PUBLIC INTERNATIONAL LAW II | LAW 3911

ASSIGNMENT 10 | WEEK 13 | USE OF FORCE |

PRESENTATION

PREPARED FOR : PROF. DR. ABDUL GHAFUR HAMID

SECTION :3

PREPARED BY : ADLY ZULFADHLY BIN ZULKEFLY (1428965)

NOR WAHIDAH BINTI MAT DAUD (1426668)

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FIRST ISSUE (WATERLAND)

The first issue arises is whether Waterland can be held liable for the breach of the prohibition
of the use of force under Article 2(4) of the United Nations Charter by launching a raid into
Xanadu?

First and foremost, after 1945, the law governing the prohibition of the use of force is United
Nations Charter. Under Article 2(4) of the Charter1, it provides that, “All members shall refrain in
their international relations from threat or use of force against the territorial integrity and
political independence of any state, or in any manner inconsistent with the Purposes of the United
Nations.” From the provision above, what is meant by the expression “force” is armed force, not
other forms of economic or political pressure, unless they constitute in the circumstances of a
particular case, a threat of force. The prohibition of the use of force is included both, the direct and
indirect use of force.

Based on the restrictive interpretation of Article 2(4), the provision lays down a total ban on the
unilateral use of force save only where explicit exceptions are made in the Charter itself. There are
only two legitimate uses of force expressly provided for in the Charter, namely the right of self-
defence under Article 512 and enforcement action under Chapter VII of the Charter.

As mentioned above, the armed attack can be direct or indirect armed attack. The direct armed
attack is that by a regular army of one State against the territory or against the land, sea or air
forces of another. According to General Assembly Definition of Aggression3, the direct armed
attack by a State may include; i) the invasion or attack by the armed forces of a State of the territory
of another State, ii) any military occupation however temporary, resulting from such invasion or
attack, or iii) bombardment by the armed forces of a State against the territory of another State or
the use of any weapons by a State against the territory of another State. It is to be noted that to be
deemed as an armed attack, the attack needs to be “of sufficient gravity” even the attack is done
the armed forces of a State.

1
Charter of the United Nations 1945
2
3
Definition of Aggression ,1974,Art 3(b)
 3

On the other hand, the indirect armed attack is an armed attack by non-State actors which is
attributable to a State. The indirect armed attack can be by sending of armed bands or irregulars
which carry out acts of armed forces against another State on a large scale. It is to be emphasized
here under this category of armed attack that for the attack to be classified as an armed attack, it
depends on its “scale and effects”.

In applying to the current case, the troops from Waterland have launched a raid into Xanadu where
in that particular raid, several militias were killed and Mr Brown was captured and taken back to
Waterland for interrogation. Based on the facts of the case, the raid is done by the troops from
Waterland where it can be obviously assumed that the troops are army of the state of Waterland.
Then the raid has resulted in death of several militias where on this point, on behalf of Waterland,
I argue that the raid cannot be considered as an armed attack either direct or indirect armed attack.
As mentioned above, the law provided that to be deemed as an armed attack under direct armed
attack, it must be “of sufficient gravity” which means that the use of force has to be of a certain
gravity to constitute an armed attack. In other words, the invasion or attack by the armed forces
of a State on the territory of another State must have a major effect and not merely a frontier
incident. The facts that only several militias were killed during the raid launches by the troops of
Waterland into Xanadu shows that the effect of the raid is not major and not of “sufficient gravity”,
thus the raid is not an armed attack as defined under Article 2(4) of the Charter.

Therefore, Waterland cannot be held liable for the breach of the prohibition of the use of force
under Article 2(4) of the United Nations Charter.
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SECOND ISSUE

The second issue arises is whether the act of Xanadu in launching a military operation against
Waterland is acting in lawful self-defence?

Article 2(4) of the United Nations Charter provided for the total ban of the unilateral use of force
unless in two situations as expressly stated by the Charter, ie acting in self-defence and for the
enforcement action under Chapter VII of the Charter. The right of self-defence is guaranteed under
Article 51 of the Charter. Under this Article, it stated that, “Nothing in the present Charter shall
impair the inherent right of individual and collective self-defence if an armed attack occurs against
a Member of the United Nations,…” For a self-defence to be considered as a lawful self-defence
as provided under Article 51, it must satisfy three essential elements; i) armed attack, ii) necessity,
and iii) proportionality.

Under the requirement of an “armed attack”, there are two schools of views, ie permissive school
and restrictive school. According to “permissive school”, Article 51 does not restrict the right of
self-defence to cases of armed attack only but the States have wider rights of self-defence permitted
by customary international law. On the other hand, the “restrictive school” is on the view that
Article 51 restricts the right of self-defence to cases of armed attack only. The provision in Article
51 clearly expresses that “if an armed attack occurs” shows that the meaning is very clear and
unambiguous where the natural and ordinary meaning of the phrase can be nothing less than
restriction of the right of self-defence to a case where there is an actual armed attack against a
State.

Besides, the phrase “if an armed attack occurs” also means that the armed attack must be in
progress or on-going. The word “occurs” indicates a very clear meaning that the armed attack must
have been commenced or ongoing. Also, the self-defence must be for the purpose of defence and
not to retaliate as retaliation for a prior completed attack is not self-defence but reprisal.

In terms of the target of an armed attack, the Charter provides that, “if an armed attack occurs
against a Member of the United Nations…” which obviously means the armed attack must be
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“against the State” or in other words, it must be against the territorial integrity and political
independence” of one State.

In the discussion under the first issue, it has been proven that the raid launched by the Waterland
troops is not an armed attack as defined under Article 2(4) of the Charter4, thus there is no an actual
armed attack taken place or occurs against Xanadu for it to be justified to exercise the right of self-
defence.

The second requirement for a lawful self-defence is the element of “necessity”. Under “necessity”,
there are three aspects of necessity in which the first aspect is the requirement to ascertaining
whether there is in fact an armed attack against it. The second aspect of necessity is that the State
attacked must not in the particular circumstances have had any means of halting the attack other
than recourse to armed force. The last aspect of necessity is “instancy” or “immediacy” where in
the Caroline incident, the court give remarks that “necessity of self-defence, instant,
overwhelming, leaving no choice of means, and no moment for deliberation”.

The element of necessity is also unsatisfied when all the three aspects of necessity are not fulfilled.
The facts that the military operation taken place after several weeks of the raid has made the
requirement of “immediacy” would not be satisfied. In Nicaragua case5, the court held that the
condition of “necessity” was not fulfilled when the United States began its collective defensive
measures many months after the alleged attack by Nicaragua on El Salvador has begun.

Last but not least, the last element is proportionality, in which it means that the defensive action
must be commensurate with and in proportion to the armed attack. Whether the response is
proportionate depends on the scale and effect of the attack and also the nature of the armed attack.

The element of proportionality is also unsatisfied when the military operation caused the deaths of
several hundred Waterland soldiers compared to the raid launched by the Waterland troops against
Xanadu, it just caused deaths to a small number of militias. Thus, it can be concluded that the
counter-attack made by Xanadu is not in proportionate with the attack done against it.

4
Charter of the United Nations
5
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States) (Merits) (1986) ICJ Rep
14
 6

Therefore, the act of Xanadu in launching a military operation against Waterland is not acting in
lawful self-defence as guaranteed under Article 51.

THIRD ISSUE

Whether the act of Rebozo in sending a group of mercenaries into Xanadu to plant bombs is
amounted to collective self-defence?

Under Article 51, it recognizes both individual and collective self-defence. The individual self-
defence refers to a situation where the State is the victim of an armed attack defends itself against
the attack. On the other hand, any Member of the United Nations can assist with its armed forces
the victim State against the aggressor where we called it as collective self-defence.

The requirements for a lawful collective self-defence are similar to individual self-defence where
the element of “armed attack”, necessity” and “proportionality” is required to be satisfied.
However, for collective there is one further requirement, that is there must be “request” by the
victim State to come to its assistance. The States can conclude collective self-defence treaties in
accordance with Article 51 for anticipation of future armed attack.

In distinguishing the law in the Rebozo’s case, the facts of the case shows that Rebozo upon
hearing of the rescue mission, had sent into Xanadu a group of mercenaries to plant bombs in town
centres of Xanadu. Rebozo in doing so claimed that it is acting in self-defence with Waterland but
the facts did not mentioned any requests made by Waterland for any assistance.

In order to determine whether the act of the State of Rebozo is amounted to collective self-defence,
the requirements under collective self-defence must be satisfied. Firstly, whether there is an armed
attack against Waterland? The act of Xanadu in launching a military operation against Waterland
amounts to an armed attack, thus the first requirement is fulfilled.

Secondly, whether there is “immediacy” or element of “necessity” for the self-defence to be

exercised. Rebozo acted to send mercenaries to plant bombs in town centres of Xanadu upon
hearing of the rescue mission. “Upon hearing of the rescue mission” can most probably mean that
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the rescue mission is still on-going and the armed attack by way of military operation to rescue Mr
Brown launched by Xanadu against Waterland has been commenced. Thus, the necessity to
exercise self-defence rises where there is no moment for deliberation.

Thirdly, whether the attack done by Rebozo is proportionate to the armed attack launched by
Xanadu against Waterland? The military operation conducted by Xanadu has caused several
hundred soldiers of Waterland died. The act of Rebozo in collective self-defence as claimed by
way of plant bombs in town centres of Xanadu can most probably cause deaths of several hundred
of citizens of Xanadu. Thus, the use of force by Rebozo can be said is proportionate to the armed
attack done by Xanadu against Waterland.

The last element is whether there is “request” by Waterland to Rebozo for collective self-defence?
As Rebozo is Xanadu’s northern neighbour as well as its long-time enemy, it can be assumed that
Waterland must have made some agreement with Rebozo to exercise collective self-defence for
anticipation of future armed attack.

Thus, all the four elements of collective self-defence are satisfied by Rebozo and it can be
concluded that the act of Rebozo in sending a group of mercenaries to town centre of Xanadu to
plant bombs is amounted to a lawful collective self-defence.

FOURTH ISSUE

The fourth issue is whether the act of Xanadu in launching a pre-emptive air strike on
Rebozo’s airfields upon hearing of the threatened invasion is amounted to anticipatory self-
defence?

Based on Caroline incident6, many Western writers are of the view that it is a classic precedent
of anticipatory self-defence. The Caroline incident even if it is accepted as formulated the right of

6
See the Caroline incident
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anticipatory self-defence, it would merely be a practice between two States, the US and Britain
and not other states. To be established as a rule of general customary international law, it must be
supported by; i) subsequent widespread, ii) consistent State practice, and iii) opinio jurist. The
right of anticipatory self-defence as claim to be established lacks support by the post-UN Charter
State practice. Out of 192 Members States of the United Nations, only one State, Israel openly
invoked the right of anticipatory self-defence. Thus, it cannot be concluded that anticipatory self-
defence is a rule of general customary international law as the practice of State does not in favour
of it.

Besides, article 2(4) of the Charter prohibited the use of force and the only legitimate uses of force
are by acting in self-defence and for the enforcement action. The prohibition of the unilateral use
of force under Article 2(4) has been universally accepted as a rule of jus cogens where any treaty
or customary law that is contrary to a rule of jus cogens is null and void and without any legal
effect. As far as self-defence is concerned, the provision of Article 51 which provides that “if an
armed attack occurs” is to mean that for the self-defence to be lawfully exercised, there must be
an actual armed attack. The provision has once and for all abolished the possibility of preventive
action in self-defence, thus the anticipatory self-defence is not accepted as lawful.

FIRST ISSUE (XANADU)

The first issue arises is whether Waterland can be held liable for the breach of the prohibition
of the use of force under Article 2(4) of the United Nations Charter by launching a raid into
Xanadu?

First and foremost, after 1945, the law governing the prohibition of the use of force is United
Nations Charter. Under Article 2(4) of the Charter, it provides that, “All members shall refrain in
 9

their international relations from threat or use of force against the territorial integrity and
political independence of any state, or in any manner inconsistent with the Purposes of the United
Nations.” From the provision above, what is meant by the expression “force” is armed force, not
other forms of economic or political pressure, unless they constitute in the circumstances of a
particular case, a threat of force. The prohibition of the use of force is included both, the direct and
indirect use of force.

Based on the permissive interpretation of Article 2(4)7, the provision lays down a total ban on the
unilateral use of force save only where explicit exceptions are made in the Charter itself. There are
only two legitimate uses of force expressly provided for in the Charter, namely the right of self-
defence under Article 51 and enforcement action under Chapter VII of the Charter.

As mentioned above, the armed attack can be direct or indirect armed attack. The direct armed
attack is that by a regular army of one State against the territory or against the land, sea or air
forces of another. According to General Assembly Definition of Aggression, the direct armed
attack by a State may include; i) the invasion or attack by the armed forces of a State of the territory
of another State, ii) any military occupation however temporary, resulting from such invasion or
attack, or iii) bombardment by the armed forces of a State against the territory of another State or
the use of any weapons by a State against the territory of another State8. It is to be noted that to be
deemed as an armed attack, the attack needs to be “of sufficient gravity” even the attack is done
by the armed forces of a State.

In applying to the current case, the troops from Waterland have launched a raid into Xanadu where
in that particular raid, militias were killed and Mr Brown was captured and taken back to Waterland
for interrogation. Based on the facts of the case, the raid is done by the troops from Waterland
where it can be obviously assumed that the troops are army of the state of Waterland. Then the
raid has resulted in death of several militias where on this point, the State of Xanadu argued that
the raid need to be considered as an armed attack which is a direct armed attack. As mentioned
above, the law provided that to be deemed as an armed attack under direct armed attack, it must
be “of sufficient gravity” which means that the use of force has to be of a certain gravity to
constitute an armed attack. In other words, the invasion or attack by the armed forces of a State

7
Charter of the United Nations 1945
8
Abdul Ghafur Hamid, Public International Law : A Practical Approach ,3rd edn (Sweet & Maxwell Asia ,2014), p.409
 10

on the territory of another State must have a major effect to the affected State. The facts that the
militias whom are killed are the citizens of Xanadu during the raid launches by the troops of
Waterland and also the capture of Mr. Brown who is a key figure in the State of Xanadu shows
that the effect of the raid is major and of “sufficient gravity”, thus the raid is an armed attack as
defined under Article 2(4) of the Charter.

Therefore, Waterland should be held liable for the breach of the prohibition of the use of force
under Article 2(4) of the United Nations Charter.

SECOND ISSUE

The second issue arises is whether the act of Xanadu in launching a military operation against
Waterland is acting in lawful self-defence?

Article 2(4) of the United Nations Charter provided for the total ban of the unilateral use of force
unless in two situations as expressly stated by the Charter, ie acting in self-defence and for the
enforcement action under Chapter VII of the Charter. The right of self-defence is guaranteed under
Article 51 of the Charter9. Under this Article, it stated that, “Nothing in the present Charter shall
impair the inherent right of individual and collective self-defence if an armed attack occurs against
a Member of the United Nations,…” For a self-defence to be considered as a lawful self-defence
as provided under Article 51, it must satisfy three essential elements; i) armed attack, ii) necessity,
and iii) proportionality.

Under the requirement of an “armed attack”, there are two schools of views, ie permissive school
and restrictive school. According to “permissive school”, Article 51 does not restrict the right of
self-defence to cases of armed attack only but the States have wider rights of self-defence permitted

9
Charter of the United Nations 1945
 11

by customary international law. On the other hand, the “restrictive school” is on the view that
Article 51 restricts the right of self-defence to cases of armed attack only. The provision in Article
51 clearly expresses that “if an armed attack occurs” shows that the meaning is very clear and
unambiguous where the natural and ordinary meaning of the phrase can be nothing less than
restriction of the right of self-defence to a case where there is an actual armed attack against a
State.

Besides, the phrase “if an armed attack occurs” also means that the armed attack must be in
progress or on-going. The word “occurs” indicates a very clear meaning that the armed attack must
have been commenced or ongoing. Also, the self-defence must be for the purpose of defence and
not to retaliate as retaliation for a prior completed attack is not self-defence but reprisal. But , some
jurists argued that in practice States are allowed an amount of time to initiate their defensive
action10.Such argument was supported by the facts where in the event of conflict happened in 1982
in regards of the Falkland Islands between Argentina and the UK, UK has used their right to self
defence for some time to prepare their counter attack after the first attack made by Argentina11

In terms of the target of an armed attack, the Charter provides that, “if an armed attack occurs
against a Member of the United Nations…” which obviously means the armed attack must be
“against the State” or in other words, it must be against the territorial integrity and political
independence” of one State.

In the discussion under the first issue, it has been proven that the raid launched by the Waterland
troops is indeed an armed attack as defined under Article 2(4) of the Charter, thus there is an actual
armed attack taken place or occurs against Xanadu to exercise their right of self-defence.

The second requirement for a lawful self-defence is the element of “necessity”. Under “necessity”,
there are three aspects of necessity in which the first aspect is the requirement to ascertaining
whether there is in fact an armed attack against it. The second aspect of necessity is that the State
attacked must not in the particular circumstances have had any means of halting the attack other
than recourse to armed force. The last aspect of necessity is “instancy” or “immediacy” where in

10
Judith Gardam,Necessity, Proportionality and the Use of Force by States (Cambridge:Cambridge University
Press,2004), pp 150-51
11
See Abdul Ghafur Hamid , n 7 above, p 414
 12

the Caroline incident12, the court give remarks that “necessity of self-defence, instant,
overwhelming, leaving no choice of means, and no moment for deliberation”.

The element of necessity has been satisfied when all the three aspects of necessity have been
fulfilled. The facts that the military operation taken place after several weeks of the raid has made
the requirement of “immediacy” have been satisfied as in the case of Falkland Islands where the
UK has buy out some time to prepare for their counter attack. Last but not least, the last element
is proportionality, in which it means that the defensive action must be commensurate with and in
proportion to the armed attack. Whether the response is proportionate depends on the scale and
effect of the attack and also the nature of the armed attack.

The element of “proportionality” have been satisfied when the military operation caused the deaths
of several hundred Waterland soldiers to the raid launched by the Waterland troops against
Xanadu, it which caused deaths of militias and the capture of Mr. Brown. Moreover,the main thing
is that when large armed formation of an aggressor State cause an invasion or raid without the
consent of the victim Government, it is considered to be an armed attack. Thus, it can be concluded
that the counter-attack made by Xanadu is indeed proportionate with the attack done against it.

Therefore, the act of Xanadu in launching a military operation against Waterland is acting in lawful
self-defence as guaranteed under Article 51.

THIRD ISSUE

Whether the act of Rebozo in sending a group of mercenaries into Xanadu to plant bombs is
amounted to collective self-defence?

Under Article 51, it recognizes both individual and collective self-defence. The individual self-
defence refers to a situation where the State is the victim of an armed attack defends itself against

12
The Caroline incident ,29 British and Foreign State Papers 1137-1138
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the attack. On the other hand, any Member of the United Nations can assist with its armed forces
the victim State against the aggressor where we called it as collective self-defence.

The requirements for a lawful collective self-defence are similar to individual self-defence where
the element of “armed attack”, necessity” and “proportionality” is required to be satisfied.
However, for collective there is one further requirement, that is there must be “request” by the
victim State to come to its assistance. The States can conclude collective self-defence treaties in
accordance with Article 5113 for anticipation of future armed attack.

In applying the law in the Rebozo’s case, the facts of the case shows that Rebozo upon hearing of
the rescue mission, had sent into Xanadu a group of mercenaries to plant bombs in town centres
of Xanadu. Rebozo in doing so claimed that it is acting in self-defence with Waterland.

FOURTH ISSUE

The fourth issue is whether the act of Xanadu in launching a pre-emptive air strike on
Rebozo’s airfields upon hearing of the threatened invasion is amounted to anticipatory self-
defence?

Based on Caroline incident, many Western writers are of the view that it is a classic precedent of
anticipatory self-defence. The Caroline incident even if it is accepted as formulated the right of
anticipatory self-defence, it would merely be a practice between two States, the US and Britain
and not other states. To be established as a rule of general customary international law, it must be
supported by; i) subsequent widespread, ii) consistent State practice, and iii) opinio jurist. The
right of anticipatory self-defence as claim to be established lacks support by the post-UN Charter
State practice. Out of 192 Members States of the United Nations, only one State, Israel openly
invoked the right of anticipatory self-defence. Thus, it cannot be concluded that anticipatory self-
defence is a rule of general customary international law as the practice of State does not in favour
of it.

13
Charter of the United Nations
 14

Besides, article 2(4) of the Charter prohibited the use of force and the only legitimate uses of force
are by acting in self-defence and for the enforcement action. The prohibition of the unilateral use
of force under Article 2(4) has been universally accepted as a rule of jus cogens where any treaty
or customary law that is contrary to a rule of jus cogens is null and void and without any legal
effect. As far as self-defence is concerned, the provision of Article 51 which provides that “if an
armed attack occurs” is to mean that for the self-defence to be lawfully exercised, there must be
an actual armed attack. The provision has once and for all abolished the possibility of preventive
action in self-defence, thus the anticipatory self-defence is not accepted as lawful.

In applying to the Xanadu’s case, Xanadu launches a pre-emptive air strike on Rebozo’s airfields
after hearing of the threatened invasion declared by Rebozo. The act of launching the pre-emptive
air strike into Rebozo when there is a clear actual armed attack, where Rebozo has planted bombs
around Xanadu town centres is indeed a clear action of self defence.Under this regard, Nagendra
Singh has opined that such action can be determined as the beginning of an armed attack whereby
although the trigger of the bomb have not been pressed but if there is a definite intention made by
the aggressor party to launch an armed attack is made against it is sufficient to conclude that
Xanadu’s act is actually amounted to self-defence which is accepted as lawful by the United
Nations14.

14
Nagendra Singh,”The Right of Self Defence in Relation to the Use of Nuclear Weapons”(1965)5 Indian YBIL p 3