The Response of the Restrictivists

The ‘restrictivists’ believe that allowing pre-emptive, anticipatory and preventive use of force will result in not only violation of the prohibition of use of force proscribed by Article 2(4) of the UN Charter but also unreasonable stretching of the Article 51 requirement of an ‘armed attack’.209 _{The unreasonableness lies in the fact that such stretching would allow the states to} use aggressive force in the name of self-defence against their enemy states.210 Furthermore, the enemy state, in this circumstance, would likely use defensive force accusing the first state to have used force in aggression. An example is Israel’s attack on Egypt in 1967, after the Egyptian government unilaterally had ordered the withdrawal of the United Nations Emergency Force, which since 1956 had served as a buffer between the two enemies, and had redeployed its own forces to occupy the buffer zone in threatening posture.211 Such situation would also result in aggressive use of force by those states who are militarily able and politically willing against their enemy states. Therefore, the current legal framework, according to restrictivists, of the UN Charter in regulating inter-state force is appropriate.212

In the presence of these controversies regarding the necessity of resilience of the self-defence under Article 51, the current state practices can be a very useful point to consider. After 9/11,

207 _{Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order}

(Cambridge University Press 2004) 5.

208 _{Legitimacy in the descriptive sense has been discussed in section 5.2.1 of Chapter 5.}

209 _{Anne-Charlotte Martineau, ‘Concerning Violence: A Post-Colonial Reading of the Debate on the Use of Force’}

(2016) 29 Leiden Journal of International Law 95, 98.

210 _{Abraham D. Sofaer, ‘On the Necessity of Pre-emption’ (2003) 14 Eur. J. Int’l L. 209, 211.}

211 _{Thomas Franck, ‘The Power of Legitimacy and the Legitimacy of Power: International Law in an Age of}

Power Disequilibrium’ (2006) 100 America Journal of International Law 88, 104.

212 _{Jörg Kammerhofer, ‘Introduction; The Future of Restrictivist Scholarship on the Use of Force’ (2016) 29}

Leiden Journal of International Law 13; see also Anne-Charlotte Martineau, ‘Concerning Violence: A Post- Colonial Reading of the Debate on the Use of Force’ (2016) 29 Leiden Journal of International Law 95.

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there has not been any such situation where recourse to self-defence without an ‘armed attack’ having occurred has been necessary. Although there had been few terrorist attacks that took place since 9/11, they are sporadic in nature and do not possess the ‘intensity’ to invoke pre- emptive, anticipatory or preventive self-defence.

According to the Restrictivists, under the current security and threat of force, it does not seem necessary to invoke right of self-defence without occurring an ‘armed attack’. The Restrictivists also argue that this situation can be witnessed from the massive change in the US National Security strategy in recent years. Following 9/11 terrorist attack the US National Security Strategy included the use of force in pre-emptive, anticipatory and preventive self- defence but the 2011 National Security Strategy does not discuss use of force in advance of an attack.213 The 9/11 attack being the most heinous terrorist attack in history, the Expansionists’ claim for the expansion of defensive use of force have much weight. However, owing to the circumvention and mitigation of such threat of force in the contemporary world, as claimed by the Restrictivists, there is no need to such extension. This claim of the Restrictivists has been weaker in comparison to that of the Expansionists and Realists.

2.3.4.1 Minor adaptation of the Charter framework to facilitate the

challenges posed by Realists and Expansionists

Despite the strength of the argument of the Restrictivists against expanding the current Charter proscription of defensive use of force, the Expansionists and Realists have triumphed over the Restrictivists on the logic behind their support for such expansion, namely threat of imminent attack from terrorist groups.214 _{The challenge posed by the nature and intensity of the terrorist} attacks in contemporary world has given rise to the number of claims of extension of these exceptions by the scholars215 and the state parties216 as well. On the other hand, there are possibilities of abuse of the self-defence system if any types of defensive force is allowed where an ‘armed attack’ has not occurred because there are immense uncertainties as to whether a

213 _{National Security Council, the National Security Strategy of the United States of America (2011)}

<https://www.whitehouse.gov/sites/default/files/microsites/2011-strategy-combat-transnational-organized- crime.pdf> accessed 25 March 2017.

214 _{See section 5.2.2 of Chapter 5.}

215 _{Christopher Greenwood, ‘International Law and the Pre-Emptive Use of Force’ 14 – 15 (listing Franck,}

Waldock, Fitzmaurice, Bowett, Schwebel, Jennings, Watts, and Higgins as supporting anticipatory self-defence) cited in Ashley S. Deeks, ‘Taming the Doctrine of Pre-Emption’, in Marc Weller (ed), The Oxford Handbook of

the Use of Force in International Law (OUP 2015) 665.

216 _{The National Security Strategy of the United States, Washington DC, Sept 2002}

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potential ‘armed attack’ would materialise or not?217 _{Of course states, who want to use pre-} emptive, anticipatory or preventive force in self-defence, would argue that there were certainties or likelihood that an ‘armed attack’ would have occurred had they taken no action in self-defence.

In these circumstances, a solution has been offered to balance the conflicting but strong views of the Restrictivists on the one hand, and Expansionists and Realists on the other. From the case-by-case interpretation by the Security Council of the prohibition of use of force except in self-defence, in practice, has qualified the meaning of ‘armed attack’ so as to include instances of imminent attack.218 However, the International Court of Justice has been reluctant to deal with this issue despite having the opportunity to do so in Nicaragua Case. Whereas the ICJ has declined to opine on the lawfulness of a pre-emptive, anticipatory, or preventive self- defence,219 the Secretary-General’s High-Level Panel on Threats, Challenges and Change has stated the possibility of pre-emptive self-defence to respond to an imminent armed attack.220 This view has also been endorsed by the secretary-general.221

However, there is no basis in international law for going further than this. In particular, in so far as a right of pre-emptive (or preventive) self-defence implies a departure from the requirement of ‘imminence’ it has no basis in the law as Hans Blix said in his third Hersch Lauterpacht Memorial Lecture on 24 November 2004:

Although ‘imminence’ may be a severe time requirement, ‘a growing threat’ would be an unacceptably lax criterion and would not tally with the generally accepted position that force should be used only as a last resort.222

Therefore, the right to use defensive force without reference to Security Council is limited to instances of actual or imminent armed attack.223

217 _{Ian Brownlie, International Law and the Use of Force by States (Oxford: Clarendon Press 1963) 259.} 218 _{Thomas Franck, Recourse to Force: State Action against Threats and Armed Attacks (Cambridge University}

Press 2002) 97.

219 _{Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US) Merits,}

ICJ Re 1986, 14, 102-6.

220 _{In Larger Freedom: Towards Development, Security and Human Rights for All, Report of the Secretary-}

General, UN Doc. A/59/2005, para. 124 <http://ww.un.org/largerfreedom/contents.htm> accessed 17 July 2017.

221 _ibid.

222 _{Hans Blix, ‘Third Hersch Lauterpacht Memorial Lecture’ (24 November 2004)}

<http://lcil.law.cam.ac.uk/lectures/hersch_lectures_2004.php> accessed 2 September 2017.

223 _{Thomas Franck, ‘The Power of Legitimacy and the Legitimacy of Power: International Law in an Age of}

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However, this position is an adaptation of the Charter system by invoking the Caroline principle. As a result, customary international law has provided a solution to the question of legitimacy of the pre-emptive use of force by adopting it in the Charter framework. Therefore, customs have a very important role to play to promote higher degree of legitimacy of extra- Charter use of force.224