LLW 5901: Advanced Legal Research Dissertations - Law Assignment Help

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• Advanced Legal Research Dissertations LLW 5901
• Bruno Pezzimenti s4597141
• Can the elements of Self-Defence be a legal avenue in combating transnational Non-State Actors post September 2001?
• Supervisor: Mr Tristan Galloway
• Acknowledgements
• Abstract
• The United Nations as an organisation was established in 1945 in the aftermath of the end of WWII came about in order to preserve the peace and to constrain use of force by states in the territories of one another. Since the inception of the United Nations Charter states have taken responsibilities amongst themselves to begin armed conflicts against non-state actors (NSA’s) in disregard to the Charter and International Law norms.
• Article 2 (4) of the Charter prohibits the use of force by states in their relations unless they rely on the exceptions in Articles 42 and 51 and the customary law doctrine of ‘consent’. In addition it was the requirement of international law that a state may use force against NSA’s only if it attributes the conduct to another state This dissertation examines the extraterritorial use of force by states against terrorist NSA’s and the focus is to answer the questions of ‘whether the law of self-defence is dated and can it be transformed’.
• Particular attention will be given to whether the practice of states post 9/11, the Security Council (SC) resolutions 1368 and 1373, the use of pre-emptive strikes by the United States, Israel, United Kingdom and other states and the disregard to the attribution of the conduct of the NSA’s to states. The rise and proliferation of terrorist organisations like, Al Qaeda, Taliban and ISIL have caused a rethink on the use of force as a tool to attack as a form of self-defence and to minimise their future influence.
• This transformation of self-defence can be gleaned from the use of force against NSA’s by the (US) against Al-Qaeda following the resolutions above, the lowering of the attribution standard and the tolerance of the international community of the use of force against terrorists without attributing their conduct to states. Secondly pre-emptive strike which does not require imminence has not been accepted as part of international law and the unlawful use could not cause a change of international law.
• Finally, this dissertation will recommend that the threshold be lowered in terms of the attribution of NSA’s to a particular state and a disregard of pre-emptive self-defence as not forming a ‘corpus’ of international law. Chapter VII of the Charter and the Security Council coupled with the elements of self-defence, namely armed attack, imminent, necessity and proportionate response serve the international community well as promulgated by the drafters in San Francesco.
• Contents
• Chapter I…Introduction
• Chapter II…International law frameworks which prohibit the threat or the use of force
• Chapter III…Established exceptions to the general prohibition of the use of force under Article 2 (4) of the UN Charter and under customary law
• Chapter IV…Transnational terrorism as a rationale for use of force against non-state actors
• Chapter V…Extraterritorial use of force against non-state actors
• Chapter VI…Has the law of self-defence been transformed
• Chapter VII…Conclusion
•  
• Chapter I
• Introduction
• The first multilateral efforts to constrain the use of force by states are found in the Hague Conventions of 1899 and 1907, the Covenant of the League of Nations and the Kellog-Briand Pact. Those these instruments sought to abridge the right to use force they nevertheless tolerated some degree of forceable measures by states against one another particular in the defence of vital interests and national honour.
• Furthermore, the prohibition sought to outlaw wars alone thereby leaving leaser uses of force or threat unhindered. With the establishment of the United Nations its Charter (“Charter”) placed a total prohibition on all threats and uses of force by virtue of Article 2 (4).
• This dissertation will aim to explore the current legal boundaries of the use of force as per Article 2(4) of the United Nations Charter (“Charter”) by states against transnational terrorism and discuss the right or otherwise of the use of self-defence and anticipatory self-defence in the millennium. The security environment of the world has changed markedly since the beginning of the new century starting with the tragic events of September 11,2001 on United States territory and all the so called armed attacks by terrorists in the meantime.
• It is now even easier for terrorists with the aid of the internet to gather volunteers who are willing to fight for cause and risk their life for freedom and to potentially purchase weapons of mass destruction which are fitted with technological advances. States face a difficult task in providing a safer secure environment for its citizens and thus it is particularly important that states work together to forge a path to peace and security.
• The use of force in self-defence and anticipatory self-defence will be seen as vital by certain states when we see that terrorists are more than ever convincing failed states to not only harbour them but to allow them to launch armed attacks from their territory. These states are ruled by power and not the rule of law and consequently are safe havens for terrorists to develop and prepare themselves, example Syria, Iraq and Libya.
• I will begin with the time leading up to the creation of the UN Charter in 1945 in Chapter I and follow with the use of force and the prohibition of Article 2 (4) under the Charter in Chapter III. An important aspect of the right to self-defence is the evidence of an armed attack which is in its gravest form on a innocence state by a non-state actor (“NSA”) and the time it takes for a state to respond in Chapter VII.
• The body of the dissertation will explore the armed attacks by NSA’s and acts of self-defence by states especially leading up to 9/11 and including the Iraq invasion in 2003. The Caroline doctrine, the Charter and Customary International Law all play their part in the ability of states to use force in self-defence which is necessary and proportionate.
• Use of force in international law
• The following main introductory body of the dissertation I will discuss how treaty law and international customary law on prohibition of force essentially effects the ability of states to initiate and legally adhere to the Charter and Article 51 in the use of force in self-defence against NSA’s.
• During the period antecedent to the end of WWII of 1945 it was quite common to use force to settle differences between an individual, tribe or an army of a state. States over time realised that it is more efficient to restrict and confine the use of force in which it finally became a prohibition as per Article 2 (4) of the Charter.
• The doctrine of ‘just war’ which was extremely popular in the 13th century due to the Christianisation of the Roman Empire especially after the death of Caesar, the doctrine limited the acceptability of war to those cases which intended to punish wrongs and restore to the region at the time. Thomas Aquinas further developed the doctrine further by stating that war between states was only acceptable when fought for a just cause (causa justa) conducted under sovereign authority (auctoritas principas) and fought with the right intention (intention recta).
• The rise of European nation states began to change the doctrine of just war as it would be paradoxical to the Christian states to go to war when their beliefs were on peace and harmony. The establishment of the European balance of power system after the peace of Westphalia in 1648 and the rise of positivism led to the understanding that states are sovereign and equal and no one state had a right to judge another.
• States were then bound to respect agreements and the independence and integrity of other states around them in Europe. War was seen as a last resort. The use of force was not yet prohibited and hostile measure short of war were undertaken by states to assert or enforce rights or to punish wrong doers. Consequently, following the peace and end of WW1 the then US president Woodrow Wilson and the international community set up a world organisation which would solve disputes in a peaceful manner.
• The result was the League of Nations established in 1919 under the Treaty of Versailles to promote international co-operation and to achieve peace and security, which was accepted by nations of the world in which the prohibition on the use of force in a limited way under Article 12 of the agreement. The members had an agreement that they would bring any interstate disputes to arbitration before the Permanent Court of Justice in judicial settlement of the League of Nations. Unfortunately, the League slowly become unworkable and by 1939 had ceased to exist as German began hostilities against Europe and collective security was put on hold.
• The establishment of the UN Charter in 1945 which grew out of wartime declarations and conferences culminating in the San Francisco conference of 1945 which finally adopted the UN Charter. Membership is open to all peace-loving states which become members after they ratify the convention. The Charter contains purposes and principles of the UN and state rights, the obligations of its members and introduced the prohibition on the use of force between states.
• The Use of Force
• The main point of reference on the prohibition on the use of force in the UN Charter is in Article 2(4) which states:
• ‘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’.
• Prior to the establishment of the United Nations in 1945 during the inter-war period (1919-1944) there were several efforts to prohibit states to use force. Such attempts were made for instance through the League of Nations and Kellogg-Briand Pact which prohibited signatory parties to use force against another territory.
• With the inception of Article 2 (4) of the Charter, it explicitly states that the prohibition on the use of force under international law. This provision is often described as the ‘cornerstone’ of the modern international system because its restraints states from resorting to force.
• The prohibition on the use of force can be approached in two ways. Firstly, the prohibition of Article 2 (4) of the Charter as mentioned above. Customary international law also demands the prohibition on the use of force. This can be assumed from state practice and opinion juris which confirms the prohibition on the use of force proceeds from customs.
• A significant development in the use of force was in 2005 when the UN released a document, World Summit Outcomes in relation to the twin wars of Afghanistan 2001 and Iraq 2003. Here member states reaffirmed their commitment to the following rules: -
• “We reiterate the importance of promoting and strengthening the multilateral process and of addressing international challenges and problems by strictly abiding by the Charter and the principles of international law, and further stress our commitment to multilateralism.”
• We reaffirm that the relevant provisions of the Charter are sufficient to address the full range of threats to international peace and security. We further reaffirm the authority of the Security Council to mandate coercive action to maintain and restore international peace and security. We stress the importance of acting in accordance with the purposes and principles of the Charter.”
• Article 2 (4) of the United Nations Charter
• The wording of Article 2(4) states a prohibition against ‘use or threat of force’ not against an armed attack. The notion of an ‘armed attack’ has a narrower meaning whereas it always presupposes a violation of Article 2 (4) but a violence of Article 2(4) does not always constitute an ‘armed attack’. When force is used in a relatively large scale with substantial effects it is regarded as an armed attack.
• Much of the discussion in the international community has centred on the use of force prohibition and whether there is scope to read the article in a wider sense when it comes to self-defence against NSA’s. A sticking point is the phrase ‘force’ as referring to militarily or armed and can also mean political or economic force.
• Various scholars have raised this issue over time especially the meaning of travaux preparatoires to determine the intention of the states during the drafting period. For instance, Albrecht Randelzzhofer and Ian Brownlie state that the meaning of ‘force’ in the provision refers specifically only to the use of military force.
• This is because the state Brazil wanted to include ‘economic coercion’ however the San Francisco Conference rejected the idea outright. One view by Stone outlines that is beyond doubt is that ‘force’ is completely banned and that any use of transboundary force will equate to a transgression of Article 2 (4).
• Historically the relevance of the Article 2 (4) has been written and discussed with fervour since 1945 and thought to be enough of a deterrent to prevent both threats and incursions into a foreign territory however that is not the case as has been witnessed since 2001. Scholars and critics certainly have a stated that it is becoming more and more unlikely that the law as it stands will be able to keep up to maintain peace and security in the international community.
• Thomas Franc has an interesting view on the Article and that it states see loopholes in the provision by the ambiguities with the potential to erode the legality of the meaning and what the United Nations stands for which is peace and security. His argument is that Article 51 gives states a right to self-defence without first contacting the SC and employing a fact-finding mission to ascertain the aggressor and the victim or innocent party.
• Invariably this has allowed states to act freely and without regard to the law by attacking first even in self-defence and then lying about it later or trying to find friends or a legal basis for their actions as the United States in Iraq 2003. The same can be said for Kosovo in 1999 and Syria in 2014 when combating Islamic State of Iraq and Syria (“ISIS”).
• Armed Attack
• Within the international community self-defence is only allowed if an armed attack occurs on territory of state and only that side can use force. Self-defence is not permissible against a legal use of force which authorised by the UN Security Council for the maintenance of collective security.
• Given the complexity and ambiguity of the definition of an armed attack the international community will keep mention of it to a minimum as they will tailor it to fit their own needs and wants. This of course will be led to much abuse and misuse of the ability to use force in self-defence against either states or NSA’s.
• As the use of force is only allowed against an illegal armed attack or threat and consequently a state will not be able to self-defend itself against an armed attack that is not unlawful act. This is not so under international law where the state uses proportionate countermeasures that are equal or less than the armed attack or to repel the enemy.
• Up until the attacks on the twin towers of the UN in New York an armed attack was believed to originate from armed forces of an opposing state and not form an independent group or state sanctioned groups like NSA’s. The debate has intensified over whether an armed attack includes imminent or future threats as if it does then anticipatory self-defence will fall within the scope of statutory self-defence as set out in Article 51 of the Charter will be discussed in the section anticipatory self-defence.
• Customary International Law
• Like the prohibition use of force outlined in the Charter it also exists as customary law and treaties in international law which signifies that there are other legal sources where the use of force is prohibited. Treaties are written agreements between states, whereby the parties bind themselves legally to act in a certain way or set up certain relation between themselves.
• While customary law is created by what states do in practice and develops almost subconsciously within the sphere of the international community at present. The ICJ has defined customary law as ‘evidence of a general practice as accepted as law” which is formed by two elements, general practice of states and opinion juris. Which means the belief that states that such practices are legally binding.
• The first example of customary law in self-defence was became known as the Caroline Case of 1841. During the 19th century the state of Canada was under British rule and was faced with anti-British insurrections. The US steamboat SS Caroline was supplying a Canadian group of rebels who had found refuge on a navy island in between Canada and US. During the night of the 29thDecember 1937 British crossed the Niagara River and set fire to the ship after boarding the vessel in US waters.
• Inevitably the US Government was outraged by the matter and made their feelings known to the UK Government by heated exchanges by post. The British claimed that they acted out of self-defence and had no choice in the matter. The British government eventually apologized, and it was the Secretary of State Webster who articulated the now famous words as follows:

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