![Sample our Humanities journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5939/TOC-Subject-Sample-2021-Humanities.jpg"})
Abstract
This article lays a theoretical foundation the perspective of international law for applying the principle of proportionality of cause in modern just war theory. It proposes an analytical framework for measuring proportionality based on general tort law, filtered through the international law of state responsibility. It proposes assessing the use of force as a proportionate (or disproportionate) remediation for an injury (present or future) caused by another state that is in breach of its legal obligations. The article then applies this approach to the problems of anticipatory self-defense and humanitarian intervention.
Notes
1. For more on this distinction, see Brown Citation2008, chaps. 4 & 10.
2. Fernando Tesón (Citation1997: 207) writes, ‘The lack of [UN] response to genocide supports the assertion of many qualified legal scholars that, unless the international community is ready to tolerate a return to the Nazi era, the right to prevent genocide has reverted to individual states, where the prevention can be undertaken with reasonable chance of success’.
3. Oppenheim distinguishes between a crime committed by the state itself, which is not possible in international law, and crimes committed against the law of nations by individuals in their official capacities, which are being prosecuted more frequently in criminal courts.
4. Articles on State Responsibility for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-Third Session, U.N. GAOR, 56th Sess., Supp. No. 10, chap. IV, sec. E.1, U.N. Doc. A/56/10 (2001) [hereinafter Articles on State Responsibility].
5. For a discussion of the elements of reprisal and their similarities to counter-measures in modern customary international law, see Elagab (Citation1988). Today, the term reprisal is usually reserved for belligerent reprisals taken response to the violations of the law of armed conflict. Commentaries to the Draft Articles on State Responsibility for Internationally Wrongful Acts, in U.N. Doc. A/56/10, supra note 4, p. 325 [hereinafter Draft Articles Commentary].
6. Draft Articles Commentary, supra note 5, p. 329.
7. The Gabčikovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7 (Sep. 25), paras. 83–87.
8. Responsibilité de L'Allemagne à Raison des Dommages Causés dans les Colonies Portugaises du Sud de L'Afrique (Port. v. Ger.), 2 U.N.R.I.A.A. 1011 (1928) [the Naulilaa case].
9. We shall adopt the term used by Hans Kelsen (Citation1966: 6) in promulgating his delict-sanction theory of law; law, to Kelsen, is a sanction carried out in response to a delict.
10. See Barcelona Traction, Light and Power Company, Limited (Belg. v. Sp.), para. 32, 1970 I.C.J. 3, 32 (Feb. 5).
11. Under Article 25 of the Charter, members of the UN ‘agree to accept and carry out the decisions of the Security Council’.
12. For a clarification of the terminology used to describe anticipatory defense operations in this section, see the Introduction of this issue, note 1.
13. Article 51 reads, ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations’ (emphasis added). But see Schachter Citation1984: 1633–4 (arguing that the drafting history of Article 51 manifested the intent to not impair the pre-Charter right of self-defense).
14. See also Stephen Schwebel's dissenting opinion in Military And Paramilitary Activities In And Against Nicaragua (Nicar. v. U.S.) (merits), 1986 I.C.J. 14, 347 (June 27) (Schwebel, J. dissenting). Yoram Dinstein (Citation2001: 168–73) takes the restrictionist view of Article 51, but would allow action in ‘interceptive self-defense’, when an attack is imminent and practically unavoidable, e.g. Israel's first strike in the 1967 Six-Day War.
15. Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, art. 2, 729 U.N.T.S. 161.
16. I have argued elsewhere that the U.S.'s belief that Iraq still had active WMD programs was both reasonable and genuine. However, I have also argued that humanitarian intervention was the stronger legal and moral basis on which to justify the invasion, not anticipatory self-defense (Brown Citation2003, Citation2004).
17. Universal Declaration of Human Rights, Dec. 10, 1948, arts. 3 & 25, G.A. Res. 217A (III).
18. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, art. 2, 78 U.N.T.S. 277.
19. Universal Declaration of Human Rights, art. 6.
20. Thomas Franck (Citation1992) asserts that such a right has emerged.
21. In addition, some needs (such as political rights) may be easier to secure by other means than force, and outside military interventions armed force could potentially be counterproductive. I thank Henrik Syse for raising this point.
22. Articles on State Responsibility, supra note 4, arts. 2 & 12.
23. For example, the Sierra Leonean president accused the opposing junta of executing or planning a genocide plan, but the accusation was not substantiated and the danger of genocide was therefore not among the justifications ECOWAS presented for its intervention in that country (Nowrot & Schabacker Citation1998: 349–50).
24. The tort-law component of ‘causation’ is embedded in the criterion of ‘injury,’ and will not be problematized in this article due to space limitations.
25. This is the cultural explanation of the democratic peace: that states that are benevolent toward their own populations are more likely to be benevolent toward other states (Russett Citation1993; Rummel Citation1997; Russett & Oneal Citation2001; Moore Citation2004).
26. Barcelona Traction, supra note 10, paras. 33–4.
27. Vattel was writing in the context of a civil war, where the parties potentially have equal rights. In modern human rights law, the sovereign and populations are already separate parties.
28. Tesón follows the hypothetical of Vattel, in which ‘a prince, by violating the fundamental laws, gives his subjects a lawful cause for resisting him; . . . by his insupportable tyranny, he brings on a national revolt against him’ (1995: bk. ii, chap. 4, secs. 55–6).
29. The question of whether the intervening state must have purely humanitarian motives falls with the purview of Right Intent, and is thus beyond the scope of this article. In addition, due to space limitations, the question of which states may intervene (any state, or just those that have been adversely affected, e.g. by the influx of refugees) will not be addressed.
30. Gary Klintworth (Citation1989: 70–3), however, argues that maintaining a military presence in Cambodia was necessary to prevent the Khmer Rouge, whose leaders were still at large, from regaining power.