JOHN NORTON MOORE Case Study Assignment | Custom Assignment Help

Jus ad Bellum Before the International Court of
Justice
JOHN NORTON MOORE
*
The norms controlling initiation of military force, or jus ad bellum as
traditionally designated in international law, are among the most important
normative principles in the international system. As properly understood, they
stand firmly against aggression and facilitate the minimum order, which serves
as the stable basis for exchange, agreement, and human creativity. As such, one
would expect that the International Court of Justice, itself created as a barrier
against war, would serve as a powerful force against aggression in expounding
these norms. Sadly, however, the decisions of the International Court in this
area have too frequently adopted an approach that encourages, rather than
discourages, aggression. This is particularly so in the most important
contemporary threat spectrum, that of “secret warfare,” covert attack and
terrorism. This Article will briefly explore the requirements of a normative
system effective in discouraging aggression, review the spectrum of forms of
aggression and the contemporary importance of “secret warfare,” assess the
normative structure of jus ad bellum under the United Nations Charter, and
then analyze the principal use of force decisions of the International Court of
Justice. The Article concludes not only that the Court has distorted the Charter
framework in ways that encourage aggression, but also that in its legal analysis
getting there, the Court has departed from the high quality of legal
craftsmanship one expects of the Court. Finally, the Article urges that, given the
central importance of the normative principles of jus ad bellum, foreign offices
need to engage more openly and vocally in supporting the core Charter principles
against aggression.
* Walter L. Brown Professor of Law and Director of the Center for National Security Law at the
University of Virginia. Formerly, he served as Counselor on International Law to the United States
Department of State, United States Ambassador to the Third United Nations Conference on the Law
of the Sea, Chairman of the National Security Council Interagency Task Force on the Law of the Sea,
and Chairman of the Board of the United States Institute of Peace. Of relevance to the Nicaragua
case, he served as Deputy Agent for the United States during the jurisdictional phase of the case and
argued several of the admissibility grounds before the Court. The author would like to thank Zachary
Gutterman and Joel Sanderson, who worked as student assistants on this project.
904 VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 52:903
Introduction ………………………………………………………………………………………….. 904
I. Deterring Aggression.. ………………………………………………………………… 905
II. Forms of Aggression ………………………………………………………………….. 907
III. The Charter Jus ad Bellum Framework …………………………………………. 910
IV. Principal Use of Force Decisions of the International Court of
Justice ……………………………………………………………………………….. 916
A. The Corfu Channel Case ……………………………………………………… 916
B. The Nicaragua Case …………………………………………………………… 919
C. The Iran Platforms Case ……………………………………………………… 937
D. The Israeli Wall Case …………………………………………………………. 942
E. The Congo Case …………………………………………………………………. 944
V. The Troubling Legal Craftsmanship of the Court in Its Jus Ad
Bellum Decisions ……………………………………………………………….. 946
Conclusion ……………………………………………………………………………………………. 952
Annex ……………………………………………………………………………………………………. 961
INTRODUCTION
A core fundament of international law is that nations may not use force
as a modality of change. That is, although nations are free to interact and
seek change through peaceful means, they may not use force for change.
This principle, introduced centrally into international law by the Kellogg-
Briand Treaty of 1928,1 subsequently became a cornerstone of the United
Nations Charter (“Charter”) when adopted in 1945. It is widely known as
the prohibition against aggression, or within international law circles, the
normative principle of jus ad bellum.2 This principle of minimum order is a
crucial starting point of a cooperative international order.
Correctly understood, modern jus ad bellum is not a blanket prohibition
against use of force. Rather, it permits defense against aggression, actions
lawfully authorized by the United Nations, actions undertaken with
sovereign consent, and certain other regional and humanitarian actions. Of
particular importance, for jus ad bellum as a normative principle to inhibit
aggression, as is the very purpose of the norm, it must differentially
impose costs on the aggression it seeks to deter. If, to the contrary, it treats
aggression and defense equally, by failing to effectively differentiate
between them, or even worse, it effectively favors aggression by ignoring
an aggressive attack while condemning a defensive response, then it will
have turned this central normative principle into a cipher. Like an
autoimmune disease, it will have turned the international order’s own
1. Treaty Between the United States and Other Powers Providing for the Renunciation of War as
an Instrument of National Policy, August 27, 1928, 46 Stat. 2343 [hereinafter Kellogg-Briand Pact].
2. See generally MYRES S. MCDOUGAL & FLORENTINO FELICIANO, LAW & MINIMUM WORLD
PUBLIC ORDER (1984).
2012] JUS AD BELLUM 905
immune system against itself, thus encouraging aggression. Moreover,
international institutions effectively ignoring aggression while condemning
defense — thus supporting an inverse of the critically important principle
banning use of force as a modality of change — will themselves inevitably
be harmed as they, in turn, undermine the rule of law. Elsewhere, I have
referred to an approach to jus ad bellum that effectively fails to differentiate
between aggression and defense as a “minimalist” interpretation of the
Charter.3 “Minimalism” seems principally driven by a naïve belief that the
road to peace is to sanction all use of force, whether defensive or
otherwise. This mindset, along with its “realist” opposite of simply
rejecting the relevance of jus ad bellum and, more broadly, rejecting
international law itself, do a disservice to the Charter framework and to
our aspirations for a more peaceful world.
This Article, through a brief examination of principal jus ad bellum
decisions of the International Court of Justice, will examine whether those
decisions have strengthened the important law of the Charter or whether,
sadly, they have too frequently adopted a minimalist approach
undermining the Charter and encouraging aggression, particularly
aggression in the “secret warfare” spectrum. First, however, this Article
will briefly review underlying theory as to how a normative principle can
deter aggression, the Charter normative framework, and principal forms of
aggression in the contemporary international system.
The International Court of Justice is one of the world’s most historic
and visible efforts to promote peace, as is evident in the name of its
beautiful building in The Hague, “The Peace Palace,” and the motivation
of Andrew Carnegie in making the building possible.4 It is particularly
incumbent upon us, if we believe in the Court as an institution capable of
making a difference in inhibiting war and aggression, that we support the
Court through careful analysis of its work and suggestions for
improvement where warranted. The opposite approach of “My Court
Right or Wrong,” in the long run, neither respects nor serves the Court. It
is in that spirit, as a supporter of international law and the Court, that this
Article is written.
I. DETERRING AGGRESSION
Understanding of the causes of war and aggression is still in its infancy.5
Nevertheless, in the last century, newer data about “the democratic peace,”
3. See, e.g., John Norton Moore, Beyond the Democratic Peace: Solving the War Puzzle, 44 VA. J. INT’L L.
341, 404 (2004); John Norton Moore, Toward a New Paradigm: Enhanced Effectiveness in United Nations
Peacekeeping, Collective Security, and War Avoidance, 37 VA. J. INT’L L. 811, 887 (1997).
4. The Building, VREDESPALEIS, http://tinyurl.com/6qlrhdc (last visited Apr. 20, 2012); A Man of
Peace, VREDESPALEIS, http://tinyurl.com/7398g78 (last visited Apr. 20, 2012).
5. The first useful database for the study of war, the Correlates of War Project, was only
906 VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 52:903
effects of high levels of bilateral trade, the importance of deterrence, and
other more complete information about war and aggression have greatly
enhanced our understanding of how violent conflicts develop.6 One of the
more important newer theories in understanding war, termed “incentive
theory,” focuses on the incentives to wage war that regime elite decisionmakers
draw from personal belief systems, key advisors or influential
groups, the form of government in their country, and the international
system as a whole.7 In classic international relations theory, we consider
incentives affecting elite decision-makers and militating for or against war;
incentives from “image one” (the individual, including key advisors and
influential interest groups), “image two” (form of government), and
“image three” (effect of external incentives from the international milieu,
including the effect of international law).8 But whether we are using
incentive theory or other contemporary theories in our understanding of
war and aggression, it is clear that any normative system has its effect
through influencing perspectives/subjectivities of, and/or costs for,
regime elite decision-makers as they contemplate aggression.
To achieve a deterrent effect against aggression, a normative system
must condemn aggression. But it must also differentiate between
aggression and defense. The totality of incentives against aggression,
including the totality of defensive responses from the international milieu,
are also a core deterrent against aggression. Thus, if the normative system
effectively de-legitimates and imposes costs on defensive action as much
as it de-legitimates and imposes costs on aggression, then it will have
undermined the overall normative response against aggression. And if it
de-legitimates defensive action while ignoring aggression, it will have
effectively thrown its weight on the side of aggression. At minimum, a
system treating aggression and defense without effective differentiation
simply turns the normative system into a cipher, as a potential aggressor
knows that the defenders will bear at least equal cost from the normative
system. It is the differential effect between treatment by the legal system of
aggression (prohibited) and defense (permitted) that generates the
deterrence against aggression from the legal system.
For the most part, aggression through regular army invasion, as in
Hitler’s invasion of Poland starting World War II, will be quickly
understood as aggression, despite propaganda efforts to initially persuade
the world otherwise. The problem comes when the aggression is in the
completed in the 1970s. See CORRELATES OF WAR PROJECT, http://www.correlatesofwar.org (last
visited Apr. 15, 2012).
6. See generally JOHN NORTON MOORE, SOLVING THE WAR PUZZLE (2003); BRUCE RUSSETT,
GRASPING THE DEMOCRATIC PEACE (1994).
7. See MOORE, supra note 6.
8. See, e.g., KENNETH WALTZ, MAN, THE THE STATE AND WAR (1954).
2012] JUS AD BELLUM 907
form of secret warfare (conventionally called “indirect aggression”),
terrorism, clandestine laying of mines, or other covert uses of force, the
origins of which are not immediately understood. The problem is then
compounded in court because of proof problems and the difficulty
(indeed, usually impossibility without revealing sensitive sources and
methods) in relying on the intelligence sources that reveal the secret
aggression. Moreover, generally, the defensive responders are engaging in
actions that they openly acknowledge, directly or indirectly, while the
aggressors are simply lying to the world. This, in turn, plays into judicial
practices weighting admissions against interest while giving lesser weight to
sources of evidence consistent with a party’s interest. As will be seen in the
next Part, these problems are compounded in the contemporary
international system in which secret warfare and other forms of covert
aggression are the norm rather than armies openly on the march.9
II. FORMS OF AGGRESSION
There are five principal forms of aggressive attack in the contemporary
system.10 All are in violation of the United Nations Charter and
contemporary international law. These are:
 Full scale invasion. Examples: Hitler’s 1939 invasion of Poland,
North Korea’s 1950 invasion of South Korea, North Vietnam’s
1975 Post-Paris Accords invasion of South Vietnam, Saddam
Hussein’s 1990 invasion of Kuwait, and the 2003 invasion of
Iraq by the United States and the United Kingdom (among a
coalition of other states).11
 Secret warfare. This is traditionally known in international law as
“indirect aggression” and involves the covert creation, funding,
training, and arming of an insurgency directed at overthrow of
the government of another state. Examples: North Vietnam’s
9. For an interesting article addressing some of these issues in maintaining an effective right of
defense against contemporary forms of covert aggression, see Theresa Reinold, State Weakness,
Irregular Warfare, and the Right to Self-Defense Post -9/11, 105 AM. J. INT’L L. 244, 246 (2011) (exploring
“the immediacy requirement of an armed attack, the attribution standard for imputing the acts of
irregulars to a state, and the twin requirements of necessity and proportionality.”) The author also
notes that “the conservative pronouncements of the International Court of Justice (ICJ) on selfdefense
have further muddied already murky waters.” Id. at 245.
10. There may also be other forms not directly utilizing bombs and bullets, for example a major
cyber-attack intentionally resulting in substantial loss of life or destruction of economic values.
11. I believe that the evidence today suggests that the 2003 invasion of Iraq by the United States
and the United Kingdom was not consistent with the Charter. I have also taken the view that it was a
strategic blunder by the George W. Bush Administration. Once the action was taken, however, the
strategic question was dramatically transformed into one concerning credibility, self-determination
for the people of Iraq, humanitarian considerations, and other important reasons supporting the need
for a successful outcome.
908 VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 52:903
opening of the Ho Chi Minh Trail with an attack against South
Vietnam in the 1959–1973 Phase I Vietnam War, and the
Sandinistas’ 1978–1980s Secret War Against El Salvador,
Honduras, Guatemala, and Costa Rica (with the core attack
directed against El Salvador).
 Creation of a parallel state within a state. The covert creation in a
weak or failed state of a political party providing governmental
services and a parallel army/militia (both in competition with
the weak government) for the purpose of eventual takeover of
the government either through the political process or military
action, or for the purpose of waging secret warfare against
neighboring states, or both. Examples: Iranian and Syrian
support for Hamas in Palestine (with parallel attacks against
Israel), and Iranian and Syrian support for Hezbollah in
Lebanon (with parallel attacks against Israel).
 Terrorism. Covert support for violence directed against
governments or civilian populations for the purpose of terror
and other harm against the targeted government or population.
Examples: Today, particularly al-Qaida against the United States
and Western nations; Iran in Iraq, Afghanistan, and elsewhere;
and a range of terrorist groups in attacks against Israel. Previously,
almost too numerous to list, such as members of the Sovietsponsored
Warsaw Pact in supporting violent movements in
Western Europe; Cuba in supporting violent movements in
Latin and Central America; North Korea (the DRK) in covert
attacks against South Korea and Japanese citizens; Libya in
covert attacks against civil aviation, Western democracies and
African nations; a range of radical political and drug cartel
groups in Colombia and, more broadly, Latin America in attacks
against governmental and civilian interests in Colombia, Mexico,
and elsewhere in Latin America; and a range of radical
Palestinian groups in covert attacks against Israel and Israeli
interests worldwide.
 Indiscriminate mining of international waterways. Naval mines can be a
lawful modality of warfare in settings of armed hostilities,
provided their use is in compliance with Hague VIII12 and other
applicable jus in bello rules.13 But indiscriminate mining of straits
used for international navigation and other international
waterways used by neutral shipping is in violation of the Charter
12. Hague Convention VIII Relative to the Laying of Automatic Submarine Contact Mines, 18
October 1907, 36 Stat. 2332, T.S. 541 [hereinafter Hague VIII of 1907].
13. See 1 JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, CUSTOMARY
INTERNATIONAL HUMANITARIAN LAW, at ch. 1–14, 20 (2005).
2012] JUS AD BELLUM 909
and is an illegal use of force. Examples: the covert mining of
international waterways, intentionally interfering with neutral
rights and navigational freedoms, as Albania in the 1946 Corfu
Channel affair, Libya in the 1984 mining of the Red Sea
approaches to the Suez Canal,14 and Iran in the 1980–1987
mining of navigational channels used by neutral shipping in the
Persian Gulf.
It should be noted with particular importance that in the contemporary
world, covert aggression in a mixture of one or more of the last four
categories of aggression is the predominant form of aggression de jure.
Aggressive smaller regimes typically understand that they are no match for
the conventional militaries of major powers, and as such, they utilize
“asymmetric warfare,” which typically involves concealment of their role
and an effort to deny attribution. In turn, such covert actions blend in with
a background of ongoing global violence and are politically less likely to
generate a collective military response on behalf of those attacked. Thus,
these forms of covert attack present a particularly difficult problem for
democratic nation responders. Indeed, for this reason, Moammar Gadhafi
lectured his war college in Libya that had Saddam Hussein simply engaged
in secret warfare against Kuwait, rather than a highly visible tank attack,
Kuwait might be part of Iraq today.
In addition to generally opting for covert modes of aggression,
contemporary aggressors have also understood that law is important and,
as such, they can leverage the ambiguity of covert attack to seek to turn the
law against the defenders. Today, this is widely discussed as a component
of “lawfare.”15 For a healthy international legal system, efforts of an
aggressor to turn the law against the defender should rebound against the
aggressor. Law, and certainly jus ad bellum, in no way favors the
aggressor — rather, it is antithetical to aggression. Sadly, however, as can
be seen simply by the number of aggressors filing actions in the
International Court of Justice against defensive actions, “lawfare” on the
part of aggressors is alive and well.16 One of the costs to the system that
14. See Scott C. Truver, The Law of the Sea and the Military Use of the Oceans in 2010, 45 LA. L. REV.
1221, 1232–33 (1985).
15. See, e.g., Christi Scott Bartman, Beyond Traditional Concepts of Lawfare: Lawfare and the Definition of
Aggression: What the Soviet Union and Russian Federation Can Teach Us, 43 CASE W. RES. J. INT’L L. 423
(2010); see also Charles J. Dunlap, Jr., Law and Military Interventions: Preserving Humanitarian Values in 21st
Century Conflicts (Carr Center for Human Rights, John F. Kennedy School of Gov’t, Harvard
University, Working Paper, 2001), available at http://tinyurl.com/cd3gprq.
16. This is in no way an argument for the “Realist-Rejectionist Model,” which rails against
international law as a tool of weaker states seeking to tie down major powers. To the contrary, a
system of international law, and particularly of prohibitions against use of force as a modality of
major change, as is the core of current jus ad bellum, is of fundamental importance to all nations, big
and small. On balance, the rule of law is powerfully supportive of widely adhered goals in the
interests of all nations and “lawfare,” broadly conceived, should be a core modality of response
910 VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 52:903
such “lawfare” generates is not only undermining deterrence against
aggression, but also undermining support for international law itself and
important legal institutions such as the International Court of Justice. One
direct cost of the Nicaragua decision, of course, has been the United States’
removal of its Article 36(2) acceptance of jurisdiction of the Court.17 The
decision may well have also played a role in encouraging Iran to file its
action against the United States in the upside-down Iran Platforms case.
III. THE CHARTER JUS AD BELLUM FRAMEWORK
As a point of reference, it is useful in any assessment of use-of-force
decisions to review the lawful bases of use of force (jus ad bellum) under the
United Nations Charter. Where there is a broad division of views, it will be
noted. There are five bases for lawful use of force under the Charter
framework:
1. Consent of a widely-recognized government. The government
represents the state and its sovereignty, and normally, consent by a
widely-recognized government suffices as a basis for lawful use of
force on the territory of the consenting state.18
2. Pursuant to a valid decision of the United Nations. This basis
encompasses action authorized by the Security Council acting
lawfully (i.e., not in a manner ultra vires, as specified in Article 24(2)
of the Charter) under Chapter VII (Articles 39, 42, and 48), or
action authorized by the General Assembly (Articles 11 and 12) in
settings “[w]hile the Security Council is [not] exercising in respect
of any dispute or situation the functions assigned to it in
the . . . Charter . . . unless the Security Council so requests”19 and
that is not “enforcement” action. (“Enforcement action” is
generally understood as action directed against a government, and
thus, General Assembly authorization normally would relate to
consensual settings such as peace-keeping operations.) It should
be noted that when the Security Council seeks to authorize use of
force, the authorizing resolution will normally use the language
“acting under Chapter VII” (clearly triggering Article 39) and
language specifically authorizing “all necessary means,” which is
against aggression and other outrages. Recently, for example, I have urged greater use of civil
litigation as a tool against covert state supported terrorism. See John Norton Moore, Civil Litigation
Against Terrorism, in LEGAL ISSUES IN THE STRUGGLE AGAINST TERROR 197–234 (John Norton
Moore & Robert F. Turner eds., 2010).
17. United Nations, Multilateral Treaties Deposited with the Secretary-General, ch. 3, § 8 n.1, available at
http://tinyurl.com/3wu3khd.
18. See, e.g., Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda),
Judgment, 2005 I.C.J. 168, 196–97 (Dec. 19) (holding that prior to August 1998, “the DRC did not
object to Uganda’s military presence and activities in its eastern border area”).
19. U.N. Charter, art. 12.
2012] JUS AD BELLUM 911
understood as authorizing use of force, as well as lesser measures.
Contemporary United Nations practice, as opposed to the earlier
custom of including actions under the “Uniting for Peace
Resolution,” rarely will authorize use of force through the General
Assembly, in part because of the substantial expense involved even
with peace-keeping actions.
3. Individual or Collective Defense. Individual and collective defense
in response to aggression were lawful bases for use of force under
the 1928 Kellogg-Briand Pact (Pact of Paris), which is the most
important pre-Charter international instrument outlawing force as
a modality of major change in international relations. That is, the
Kellogg-Briand Pact “condemn[ed] recourse to war for the
solution of international controversies, and renounced it as an
instrument of national policy in [parties’] relations with one
another.”20 The United Nations Charter built on Kellogg-Briand
and broadened its prohibition (in Article 2(4)) to include a ban on
aggression below the threshold of “war” and also banned “the
threat” of aggressive use of force, as well as the actual aggressive
use of force. The Charter, however, in its early draft paralleling
Kellogg-Briand (and thus saying nothing about defensive use of
force), and ultimately in the addition of Article 51 added at the
request of Latin American nations seeking to enshrine their
defensive rights under the Inter-American regional security system,
was not intended to limit the pre-existing right of individual and
collective defense. A careful review of the Travaux Préparatoires of
the Charter shows only that in Commission I, Committee 1, which
dealt with the general purposes and principles of the UN Charter,
the final Dumbarton Oaks Charter Proposal merely incorporated
an Australian proposal for Article 2(4) adding the language
“against the territorial integrity or political independence of any
member or state” with the declared purpose of spelling out “the
most typical form of aggression”21 concerning forceful change of
20. See Kellogg-Briand Pact, art. 1.
21. See Amendments to the Dumbarton Oaks Proposals Submitted on Behalf of Australia, U.N.
Doc. 2 G/14 (1) (May 5, 1945), in 3 UNITED NATIONS COMM. OF JURISTS, DOCUMENTS OF THE
UNITED NATIONS CONFERENCE ON INTERNATIONAL ORGANIZATION SAN FRANCISCO, 1945, at
543–53 (1945) (stating the Australian Proposal); see also HERBERT VERE EVATT, THE UNITED
NATIONS 18–20 (1948) (explaining the Australian proposal, stating that “[a]s a result of the [phrase
‘against the territorial integrity or political independence of any State’], any infringement by a Member
of [these principles] would involve a clear breach of the Charter. Thus the most typical form of
aggression would place the aggressor clearly in the wrong at the bar of the United Nations.”);
Verbatim Minutes of the Second Plenary Session, U.N. Doc. 20 P/6 (Apr. 28, 1945), in 1 UNITED
NATIONS COMM. OF JURISTS, supra, at 174 (further explanation by the Deputy Prime Minister of
Australia, Francis Forde, stating “The application of this principle should insure that no question
relating to a change of frontiers or an abrogation of a state’s independence could be decided other
912 VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 52:903
frontiers or of a state’s independence.22 The discussion also fully
dealt with jus ad bellum issues by reference to “aggression,” not
“armed attack.” Indeed, “aggression” has conventionally remained
the rubric under which countless international law scholars seek to
define unlawful use of force and the parameters of jus ad bellum.
Because, however, the English language version of Article 51,
added to the Charter in Committee 4 of Commission III (dealing
with Chapter VIII and regional uses of force), uses the language
“if an armed attack occurs,” and because arguably some
statements of the U.S. Delegation in the Committee III discussion
surrounding what became Article 51 can be interpreted as banning
“anticipatory defense” (even under the pre-Charter strict standards
for any such use of force), a minimalist interpretation of the
Charter has urged that the “armed attack” language in Article 51
both limited the right of defense and banned anticipatory
defense.23 Still, scholars increasingly have accepted that the proper
rubric for determining jus ad bellum is not “armed attack,” which is
never defined in the Charter, but rather the traditional “aggression
armée,” which is the phrase used in the equally authentic French
language version of Article 51.24 Moreover, today there is
than by peaceful negotiation. It should be made clear that if any state were to follow up a claim of
extended frontiers by using force or the threat of force, the claimant would be breaking a specific and
solemn obligation under the Charter.”). See generally 1–22 UNITED NATIONS COMM. OF JURISTS,
supra.
22. Critically, this prohibition also applies to de facto as well as de jure boundaries, as was evident,
for example, during the Korean and Falkland/Malvinas wars. Any other interpretation would expose
the world to countless wars over disputed islands and land and ocean boundaries.
23. See, e.g., THOMAS M. FRANCK, RECOURSE TO FORCE: STATE ACTION AGAINST THREATS
AND ARMED ATTACK 50 (2002); Tarcisio Gazzini, A Response to Amos Guiora: Pre-Emptive Self-Defence
Against Non-State Actors?, 13 J. CONFLICT & SEC. L. 25, 26–30 (2008); Mary Ellen O’Connell, The
Myth of Preemptive Self-Defense 16 (Am. Soc’y Int’l L. Task Force Paper, 2002), available at
http://www.asil.org/taskforce/oconnell.pdf.
24. Reasons supporting that the Charter did not limit the traditional right of individual and
collective defense despite the English language version of Article 51 include:
 The discussion in Committee 4 of Commission III concerning what became Article 51, as
well as the statements of the U.S. Delegation arguably addressing anticipatory defense,
were focused on the rights of regional arrangements, not on the use of force in general;
 The discussions in Commission I, Committee 1, which dealt with the general purposes and
principles of the UN Charter, including norms concerning use of force, show that the
right of defense remains unimpaired. This discussion in Committee 1 of Commission I,
focused on the broadest and most important questions of purposes and principles of the
Charter, would seem to trump that in Committee 4 of Commission III, which was focused
on rules for “regional arrangements” in Chapter VIII of the Charter;
 The broader U.S. view on use of force (rooted in no inhibition on the traditional right of
defense) was still being asserted, and accepted, on June 5 in Committee I(1) despite the
earlier May 14 apparently limiting discussion and language in Committee III (4). If there
was an intent to limit the right of defense generally by the “armed attack” language in the
English language version of Article 51 surely there would have been a discussion about
such restrictions in Commission I, which was the Commission charged globally with the
2012] JUS AD BELLUM 913
widespread acceptance of the right of anticipatory defense,
provided it meets the traditional strict “imminence of attack”
standard of the pre-Charter right of anticipatory defense.25 Most
importantly for an analysis of jus ad bellum law under the Charter,
while there is at least an arguable basis in the travaux and the
English language version of Article 51 for minimalists to argue
that anticipatory defense is no longer lawful, there is absolutely
nothing in the language or the travaux of the Charter suggesting
that the right of defense does not apply against the covert
aggression spectrum, including terrorist aggression directed from
non-state actors and indiscriminate mining of international
waterways. Nor is there any requirement in the Charter of a public
or written request from a victim of aggression to trigger a right of
participation in collective defense. Indeed, this latter restriction
would seem counter to the core of contemporary regional defense
arrangements such as the Rio26 and NATO Treaties,27 which by
their terms declare that an attack against one member is an attack
against all members. Actions in defense are required to be reported
to the Security Council, though there is no Charter requirement of
continuous reporting.28 Failure to report, sadly all too frequent, is
to miss one of the most important opportunities to alert the world
to an aggressive attack.
4. Lawful action pursuant to a regional arrangement. Such action,
under Chapter VIII of the Charter, by the strict language of the
Charter itself is lawful if it is “consistent with the Purposes and
Principles of the United Nations,”29 and is either not an
general jus ad bellum provisions of the Charter;
 There was no discussion reflecting an intent to write this discussion concerning regional
arrangements broadly into use of force norms when a procedural committee simply
moved Article 51 to Chapter VII from Chapter VIII;
 There is no definition given in the Charter of “armed attack” as would be expected were this
an important restriction on the traditional right of individual and collective defense;
 The equally authentic French language version of the Charter uses the traditional term
“aggression armée” in Article 51, rather than “armed attack”; and
 There is no evidence that the cryptic discussion in Commission III by members of the U.S.
Delegation, a discussion arguably supporting a limitation on the right of anticipatory
defense, was accepted as a proper interpretation by any other delegation. Indeed,
statements of the U.S. Delegation could not bind other delegations.
25. See, e.g., Chairman of the High-Level Panel on Threat, Challenge, and Change, A More Secure
World: One Shared Responsibility, U.N. Doc. A/59/565, at 54–55 (Dec. 2, 2004).
26. Inter-American Treaty of Reciprocal Assistance Between the United States of America and
Other American Republics, art. 3(1), Sept. 2, 1947, 62 Stat. 1681, 21 U.N.T.S. 77 (entered into force
Dec. 3, 1948) [hereinafter Rio Treaty].
27. North Atlantic Treaty, Art. 5, Apr. 4, 1949, 63 Stat. 2241, 34 U.N.T.S. 243 [hereinafter
NATO Treaty].
28. U.N. Charter art. 51.
29. Id. art. 52.
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“enforcement action,” or, if an “enforcement action” is authorized
by the Security Council,30 and, by an implicit purpose of regional
arrangements, the action is in relation only to a member state of
the regional arrangement.31 That is, the old Warsaw Pact, which
was a regional arrangement under Chapter VIII, did not grant
authorization to take any action concerning NATO nations
because the NATO nations were not members of the Warsaw
Pact. Additionally, the Arab League is not authorized to take any
action concerning Israel under this basis. Principal contemporary
regional arrangements would certainly include the Arab League,
NATO, the Rio Treaty, and the Organization of Eastern
Caribbean States (OECS — the English-speaking countries of the
Eastern Caribbean). Given the clarity under both the language and
the travaux of the Charter for this fourth basis for lawful use of
force, it remains puzzling why minimalist interpretations of the
Charter never mention this basis.
5. Use of force under the threshold of Article 2(4). Article 2(4), drafted
by Commission I (charged with the general global rules concerning
jus ad bellum), provides that “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.” This is the core prohibition in the UN Charter on use of
force, and the discussion in Committee 1 of Commission I makes
it clear that this is the provision understood by the framers as
governing the prohibition against aggression under the Charter.32
Thus, if a limited action such as protection of nationals or
humanitarian intervention is neither inconsistent with the
“Purposes of the United Nations” nor seeks to alter frontiers or
remove political independence of a state, it is not prohibited by the
language of Article 2(4). The core actions under this basis are, of
course, protection of nationals and humanitarian intervention.33
There is a robust long-term and continuing debate as to the
lawfulness of both protection of nationals and humanitarian
intervention, and I will not engage those debates at this point. It
should be noted, however, that many states have officially
recognized the right of protection of nationals under certain
30. Id. art. 53.
31. This is implicit in Article 52 and Chapter VIII of the Charter.
32. See 3 UNITED NATIONS COMM. OF JURISTS, supra note 21, at 35, 179, 237, 399, 454, 554–58,
582–88.
33. Note that both protection of nationals and humanitarian intervention can also be textually
argued under the Charter to be rooted in the right of individual and collective defense.
2012] JUS AD BELLUM 915
extreme threats to their nationals, and in the contemporary world,
at least the United Kingdom recognizes the lawfulness of
humanitarian intervention under appropriate conditions.34
Uses of force as a modality of major change in the international system
that do not fall under one of these five lawful bases are illegal aggression.
This is so whether the aggression takes place through open invasion of
tank armies across international boundaries, secret warfare, covert mining
of internationally privileged straits, or terrorism, whether committed by
state actors or non-state actors. The international law is so clear on the
illegality of these actions that it needs no citation here.
The use of force, to be lawful, must fall under one of these five bases.
But, in addition, jus ad bellum also requires that the action meet standards of
“necessity” and “proportionality.” Neither of these requirements is
textually spelled out in the Charter, indicating yet again that lawful use of
force cannot be simply assessed by “logic chopping” the Charter’s text.
But these requirements are generally understood to also apply to jus ad
bellum, and in a slightly different modality to jus in bello law as well. Because
of their general nature as basic principles, these concepts are particularly
subject to minimalist application in use of force decisions.
Necessity as a general proposition in jus ad bellum is best understood as a
prohibition against use of force except in protection of major values. And
proportionality as a general proposition in jus ad bellum is best understood
as a requirement that responding coercion must be limited in intensity and
magnitude to what is reasonably necessary to promptly secure the
permissible objectives of defense. Emphatically, proportionality in jus ad
bellum is not simply tit-for-tat application of equivalent force, such as ten
tanks to respond to an attack from ten tanks, or tit-for-tat measurement of
damages. Indeed, military doctrine calls for application of overwhelming
force, and history shows that failure to do so frequently results in much
higher casualties on all sides.35 As Myres McDougal and Florentino
Feliciano write in their seminal work on use of force law:
34. I, and many other scholars, have long recognized not only the lawfulness of protection of
nationals but also that of humanitarian intervention. For a classic debate on humanitarian
intervention, the Ian Brownlie/Richard Lillich exchange, see Ian Brownlie, Humanitarian Intervention,
in LAW & CIVIL WAR IN THE MODERN WORLD 217–28 (John Norton Moore ed., 1974; Richard B.
Lillich, Humanitarian Intervention: A Reply to Ian Brownlie and a Plea for Constructive Alternatives, in id. at
229–51; see also id. at 25. for my own long-standing support for humanitarian intervention.
Humanitarian intervention is not the same as the “right of protection,” which is limited to UNauthorized
use of force, as in the recent action in Libya.
35. Examples of failure to effectively respond with adequate force or effective strategy necessary
promptly to secure the permissible objectives of defense, with resulting higher casualties, include the
limited defensive responses from the United States in the Vietnam War and Israel in the Second
Lebanon War.
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[T]he requirements of necessity and proportionality . . . can
ultimately be subjected only to that most comprehensive and
fundamental test of all law, reasonableness in a particular context.
What remains to be stressed is that reasonableness in a particular
context does not mean arbitrariness in decision but in fact its exact
opposite, the disciplined ascription of policy import to varying
factors in appraising their operation and functional significance for
community goals in given instances of coercion.36
IV. PRINCIPAL USE OF FORCE DECISIONS OF THE INTERNATIONAL
COURT OF JUSTICE
This section will examine, in turn, the decisions of the International
Court of Justice in the 1949 Corfu Channel case, the 1986 Nicaragua case, the
2003 Iranian Platforms case, the 2004 Israeli Wall case, and the 2005 Congo
case.37 These are the primary ICJ cases that address jus ad bellum issues.
A. The Corfu Channel Case38
In 1946, the People’s Republic of Albania arranged for, or knew of, the
covert laying of a naval minefield of anchored automatic mines in the
North Corfu Channel, a strait used for international navigation.39 No
notice was given of the minefield as required by Hague Convention VIII
of 1907.40 Two British destroyers, the Saumarez and the Volage, struck
mines while transiting the strait on October 22, 1946.41 Subsequently, on
November 13, 1946, the British Navy swept the remaining mines from the
Channel.42 The United Kingdom then brought a legal action against
Albania in the ICJ. Albania urged that it had not been proved that Albania
laid the mines or knew of them, and countered that the United Kingdom
36. MYRES S. MCDOUGAL & FLORENTINO FELICIANO, LAW AND MINIMUM WORLD PUBLIC
ORDER: THE LEGAL REGULATION OF INTERNATIONAL COERCION 242 (1961).
37. Without greater knowledge of the complex factual context of the Congo case, this analysis will
only partially address the 2005 Case Concerning Armed Activities on the Territory of the Congo.
Certainly that decision is correct, however, that consent by a widely recognized government is a
lawful basis for use of force on the territory of the consenting state. And it is correct in accepting in
its analysis that certain guerrilla or insurgent cross-border attacks against a state that are directly or
indirectly supported by the state from which the attacks originate can create a right of defense in
response against that state. See Armed Activities on the Territory of the Congo (Dem. Rep. Congo v.
Uganda), Judgment, 2005 I.C.J. 168, ¶ 146 (Dec. 19).
This analysis of jus ad bellum issues before the International Court of Justice will not examine the
jurisdictional findings of the Court in these cases, findings that are particularly strained in the
Nicaragua and Iranian Platforms cases.
38. Corfu