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i
A Case-based Approach
Edited by
TOM RU YS
and
OL I V I E R C ORT E N
Assistant Editor
A L E X A N DR A HOF E R
1
iv
1
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
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© The Several Contributors 2018
The moral rights of the authors have been asserted
First Edition published in 2018
Impression: 1
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You must not circulate this work in any other form
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and the Queen’s Printer for Scotland
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Links to third party websites are provided by Oxford in good faith and
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contained in any third party website referenced in this work.
v
Table of Contents
List of Contributors ix
PA RT 1. T H E C OL D WA R E R A (19 4 5 –8 9)
3. The Korean War—1950–53 17
Nigel D White
4. The Suez Crisis—1956 36
Alexandra Hofer
5. The Soviet Intervention in Hungary—1956 48
Eliav Lieblich
6. The U-2 Incident—1960 67
Ki-Gab Park
7. The Belgian Intervention in the Congo—1960 and 1964 76
Robert Kolb
8. The Indian Intervention in Goa—1961 85
Tom Ruys
9. The Cuban Missile Crisis—1962 97
Alexander Orakhelashvili
10. The Gulf of Tonkin Incident—1964 108
Douglas Guilfoyle
11. The US Intervention in the Dominican Republic—1965 118
Christian Walter
12. The Six Day War—1967 131
John Quigley
13. The Intervention in Czechoslovakia—1968 143
Gerhard Hafner
14. The USS Pueblo Incident—1968 158
Wolff Heintschel von Heinegg
15. The Indian Intervention into (East) Pakistan—1971 169
Dino Kritsiotis
16. The Yom Kippur War—1973 189
François Dubuisson and Vaios Koutroulis
17. Turkey’s Intervention in Cyprus—1974 201
Oliver Dörr
vi
vi Table of Contents
PA RT 2 . T H E P O S T- C OL D WA R E R A (19 9 0 –2 0 0 0)
37. The ECOWAS Intervention in Liberia—1990–97 441
Ugo Villani
38. The Gulf War—1990–91 456
Erika de Wet
vi
39. Intervention in Iraq’s Kurdish Region and the Creation of the No-Fly
Zones in Northern and Southern Iraq—1991–2003 469
Tarcisio Gazzini
40. The Intervention in Somalia—1992–95 482
Terry D Gill and Kinga Tibori-Szabó
41. The Intervention in Bosnia and Herzegovina—1992–95 495
Pierre Klein
42. The US Airstrike Against the Iraqi Intelligence Headquarters—1993 504
Paulina Starski
43. The ECOWAS Intervention in Sierra Leone—1997–99 527
Susan Breau
44. The US Strikes in Sudan and Afghanistan—1998 541
Enzo Cannizzaro and Aurora Rasi
45. The Eritrean–Ethiopian War—1998–2000 552
Sean D Murphy
46. The Great African War and the Intervention by Uganda and Rwanda in the
Democratic Republic of Congo—1998–2003 575
James A Green
47. The Kosovo Crisis—1999 594
Daniel Franchini and Antonios Tzanakopoulos
Index 933
ix
List of Contributors
x List of Contributors
List of Contributors xi
Alexander Orakhelashvili
Senior Lecturer, Law School, Birmingham University, United
Kingdom.
Ki-Gab Park Professor, Korea University, Seoul.
Mónica Pinto Professor of International Law and of Human Rights, Former Dean of the School
of Law (Facultad de Derecho), University of Buenos Aires (Universidad de Buenos Aires).
Erin Pobjie Research fellow and doctoral candidate, Institute for International Peace and
Security Law at the University of Cologne.
John Quigley Professor Emeritus, Moritz College of Law, The Ohio State University.
Aurora Rasi Research fellow in International Law and European Union Law, Sapienza University
of Rome.
Theresa Reinold PhD (Tuebingen University). Junior professor of Global and Transnational
Cooperation Research at the University Duisburg-Essen.
Natalino Ronzitti Emeritus Professor of International Law, LUISS University in Rome, Member
of the Institut de Droit International.
Tom Ruys Professor of International Law, Ghent University.
Paulina Starski Dr, LLB, Senior Research Fellow, Max Planck Institute for Comparative Public
Law and International Law, Heidelberg and Postdoctoral Research Fellow at Bucerius Law School,
Hamburg.
Christian J Tams Professor of International Law, University of Glasgow and Academic Member,
Matrix Chambers.
Kinga Tibori-Szabó PhD (University of Amsterdam). Kosovo Specialist Chambers and
University of Amsterdam.
Dire Tladi Professor, University of Pretoria. Member of the ILC (2012–17).
Kimberley N Trapp Senior Lecturer in Public International Law, UCL Faculty of Laws.
Nicholas Tsagourias Professor of International Law, University of Sheffield.
Antonios Tzanakopoulos Associate Professor of Public International Law, University of Oxford;
Fellow, St Anne’s College, Oxford.
Raphäel van Steenberghe Professor, University of Louvain (ULC), Research Associate, Belgian
National Fund for Scientific Research (FNRS).
Agatha Verdebout PhD (ULB). Researcher, Centre de Droit International, Université Libre de
Bruxelles (ULB).
Ugo Villani Professor Emeritus, University of Bari.
Christian Walter Professor, Chair of Public International Law and Public Law, LMU Munich.
Marc Weller Professor of International Law and International Constitutional Studies in the
University of Cambridge; Director of the Lauterpacht Centre for International Law.
Nigel D White
Professor of Public International Law, University of Nottingham, United
Kingdom.
Myra Williamson Associate Professor of Law, Kuwait International Law School.
Michael Wood Barrister at 20 Essex Street, London; Member of the UN International Law
Commission; Senior Fellow of the Lauterpacht Centre for International Law, University of
Cambridge.
Alison See Ying Xiu LLB (London School of Economics) and LLM (International Legal Studies,
NYU); Research Assistant at the ILC in 2016.
xi
1
1
Introduction: The Jus Contra Bellum and
the Power of Precedent
Tom Ruys, Olivier Corten, and Alexandra Hofer
The international law on the use of force, also known under its Latin epithet of jus ad
bellum, or, perhaps more accurately, jus contra bellum, is one of the oldest branches of
international law. Its emergence is closely intertwined with the birth of international law
itself. More than any other domain of international law, it is an area where law and power
politics collide. Notwithstanding the International Court of Justice’s bold assertion that
there exists ‘general agreement’1 as to what constitutes an ‘armed attack’ for purposes of
triggering the right of self-defence, and notwithstanding the reaffirmation in the 2005
World Summit Outcome that the Charter provisions on the use of force ‘are sufficient to
address the full range of threats to international peace and security’,2 it is no secret that
the interpretation and application of the jus contra bellum has given rise to, and continues
to give rise to, fierce debates and disagreement among legal scholars and, more impor
tantly, among states. A closer look at legal doctrine reveals that different views on the
interpretation of the rules governing the use of force between states often reflect different
underlying methodological approaches (with authors according different weight, for in-
stance, to ‘physical’ or ‘verbal’ state practice).3 In light hereof, some have created labels,
seeking to distinguish between ‘restrictionists’ and ‘expansionists’, between ‘bright-liners’
and ‘balancers’, or between ‘purists’ and ‘eclectics’ (sometimes even categorizing scholars
accordingly).4 More imperceptibly, when dealing with the law on the use of force, mem-
bers of the ‘invisible college of international laywers’ often find it difficult to set aside their
own values, allegiances, and perceptions of what is ‘fair’ in international relations.5
At the same time, a common thread in legal doctrine is the importance attached to
previous precedents to interpret the jus contra bellum. The power of precedent is not
limited to legal doctrine, but is also recognized by states themselves, as can be inferred
from numerous Security Council debates. Reliance on precedent—understood here as
referring not to judicial precedents, but rather to precedents from state practice and their
reception at the international level (or, what Michael Reisman would call ‘international
1 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep
1986 14, [195].
2 2005 World Summit Outcome, UNGA Res 60/1 (24 October 2005) UN Doc A/R ES/60/1, [79].
3 Further: Olivier Corten, ‘The Controversies Over the Customary Prohibition on the Use of Force: A
Methodological Debate’ (2005) 16 European Journal of International Law 803–22; Olivier Corten, ‘Breach and
Evolution of Customary International Law on the Use of Force’, in Enzo Cannizzaro and Paolo Palchetti (eds),
Customary International Law on the Use of Force: A Methodological Approach (Nijhoff 2005) 119–4 4; Tom
Ruys, ‘Armed Attack’ and Article 51 of the UN Charter: Evolutions in Customary Law and Practice (Cambridge
University Press 2010) 29–52.
4 See, eg, Matthew C Waxman, ‘Regulating Resort to Force: Form and Substance of the UN Charter Regime’
(2013) 24 European Journal of International Law 151–89; Tom Farer, ‘Can the United States Violently Punish
the Assad Regime? Competing Visions (Including that of Anthony D’Amato) of the Applicable International
Law’ (2014) 108 American Journal of International Law 701–15. See also the contributions by Kammerhofer, De
Hoogh, and van Steenberghe in the Leiden Journal of International Law, Issue (2016) 29:1.
5 Ruys (n 3) 514.
2
6 W Michael Reisman, ‘The Incident as a Decisional Unit in International Law’ (1984) 10 Yale Journal of
International Law 1–20.
7 Nicaragua (n 1) [186]: ‘If a State acts in a way prima facie incompatible with a recognized rule, but defends
it conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the
State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to
weaken the rule.’
3
Introduction 3
academic articles in various international law journals, but also for many other, if some-
what less ‘high-profile’, incidents, such as the Belgian operation in Stanleyville, Congo in
1964 or the Ethiopian intervention in Somalia.8 Entire monographs have even been de-
voted to some cases.9 Furthermore, various monographs exist of course, whether general
jus contra bellum handbooks or more thematically focused works, that touch upon a large
number of cases within a single volume.10
However, the distinguishing features of the present volume are twofold. First, to the
editors’ knowledge, this is the first attempt to systematically bring together the main jus
contra bellum precedents since 1945 into a single work of reference,11 including more-
over various cases that have largely escaped from academic attention (such as the Turkish
intervention in northern Iraq in 2007–08 or the killing by Israeli commandos of Khalil
al-Wazir in Tunis in 1988).
Second, in order to ensure consistency and transparency, and to maximize the value of
the volume as a work of reference, all case studies follow a common approach. Specifically,
every chapter starts with a brief overview of the factual background and the political con-
text against which the case is set. Subsequently, the chapters detail the exchange of legal
arguments and counter-arguments, by identifying the positions taken by the protagonists
involved in the cross-border use of force concerned as well as the reactions from third
states and international organizations. The third and fourth sections of each chapter are
devoted respectively to the appraisal of the legality of the incident/operation concerned,
and to an appraisal of the broader implications of the precedent (or lack thereof) for the
evolution of the international law on the use of force. As editors, we have tried to steer
clear from influencing the substantive analyses of the contributing authors on contro-
versial jus contra bellum issues (issues on which the editors themselves at times hold con-
flicting views). Yet, we have insisted—perhaps somewhat obsessively—t hat authors rigidly
respect the abovementioned template. Furthermore, as far as the legality assessment is
concerned, we have urged the authors to not only provide their personal legal assessment
of the case, but to adopt—inasmuch as possible—a broader perspective and to examine
how legal doctrine in general has assessed the legality and the broader legal ramifications
of each case, while, where appropriate, clearly identifying personal views as such. Thus,
while academic articles focusing on specific incidents at times tend to primarily reflect the
author’s appraisal of the legality of the intervention concerned, the approach chosen here
8 See, eg, Alain Gérard, ‘L’opération Stanleyville-Paulis devant le parlement belge et les Nations Unies’
(1967) Revue belge de droit international 242; Olivier Corten, ‘La licéité douteuse de l’action militaire de
l’Ethiopie en Somalie et ses implication sur l’argument de l’“intervention consentie”’ (2007) 111 Revue générale
de droit international public 513.
9 See, eg, John Quigley, The Six-Day War and Israeli Self-Defense (CUP 2013).
10 See, by way of illustration, Christine Gray, International Law and the Use of Force (3rd edn, OUP 2008);
Yoram Dinstein, War, Aggression and Self-Defence (5th edn, CUP 2011); Thomas M Franck, Recourse to
Force: State Action Against Threats and Armed Attacks (CUP 2002); Olivier Corten, Le droit contre la guerre:
L’interdiction du recours à la force en droit international contemporain (2nd edn, Pedone 2014); The Law
against War (Hart Publishing 2010); Mary Ellen O’Connell, International Law and the Use of Force, Cases
and Materials (2nd edn, Foundation Press 2008); Noam Lubell, Extraterritorial Use of Force against Non-State
Actors (OUP 2010); Michael Scholz, Staatliches Selbstverteidigungsrecht gegen terroristische Gewalt (Duncker
& Humblot 2006); Christiane Wandscher, Internationaler Terrorismus und Selbstverteidigungsrecht (Duncker
& Humblot 2006); Nyamuya Maogoto, Battling Terrorism: Legal Perspectives on the Use of Force and the War
on Terror (Ashgate 2005); Kinga J Tibori-Szabó, Anticipatory Action in Self-Defence: Essence and Limits under
International Law (TMC Asser Press 2011); Arthur R Kreutzer, Preemptive Self-Defense: Die Bush-Doktrin und
das Völkerrecht (M Press 2004); Tom Ruys, ‘Armed Attack’ and Article 51 of the UN Charter (CUP 2010); Linos-
Alexandre Sicilianos, Les réactions décentralisées à l’illicite: des contre-mesures à la légitime défense (Librairie
générale de droit et de jurisprudence 1990).
11 To our knowledge, the only work that shares some resemblance in this respect is Mark Weisburd’s Use of
Force: The Practice of States Since World War II (Pennsylvania State University Press 1997).
4
has sought to ensure that the case studies provide a balanced appraisal of the legality of the
incidents (reflecting opposite views where appropriate) and of the precedent’s place and
relevance in the realm of the jus contra bellum.
We are deeply grateful to all of the authors for integrating the abovementioned approach
into their respective chapters (and apologize for any nuisance caused along the way). We
believe it has contributed to largely achieving the stated objective and to establishing the
value of this volume as a work of reference for legal scholars, practitioners, and civil ser-
vants alike. We can only hope the reader will agree.
5
2
The Caroline Incident—1837
Michael Wood
1 Citations in these early paragraphs are taken from the correspondence reproduced in section II below.
2 (1837–38) 26 British and Foreign State Papers (BFSP) 1372–77; (1837–38) 29 BFSP 1126–42; 30 BFSP 82–99;
see also John Bassett Moore, Digest of International Law vol 1, 681.
3 See, among many, R Y Jennings, ‘The Caroline and McLeod Cases’ (1938) 32 American Journal of
International Law 82; Jaroslav Žourek, ‘La notion de légitime defense. Aperçu historique et principaux aspects
du problème’ Rapport provisoire (1975) 56 Annuaire de l’Institut de Droit International (Session de Wiesbaden)
52; K R Stevens, Border Diplomacy: The Caroline and McLeod Affairs in Anglo-American-Canadian Relations,
1837–1842 (University of Alabama Press 1989); Martin A Rogoff and Edward Collins, ‘The Caroline Incident
and the Development of International Law’ (1990) Brooklyn Journal of International Law 493; Abraham Sofaer,
‘On the Necessity of Pre-emption’ (2003) 14 European Journal of International Law 209; Michael C Wood,
‘Nécessité et légitime défense dans la lutte contre le terrorisme: quelle est la pertinence de l’affaire de la Caroline
aujourd’hui?’ in Hubert Thierry and Jean-Pierre Quéneudec (eds), Société française pour le droit international,
Colloque de Grenoble, La Nécessité en droit international (Pedone 2007); Christopher Greenwood, ‘Caroline,
The’ in Rudiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (2012); Andrew Clapham,
Brierly’s Law of Nations (7th edn, OUP 2012) 468–71.
4 The facts, such as they are, are well described by, among others, Jennings (n 3) and Sofaer (n 3). An Ontario
Archaeological and Historical Sites Board plaque reads thus: ‘On the night of December 29–30, 1837, some 60
volunteers acting on the orders of Col. Allan Napier MacNab, and commanded by Capt. Andrew Drew, R.N.,
set out from Chippawa in small boats to capture the American steamer “Caroline”. That vessel, which had been
supplying William Lyon Mackenzie’s rebel forces on Navy Island, was moored at Fort Schlosser, N.Y. There she
was boarded by Drew’s men, her crew killed or driven ashore, and after an unsuccessful attempt to start the en-
gines, her captors set the ship afire and left her to sink in the Niagara River. This action almost precipitated war
between Britain and the United States.’ <http://ontarioplaques.com/Plaques/Plaque_ Niagara59.html>.
6
6 Michael Wood
persons died on the night of 29/30 December 1837 (Amos Durfee, and a cabin boy, known
as ‘little Billy’).
The incident took place in the context of a difficult period in British–American rela-
tions, not long after the War of 1812.5 There was an ongoing rebellion in Upper Canada
(now Ontario), then a British colony, with some calling (in vain) for it to declare inde-
pendence from Great Britain and establish a ‘Republic of Canada’. American citizens were
aiding and assisting the Canadian rebels with arms and men from the American side of
the border. In mid-December 1837, two rebel leaders, McKenzie and Rolfe, held public
meetings in Buffalo, New York, seeking men, as well as arms and ammunition which were
collected at the Eagle tavern. On 13 December 1837, some of the rebels and recruits estab-
lished themselves on Navy Island, a small island within Ontario just above the Niagara
Falls,6 where they were supplied from the American shore by a small vessel known as The
Caroline. On the night of 29/30 December 1837, British–Canadian militia set off to cap-
ture The Caroline. Finding that it had left Navy Island they traced it to Schlosser on the
American shore, whereupon they disembarked the crew and passengers, killing in the
process Amos Durfee and possibly the cabin boy. They then set fire to the vessel, dragged
it into the channel of the Niagara River, and cast it loose over the Falls.
Reports of the number of missing and dead were greatly exaggerated, and Amos
Durfee’s body was displayed at a tavern in Buffalo, all of which caused ‘great excitement’
and ‘some degree of commotion’. A first exchange of Notes took place between the United
States and Great Britain in early January 1838. However, the matter would probably not
have been taken further if it had not been for the arrest of Alexander McLeod in New York
in 1841. As summarized by Jennings, ‘[i]n 1841 the condition of Anglo-American relations
was such that the desultory correspondence must be replaced by a determined effort for
a peace settlement if war was to be averted’.7 Lord Ashburton was sent to Washington as
special Minister and further and decisive correspondence then took place.
McLeod’s arrest and subsequent trial raised the issue of the immunity for official acts
of members of foreign armed forces. The United States was not, however, able to prevent
the trial going ahead. Following his acquittal by the jury (which—after just 20 minutes
retirement—found he had not been present on the night), McLeod eventually brought a
claim against the United States, before a US–UK General Claims Commission, for com-
pensation for the undue period he was detained; the claim was disposed of in 1854–55,
when the Umpire found that it had been settled by the two governments in 1841–42 and
was thus outside the jurisdiction of the Commission.8 The UK Government then gave
McLeod a substantial annual pension.
5 A B Corey, The Crisis of 1830–1842 in Canadian-American Relations (Yale University Press 1941); Howard
Jones, To the Webster-Ashburton Treaty: A Study in Anglo-American Relations, 1783–1843 (University of North
Carolina Press 1977).
6 In 1945, an ‘international committee’ proposed that the headquarters of the United Nations should be
located on Navy Island: see International Committee to promote Navy Island as permanent headquarters for
the United Nations, Proposed United Nations Headquarters, Navy Island at Niagara Falls on the International
Boundary between Canada and the United States (Baker, Jones, Hausauer, Inc 1945).
7 Jennings (n 3) 88. 8 Jennings (n 3) 96–99.
7
essentially on the facts’.9 The legal arguments are well set out in advice from the British law
officers,10 and especially in correspondence between the two governments,11 which were
essentially of the same mind as to the law, so much so that the key ‘Webster formula’ was
repeated no less than three times.
It is worth citing at some length the correspondence between US Secretary of State,
Daniel Webster, and the British representatives in Washington (resident Minister, Fox,
and special Minister, Lord Ashburton, charged with negotiating an agreement on the
north-eastern boundary and other outstanding matters, including the Caroline and
McLeod cases), so as to appreciate the context in which the Webster formula was used and
repeated.
Secretary of State Daniel Webster sent a Note to the British Minister in Washington, Mr
Fox, on 24 April 1841. The Note is lengthy, but deserves to be read in full to understand
the context of the frequently cited passage (which is highlighted below). The key passages
are reproduced here:
The Undersigned has now to signify to Mr Fox that the Government of the United States has
not changed the opinion which it has heretofore expressed to Her Majesty’s Government, of
the character of the act of destroying the ‘Caroline’. It does not think that that transaction can
be justified by any reasonable application or construction of the right of self-defence under
the laws of nations. It is admitted that a just right of self-defence attaches always to nations, as
well as to individuals, and is equally necessary for the preservation of both. But the extent of
this right is a question to be judged of by the circumstances of each particular case; and when
its alleged exercise has led to the commission of hostile acts, within the territory of a power
at peace, nothing less than a clear and absolute necessity can afford ground of justification . . .
That on a line of frontier, such as separates the United States from Her Britannic Majesty’s
North American Provinces, a line long enough to divide the whole of Europe into halves, ir-
regularities, violences, and conflicts should sometimes occur, equally against the will of both
Governments, is certainly easily to be supposed. This may be more possible, perhaps, in regard
to the United States, without any reproach to their Government, since their institutions en-
tirely discourage the keeping up of large standing armies in time of peace, and their situation
happily exempts them from the necessity of maintaining such expensive and dangerous estab-
lishments. All that can be expected, from either Government in these cases, is good faith, a
sincere desire to preserve peace and do justice, the use of all proper means of prevention, and,
that if offenses cannot, nevertheless, be always prevented, the offenders shall still be justly
punished. In all these respects, this Government acknowledges no delinquency in the per-
formance of its duties . . .
This Government, therefore, not only holds itself above reproach in every thing respecting
the preservation of neutrality, the observance of the principle of non-intervention, and the
strictest conformity, in these respects, to the rules of international law, but it doubts not that
the world will do it the justice to acknowledge that it has set an example, not unfit to be fol-
lowed by others, and that by its steady legislation on this most important subject, it has done
something to promote peace and good neighborhood among Nations, and to advance the civ-
ilisation of mankind.
The Undersigned trusts, that when Her Britannic Majesty’s Government shall present the
grounds at length, on which they justify the local authorities of Canada, in attacking and
destroying the ‘Caroline’, they will consider, that the laws of the United States are such as the
13.
Avionrikkoja ajatuksissa