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The Oxford Handbook of the Use of Force in International Law edited by Weller, Marc (1st January 2015)

Part III The Prohibition of the Use of Force, Self-Defence, and Other Concepts, Ch.26 The Prohibition of the Use of Force in Arbitrations and Fact-Finding Reports

Vaios Koutroulis

From: The Oxford Handbook of the Use of Force in International Law

Edited By: Marc Weller

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 27 January 2020

UN Charter — UNCLOS (UN Convention on the Law of the Sea) — Appointment of arbitrator — Challenge to appointment of arbitrator — Fact-finding and inquiry — Arbitral tribunals — Recognition and enforcement — Customary international law — NGOs (Non-Governmental Organizations) — Armed forces — Armed attack — Self-defence — Necessity — Military necessity

(p. 605) Chapter 26  The Prohibition of the Use of Force in Arbitrations and Fact-Finding Reports

I.  Introduction

The case law of the International Court of Justice (ICJ) occupies a central part in the analysis of the rules relating to the prohibition of the use of force.1 However, aside from the ICJ, some arbitral tribunals, as well as commissions of inquiry or fact-finding missions, have also been called to examine these rules. This chapter analyses how these bodies have interpreted and applied jus contra bellum, that is, the prohibition of the use of force in international relations and its exceptions after the adoption in 1945 of the UN Charter.2

(p. 606) According to the ICJ, ‘the word arbitration, for purposes of public international law, usually refers to “the settlement of differences between States by judges of their own choice, and on the basis of respect for law”’.3 Along with judicial settlement, arbitration is cited in Article 33 of the UN Charter as a means of pacific settlement of disputes.4 They both fall under what is termed ‘legal settlement of disputes, meaning one in which the disputing parties submit their differences to a third party who renders a binding decision based exclusively on the application of legal principles.’5 Leaving aside international commercial arbitration (or private international arbitration)6—which, given the nature of the parties and the disputes involved, is of very limited interest to this study7—I will focus on two prominent arbitration precedents.8 The first is the (p. 607) Commission established to deal with claims between Eritrea and Ethiopia (Eritrea–Ethiopia Claims Commission (EECC), in connection with the conflict that took place between the two states in 1998–2000.9 Between 2005 and 2009, the Commission has dealt with jus contra bellum issues with respect to claims by Ethiopia that Eritrea had violated the prohibition to use force.10 The second is the 2007 award of an arbitral tribunal constituted under Annex VII to the United Nations Convention on the Law of the Sea (UNCLOS)11 in a maritime boundary dispute that arose between Guyana and Suriname.12

Aside from the legal means of settlement of international disputes, Article 33 of the UN Charter sets out a number of diplomatic ones, namely negotiation, inquiry, mediation, and conciliation.13 Inquiry or fact-finding is defined as a

form of international dispute settlement…aimed primarily at clarifying the disputed facts through impartial investigation, which would then facilitate the parties’ objective of identifying the final solution to the dispute.…The fact-finding process may involve an impartial and neutral body carrying out the inquiry…or a joint body consisting of the representatives of the disputing parties which conducts the fact-finding activities. Additionally, the same body charged with the establishment of the facts may be required by the parties to evaluate the facts, including a legal assessment of the responsibility and relevant recommendations for the future resolution of the dispute.14

The creation of commissions of inquiry or fact-finding commissions was set out in the 1899 Hague Convention on the pacific settlement of disputes15 and the relevant articles were put to use only five years later in the Dogger Bank incident, concerning the Russian fleet firing at British trawlers in the North Sea.16 In its report, the Dogger Bank commission of inquiry held that it was unjustifiable for the Russian fleet to (p. 608) open fire and that the Russian admiral was responsible.17 Since then, there have been many examples of commissions, missions, and panels established in order to investigate events and alleged violations of international law.18 The fact-finding missions19 that will be examined here are international missions established as impartial bodies by organs of international organizations. Thus, national fact-finding commissions,20 reports by non-governmental organizations (NGOs), and reports by commissions established by initiatives from private individuals21 are excluded from the scope of the chapter.22

Compared to the overall number of fact-finding missions, especially in the UN context, there are few which have touched upon questions of jus contra bellum, with four particular missions standing out. Two of them relate to the same incident: the interception on 31 May 2010 by Israeli armed forces of a flotilla of ships transporting humanitarian aid to the blockaded Gaza Strip.23 On 27 September 2010, a fact-finding mission (p. 609) established by the UN Human Rights Council (HRC) delivered the first report on the incident24 and the second report, on the same incident, was handed down in September 201125 by a panel of inquiry established by the UN Secretary-General. The third report was the outcome of an international fact-finding mission established by the Council of the European Union in relation to the 2008 conflict in Georgia.26 Finally, the fourth report which will be analysed here was delivered by the independent fact-finding committee on Gaza established by the League of Arab States (LAS) in relation to the military offensive launched by Israel against Gaza from 27 December 2008 to 18 January 2009 (Operation Cast Lead).27 Aside from these four cases, where necessary reference will also be made to other fact-finding missions, whose reports can shed some light on jus contra bellum rules. The 1962 report of the commission of inquiry established to determine the facts in the Red Crusader incident (when a Danish frigate arrested and opened fire when in pursuit on the British trawler Red Crusader in 1961) is a relevant example in this respect.28

The purpose of this chapter is to evaluate the approach of arbitral tribunals and fact-finding missions with respect to post-1945 rules regulating the use of force in international relations and to identify their contribution in determining the scope and content of those rules (Section III). However, this cannot be accurately appreciated without a clear understanding of the legal character and value of arbitral awards and fact-finding reports as such which are discussed in the following section.

(p. 610) II.  Legal Significance of Arbitral Awards and Fact-Finding Reports

As has already been pointed out, the findings of arbitral tribunals on jus contra bellum are binding upon the parties. Therefore, in the context of a specific international dispute, arbitral tribunals have a direct impact on the application of jus contra bellum rules. On the other hand, fact-finding reports are not legally binding, as the Secretary-General’s panel of inquiry readily admits.29 Looking beyond the limits of a specific dispute, it is important not only to evaluate the jus contra bellum findings of such decisions and reports but also to appreciate their influence more broadly on the interpretation and application of the rules on the prohibition of the use of force. Naturally, it is difficult to measure the extent of such an influence objectively. However, evidence can be found in the invocation of the awards and reports by states or by international tribunals in jus contra bellum-related cases.

Decisions by arbitral tribunals are ‘judicial decisions’ within the meaning of Article 38(1)(d) of the ICJ Statute and as such constitute subsidiary means for the determination of international law.30 Although the control of the parties over the composition of arbitral tribunals is a key element of arbitration, the arbitrators are expected to be impartial and independent from the parties that appointed them.31 These features add to the judicial value of the awards’ findings. Nevertheless, the ad hoc nature of arbitral tribunals and their dispute-resolution role should be borne in mind when evaluating the interpretations advanced by arbitral awards:

As ad hoc tribunals with no continuing existence, no institutional affiliation, and no capacity to affect legal interests of third States, arbitral tribunals may see the disputing parties as their sole audience and the resolution of the dispute as their sole task. … [W]‌hereas judicial settlement must view individual interests through the lens of community interests, arbitration may focus more directly on the particular interests of disputing parties.32

(p. 611) Even so, arbitration does ‘affect legal interests of third States’ to some extent through the influence that arbitral awards exercise on the development of international law rules, in our case jus contra bellum. This has given rise to concerns that ‘dispositive appreciations of variable quality ultimately inform the development of the law’ while third states for various reasons remain silent on these ‘appreciations’.33 However, such influence, especially on jus contra bellum rules, should not be overestimated. Although there is no formal hierarchy between arbitral decisions and judicial decisions of international courts, in practice arbitral awards are adversely affected by the ad hoc nature of arbitration. International courts have a tendency to refer to their own case law and value the idea of consistency of jurisprudence, even without an obligation to do so,34 thereby confirming, consolidating, and in some cases correcting previous findings. This is not easily transposable to arbitral tribunals in view of their ad hoc character. References to arbitral decisions by international courts, namely the ICJ, are relatively rare,35 although some progress has been observed in recent years in this respect.36 Given this reluctance, it seems that the value of each arbitral award as a precedent is determined on a case-by-case basis. As far as the arbitral findings on jus contra bellum are concerned, it is still too early to appreciate their concrete impact on the development of the relevant rules: first, the two most explicit findings on jus contra bellum are fairly recent37 and, secondly, the ICJ has not dealt with a case bearing on jus contra bellum since these awards were delivered. In the end, as Jan Paulsson suggests, the impact of arbitral decisions comes down to the expertise of the arbitrators,38 the quality of the legal reasoning, and the persuasiveness of the analysis adopted by the tribunal in what he refers to (p. 612) as the ‘Darwinian reality: the unfit will perish’.39 In reality, compared to the decisions of international courts, arbitral awards have even less chance of survival. In the Darwinian world of international case law, while the former march in packs (and possibly in a specific direction), the latter are left to wander alone.

Fact-finding reports also have a place among subsidiary sources of international law as manifestations of legal doctrine. At best, they can be regarded as informed doctrine, due to the expertise of the missions’ members. It should also be noted that all parts of fact-finding reports do not necessarily have the same value. For example, the report of the EU mission on the Georgian conflict is divided into three volumes. While the first volume discusses the relevant jus contra bellum issues in just three-and-a-half pages, the second volume contains a detailed legal analysis of these issues spanning more than 60 pages. However, the report clearly states that the only authoritative findings are those in the first volume and that ‘The elaboration, findings and opinions expressed in these texts [ie those in the second volume] do not necessarily reflect the views of the Mission.’40

As a diplomatic means of international dispute settlement, fact-finding missions are of a predominantly political character. Indeed, even the publication of these reports can be subject to political considerations.41 Therefore, even more so than arbitral tribunals, the value and impact of legal pronouncements by fact-finding missions depend greatly on the quality of legal reasoning as well as on the authority, impartiality, and independence of the members of the mission.42 In fact, impartiality and independence appear to be the keystones in the acceptance of the outcome of fact-finding procedures.43 Some of the missions examined here (p. 613) have been subject to severe criticism, focusing on their composition, methodology, and the contours of their mandate.44 The approval of the final report by the relevant institution is also a significant element for the potential impact of fact-finding reports.

When interpreting the findings of these reports on jus contra bellum questions, all of the previously mentioned elements should be kept in mind. This is equally true for evaluating the influence of such reports on the development of jus contra bellum rules. The cautious approach to the value of legal findings in fact-finding reports is mirrored in the reluctance of international tribunals to rely on these findings, with the notable exception of the International Tribunal for the Law of the Sea, which has cited the report of the commission of inquiry into the Red Crusader incident.45 It remains to be seen whether the jus contra bellum findings of the more recent fact-finding reports will have the same fate. Of course, these considerations diminish neither the significant political impact of fact-finding reports46 nor their important role in dispute resolution.

III.  The Application of Jus Contra Bellum in Arbitral Awards and Fact-Finding Reports

Clearly, in the light of the inherent limitations of this chapter, it is impossible to present a complete overview of arbitral awards and fact-finding reports with respect to all the jus contra bellum rules, therefore the following analysis is not exhaustive since some jus contra bellum pronouncements have had to be left out.47 This (p. 614) section focuses on findings relating to fundamental jus contra bellum questions, which appear problematic, controversial, or conflicting.

The section is divided into three parts. Section III.A deals with questions relating to the threshold for the application of jus contra bellum rules, namely Articles 2(4) and 51 of the UN Charter. Section III.B deals with the personal scope of application of jus contra bellum rules, mainly the much-debated question of whether such rules are applicable to actors other than states. Section III.C discusses the approach of arbitral tribunals and fact-finding missions on the exceptions to the prohibition to resort to force. Here, the main focus is on the right to self-defence and the conditions relating to exercising that right.

A.  Crossing the Rubicon: Distinction Between Resort to Force Not Covered by Article 2(4) of the UN Charter, Violation of Article 2(4), and Armed Attack

The determination of the threshold for applying Articles 2(4) and 51 of the UN Charter is a salient point in jus contra bellum.48 As will be shown, the arbitral tribunals and fact-finding missions stand by the distinction between actions amounting to an armed attack and less grave forms of resort to force prohibited under Article 2(4). The most problematic finding with respect to acts triggering the application of jus contra bellum comes from the Guyana/Suriname arbitral award and concerns the threshold for applying Article 2(4) itself.

The facts of the case are as follows. On 3 June 2000, two patrol boats from the Surinamese navy ordered an oil rig and a drill ship to withdraw from a maritime zone which was disputed between Guyana and Suriname.49 Suriname characterized the operation as ‘a law enforcement measure’.50 Guyana, on the other hand, claimed that Suriname ‘has breached Article 2(4) of the UN Charter’.51 While ‘accept[ing] the argument that in international law force may be used in law enforcement activities provided that such force is unavoidable, reasonable and necessary’, the Tribunal held that ‘in the circumstances of the present case’ Suriname’s operation ‘seemed (p. 615) more akin to a threat of military action rather than a mere law enforcement activity’ and as such amounted to a threat to resort to force contrary to international law.52

The Tribunal confirmed that some cases of use of force are classified as law enforcement activities, falling outside the scope of Article 2(4). However, based on ‘the circumstances of the present case’, it seemed to set a particularly low threshold for applying Article 2(4). The Tribunal’s elliptic reasoning makes it difficult to decipher these ‘circumstances’. One possible interpretation is that they refer to the gravity of the threat to use force. The Tribunal attributed particular weight to the fact that the Surinamese order to withdraw was accompanied by the phrase that, should the rig and drill ship not conform to the order, ‘the consequences would be theirs’. This phrase was interpreted by the rig supervisor and the rig area manager as a threat that armed force would be used against them.53 If these are indeed the ‘circumstances’ referred to by the Tribunal, they stretch the criterion of gravity for the application of Article 2(4) beyond breaking point. Despite voices to the contrary,54 several incidents of resort to force at sea attest to the fact that resort to force by a state against private vessels flying the flag of another state has generally been treated as law enforcement activity. For example, in the Fisheries Jurisdiction case between Spain and Canada before the ICJ, Spain claimed that the arrest on the high seas of a Spanish fishing vessel by Canada pursuant to Canadian legislation on fisheries protection violated, among others, Article 2(4) of the UN Charter.55 The ICJ refused to accept the Spanish argument and viewed the Canadian use of force as an ‘enforcement measure’.56 The 1961 Red Crusader incident concerning the arrest by the Danish navy of the British trawler Red Crusader for illegal fishing in an area where fishing was prohibited for British vessels is another case in point. The 1962 report of the commission of inquiry established by the UK and Denmark in relation to the incident appeared to consider the force used by the Danish navy as a case of law enforcement and none of the parties seems to have invoked jus contra bellum.57(p. 616) While the Tribunal refers to the relevant precedents in support of its finding relating to the possibility to use force in law enforcement activities,58 it does not confront them directly nor does it explain the distinction between them and the Guyana/Suriname case.

Another possible interpretation of the ‘circumstances of the case’ is that they point to the context of the incident in question, in this case the existence of a territorial dispute between Guyana and Suriname. Indeed, in its submission Guyana insisted on this point.59 The context plays a significant role in determining whether a threat or use of force comes under Article 2(4), mainly as an indication that a state has the intent to resort to force against another state.60 However, in the case at hand, there were no other material hostile acts by Suriname. If the ‘circumstances of the case’ do indeed refer to the Guyana/Suriname border dispute, then the Tribunal appears to be implying that, in the context of territorial disputes, any resort to force would cross the threshold of Article 2(4). This appears to be a broad reading of Article 2(4). In the words of Olivier Corten, ‘each border dispute gives rise to claims to sovereignty that are sometimes materialised by the ephemeral despatching of a few troops into the disputed territory, without that implying for the other State an accusation of violation of article 2(4)’.61

The orthodox view on the threshold of Article 2(4) is confirmed by the experts of the fact-finding mission on the conflict in Georgia. The experts affirmed that ‘very small incidents lie below this threshold, for instance the targeted killing of single individuals, forcible abductions of individual persons, or the interception of a single aircraft.’62 According to the experts, such incidents also include a small-scale operation by a state in order to rescue its nationals.63 This seems to be in accordance with state practice, as shown by the US operation conducted in Liberia in 1990 in order to evacuate their nationals from the US embassy in Monrovia.64

Turning to the distinction between armed attack and ‘less grave forms’ of resort to force prohibited under Article 2(4), both the arbitral tribunals and the fact-finding (p. 617) missions uphold the relevant ICJ case law and confirm the distinction.65 The findings of fact-finding missions in favour of the existence of an armed attack in the relevant conflicts do not appear controversial in view of the sufficient gravity of the actions at hand. This is true for the Israeli attack against Lebanese territory in 2006,66 the attack by Georgian forces against South Ossetia,67 the Russian military action in Georgia,68 as well as the attack of the Abkhaz forces against Georgia in the Kodori valley.69

In this respect, the EECC awards on jus contra bellum merit further analysis. Ethiopia accused Eritrea of carrying out a series of armed attacks and launching a full-scale invasion against Ethiopia from 12 May to 11 June 1998.70 Eritrea responded that its actions of 12 May were acts of self-defence in response to previous forcible incursions by Ethiopia into its territory as well as to the use of force against Eritrean soldiers in early May 1998 (mainly on 6 and 7 May).71 The Commission held that:

Localized border encounters between small infantry units, even those involving the loss of life, do not constitute an armed attack for purposes of the Charter.…[T]‌he events…involved geographically limited clashes between small Eritrean and Ethiopian patrols along a remote, unmarked and disputed border. The Commission is satisfied that these relatively minor incidents were not of a magnitude to constitute an armed attack by either State against the other within the meaning of Article 51 of the UN Charter.72

The EECC followed the strict view on armed attack that the ICJ had adopted in its Nicaragua judgment.73 However, the Commission limited its appreciation of armed attack to the incidents of early May 1998. By doing so, it failed to take into account Eritrea’s claim that Ethiopia was unlawfully occupying its territory.74 Also, the Commission did not specify whether Ethiopia’s actions constituted ‘less grave forms’ of resort to force in violation of Article 2(4) or whether they fell outside the (p. 618) scope of the prohibition altogether.75 Given the context of the situation between the two states and the gravity of the clashes, it would be plausible to suggest that they do in fact come under Article 2(4).76 The Commission’s statement that Eritrea did not bear ‘sole legal responsibility for all that happened throughout the two years of the conflict’77 may also point in this direction.

The Commission found that Eritrea had committed an armed attack in violation of Article 2(4) ‘by resorting to armed force on May 12, 1998 and the immediately following days to attack and occupy the town of Badme, then under peaceful administration by [Eritrea] as well as other [Eritrean] territory’.78 It rejected for lack of proof Ethiopia’s claim that Eritrea’s armed attack included all subsequent attacks in May and June 1998.79

Interestingly, in determining Eritrea’s liability to pay damages for the violation, the EECC distinguished Eritrea’s armed attack from aggression and ‘aggressive war’. According to the Commission, its finding on the violation of jus contra bellum by Eritrea was ‘limited as to place and time;80 and

did not include a finding that Eritrea had waged an aggressive war, had occupied large parts of Ethiopia or otherwise engaged in the sort of widespread lawlessness that the Security Council identified in the case of the invasion and occupation of Kuwait.81

Moreover, the Commission ‘did not find that Eritrea bore sole legal responsibility for all that happened throughout the two years of the conflict.’82

Thus, the Commission appears to introduce a distinction between an armed attack limited in time and space and full-scale aggression, at least for the purposes of state responsibility. It seems to suggest that, while in a war of aggression the state having violated jus contra bellum is responsible for everything that ensues, this would not be the case with respect to a limited armed attack.83 In the latter case, the armed attack triggering the war is distinct from the rest of the conflict. At least, this is how the Commission treated Eritrea’s resort to force.84 This is problematic in that it gives the impression that the jus contra bellum did not apply to subsequent hostilities.85

(p. 619) B.  The Personal Scope of Application of Jus Contra Bellum: Non-State Actors and the Prohibition to Use of Force

Given the interstate nature of the disputes brought before them, the arbitral tribunals studied here were not confronted with the sensitive issue of the application of jus contra bellum to actors other than states.86 That said, two fact-finding missions have dealt with the issue specifically. This resulted in findings which are not exempt from controversy.

The first is the Secretary-General’s panel of inquiry on the flotilla incident.87 The panel accepted that the imposition of a naval blockade constituted a measure adopted in the exercise of Israel’s right to self-defence against attacks from the Gaza Strip, explicitly recognizing that a state is entitled to act in self-defence against attacks by non-state actors.88 The members of the panel did not engage in a substantial discussion of the issue. In support of their finding, they invoked the Caroline case and recent practice, although no actual practice is stated or analysed in the report.89 Therefore, the absence of relevant state practice and the cursory reasoning undermine the persuasiveness of the panel’s finding, especially in view of the significant controversy that this particular question has raised among scholars and the negative stance of the ICJ case law on the matter.90

The most controversial pronouncement on the application of jus contra bellum to non-state actors comes from the fact-finding mission of the European Union (EU) on the conflict in Georgia. Despite voicing doubts about whether South Ossetia and Abkhazia can be considered to be states,91 the mission’s report asserts that the UN (p. 620) Charter rules on jus contra bellum were applicable to the conflicts between Georgia, South Ossetia, and Abkhazia: for example, Georgia’s attack against South Ossetia and Abkhazia’s attack on Georgia were considered violations of Article 2(4) thereby triggering the application of the opposite side’s right to self-defence.92 However, the report refused to apply the jus contra bellum in its entirety. The experts of the mission did not recognize South Ossetia’s right to collective self-defence in response to the armed attack by Georgia.93

The fact-finding mission’s pronouncements are unpersuasive for two reasons. First, none of parties argued that Articles 2(4) and 51 of the Charter were applicable to the relations between Georgia, South Ossetia, and Abkhazia, not even South Ossetia and Abkhazia themselves.94 This undermined the mission’s finding in favour of the direct application of the UN Charter to the relevant conflict.95 Secondly, if one accepts the applicability of the Charter rules on jus contra bellum in this case, it is difficult to understand the exclusion of collective self-defence in favour of South Ossetia. The need to avoid an escalation of the conflict96 is a policy argument and does not explain why collective self-defence would be admitted in favour of Georgia. All the more so since this exclusion runs counter to the experts’ own admission that the personal scope of application of Articles 2(4) and 51 must be identical for both sides of a conflict.97 It should be noted, however, that this controversial point is found only in the second volume of the report, which, as mentioned earlier, does not necessarily reflect the views of the mission as such.98 The authoritative first volume of the report, on the other hand, does not mention the exclusion of South Ossetia’s right to collective self-defence.

C.  Self-Defence

Turning to the substance of the right to self-defence, the more interesting material comes from fact-finding reports. The various commissions of inquiry have produced conflicting pronouncements concerning the possibility of invoking self-defence against future attacks (Section III.C.1) as well as the impact of occupation on the exercise of a state’s right to self-defence (Section III.C.2). On the other hand, the reports follow a more classical approach concerning the application of the conditions of necessity and proportionality (Section III.C.3).

(p. 621) 1.  The case of preventive self-defence

The controversy over the question of the legality of invoking self-defence against a future armed attack is reflected in the fact-finding reports that took up the issue. The experts of the EU mission on the 2008 conflict in Georgia examined whether Georgia’s military operation could be justified as self-defence against a future armed attack by Russia. They distinguished between self-defence against ‘an objectively verifiable, concretely imminent attack’ and ‘a potential or abstract threat which might amount to an imminent attack, as determined in a subjective manner by the state which feels threatened’.99 In consonance with the majority of scholarly opinion, self-defence in the second scenario was unequivocally rejected as contrary to the UN Charter and customary international law.100 As for the first scenario, the experts pointed to the existing controversy among scholars as to the legality of self-defence against imminent attack and avoided a clear finding on the question since the factual situation could not substantiate the existence of an imminent attack.101 Contrary to the caution expressed by the experts of the EU fact-finding mission, the members of the Secretary-General’s panel of inquiry on the flotilla incident were much more direct in recognizing the legality of self-defence against an imminent armed attack in favour of Israel.102 However, aside from the Caroline incident,103 the members of the panel do not point to any other elements substantiating their finding. It should be noted in this respect that neither Georgia nor Israel appear to have relied on the argument of preventive self-defence with respect to the situations under scrutiny by the missions.104 Therefore, actual state practice relating to the reports does not support the position in favour of preventive or pre-emptive self-defence.

2.  Self-defence and occupation

Another issue on which there have been conflicting pronouncements from fact-finding missions is the possibility of exercising the right to self-defence against attacks stemming from occupied territory. Having determined that Gaza remained under Israeli occupation even after the 2005 disengagement,105 the fact-finding (p. 622) mission established by the LAS on Operation Cast Lead held that Israel could not invoke its right to self-defence with respect to that operation. Among other reasons, the mission suggested that military operations against an occupied population ‘should rather be categorized as police or enforcement action against resistance action by the occupied people.’106 On the other hand, the Secretary-General’s panel of inquiry asserted that ‘the uncertain legal status of Gaza under international law cannot mean that Israel has no right to self-defence against armed attacks directed towards its territory.’107 These two positions reflect the debate surrounding the relevant ICJ finding in the Wall advisory opinion. In this opinion, the Court rejected Israel’s claim of self-defence as justification for the construction of the wall, invoking, inter alia, the control exercised by Israel over the occupied Palestinian territory.108 Judges Higgins and Buergenthal were highly critical of the Court’s position.109

Much of the controversy on this question is due to the fact that it is linked to the debate on the exercise of the right to self-defence against attacks by non-state actors, which was analysed earlier.110 However, not all cases of use of force against groups operating within an occupied territory are cases of use of force against non-state actors. In this respect, a distinction should be made depending on whether these groups belong to111 or are under the control of112 the occupied state. The first scenario is not problematic as no separate jus contra bellum issue arises between the rebel group and the occupying power. If the occupation constitutes an armed attack by the occupying power against the occupied state, then the latter has the right to self-defence and the rebel group is in reality exercising that right. Therefore, the occupying power cannot invoke its own right to react in self-defence against the actions of the group. The second scenario, where the resistance group has no link to the occupied state, is more problematic. In this respect, two questions arise. The first is whether a state can invoke its right to self-defence against a non-state actor. Provided that the answer to this question is in the affirmative, the second question is whether a state can also invoke this right when the non-state actor is operating from within the occupied territory. In this respect, states seem hesitant to recognize the occupying power’s right to self-defence and thus support the finding of the LAS mission.113(p. 623) In his separate opinion, Judge Kooijmans seems to accept a state’s right to self- defence against a non-state actor, while denying this right when it is exercised against groups operating from within an occupied territory.114 The criticism levelled against this position is that it leaves the occupying power with no means of protecting itself and its citizens against rebel attacks.115 It is submitted that this is not the case. The occupying power has several coercive options, stemming from both law enforcement rules and jus in bello (be they rules applicable during belligerent occupation such as Article 43 of the Hague Regulations, or rules relating to the conduct of hostilities116).

Moreover, the added value of invoking jus contra bellum with respect to armed groups operating in an occupied territory is not clear. In cases where an armed group attacks state A from the territory of state B, the reason for state A to invoke self-defence is to be able to conduct a military operation against the armed group in state B without violating international law. In cases where the group attacks state A from within an occupied territory, the legality under jus contra bellum of the occupation as such is linked to the legal relationship between the occupying power and the occupied state. It will not be affected by the distinct legal relationship under jus contra bellum between the occupying power and the armed group. For the rest, the occupying power does not need specific authorization under general international law in order to conduct military operations in the occupied territory.

3.  The conditions of necessity and proportionality in the exercise of the right to self-defence

For the most part, the pronouncements of fact-finding reports on necessity and proportionality confirm the classical reading of the two criteria for the exercise of the right to self-defence.117 A critical issue in evaluating the necessary and proportionate character of defensive military operations is the purpose of self-defence. The report by the EU mission on the conflict in Georgia follows the traditional view: the purpose of self-defence is to repel the initial armed attack118 and to prevent the occurrence of future attacks.119 Punitive operations go beyond this scope.120 In this respect, the HRC mission on Operation Cast Lead seems to reject Israel’s (p. 624) claim to self-defence because the attack was directed against the civilian population as a whole.121 Along the same lines, the HRC flotilla report refers to its finding that the blockade constituted an act of collective punishment in order to reject Israel’s justification of the blockade ‘on security grounds’.122 These findings confirm that jus in bello is among the elements to be taken into account in evaluating the necessary and proportionate character of a self-defence action.123 They are also in line with ICJ case law124 and scholarly opinion.125

As for the concrete evaluation of necessity and proportionality with respect to operations conducted in self-defence, the main emphasis is given to the extent of the operations as compared to the actual armed attack or the threat of future attack that must be prevented. Thus, for example, while recognizing that the initial phase of the Russian response to Georgia’s attacks against Russian peacekeepers was in line with the conditions of self-defence, the mission found that the subsequent Russian military campaign ‘went far beyond the reasonable limits of defence…[and] cannot be regarded as even remotely commensurate with the threat to Russian peacekeepers’.126 To substantiate this conclusion, the mission referred to the massive and extended character of Russia’s military operations.127

This last finding of the EU mission is quite revolutionary. In the ICJ case law, necessity and proportionality tend to have an accessory role:

the Court each time dismissed the argument of self-defence primarily because the State invoking it had failed to prove that it had previously been the victim of an armed attack, and only incidentally because its riposte did not prove ‘necessary’ or ‘proportionate’ under the circumstances of the case.128

The EU mission provides an explicit precedent where military action starts out as a case of legitimate self-defence but is subsequently transformed into an armed attack because of its unnecessary and disproportionate character. This armed attack, in turn, gives the former aggressor state the right to react in self-defence.129

(p. 625) IV.  Conclusion

The analysis of the pronouncements of arbitral decisions and fact-finding reports bearing on jus contra bellum revealed that both findings follow an ‘orthodox’ approach to relevant rules and cases of highly controversial interpretations. It is mainly the findings of the second category that raise concerns of the impact of arbitral awards and fact-finding reports on the development of jus contra bellum. Keeping in mind what was said earlier about the value of such awards and reports,130 three additional comments can be made in this respect.

First, the key role of state practice in the development of international law should not be underestimated. Aside from the reluctance of international tribunals to reproduce legal findings by arbitral awards and fact-finding reports,131 the impact of such findings on jus contra bellum will be measured against their invocation by states. Although it is still too soon to draw any conclusions in this respect, it can be expected that a state will refer to arbitral awards and fact-finding reports when their pronouncements support its position.132 Of course, this does not mean that the state will endorse all the findings of the relevant awards or reports,133 or that it will hesitate to ignore findings contrary to its view. In the end, any development of jus contra bellum will be the result of the views expressed by states, the awards and reports being at best elements meant to render the state’s position more persuasive.

Secondly, some of the controversial jus contra bellum issues analysed by the various awards and reports have given rise to conflicting pronouncements. The application of the right to self-defence against actions by non-state actors is a case in point.134 In such cases, if one award or report is invoked in defence of a particular interpretation by state A, another may equally be invoked in support of the contrary one by state B. This diminishes the risk of unwarranted developments in the scope and content of the relevant rules.

(p. 626) Thirdly, it should be noted that the most recurrent problem with the material studied here lies in the lack of detailed legal reasoning substantiating the relevant findings. As it was seen previously, the most thorough analysis of jus contra bellum rules was that of the second volume of the EU mission on the conflict in Georgia, that is, in a non-authoritative text that does not express the views of the mission itself. One possible explanation resides in the inherent controversy surrounding many of the salient issues on jus contra bellum. Another explanation, at least with respect to fact-finding missions, may be found in the absence of an explicit mandate bearing on jus contra bellum and in a conscious focus on behalf of the members on the dispute settlement function of the mission. However, this last explanation is less relevant for arbitral tribunals, with the caveat of limitations stemming from their constitutive instruments. This lack of in-depth analysis adversely affects the persuasiveness of the awards and reports, their value as precedents, and, in fine, also their chances of ‘survival’ in the ‘Darwinian’ legal universe.


See Claus Kreß, ‘The International Court of Justice and the ‘Principle of Non-Use of Force’, Chapter 25 in this volume.

The rules relating to the prohibition of the use of force in international relations are designated by the terms jus ad bellum or jus contra bellum. The term jus contra bellum is preferred here because it reflects more accurately the content of the legal regime governing the use of force in international law after the adoption of the UN Charter; Olivier Corten, The Law Against War: The Prohibition on the Use of Force in Contemporary International Law (Oxford: Hart, 2010), 2.

Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 Mar 2001, ICJ Rep 2001, 40, 76, para 113. The citation is from Art XV of the 1899 Hague Convention for the Peaceful Adjustment of International Differences. Further sources are cited by the Court in its judgment.

UN Charter, Art 33, adopted on 26 June 1945, available at <http://www.un.org/en/documents/charter/chapter6.shtml>.

Charles H. Brower II, ‘Arbitration’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2012), vol I, 531, 532, para 3. See also John G. Merrills, International Dispute Settlement (5th edn, Cambridge: Cambridge University Press, 2011), 83. The criterion of the binding character of the award excludes precedents such as the Badinter Arbitration Commission for the Former Yugoslavia whose opinions did not possess such a character and thus cannot be considered as an arbitral award; see Malgosia Fitzmaurice, ‘Badinter Commission (for the Former Yugoslavia)’ in Wolfrum, Max Planck Encyclopedia of Public International Law, vol I, 775, 784, para 37.

Merrills, International Dispute Settlement, 106–11; see generally Richard H. Kreindler and Rita Heinemann, ‘Commercial Arbitration, International’ in Wolfrum, Max Planck Encyclopedia of Public International Law, vol II, 386.

Only very few incidental references to jus contra bellum can be found in international commercial arbitration cases. See Corn Products International Inc. v. United Mexican States, Decision on Responsibility, 15 Jan 2008, North American Free Trade Agreement (NAFTA) Arbitration Tribunal, ICSID Case No ARB(AF)/04/1, 146 ILR 581, 625, para 149, and 629, para 158 (confirming that countermeasures cannot affect the prohibition of the use of force and citing Art 50 of the 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts). See also Damia Cement Ltd v. National Bank of Pakistan, Award on Jurisdiction, 18 Dec 1976, International Chamber of Commerce, Arbitration Tribunal, 67 ILR 611. In this case, the main question was whether the Sept 1985 hostilities between India and Pakistan amounted to a state of war terminating the bank guarantee and with it the arbitration clause which was the basis for the arbitrator’s jurisdiction. The Arbitrator decided that this was not the case. Among other reasons, he held that the consequence of the obligation not to resort to the threat or use of force for UN member states was that ‘in case of doubt as to the answer to be given to th[e]‌ question [on the existence of a state of war], the answer should be negative rather than affirmative, for the existence of a state of war can certainly not be presumed between members of the UNO.’ At 619, para 27 (emphasis in original).

The award in the boundary dispute between the Emirate of Dubai and the Emirate of Sharjah also contains limited references to jus contra bellum; Dubai–Sharjah Border Arbitration, Award, 19 Oct 1981, Court of Arbitration, 91 ILR 543. The award was concerned with the delimitation of the land and maritime boundary between the two federate entities of the United Arab Emirates. It referred briefly to jus contra bellum rules, in relation to Arts 51 and 52 of the Vienna Convention on the Law of Treaties and the notion of coercion. The Court affirmed that in the 1930s ‘there was no firmly established rule of international law which prohibited the threat of the use of force’ (at 570). Moreover, referring to the special declaration on economic coercion adopted by the 1969 Vienna Conference on the Law of Treaties, the Court held that ‘the expression “threat or use of force” could not have, earlier in 1956, comprehended the use of economic coercion’ (at 569).

Established by the Agreement between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea, Art 5 para 1, Algiers, 5 Dec 2000, 2138 UNTS 94, 97.

10  EECC, Jus Ad Bellum: Ethiopia’s Claims 1–8, Partial Award, 19 Dec 2005 (2009) XXVI RIAA 457; EECC, Ethiopia’s Damages Claims, Final Award, 17 Aug 2009 (2009) XXVI RIAA 631; EECC, Decision Number 7: Guidance Regarding Jus ad Bellum Liability, 27 July 2007 (2009) XXVI RIAA 10.

11  UNCLOS, Annex VII, Montego Bay, 10 Dec 1982, 1833 UNTS 3, 571.

12  Arbitral Tribunal Constituted Pursuant to Article 287, and in Accordance with Annex VII of UNCLOS, Guyana/Suriname, Award of 17 Sept 2007 (2008) 47 ILM 166.

13  UN Charter, Art 33. According to Merrills, the principal characteristic of these means of dispute settlement is that ‘the parties retain control of the dispute and may accept or reject a proposed settlement as they see fit’, Merrills, International Dispute Settlement, 83.

14  Agnieszka Jacheć-Neale, ‘Fact-Finding’ in Wolfrum, Max Planck Encyclopedia of Public International Law, vol III, 1077, 1077–8, paras 1–2.

15  Convention for the Peaceful Adjustment of International Differences, The Hague, 29 July 1899, reproduced in (1907) 1 American Journal of International Law 107, 112–14 (Arts IX–XIV).

16  Tobias H. Irmscher, ‘Dogger Bank Incident (1904)’ in Wolfrum, Max Planck Encyclopedia of Public International Law, vol III, 190.

17  Finding of the International Commission of Inquiry organized under Article 9 of the Convention for the Pacific Settlement of International Disputes, of July 29, 1899, Report of the Commissioners, drawn up in accordance with Article VI of the declaration of St. Petersburg of the 12th (25th) November, 1904, reproduced in (1908) 2 American Journal of International Law 931. The ‘unjustifiable’ character of the Russian admiral’s actions was founded on the fact that the trawlers did not commit any hostile act and that there were no torpedo boats in the vicinity, as the admiral had thought. However, the report offers no further legal analysis of the subject.

18  See the references in Jacheć-Neale, ‘Fact-Finding’ in Wolfrum, Max Planck Encyclopedia of Public International Law, 1077–81, paras 3–16; Alain Pellet, ‘Peaceful Settlement of International Disputes’ in Wolfrum, Max Planck Encyclopedia of Public International Law, vol VIII, 201, 214, paras 49–51.

19  Terminology varies widely with respect to fact-finding bodies; compare the denominations of the various bodies cited in nn 24–7. In this chapter, the term ‘fact-finding missions’ will be used.

20  eg Turkish National Commission of Inquiry, ‘Report on the Israeli Attack on the Humanitarian Aid and Convoy to Gaza on 31 May 2010’, Feb 2011, Ankara, available at <http://www.mfa.gov.tr/data/Turkish%20Report%20Final%20-%20UN%20Copy.pdf>; the Public Commission to Examine the Maritime Incident of 31 May 2010: The Turkel Commission, Report: Part One, Jan 2011, available at <http://www.turkel-committee.gov.il/files/wordocs/8707200211english.pdf>.

21  eg the commission established in 1982 by six lawyers and professors considered Israel’s invasion in Lebanon. The commission published a report, Israel in Lebanon: Report of the International Commission to Enquire into Reported Violations of International Law by Israel During its Invasion of Lebanon (Reading: Ithaca Press, 1983).

22  Cases where international experts were consulted but no distinct body of inquiry was established are also excluded. One relevant precedent exists in relation to the conflict between Iran and Iraq in 1980–8. Although the UN Security Council contemplated the creation by the Secretary-General of an impartial body entrusted with inquiring into responsibility for the conflict (see SC Res 598 (20 July 1987), para 6), no such body was officially created. The Secretary-General directly contacted the two states asking for their ‘detailed views’ on the subject and, in parallel, ‘decided to consult separately some independent experts’. On the basis of the available information, in 1991 the Secretary-General submitted a report to the Security Council asserting that it was Iraq which violated the prohibition of the use of force; see Security Council, Further Report of the Secretary-General of the Implementation of Security Council Resolution 598 (1987), S/23273 (9 Dec 1991), 1–2, paras 4, 6–7.

23  For an account of the relevant facts, see ‘Palestine–Israeli attack on aid flotilla’ (2010) 56 Keesing’s Record of World Events 49865.

24  HRC, ‘Report of the international fact-finding mission to investigate violations of international law, including international humanitarian and human rights law, resulting from the Israeli attacks on the flotilla of ships carrying humanitarian assistance’, 27 Sept 2010, A/HRC/15/21 (hereafter HRC Flotilla Report).

25  UN Secretary-General, Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident, Sept 2011, available at <http://www.un.org/News/dh/infocus/middle_east/Gaza_Flotilla_Panel_Report.pdf> (hereafter Secretary-General’s Panel Report). To the best of the author’s knowledge, the report has not been given an official UN document number. The report was submitted to the Secretary-General on 2 Sept 2010; see ‘Statement attributable to the Spokesperson for the Secretary-General of the Panel of Inquiry on the 31 May 2010 Flotilla Incident’, 2 Sept 2011, available at <http://www.un.org/sg/statements/index.asp?nid=5482>.

26  Independent International Fact-Finding Mission on the Conflict in Georgia, Report, vols I, II, III, Sept 2009, available at <http://www.ceiig.ch> (hereafter IIFFMCG Report).

27  Security Council, Letter dated 1 October 2009 from the Permanent Observer of the League of Arab States to the United Nations addressed to the President of the Security Council, Annex, ‘Report of the Independent Fact-Finding Committee on Gaza: No Safe Place’, S/2009/537 (14 Oct 2009), 18 and 230 (hereafter LAS Gaza Report).

28  Commission of Enquiry (Denmark–UK), The Red Crusader, 23 Mar 1962 (1967) 35 ILR 485. For another example of a report by a fact-finding mission with jus contra bellum considerations, see HRC, ‘Implementation of General Assembly Resolution 60/251 of 15 March 2006 Entitled “Human Rights Council”: Report of the Commission of Inquiry on Lebanon pursuant to Human Rights Council resolution S-2/1’, A/HRC/3/2 (23 Nov 2006) (hereafter HRC Lebanon Report).

29  Secretary-General’s Panel Report, 10, para 14.

30  Gilbert Guillaume, ‘Can Arbitral Awards Constitute a Source of International Law under Article 38 of the Statute of the International Court of Justice?’ in Yas Banifatemi and Emmanuel Gaillard (eds), Precedent in International Arbitration (New York: Juris Publishing, 2008), 105; Eric De Brabandere, ‘Arbitral Decisions as a Source of International Investment Law’ in Tarcisio Gazzini and Eric De Brabandere (eds), International Investment Law: The Sources of Rights and Obligations (Leiden: Martinus Nijhoff, 2012), 245, 247–50.

31  Brower, ‘Arbitration’ in Wolfrum, Max Planck Encyclopedia of Public International Law, 541, para 50. For a recent example of a challenge against an arbitrator for lack of impartiality and independence, see Arbitral Tribunal constituted under Annex VII of the 1982 United Nations Convention on the Law of the Sea, The Republic of Mauritius v. The United Kingdom of Great Britain and Northern Ireland, Reasoned Decision on Challenge, 30 Nov 2011, available at <http://www.pca-cpa.org/showpage.asp?pag_id=1429>.

32  Brower, ‘Arbitration’ in Wolfrum, Max Planck Encyclopedia of Public International Law, 533 and 546, paras 5 and 91 respectively.

33  Sir Daniel Bethlehem, ‘The Secret Life of International Law’ (2012) 1 Cambridge Journal of International and Comparative Law 23, 32–3.

34  Case concerning application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment of 18 Nov 2008, ICJ Rep 2008, 412, 428–9, para 53; Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment of 11 June 1998, ICJ Rep 1998, 275, 292, para 28; International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Zlatko Aleksovski, Judgment of 24 Mar 2000, Appeals Chamber, IT-95-14/1-A, paras 92–111; Mohamed Shahabuddeen, Precedent in the World Court (Cambridge: Cambridge University Press, 1996); Gilbert Guillaume, ‘The Use of Precedent by International Judges and Arbitrators’ (2011) 2 Journal of International Dispute Settlement 5, 9–10.

35  Christine Gray and Benedict Kingsbury, ‘Inter-State Arbitration since 1945: Overview and Evaluation’ in Marc W. Janis (ed), International Courts for the Twenty-First Century (Leiden: Martinus Nijhoff, 1992), 55, 71.

36  Gilbert Guillaume, ‘The Use of Precedent by International Judges and Arbitrators’, 19; Alain Pellet, ‘Article 38’ in Andreas Zimmermann, Christian Tomuschat, and Karin Oellers-Frahm (eds), The Statute of the International Court of Justice: A Commentary (Oxford: Oxford University Press, 2006), 677, 788.

37  The Guyana/Suriname award was handed down in 2007 and the awards of the Eritrea/Ethiopia Claims Commission from 2005 to 2009, see nn 10 and 12.

38  cf Christine Gray’s comments on the arbitrators of the EECC, Christine Gray, ‘The Eritrea/Ethiopia Claims Commission Oversteps its Boundaries: A Partial Award?’ (2006) 17 European Journal of International Law 699, 707.

39  Jan Paulsson, ‘The Role of Precedent in Investment Arbitration’ in Katia Yannaca-Small (ed), Arbitration Under International Investment Agreements: A Guide to Key Issues (Oxford: Oxford University Press, 2010), 699, 704.

40  IIFFMCG Report, vol II, 1.

41  eg the publication of the report on Gaza by the Secretary-General’s panel of inquiry ‘was delayed several times as Turkey and Israel sought to reconcile their deteriorating relationship and perhaps avoid making the report public’; Neil MacFarquhar and Ethan Bronner, ‘Report finds naval blockade by Israel legal but faults raid’, New York Times, 1 Sept 2011, available at <http://www.nytimes.com/2011/09/02/world/middleeast/02flotilla.html?pagewanted=all&_r=0>. See also ‘Turkey kicking out top Israeli diplomats over Gaza blockade’, CNN, 3 Sept 2011, available at <http://edition.cnn.com/2011/WORLD/europe/09/02/turkey.israel/index.html> and Press statement by H. E. Mr Ahmet Davutoğlu, Minister of Foreign Affairs of the Republic of Turkey, regarding Turkish–Israeli relations, 2 Sept 2011, available at <http://www.mfa.gov.tr/press-statement-by-h_e_-mr_-ahmet-davutoglu_-minister-of-foreign-affairs-of-the-republic-of-turkey_-regarding-turkish-israeli-re.en.mfa>.

42  See the Press statement by the Minister of Foreign Affairs of Turkey cited at n 41 criticizing the finding that Israel’s blockade of Gaza is lawful: ‘the controversial views put forward by the Chair and Vice-Chair of the Panel exceeding their mandates are based on political motives rather than on legal grounds. Turkey in no way accepts this approach, which jeopardizes the functioning and integrity of the panel.’

43  See in general Thomas M. Franck and H. Scott Farley, ‘Procedural Due Process in Human Rights Fact-Finding by International Agencies’ (1980) 74 American Journal of International Law 308; Theo Boutruche, ‘Credible Fact-Finding and Allegations of International Human Rights law Violations: Challenges in Theory and Practice’ (2011) 16 Journal of Conflict and Security Law 105.

44  See eg James G. Steward, ‘The UN Commission of Inquiry on Lebanon: A Legal Appraisal’ (2007) 5 Journal of International Criminal Justice 1039, 1041. See also n 42.

45  The M/V ‘Saiga’ (No. 2) (St Vincent and Grenadines v. Guinea), Judgment, International Tribunal for the Law of the Sea (ITLOS), 1 July 1999 (1999) 38 ILM 1323, 1355, para 156.

46  Dapo Akande and Hannah Tinkin, ‘International Commissions of Inquiry: A New Form of Adjudication?’ in EJIL:Talk!, 6 Apr 2012, available at <http://www.ejiltalk.org/international- commissions-of-inquiry-a-new-form-of-adjudication/>.

47  Cases in point are the conflicting pronouncements of the Guyana/Suriname tribunal and the EU mission on the conflict in Georgia on the threat to use force. Cf Guyana/Suriname arbitral award, 229–30, para 439 and IIFFMCG Report, vol I, 25–6, para 24. See François Dubuisson and Anne Lagerwall, ‘The Threat of the Use of Force and Ultimata’, Chapter 42 in this volume. Other examples are the pronouncements on the obligation of a state acting in self-defence to report immediately to the Security Council the measures taken; see EECC, Partial Award on Jus ad Bellum, 464–6, para 11 (with respect to Eritrea); IIFFMCG Report, vol II, 246–7 and 269; Secretary-General’s Panel Report, 5, recommendation (vi), 72, para 160, and 73, para 164; HRC Lebanon Report, 131, note 37.

48  See, among many, Christine Gray, International Law and the Use of Force (3rd edn, Oxford: Oxford University Press, 2008); Yoram Dinstein, War, Aggression and Self-Defence (5th edn, Cambridge: Cambridge University Press, 2011); Corten, The Law Against War; Tom Ruys, ‘Armed Attack’ and Article 51 of the UN Charter: Evolutions in Customary Law and Practice (Cambridge: Cambridge University Press, 2010). See also Nico Schrijver, ‘The Ban on the Use of Force in the UN Charter’, Chapter 21 in this volume and Jan Klabbers, ‘Intervention, Armed Intervention, Armed Attack, Threat to Peace, Act of Aggression, and Threat or Use of Force—What’s the Difference?’, Chapter 22 in this volume.

49  Guyana/Suriname arbitral award, 184, para 151.

50  At 202, para 270.

51  At 201, para 263.

52  At 231, para 445.

53  At 184, para 151.

54  cf the claims to self-defence raised by the US and the UK in the context of the 1980–8 Iran–Iraq war; Christine Gray, ‘The British Position in Regard to the Gulf Conflict’ (1988) 37 International and Comparative Law Quarterly 420 and Christine Gray, ‘The British Position with Regard to the Gulf Conflict (Iran–Iraq): Part 2’ (1991) 40 International and Comparative Law Quarterly 464. See also, Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge: Cambridge University Press, 2009), 272–7. For the ambiguity in the UK position in the Gulf conflict, see Vaughan Lowe, ‘The Impact of the Law of the Sea on Naval Warfare—Commentary’ (1987–8) 14 Syracuse Journal of International Law and Commerce 657, 679.

55  Fisheries Jurisdiction (Spain v. Canada), Judgment on Jurisdiction of the Court of 4 Dec 1998, ICJ Rep 1998, 432, 465, para 78.

56  Fisheries Jurisdiction, Judgment on Jurisdiction of the Court, 466, para 84. It should be noted that the Court’s finding was not on the merits of the case; it was made in the context of interpreting the scope of Canada’s reservation to the ICJ’s jurisdiction. See also ITLOS, The M/V ‘Saiga’ (No. 2), Judgment, 1355–6, paras 153–9. For more examples and analysis, see Ruys, ‘Armed Attack’ and Article 51 of the UN Charter, 204–13; Corten, The Law Against War, 55–60.

57  Commission of Enquiry (Denmark–UK), The Red Crusader, 499.

58  Guyana/Suriname arbitral award, 253, note 518 (the Tribunal cites the report on the Red Crusader incident, the ITLOS judgment on the M/V Saiga case, and the 1933 joint report of the commissioners in the SS I’m Alone incident); see also Guyana/Suriname arbitral award, 230–1, paras 442–4 (reference by the parties to the Fisheries Jurisdiction and the M/V Saiga cases).

59  Guyana/Suriname arbitral award, 228, paras 429–30.

60  Corten, The Law Against War, 73–84; Raphaël van Steenberghe, La légitime défense en droit international public (Brussels: Larcier, 2012), 228 ff.

61  Corten, The Law Against War, 83; van Steenberghe, La légitime défense en droit international public, 228.

62  IIFFMCG Report, vol II, 242 and fn 49.

63  IIFFMCG Report, vol II, 286. However, the experts’ reference to the Entebbe incident between Israel and Uganda as a relevant precedent is incorrect; see Olivier Corten, ‘Le rapport de la mission d’enquête internationale sur le conflit en Géorgie: quel apport au jus contra bellum?’ (2010) 114 Revue générale de droit international public 35, 39–40.

64  Marc Weller (ed), Regional Peace-Keeping and International Enforcement: The Liberian Crisis (Cambridge: Cambridge University Press, 1994).

65  Guyana/Suriname arbitral award, 230, para 440; IIFFMCG Report, vol II, 242, 245. The award refers to the ICJ judgment on the merits in the Nicaragua case, see Case concerning Military and Paramilitary Activities in and Against Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep 1986, 14, 101, para 190. The IIFFMCG Report refers to the same judgment and to the judgment in the Oil Platforms case, see Case concerning Oil Platforms (Iran v. US), Merits, Judgment of 6 Nov 2003, ICJ Rep 2003, 161, 187, para 51.

66  HRC Lebanon Report, 23, paras 58, 61.

67  IIFFMCG Report, vol I, at 22–23, para 19 and vol II, 242–3 and 263.

68  IIFFMCG Report, vol I, 24, para 21.

69  IIFFMCG Report, vol I, 25, para 24 and vol II, 212, 291.

70  EECC, Partial Award on Jus ad Bellum, 464, paras 6, 8.

71  At 464–5, para 9.

72  At 465–6, paras 11, 12.

73  The Commission did not use the possibility for a more extensive approach left open by the ICJ in the Oil Platforms judgment; ICJ, Oil Platforms, Judgment, 195, para 72.

74  Christine Gray, ‘The Eritrea/Ethiopia Claims Commission Oversteps its Boundaries’, 710–12. Based on the presentation of Eritrean submissions in the 2005 partial award, Eritrea’s self-defence plea was not linked to the occupation of its territory by Ethiopia; see EECC, Partial Award on Jus ad Bellum, 464–5, para 9. The parties’ submissions to the Commission have not been made public. The temporal limit of May 1998 has its source in the Algiers Agreement, see n 9.

75  Eritrea did not file a jus ad bellum claim against Ethiopia therefore the EECC felt no need to examine this question.

76  This seems to be the position adopted by Ruys, ‘Armed Attack’ and Article 51 of the UN Charter, 179.

77  EECC, Final Award, 719, para 282.

78  EECC, Partial Award on Jus ad Bellum, 469, para B.1 of the operative part of the award. See also 468, para 19.

79  EECC, Partial Award on Jus ad Bellum, 468, para 18.

80  EECC, Final Award, 719, para 282.

81  EECC, Decision Number 7, 20, para 32.

82  EECC, Final Award, 719, para 282.

83  It is not, however, clear whether the extensive responsibility of the state in the ‘aggressive war’ scenario of the 1990–1 Gulf War was due to Security Council powers; EECC, Decision Number 7, 20, para 32: ‘Moreover, this Commission did not—nor could it—alter the international law rules defining the extent of compensable damages that follow from the breach of international law that it identified.’

84  EECC, Partial Award on Jus ad Bellum, 468, para 19.

85  For the position that jus contra bellum continues to apply during a conflict, see Christopher Greenwood, ‘The Relationship Between Ius ad Bellum and Ius in Bello’ (1983) 9 Review of International Studies 221, 222–3.

86  On this issue, see Kimberley N. Trapp, ‘Can Non-State Actors Mount an Armed Attack?’, Chapter 30 in this volume.

87  The HRC report on the 2006 conflict in Lebanon does not answer the question whether Israel could invoke its right to self-defence against Hezbollah; HRC Lebanon Report, 23, para 61.

88  Secretary-General’s Panel Report, 39–41, paras 71–2 and 91, para 41.

89  Secretary-General’s Panel Report, 91, para 41 (in fn 145, the members of the Panel point to the analysis of two scholars and the practice cited therein).

90  Indeed, the ICJ has not been receptive to arguments pleading in favour of applying jus contra bellum to non-state actors; Nicaragua, Judgment, 103, para 195; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Rep 2004, 136, 194, para 139; Case Concerning Armed Activities on the Territory of the Congo (DRC v. Uganda), Merits, Judgment of 19 Dec 2005, ICJ Rep 2005, 168, 222–3, paras 146–7. This approach has been criticized by some of the Court’s judges; see Wall, Advisory Opinion, 215, para 33 (Separate Opinion of Judge Higgins) and 242, paras 5–6 (Declaration of Judge Buergenthal); Armed Activities, Judgment, 337–8, paras 11–13 (Separate Opinion of Judge Simma) and 313–15, paras 26–31 (Separate Opinion of Judge Kooijmans). The members of the Panel cite the views of Judges Higgins and Buergenthal in the Wall advisory opinion in support of their position; Secretary-General’s Panel Report, 91, para 41, fn 145. Moreover, they reject the Court’s conclusion to the contrary because ‘there is no extensive reasoning by the Court on the point and no analysis of the customary law or State practice’. This is a rather bold criticism given that the Panel’s report itself suffers from exactly the same shortcomings.

91  IIFFMCG Report, vol II, 134–5.

92  IIFFMCG Report, vol I, 23, para 19 and 25, para 24.

93  IIFFMCG Report, vol II, 282.

94  IIFFMCG Report, vol III, 135–209 and 228–67 (Georgia), 437–38 (Russia), 506 and 518–22 (South Ossetia), 531–2 and 547–57 (Abkhazia). Both South Ossetia and Abkhazia characterized Georgian operations as ‘aggression’. However, they did not explicitly invoke the UN Charter in this respect. They only referred to the ceasefire agreements concluded by the parties.

95  For a general critical appraisal of this finding, see Corten, ‘Le rapport de la mission d’enquête internationale sur le conflit en Géorgie’, 54–7.

96  IIFFMCG Report, vol II, 282.

97  IIFFMCG Report, vol II, 242.

98  See n 40 and related text.

99  IIFFMCG Report, vol II, 254. For a similar distinction, see Dinstein, War, Aggression and Self-Defence, 194–205.

100  IIFFMCG Report, vol II, 254–5.

101  IIFFMCG Report, vol II, 255–6 (by Russia against Georgia) and 293–4 (by Georgia against Abkhazia). For an overview of the controversy, see Robert Kolb, Ius contra bellum—Le droit international relatif au maintien de la paix (Brussels: Helbing & Lichtenhahn/Bruylant, 2003), 192–5.

102  Secretary-General’s Panel Report, 90–1, para 41.

103  Secretary-General’s Panel Report, 90, para 41. For the Caroline incident, see John Basset Moore II (ed), Digest of international Law (Washington DC: United States Printing Office, 1906), 409 and Christopher Greenwood, ‘Caroline, The’ in Wolfrum, Max Planck Encyclopedia of Public International Law, vol I, 1141.

104  At least, there is no indication of such a claim in any of the two reports analysed here. Only Abkhazia appears to have explicitly relied on preventive self-defence against Georgia, IIFFMCG Report, vol II, 292.

105  LAS Gaza Report, 109–10, paras 400–4.

106  LAS Gaza Report, 111, para 409.

107  Secretary-General’s Panel Report, 40, para 72. The reference to the ‘uncertain status’ of Gaza seems to point to the controversy of whether Gaza remained occupied after the 2005 Israeli disengagement.

108  Wall, Advisory Opinion, 194, para 139.

109  Wall, Advisory Opinion, 215, para 34 (Separate Opinion of Judge Huggins) and 241–3, paras 5–6 (Declaration of Judge Buergenthal).

110  See Section III.B.

111  Geneva Convention relative to the treatment of prisoners of war of August 12, 1949 (entered into force 21 Oct 1950), 75 UNTS 135, 138.

112  cf Art 8 of the Draft Articles on State Responsibility, see Draft Articles on the Responsibility of States for Internationally Wrongful Acts in Report of the International Law Commission to the General Assembly on its Fifty-Third Session A/56/10 (2001), 103–9.

113  Vaios Koutroulis, ‘Of Occupation, Jus ad Bellum and Jus in Bello: A Reply to Solon Solomon’s “The Great Oxymoron: Jus In Bello Violations as Legitimate Non-Forcible Measures of Self-Defense: The Post-Disengagement Israeli Measures towards Gaza as a Case Study”’ (2011) 10 Chinese Journal of International Law 897, 906–8.

114  Wall, Advisory Opinion, 229–30, para 35–6 (Separate Opinion of Judge Kooijmans).

115  Wall, Advisory Opinion, 215, para 34 (Separate Opinion of Judge Higgins).

116  The application of international humanitarian law rules on the conduct of hostilities will depend on whether an armed conflict exists between the rebel group and the occupying power.

117  See Olivier Corten, ‘Necessity’, Chapter 39 in this volume; Theodora Christodoulidou and Kalliopi Chainoglou, ‘The Principle of Proportionality from a Jus ad Bellum Perspective’, Chapter 55 in this volume.

118  IIFFMCG Report, vol I, 22–3, para 19.

119  IIFFMCG Report, vol I, 24, para 21. See Ruys, ‘Armed Attack’ and Article 51 of the UN Charter, 518–19;

120  IIFFMCG Report, vol II, 250 and 271.

121  HRC, ‘Human rights in Palestine and other occupied Arab territories: Report of the United Nations fact-finding mission on the Gaza conflict’, A/HRC/12/48 (25 Sept 2009), 406, para 1883.

122  HRC Flotilla Report, 53, para 263.

123  See also IIFFMCG Report, vol II, 271.

124  Oil Platforms, Judgment, 187, para 51 and 196, para 74.

125  Keiichiro Okimoto, ‘The Relationship Between Jus ad Bellum and Jus in Bello’, Chapter 56 in this volume; Vaios Koutroulis, ‘Jus ad/contra Bellum’ in Raphaël van Steenberghe (ed), Le droit international humanitaire en tant que régime spécial du droit international (Brussels: Larcier, 2013), 149, 175–9.

126  IIFFMCG Report, vol I, 24, para 21.

127  IIFFMCG Report, vol I, 24, para 21. The mission cited ‘the bombing of the upper Kodori valley’, ‘the deployment of armoured units to reach extensive parts of Georgia’, ‘the setting up of positions in and nearby major Georgian towns as well as to control major highways’, and ‘the deployment of navy units on the Black Sea.’ See also, with respect to Georgia’s attack against South Ossetia, vol I, 22–3, para 19.

128  Corten, The Law against War, 471–2. See also Gray, International Law and the Use of Force, 151–4.

129  IIFFMCG Report, vol I, 24, para 21. The HRC Lebanon Report seems to offer another, less explicit, precedent; HRC Lebanon Report, 23, para 61 and 131, fn 37.

130  See Section II.

131  See nn 35, 36, and 45 and related text.

132  eg in its written statement on preliminary objections in the case concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) before the ICJ, the Russian Federation cited with approval the EU fact-finding mission’s jus contra bellum conclusion according to which the attack launched by Georgia on 7 Aug 2008 was unlawful under international law; Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections of the Russian Federation, 1 Dec 2009, vol I, 1, para 1.1, 6, para 15, available at <http://www.icj-cij.org/docket/files/140/16099.pdf>.

133  Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination, Preliminary Objections, 1, fn 2 (the Russian Federation does not endorse all the findings of the EU fact-finding mission).

134  See the pronouncements on the possibility of the occupying power to invoke self-defence against actions stemming from the territory it occupies, at nn 106 and 107 and related text. Another example are the pronouncements on the threat to use force, see n 47.