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to influence choices of poli/econ/soc/cultural systems (Nicaragua) Funding to contras (Nicaragua) Consent for troops withdrawn (DRC/Uganda) No, just a threat or use of force: Mining harbors, attacking installations (Nicaragua) Arming and training contras, logistical or other support to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
Wall (Israel-Palestine) Intl ad hoc tribunals Nuremburg: Eichmann US v. Joseph Alstoetter et al ICTY: Dokmanovic (on abductions/luring and jx) Nikolic (on abductions/luring and jx) Report on NATO bombing of Kosovo Tadic Regional rights tribunals ECHR: Ocalan v. Turkey (on jx regarding arrest/abduction for purpose of trial) Republic of Ireland v. UK (on torture and CIDT) Belilos v. Switzerland (on reservations contrary to object/purpose) Leyla Sahin v. Turkey (on headscarves) Lautsi v. Italy (on crucifix in public school) Eweida v. UK (on wearing a cross at work) Behrami (on attributability to UNSC of actions by EU states in Kosovo) Al Jedda v. UK (on effective control by UK soldiers in Iraq under UNSC) Incal v. Turkey (on prohibition of military officers on special national security courts) IACHR: Domingues (on US reservation to ICCPR re juvenile execution) petition linking climate change and HR (rejected) Medellin Precautionary measures to US on Guantanamo status determinations Other forums for dispute resolution Rainbow Warrior: UN Sec Gen Cyprus: UNSC Iran FDI/expropriations: special arbitral tribunal Libya FDI/expropriations: sole arbitrator (appointed by ICJ president) Aland Islanders: LoN commission Yugoslavia dissolving: Badinter Commission Quebec secession: Canada Supreme Court Re Wood Pulp Cartel (extraterritoriality of EC competition law): Euro Ct of Justice Smelter (US v. Canada): arbitration tribunal GATT panels: Bananas I, II, II / Tuna-Dolphin / Shrimp-Turtle Public Committee against Torture in Israel v. State of Israel: Israeli Supreme Court Al Skeini (on jx regarding “effective control of persons”): UK court