Written evidence submitted by Daniel Bethlehem
QC, Director of Lauterpacht Research Centre for International
Law, University of Cambridge
INTERNATIONAL LAW AND THE USE OF FORCE: THE
LAW AS IT IS AND AS IT SHOULD BE
1. This Memorandum addresses the following
(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 eventsin Iraq, the former Yugoslavia, Rwanda,
the United States on 11 September 2001, Afghanistan, and elsewherepose
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
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
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
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
And we must not shy away from questions about
the adequacy, and effectiveness, of the rules and instruments
at our disposal."
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.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
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
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 takesas we are doing
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."
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."
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
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.
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".
"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
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.
IV. THE EFFECT
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.
V. ELEMENTS WARRANTING
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
(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.
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;
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
19 http://www.un.org/webcast/ga/58/statements/sg2eng030923.htm Back
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
Hansard, 21 April 2004, columns 370-71. Back