The United Nations Charter (herein Charter) is the constitution of international law. Article 51 of said Charter is the provision for the natural law right of self-defense: “Nothing in the present Charter shall impair the inherent right of individual and collective self-defense if an armed attack occurs … until the Security Council has taken measures necessary to maintain international peace and security.” The International Court of Justice (herein ICJ) is part of the UN system and had its origins in the League of Nations system after World War I. The ICJ has laid down requirements for the legitimate use of force under Article 51.
The United States (herein U.S.) is currently in the throes of being the victim of attacks by “proxies” of Iran located in Syria and Iraq. These proxies apparently get funding from Iran and some direction. Many have called for the U.S. to go beyond mere self-defense against the proxies and to attack the “head of the snake,” i.e., Iran. The question is whether such an attack against Iran is within the rights of the U.S. under Article 51 self-defense. Does self-defense include a right to use force for deterrence? Retaliation? Retribution? Punishment?
The key principle of the Charter is found in Article 2(4): “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” The actual attackers here are non-state actors, but they seem to be dependent on the state of Iran. Due to international political considerations, we do not expect Security Council enforcement action here. Thus, absent Security Council action, the U.S. must rely on the requirements of Article 51 by itself. Can the U.S. attack a third party here (i.e., Iran) in the name of self-defense if there is a connection between that third party and the attackers? I believe the answer is no.
Regarding the U.S. past practice, the answer would be yes. The U.S. attacked North Vietnam by bombing during the Vietnam War regarding deterrence to prevent North Vietnam from aiding the non-state actor, the Viet Cong, from attacking in South Vietnam; to show North Vietnam the costs were greater than the gains (i.e., deterrence). The legal argument was based on Article 51.
Since those days, the ICJ has spoken regarding the requirements of Article 51. It cannot be used for deterrence, retribution, or retaliation. It must be used for actual defense. The case is Iran v. United States, ICJ, 2003, known as the Oil Platforms Case. Iran had filed a complaint against the U.S. for the destruction of three Iranian oil platforms by the U.S. Navy in 1987-88. The U.S. argued that its attacks were in response to Iranian attacks on U.S. vessels in the Persian Gulf and for engaging in dangerous military action. The platforms were not military targets; the motivation for the U.S. was deterrence and retaliation.
Although the actual case was over a Treaty of Amity done in 1955, the ICJ fleshed out Article 51. Citing the precedent of Nicaragua v. United States (1986), the ICJ stated: “The United States must also show that its actions were necessary and proportional to the armed attack made on it, and that the platforms were legitimate targets open to attack in the exercise of self-defense.” (Paragraph 51 of Opinion). Retaliation and deterrence were not self-defense, nor were the platforms legitimate military targets.
The offensive use of force for self-defense after 9-11 (2001) is different because two UN Security Council Resolutions were involved which incorporated by reference self-defense in this circumstance: “[r]eaffirming the inherent right of individual or collective self-defense as recognized by the Charter of the United Nations as reiterated in resolution 1368(2001).” (Security Council Resolution 1373, 2001). Offense was…
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