ARMED ATTACK Is this an armed attack? No, just a violation of non-intervention: Use of coercion to influence choices of poli/econ/soc/cultural systems (Nicaragua) Funding to (Nicaragua) contras Consent for troops withdrawn (DRC/Uganda) No, just a threat or use of force: Mining harbors, attacking installations (Nicaragua) Arming and training logistical or other support to (Nicaragua) contras, contras Providing training and military support to forces (DRC/Uganda) Geographically limited clashes between patrols on remote/unmarked/disputed border (Eritrea Ethiopia Claims Commission 2005) Yes, an armed attack: Action by regular armed forces across an intl border (Nicaragua) The sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which arry out acts of armed force against another state of such gravity as to amount to (inter an actual armed attack conducted by regular forces, or its alia) substantial involvement therein (UNGA Res. 3341, taken as CIL in Nicaragua) Attributability: effective control (reinforced by ICJ Bosnia genocide case) (none found in Nicaragua: DRC/Uganda) overall control (less stringent) (presumed interconnectedness and support, in Afghanistan) = emerging CIL “Harboring” (US/UK expansion of = not widely accepted “Unable/unwilling” “harboring”) If this is an armed attack: Art. 51 self-defense: Individual: state must claim that it suffered an armed attack (Nicaragua, DRC/Uganda) at the request of a state that suffered an armed attack (Nicaragua, but see NATO bombing in Kosovo) Collective: Reporting requirement: a state acting under Art. 51 must report self-defense to UNSC UNSC involvement: the UNSC has taken measures necessary to maintain intl peace and security” “until CIL self-defense: (must be necessary and proportionate) Anticipatory: instant, overwhelming, and leaving no choice of means and no moment for deliberation (Caroline criteria) Generally precludes a state from using force beyond that necessary to repel an attack or restore the status quo ante Preemptive (Israel, US): precautionary, striking first in order to prevent future attacks, last window of opportunity
ARMED ATTACK Is this an armed attack? No, just a violation of non-intervention: Use of coercion to influence choices of poli/econ/soc/cultural systems (Nicaragua) Funding to contras (Nicaragua) Consent for troops withdrawn (DRC/Uganda) No, just a threat or use of force: Mining harbors, attacking installations (Nicaragua) Arming and training contras, logistical or other support to contras (Nicaragua) Providing training and military support to forces (DRC/Uganda) Geographically limited clashes between patrols on remote/unmarked/disputed border (Eritrea Ethiopia Claims Commission 2005) Yes, an armed attack: Action by regular armed forces across an intl border (Nicaragua) The sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which arry out acts of armed force against another state of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces, or its substantial involvement therein (UNGA Res. 3341, taken as CIL in Nicaragua) Attributability: Nicaragua: effective control (reinforced by ICJ Bosnia genocide case) (none found in DRC/Uganda) overall control (less stringent) “Harboring” (presumed interconnectedness and support, in Afghanistan) = emerging CIL “Unable/unwilling” (US/UK expansion of “harboring”) = not widely accepted If this is an armed attack: Art. 51 self-defense: Individual: state must claim that it suffered an armed attack (Nicaragua, DRC/Uganda) Collective: at the request of a state that suffered an armed attack (Nicaragua, but see NATO bombing in Kosovo) Reporting requirement: a state acting under Art. 51 must report self-defense to UNSC UNSC involvement: “until the UNSC has taken measures necessary to maintain intl peace and security” CIL self-defense: (must be necessary and proportionate) Anticipatory: instant, overwhelming, and leaving no choice of means and no moment for deliberation (Caroline criteria) Generally precludes a state from using force beyond that necessary to repel an attack or restore the status quo ante Preemptive (Israel, US): precautionary, striking first in order to prevent future attacks, last window of opportunity
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