of means, and no moment for deliberation. It will be for it to show, also, that the local authorities of Canada, even supposing the necessity of the moment authorised them to enter the territories of The United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it. It must be shown that admonition or remonstrance to the persons on board the Caroline was impracticable, or would not have been availing; it must be shown that day-light could not be waited for; that there could be no attempt at discrimination between the innocent and the guilty; that it would not have been enough to seize and detain the vessel; but that there was a necessity, present and inevitable, for attacking her in the darkness of the night, while moored on the shore, and while unarmed men were asleep on board, killing some and wounding others, and then drawing her into the current, above the cataract, setting her on fire, and, careless to know whether there might not be in her the innocent with the guilty, or the living with the dead, committing her to a fate which fills the imagination with horror."

  28.  This statement is commonly, though not universally, accepted both as acknowledging a right of anticipatory self-defence and of circumscribing the limits to it. The test of anticipatory self-defence that has emerged from this statement is the test of imminent attack. While the formulation of the test is clear enough, however, the question of whether any particular action meets this test has invariably been a matter of debate.

  29.  In a detailed statement to the House of Lords on 21 April 2004, the Attorney-General set out the Government's view on "the legitimacy of pre-emptive armed attack as a constituent of the inherent right of individual or collective self-defence under Article 51 of the United Nations Charter". He said:

  "It is argued by some that the language of Article 51 provides for a right of self-defence only in response to an actual armed attack. However, it has been the consistent position of successive United Kingdom Governments over many years that the right of self-defence under international law includes the right to use force where an armed attack is imminent.

  It is clear that the language of Article 51 was not intended to create a new right of self-defence. Article 51 recognises the inherent right of self-defence that states enjoy under international law. That can be traced back to the "Caroline" incident in 1837 . . . It is not a new invention. The charter did not therefore affect the scope of the right of self-defence existing at that time in customary international law, which included the right to use force in anticipation of an imminent armed attack.

  The Government's position is supported by the records of the international conference at which the UN charter was drawn up and by state practice since 1945. It is therefore the Government's view that international law permits the use of force in self-defence against an imminent attack but does not authorise the use of force to mount a pre-emptive strike against a threat that is more remote. However, those rules must be applied in the context of the particular facts of each case. That is important.

  The concept of what constitutes an "imminent" armed attack will develop to meet new circumstances and new threats. For example, the resolutions passed by the Security Council in the wake of 11 September 2001 recognise both that large-scale terrorist action could constitute an armed attack that will give rise to the right of self-defence and that force might, in certain circumstances, be used in self-defence against those who plan and perpetrate such acts and against those harbouring them, if that is necessary to avert further such terrorist acts. It was on that basis that United Kingdom armed forces participated in military action against Al'Qaeda and the Taliban in Afghanistan. It must be right that states are able to act in self-defence in circumstances where there is evidence of further imminent attacks by terrorist groups, even if there is no specific evidence of where such an attack will take place or of the precise nature of the attack.

  Two further conditions apply where force is to be used in self-defence in anticipation of an imminent armed attack. First, military action should be used only as a last resort. It must be necessary to use force to deal with the particular threat that is faced. Secondly, the force must be proportionate to the threat faced and must be limited to what is necessary to deal with the threat.

  In addition, Article 51 of the charter requires that if a state resorts to military action in self-defence, the measures it has taken must be immediately reported to the Security Council. The right to use force in self-defence continues until the Security Council has taken measures necessary to maintain international peace and security. That is the answer to the Question as posed."[23]

  30.  This is an admirable statement of the law is it now stands on self-defence with which I fully concur. Indeed, insofar as it contemplates the possibility of dissuasive military action against those harbouring terrorists in order to avert further terrorist acts in circumstances in which the threat of terrorist action is more remote but nonetheless predictable in the light of past attacks, the statement is probably a development in the law reflecting the changed perceptions of States in the light of the events of recent years. With this too, I wholly concur. The question nonetheless remains as to whether this is the law as it should be and whether we should not be looking again at the concept of imminence in the light of contemporary threats with a view to identifying at this stage guidelines that may assist in shaping the actions of States in the future. This issue is addressed further in section V below.


  31.  As will be evident from the preceding, I am of the view that the recent events in Iraq have not been the catalyst challenging the adequacy and coherence of the law. The tensions and shortcomings in the law outlined above have been a feature of the legal regime of the UN Charter since its earliest days. Discordance between the law and the reality of the actions of States in this area have been a constant feature of the debate.

  32.  This having been said, I am entirely persuaded that the coincidence of contemporary terrorism, particularly of a suicidal variety, together with the proliferation of weapons of mass destruction and of its technology, is the great security challenge of our time. Whereas, therefore, in the absence of such elements in previous years, the international community might have been able to avoid a reappraisal of the law relating to the use of force, I do not believe that it can avoid doing so now. At least, it cannot avoid doing so without the risk of catastrophic incident in years to come. I agree fully with the sentiment expressed by the Foreign Secretary when he said on 21 April 2004 that "our response to our differences over Iraq cannot be a doctrine of paralysis, where we simply shelve the difficult questions and hope that the threats will go away". I do not believe that it is Iraq that has crystallised the debate. Certainly, however, we cannot let doctrinal debates over events in Iraq lead to inaction.


  33.  In the light of the challenges, noted above, identified by the UN Secretary-General in this area of collective security and the use of force, the Secretary-General has appointed a High-Level Panel of eminent personalities to examine four issues:

    (a) the current challenges to peace and security;

    (b) the contribution which collective action can make to addressing these challenges;

    (c) the functioning of the major organs of the United Nations and the relationship between them; and

    (d) ways of strengthening the United Nations, through reform of its institutions and processes.

  34.  These are not straightforward issues, notably as any reform of UN institutions and processes is likely to be cumbersome and difficult to achieve. To my mind, however, these issues are the pivot around which the debate about collective security and the use of force will revolve in the period to come. There are many who argue that the Security Council worked, over the issue of Iraq, in the past two years precisely in the way contemplated by the Charter, subject to political checks and balances across its membership. At one level this may be true. At another level, however, the inability of the Security Council to grapple with differences of view over Iraq had been a long-standing feature of the Council's work in this area, notably in the field of economic sanctions and the provision of humanitarian assistance. The sanctions regime that had been implemented first by Security Council resolution 661 (1990) in the immediate aftermath of the Iraqi invasion of Kuwait, and subsequently extended by resolution 687 (1991), was beset by widely discordant approaches to enforcement, including by permanent Members of the Security Council. The debate amongst the Council's Members about the necessity for and meaning of various resolutions of the Council concerning the WMD inspection regime appeared to an outside observer often to have more to do with high politics amongst the permanent Members than with fundamental differences over the nature of the Saddam Hussein regime or the threat that might be posed by WMD were he to have any. Although the argument has played out latterly in terms of principle, there is no question but that the current situation is indicative at some level of shortcomings in the institutional structure of, and trust in, the United Nations. I agree with the Secretary-General that, if States are to have faith in the system of collective security, they must be persuaded that their concerns can, and will, be addressed through collective action.

  35.  Beyond a review of the institutional framework of international law in this area, I am of the view that critical assessment of the key principles of international law relevant to the use of force, self-defence and humanitarian action is also warranted. Quite clearly, this must be done with due deliberation and circumspection as there is much that is right with the law and the propensity of States to illegal action cannot be met with a change in the law. There are, however, in my view, a number of areas in which the law would merit from close scrutiny. These include:


    the concept of imminent attack for purposes of the right of anticipatory self-defence. While I agree with the view expressed by the Attorney-General that "[t]he concept of what constitutes an "imminent" armed attack will develop to meet new circumstances and new threats", I consider that it would be helpful for the international community, at the level of States rather than simply at the level of academic commentary, to think more closely about what imminence means in the circumstances of contemporary international life. To this end, I am of the view that there may be some advantage to the development of a new concept of "catastrophic threat", or more properly, the "threat of catastrophic attack". Faced with a threat of attack of this kind, it would in my view be appropriate to begin to think beyond imminence to reasonable foreseeability, ie, away from temporal notions of threat and towards action required to neutralise the risk of catastrophic harm;


    following this line, I am also of the view that the wider principles of the law on self-defence also require closer scrutiny. I am not persuaded that the approach of doctrinal purity reflected in the Judgments of the International Court of Justice in this area provide a helpful edifice on which a coherent legal regime, able to address the exigencies of contemporary international life and discourage resort to unilateral action, is easily crafted; and


    the focus on the law relating to the use of force has, in my view, paid insufficient attention to the obligation of States to ensure that their territory is not used as a springboard for terrorist and other attacks against third States. This obligation, and the positive responsibility of States to take such measures as they are able to forestall action by armed groups from their territory or with support from others therein, is the essential corollary to the prohibition on States which are the victims of attack from taking retaliatory measures. In my view, greater emphasis should be placed on the obligations of States not to harbour or otherwise assist terrorist or other similar groups.


  36. The central thesis of this Memorandum is that there are significant shortcomings in the law relating to the use of force and self-defence. While these shortcomings are not a consequences of recent events, and in particular do not derive from the action in Iraq, they are nevertheless crystallised more sharply by the coincidence of large scale terrorist activity, particularly of a suicidal kind, and the proliferation of weapons of mass destruction and of its technology. In the circumstances, I am of the view that the international community has a special responsibility to undertake a considered review of international law and institutions relative to the combating of this threat.

Daniel Bethlehem QC


Lauterpacht Research Centre for International Law

University of Cambridge

7 June 2004

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22   The subject of the credibility gap in the law relating to the use of force more generally in the wake of events in Iraq was addressed in more detail in my remarks at a conference organised by Ashurst Morris Crisp, Solicitors, at the International Institute of Strategic Studies on 18 November 2003. Uncorrected (and unpublished) excerpts from this presentation are attached as an Annex hereto. Back

23   Hansard, 21 April 2004, columns 370-71. Back

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