In the first place, it seems that Israel’s intent was both punitive and deterrent, and while, proportionality may very well have some notion of deterrence, and possibly even some aspect of punishment to it, deterrence and punishment should not be the ultimate purpose for continued use of armed force. He claims that this has been achieved by relaxing the demands for imputing an attack to the host state. They most likely would try to find other way to cause harm, for example, using weapons of mass destruction (WMD) or cyber attacks. Licence is given to states to use only the minimum force necessary to defend themselves against the armed attack that has occurred until such time as the Security Council fulfils its function of restoring and maintaining international peace and security. It therefore declared that it would expand its use of pre-emptive force beyond traditional ideas of an imminent attack. Article 51 is like a back-up plan in reserve, in case that the measures taken by the Security Council or other international multilateral bodies prove themselves insufficient to provide alleviation from the scourge of aggressive “blitzkrieg” armed attacks. ‘Everything’s got a moral, if only you can find it.’, Oxford University Press is a department of the University of Oxford. They concede that the ICJ has stated that some uses of force may not be of sufficient gravity to constitute an armed attack, but argue that this view has not been generally accepted. 2.1 Origin of Anticipatory/Preemptive self-defense and Imminence requirement. When an attack by non-state actors may be imputed to a state is a question on which there are a variety of opinions: see, e.g., Travalio and Altenburg, ‘State Responsibility for Sponsorship of Terrorist and Insurgent Groups: Terrorism, State Responsibility, and the Use of Military Force’, 4 Chicago J Int’l L (2003) 97; Jinks, ‘State Responsibility for the Acts of Private Armed Groups’, 4 Chicago J Int’l L (2003)83; Brown, ‘Use of Force against Terrorism after September 11th: State Responsibility, Self-Defence and Other Responses’, 11 Cardozo J Int’l & Comp L (2003) 1; Frank and Rehman, ‘Assessing the Legality of the Attacks by the International Coalition Against Al-Qaeda and the Taleban in Afghanistan: An Inquiry into the Self-Defense Argument Under Article 51 of the UN Charter’, 67 J Crim L (2003) 415; Schmitt, supra note 45. From: Oxford Public International Law (http://opil.ouplaw.com). Zimmermann’s starting point is that proportionality in jus ad bellum is determined by the nature and scope of the armed attack and how in the specific circumstances that attack could be repelled. Retrieved on 23/01/2013 from http://georgewbush-whitehouse.archives.gov/nsc/nss/2006/sectionV.html, Webster, D. (1906). While the appropriate test in this context is generally the ‘means-end’ test, in some cases, such as use of force in response to a limited armed attack, the ‘tit for tat’ test of proportionality might be more appropriate. U.S. White House and President Bush Jr., G. (2002). See Bowett, supra note 49; Alexandrov, supra note 30, at 166. When force is used in situations in which they have sympathy for the victim state, and little or no sympathy for the state or group that provoked the use of force by that state, they are not likely to be critical of the force used, provided it is not obviously incompatible with jus in bello. You do not currently have access to this article. When asking whether the very resort to self-defence was necessary, the question is whether there were non-forcible means of dealing with the armed attack.203 Once there has been a resort to force, many, but not all, experts argue that a second necessity test arises: were the means used by the state acting in self-defence necessary to achieve the legitimate ends of self-defence in the specific context?204 This question is usually answered by the first test of what is necessary, namely by asking whether there is a rational connection between the force used and the legitimate ends of its use.205 There are, however, many cases in which reference is made to use of ‘excessive force’.206 It is not clear whether the implications are that the same legitimate ends could have been achieved by less force, or whether the reference is to the final peg of the three-pronged test. Proponents of the theory may reply that the collective security philosophy behind the Charter is reflected in the powers of the SC under Chapter VII to take measures to maintain international peace and security.150 In exercising these powers the SC may impose a cease-fire between the parties or subject them to other demands, such as withdrawal from territory taken by force.151 Such a decision will bind the states involved (although, if the conflict involves a non-state actor such as Al Qaeda, it will not necessarily bind all the parties involved in the conflict). The Bush administration’s declaration was widely criticized and was not repeated in the National Security Strategy published in 2010 by the Obama administration.200 Other suggestions to widen the scope of self-defence when it comes to terrorism are not likely to gain recognition by states that are not especially affected by terrorist attacks. The other two respondents, Professors Richard Falk and Michael Scharf, did not present a view of the test of proportionality in jus ad bellum. We would expect the Security Council then to meet its responsibilities. The clear implication is that while every use of force against the territorial integrity or political independence of another state is prohibited, not every such use of force will constitute an armed attack.38 In the Nicaragua case, the ICJ stated that ‘it will be necessary to distinguish the most grave forms of the use of force (those constituting an armed attack) from other less grave forms’.39 As an example of use of force that would not be of the ‘scale and effects’ to warrant being termed an armed attack the Court mentioned ‘a mere frontier’ incident.40 The Eritrea–Ethiopia Claims Commission opined that ‘[l]ocalized border encounters between small infantry units, even those involving the loss of life, do not constitute an armed attack for purposes of the Charter’.41, The demand for the force used to meet a threshold of ‘scale and effects’, or gravity of harm in order for it to be regarded as an armed attack for the purposes of Article 51 has not been universally accepted. 124, available at: www2.ohchr.org/English/bodies/hrcouncil/docs/gaA,59.2005_En.pdf (last accessed 9 Feb. 2011): ‘[i]mminent threats are fully covered by Article 51, which safeguards the inherent right of sovereign States to defend themselves against armed attack. See Greenwood, supra note 58; Dinstein, supra note 16, at 213–221, who terms such action ‘extra-territorial law enforcement’; Lubell, supra note 19, at 36–42; Schmitt, supra note 45; Trapp, ‘Back to the Basics: Necessity, Proportionality, and the Right of Self-defense against Non-state Terrorist Actors’, 56 ICLQ (2007) 141; Tams, supra note 49, at 378–381. States know only too well that retribution on its own is not regarded as an aim that is compatible with the notion of self-defence, and that forcible action that is motivated solely by the desire for retribution will be regarded as an illegitimate armed reprisal. Besides, action in a situation of self-defence is, as its name indicates, action taken by a State in order to defend its territorial integrity or its independence against violent attack; it is action whereby ‘defensive’ use of force is opposed to an ‘offensive’ use of compar able force, with the object – and this is the core of the matter – of preventing another’s wrongful action from proceeding, succeeding and achieving its purpose. This article covers the threat of force, which is not permissible in a situation where the use of actual armed force would not be. The Charter set out to ban war between states. Art. To purchase short term access, please sign in to your Oxford Academic account above. While a state that has not been attacked is likely to meet a sceptical reaction when it claims that it used force to stop an imminent attack, states that have already been subject to an armed attack, especially one nearing the scale and effects of the 9/11 attack, would probably find other states and international organs more understanding of their claim that they were acting to prevent future attacks.166 Michael Schmitt argues that the same test of imminence will apply whether the state has been attacked or not, but the mere fact that a state has been attacked already will make it easier to conclude that it will be attacked again. Should Cyber Exploitation EverConstitute a Demonstration of HostileIntent That May Violate UN CharterProvisions Prohibiting the Threat orUse of Force?Federal Communications Law Journal, 64(3), 644-650. See Kelly, supra note 97, who reviews the literature on this matter. However, in a real situation this may prove to be fatal because such a rapid response often is inaccurate and innocent civilians may suffer (Barkham, 2001). In its National Security Strategy, first published in 2002, the Bush administration argued that traditional concepts of deterrence are inadequate in fighting against terrorists committed to wanton destruction and martyrdom. If one takes the text of Article 51 seriously, the right to use unilateral force in self-defence would appear to be a function of the ‘emergency situation’ in which a state finds itself. The perspective of the latter is likely to change radically once they too are faced with an attack. Ratner, ‘Self-Defense Against Terrorists: The Meaning of Armed Attack’, in L. van den Herik and N. Schrijver (eds), Counter-terrorism Strategies in a Fragmented Legal Order: Meeting the Challenges (forthcoming 2013). Dinstein’s view is supported by Schachter: see Schachter, supra note 33; and O’Brien, supra note 86. Is China Playing by the Rules? In some cases use of force by the victim state may be based on a credible assessment that another attack is imminent; in others there may not be any credible evidence on which such an assessment could be based, and to the extent that the use of force is forward-looking, rather than purely punitive, it may appear to be an example of preventive use of force. One can find strong support for all of the above grounds in the SC debates on Israeli military operations in the territory of Arab countries where the issue of reprisals was often raised.101. There is a limited right of pre-emptive self-defence under customary law. 2006, 1. In such cases the criticism would appear to rely on the ‘tit for tat’ test of proportionality. The UN Commission of Inquiry held that the conflict ‘began when Hezbollah fighters fired rockets at Israeli military positions and border villages while another Hezbollah unit crossed the Blue Line, killed eight Israeli soldiers and captured two’: Report of Commission of Inquiry, supra note 205, at para. 50 clarifies that ‘[c]ountermeasures shall not affect … [t]he obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations’: International Law Commission, Responsibility of States for Internationally Wrong Acts (2001), available at: http://untreaty.un.org/ilc/texts/9_6.htm (last accessed 11 Feb. 2011).