Index of subjects

A

Aaland Islands 21 acts of state 143–4 actus reus 136–7 Afghanistan

and Al-Qaeda 7, 31, 207–8, 216, 236–7, 286, 301

consent to Soviet intervention 114 International Assistance Force 303 intra-State and inter-State conflicts blending into single war 7

sanctions against 302 Soviet withdrawal from 265 ultimatum to 31

UN Security Council resolutions regarding 286, 301, 303

US supply of arms to rebels in 10 war against 7, 236–7, 328

African continent, consent to the use of force in 115

aggression

and armed attack 184, 283 criminality 104, 124–6 definition by the UN General

Assembly 70, 124–31, 136,

170, 184, 188–9, 193, 196, 200–3, 283

distinction from breach of the peace 288

general 44, 89, 92 high seas 23

non-aggression treaties 77, 98, 171 pacts of aggression 100–1 reparations 105–8

State responsibility 104–8

UN Charter provisions 87, 280, 283, 288, 290

air embargoes Bosnia-Herzegovina 302 Iraqi ‘no-fly’ zones 297 Libya 282, 302, 321 Sudan 302

air space 20, 199

Al-Qaeda. 7, 31, 197, 207–8, 216, 236–7, 286, 301

Alabama rules 29 Albania 301, 309

‘all necessary means’ provisions 296, 300, 303–4

Angola 224, 287, 293, 301–2 animus agressionis 136 animus belligerendi 14–15 annexation 89, 128, 168–72 Anschluss of Austria 269 Antarctica 22

Arab-Israeli conflict armistice agreements 44–6 cease-fires 54–6

civil war and inter-State war 7 Israel’s War of Independence 7,

288, 293

peace preliminaries 39 peace treaties 36–8

‘Six Days War’ 55–6, 192 ‘Yom Kippur’ hostilities 55–6,

192 archipelagic waters 20

Argentina. See Falkland Islands War armed attack

aggression, as type of 184 arms, choice of 196 beginning of 187–92 collective self-defence 268–70 constructive 189, 196, 198 de minimis clause 128, 193 ‘first shot’ rule 188–92 incipient 191–2, 199 irregular forces, by 201–4 locale 196–9

‘pin-prick’ attacks 202, 230–1 preventive war 182–7

self-defence as response to 177, 182–7 small scale 193–6, 219

target of 199–201

340 Index of subjects

Germany (cont.)

ultimatum issued by France and Britain in WWII to 31

unconditional surrender in WWII 153, 241 US unilateral declaration of termination

of war with 49

war reparations after WWI 106–7 Goa 89

Great Britain.See United Kingdom Greece 262, 266, 293, 309 Grenada 232

guarantees 263–7 Gulf War

asymmetrical aims of opposing parties 14

beginning of war in material sense 12 cease-fire and ‘material breach’ 53, 58,

274, 277, 296–300

collective self-defence vs. collective security 273–7, 327

Compensation Commission 107–8 continuation of war of self-defence to

total victory 242 debellatio avoided in 49 first phase 294–6

immediacy as condition precedent for self-defence 210, 243

Korean War compared 276

neutral States’ involvement in 165–6 not a ‘preemptive’ war 183, 297 reparations 107

second phase 296–7

self-defence war’s continuing status despite cease-fire 235

spontaneous vs. premeditated collective self-defence 256

third phase 297–300 total vs. limited wars 12

UNIKOM (UN Iraq-Kuwait Observation Mission) 308

WMDs 53, 58–9, 298

H

Hague Rules of Aerial Warfare (1923) 26–7, 29

Haiti 165, 287, 301–3

Heads of States, imunity of 147–8 Helsinki Final Act (1975) 98 high seas 22–3, 197

hostages

Iranian hostage crisis 197, 213, 236 nationals abroad as targets of armed

attack justifying self-defence 201 ‘hot pursuit’ 246

humanitarian assistance 297, 303

‘humanitarian intervention’ just war doctrine 70–3

not an exception to general prohibition of use of force 90, 315

rescue of nationals abroad not to be confused with 234

UN Security Council’s sole power to order 71–2, 90–1, 266–7

Hungary 35, 42–3, 114

I

identity of attacker, verification of 209 ignorantia facti excusat 138

ignorantia juris non excusat 138–9 immediacy

collective self-defence 270 condition precedent to self-defence

208–11

extra-territorial law enforcement against non-State actors 250

Gulf War 210, 243 on-the-spot reaction 221 reprisals 225

wars of self-defence 242–3 imminent threat 182–7

immunities from jurisdiction 146–50 consular agents 147

diplomatic agents 146, 149 foreign ministers 148–9 Heads of States 147

immunity from criminal responsibility distinguished 149

limits on 149 India 33, 89, 99, 188

Indians (Native Americans) and just war doctrine 65

individual self-defenceSee. self-defence insanity 140

Institut de Droit International civil war interventions 112–13

continued existence of treaties in wartime 19

equal application of jus in bello between opponents 159–63

immunity of Heads of States from jurisdiction 147–8

neutral States assisting UN forces 165 intent or motive

animus belligerendi and definition of war 14–15

mens rea and criminal responsibility for acts of aggression 136–40

reprisals 227

self-defence, determining intent of attacker before engaging in 209

342 Index of subjects

jus cogens (cont.)

territorial annexation in contravention of 169–70

treaty law and customary international law, relationship between 97

UN Security Council decisions contravening 324–5

jus dispositivum 100 jus fetiale 63–4

jus in bello

alternative terms for 16

and jus ad bellum 16–17, 135, 156–62 application in ‘short of war’ incidents

17–18

applicability of crimes against peace ratione temporis 135

duties vs. rights according to 18 equal application between belligerents

156–62

extra-legality theory of war 74

material vs. technical existence of state of war 10, 152

peacetime status mixtus, applicability to 17 reprisals 222, 230

reparation, duty of 106

wartime status mixtus, applicability to 18 jus naturale 179

jus standi 109 just war doctrine

bellum legale replacing bellum justum 68 Christian theology of 64–5 discrediting of (nineteenth–early

twentieth centuries) 67 ‘fathers’ of international law on 65–7 ‘humanitarian intervention’ 70–3

justice on both sides, possibility of 66–7 Kelsen’s theory of 67–8

‘national liberation’, wars of 68–70 Roman origins of 63–4 self-defence and 176

justiciability 212–13

K

Kenya 197

Korean War

armistice agreement ending 43, 46, 154

Gulf War compared 276

inconclusive police actions, problems of 153–6

mutual assistance treaty between US and South Korea 258

NATO’s evolution and 261

UN Security Council resolutions regarding 292–3

Kosovo

NATO actions in 313–15, 327 total vs. limited wars 13

UN Security Council resolutions regarding 301, 314

Kurds in Iraq 247, 297

Kuwait, Iraqi invasion Seeof. Gulf War

L

League of Nations 80–4, 278–9 Lebanon

armistice agreement with Israel 43–6 extra-territorial law enforcement in 247 unratified peace treaty with Israel 37

legality of war 75–7

legal status of warSee. extra-legality of war; legality of war; just war doctrine; prohibition on use of inter-State force; war of aggression

‘lend lease’ 166–7 Liberia 115, 301–2 Libya

air and arms embargoes imposed on 282, 302, 321

determination of threat against peace posed by 301

Lockerbie bombing 301, 321–4 non-Member States’ involvement in UN

sanctions against 165 US air strikes against 229

limited wars 11–13

Lockerbie bombing 301, 321–4 lump sums 106

M

Mackenzie Rebellion 248

mala in se, war of aggression as 120 manifest illegality 139, 142 maritime law

archipelagic waters 20

armed attacks, right of self-defence against 198–9

contiguous zones 246 continental shelf 23–4 exclusive economic zone 23–4

fleets as targets of armed attacks 200 high seas as region of war 22–3, 197 ‘hot pursuit’ 246

internal waters 20, 198, 246

territorial waters 20, 23, 26, 198–9, 246 ‘material breach’ 57–9, 298–9

material sense, war in 9 beginning of war 33–4 jus in bello during 10, 152

Mayaguez incident 200

mens rea 136–40

Mexico, extra-territorial law enforcement in 248

military alliances 260–3 military sanctions 282, 304–5 Military Staff Committee 306 military supplies

by Governments to armed bands and terrorists 10, 201–4

by neutrals to belligerents 27–9 in mutual assistance 258

missile attacks 189, 197, 199 mistake of fact 138, 142 mistake of law 138–9, 142

moon, outer space and other celestial bodies 24

moral choice 139, 141 motive. See intent or motive Mozambique 282

mutual assistance treaties 257–61, 264, 267

N

national law, criminal defence of obedience to 140

‘national liberation’, wars of 68–70, 89–90, 130

national vs. unit self-defence 220 nationals abroad, protection of 90, 200–1,

231–4, 271

NATO (North Atlantic Treaty Organization) 208, 261–2, 312–15, 327

natural catastrophe, war viewed as 73 natural law ( jus naturale) 179 necessity

collective self-defence 270 condition precedent to self-defence

208–11

extra-territorial law enforcement 246–7, 249–50

on-the-spot reaction 221

regarded as distinct from self-defence 246–7

reprisals as self-defence 225 wars of self-defence 237

Netherlands 117 neutrality

air space of neutral State, penetration of or transit through 199

and UN Charter 163–6

armed attack against a neutral State 199 base of military operations for belligerents

28–9

basic principles 24–5

change in status of neutral States 25, 167–8

due diligence requirements 29 enrolment in belligerent armed forces

26–7 impartial 163–8 laws of 24–9, 199

military supplies to belligerents 27–9 non-discrimination 25 non-participation 25

notification to neutral states 34 passage of belligerent troops and materials through neutral

territory 26 permanent 20 prize 26 ‘qualified’ 167–8

territorial waters 26 neutralization 20–1 ‘no-fly’ zones 297

non-aggression treaties 78, 98, 171 non-liquet 161

non-Members of UN 91–5, 267–8 non-recognition of territorial acquisition

170–2 non-State actors

endorsement of acts by a State 236 extra-territorial law enforcement against

244–51

right of self-defence against 207–8 ‘no-quarter’ policy 10–11 normalization of relations 38, 46 North Atlantic Treaty Organization

(NATO) 208, 261–2, 312–15, 327 Norway 198, 249

nuclear weaponsSee. weapons of mass destruction (WMDs)

nullum crimen sine lege 119 Nu¨rnberg Principles 123, 134,

141, 144

O

obedience to national law 140–1 obedience to superior orders 141–3 official position 144

on-the-spot reaction 179, 219–21, 271, 308

opinio juris 93–6

Organization of African Unity 311 outer space, moon and other celestial

bodies 24

P

pacts of aggression 100–1 Pakistan 33, 99, 188, 265 Palestine. See Arab-Israeli conflict Panama Canal 20–1

344 Index of subjects

Panama, US intervention in 114, 232 peace preliminaries 39, 42

peace treaties.See treaties of peace peacekeeping forces 307–9

Pearl Harbor 34, 190, 241 penal proceedings 144–5

peremptory norms of international law.

See jus cogens permanent neutrality 20–1

planning to wage war 131–3, 137 Poland 241, 258, 263

‘police action’ 153–6, 244–51, 272 policy-makers 133–4, 138–40, 143 Portugal 89, 224

preemption 183, 297

preparation to wage war 131–3, 137 preventive war 182–7

prisoners of war 119, 157, 223 prize 26

prohibition of use of inter-State force.

See alsoconsent; jus cogens; war of aggression

consequences of 151–2

customary international law 91–5, 326 exceptions to 83–5, 88–91 Kellogg-Briand Pact 83–5, 95, 184 multilateral, bilateral and regional treaties

97–9

neutrality, implications for 163–8 self-defence as an exception to 88,

177, 180

technical vs. material sense of war and 152–3

territorial changes, validity of 168–72 treaty law and customary international

law, relationship between 95–7, 103 UN Charter provisions 85–91, 95, 326

proportionality

‘accumulation of events’ 202, 230–1 collective self-defence 270 condition precedent to self-defence

208–11

extra-territorial law enforcement against non-State actors 250

on-the-spot reaction 221

reprisals as self-defence 224–5, 231 rescue of nationals abroad 232 war of self-defence 237–42

protection of nationals abroad 90, 200–1, 231–4, 271

punitive damages 111

Q

‘qualified’ neutrality 167–8 ‘quarantine’ 186

R

recruitment 26–7, 304–5 recognition

of state of war 10, 152 of States 38, 46

of situations 110, 170–2 regional arrangements for collective

self-defence 177, 256–7, 271 regional organizations, authorized enforcement action by 310–15

regional treaties 98, 115–16 region of war 19

air space 20, 199 archipelagic waters 20 continental shelf 23–4 demilitarized zones 21–2 exclusive economic zone 23–4 high seas 22–3, 197

internal waters 20, 198 land 20

neutralization agreements 20–2 outer space, moon and other celestial

bodies 24

territorial waters 20, 23, 26, 198–9, 246 reparations 104–8

reporting self-defence to UN Security Council 213, 216–18, 271

reprisals

collective self-defence 272 definition 221–2 deterrence 227

extra-territorial law enforcement distinguished 250

International Court of Justice 229–30 International Law Commission 226, 231 Israeli practice 230

self-defence ‘short of war’ 221–31, 272 terminology 226–7

time-lag inevitable 227

‘qualified’ neutrality explained in terms of 167

UN General Assembly 229

UN Security Council 229

rescue missions for nationals abroad 231–4, 271

respondeat superior 141 restitution 104–8

Roman origins of just war doctrine 63–4 Romania 35, 42–3

rules of engagement 182, 220 Russia/Soviet Union.See alsoAfghanistan/

Soviet withdrawal from; ‘Cold War’ Anglo-Soviet Alliance (1942) 253

armed conflict with Japan (1939) 18 boycott of UN Security Council 276, 292

Chechnya conflict 70

definitions of aggression in treaties of 127 guarantee with US re Afghanistan 265 just war doctrine and wars of ‘national

liberation’ 69–70, 89

neutrality with regard to Japan in World War II 25

Permanent Member of UN Security Council 291

Warsaw Pact 262

Rwanda 121, 301–3

S

San Remo Manual on International Law Applicable to Armed Conflicts at Sea 23

sanctions

economic 215, 279, 281–2, 294–5, 302–3 just war as 67–8

League of Nations imposing 279 military 282, 304–5

neutral States’ participation in 165

UN Charter on hardships caused to other nations by 281

UN Charter provisions on 281–2 UN resolutions imposing 302

satellites 197 satisfaction 104–8

self-defence. See alsocollective self-defence aggression for purposes of 130–1 anticipatory See( preventive war)

as an exception to the prohibition of use of inter-state force 88, 94, 177–8, 180

as response to armed attack 177, 182–7 basis of 176, 179–82

both parties claiming 178, 188, 211 coalitions in 252–3, 273–7 collective security co-existing with

285–6

continuation of conflict after aggressor sues for peace 239–42

covert 217 definition 175–7

defensive armed reprisals 221–31, 272 duty of 178–9

equal application of jus in bello between belligerents 156–62

extra-territorial law enforcement against non-State actors 244–51, 272

extreme 161–2

immediacy as condition precedent to (See immediacy)

inherent right of 179–82

interceptive 190–2

irregular forces under control of State, armed attacks by 201–4

Kellogg-Briand Pact’s prohibition on war, exceptions to 83

modality of collective self-defence 271–3

modality of individual 219–51 national vs. unit 220

necessity as condition precedent to (See necessity)

necessity as distinct from 246–7 non-State actors 204–8

no self-defence against 178, 250 not affected by cease-fire violations

235–6, 277

on-the-spot reaction 179, 219–21, 271, 308

peacekeeping forces’ right to 308 physical persons’ rights vs. States’ rights

to 181

‘preemptive’ 183, 191, 297 proportionality as condition precedent to

(See proportionality)

protection of nationals abroad 231–4, 271

report to the UN Security Council 177, 213, 216–18, 271

right of 178–82

self-help as essence of 175–6, 211 ‘short of war’ incidents 219–34 and sovereignty of States 180–1 sub judice situations, use during 213

taking place of collective security 327–8 two phases rule 211–13

UN Security Council options on report of 213–16

verification of identity of attacker 209 war 235–43, 272

self-determination 68–70, 109, 130, 169–70

September 11, 2001, attacks. See also Afghanistan and Al-Qaeda

‘Bush doctrine’ 182–3 Inter-American resolution in response

to 208

intra-State and inter-State conflicts blending into single war 7 metaphorical war segueing into real

war 236

non-State actors, right of self-defence against 207–8, 236

North Atlantic Council’s resolution in response to 207–8

proportionality 240–1

September 11, 2001, attacks (cont.) report to UN Security Council of self-

defence actions in response to 216 UN Security Council resolutions in

response to 285–6 Serbia and Montenegro 302 ‘short of war’ incidents

anti-terrorist strikes as 328

crimes against peace 125–6, 129, 131–3 defensive armed reprisals 221–31, 272 definition 11–13

extra-territorial law enforcement 244–51 Kellogg-Briand Pact 85

on-the-spotreaction179,219–21,271,308 UN Charter prohibiting inter-State force

extended to 85

si vis pacem, para bellum 260 Siam (Thailand) 36

Sierra Leone 115, 301–2, 307 ‘Six Days War’ 55–6, 192

small-scale armed attacks 193–6, 219 Solomon Islands, Regional Assistance

Mission to 112 Somalia 301–3 South Africa 293–4

Southern Rhodesia 293–4, 311 sovereignty of States

collective security powers of UN Security Council overriding 288

right to make war as condition of 76 self-defence based on 180–1

Soviet UnionSee. Russia/Soviet Union State responsibility

compensation 105–6

de facto State organs 203–4, 244 international crimes 108–12 reparation 104–5

satisfaction 105

war reparations 106–8

State sovereignty.See sovereignty of States status mixtus 15–16

peacetime status mixtus 16–18 wartime status mixtus 18–19

statutory limitations on crimes against peace 135

Submarines 198 Sudan 301–2 Suez Canal 20, 45

super-powers 263–4

superior orders, obedience to 141–3 surrender, unconditional 48–9, 153, 241 suspension of hostilities

armistice, in the past 42, 50 cease-fires 47, 50–9

de facto hiatus in military action 47, 50

terminology 50 truces 50

Sweden 198 Switzerland 166 Syria

armistice with Israel 43–6 cease-fire agreements with Israel 38

hostilities with Israel in Lebanon 248 ‘Six Days War’ 55–6, 192

war with Israel not over 56 ‘Yom Kippur’ hostilities 56, 192

T

Taliban. See Afghanistan Tanzania 197

technical sense, war in 9 beginning of war 30–3 consequences of prohibition on

inter-State force 152–3 jus in bello during 10

termination of warSee. alsotreaties of peace armistice agreements 42–7, 50

debellatio 48–9

implied mutual consent of 47–8 unilateral declaration of 49–50

‘territorial integrity and political independence of States’ 85–7, 90, 97, 127

territorial waters 20, 23, 26, 198–9, 246 territories of StatesSee. alsoregions of war

armistice demarcation lines 45–6 extra-territorial law enforcement 244–51,

272

locale of armed attack 196–9 non-recognition of territorial acquisition

by unlawful force 171–2 non-State actors 204–8, 236, 244–51 refusal to withdraw from 189, 196, 199 target of armed attack 199–201 territorial changes by unlawful force

168–72

terrorism. See alsoSeptember 11, 2001, attacks

armed attack concept embracing terrorist attacks 201–8, 244–5

consent issues 114

intra-State and inter-State conflicts blending into single war 7

irregular forces under control of State 201–4

metaphorical war segueing into real war 3, 236

nationals abroad as targets of armed attack 201

UN Security Council (cont.)

International Court of Justice, interaction with 88, 318–25

invalidation of binding decisions by International Court of Justice 321–5

mechanism for employing force 304–15 non-binding resolutions vs. binding

decisions 291

options in case of self-defence 213–16 post-Gulf War record 300 Permanent Members 290–2

political rather than judicial nature of 214, 285

reluctance to identify aggressors 214 reporting exercise of self-defence to 213,

216–18, 271 reprisals 229 responsibility of 290–2

sanctions 215, 281–2, 294–5, 302–3 special agreements 304–7

veto powers 291–2, 302, 315 unconditional surrender 48–9, 153, 241 Union for the Total Independence of

Angola (UNITA) 287, 302

Union of Soviet Socialist Republics. See Russia/Soviet Union

unit self-defenceSee. on-the-spot reaction United Kingdom

Anglo-Soviet Alliance of 1942 253 Caroline incident 176, 184, 247–9 conflict with Egypt 33

Cyprus guarantee 266

Falkland Islands War 52, 89, 243, 292–3 Locarno guarantee 265

Lockerbie bombing 301, 321–4

mutual assistance treaty with Poland 259 Permanent Member of UN Security

Council 291

ultimatum issued to Germany in World

Gulf War

anticipatory self-defence, long-term position on 182

Cuba Missile Crisis 186 Dominican Republic and 232 embassy bombings 197 extra-territorial law enforcement in

Mexico 248 Grenada and 232

guarantee with USSR re Afghanistan 265

initial neutrality in World War II 25, 28, 166–7

Iranian hostage crisis 197 Libyan air strikes 229 Lockerbie bombing 301, 321–4

Mexico, extraterritorial law enforcement in 248

mutual assistance treaty with South Korea 258

Panama and 114, 232 Pearl Harbor 34, 190, 241

Permanent Member of UN Security Council 291

Protocol I (1977) not ratified by 224 rescue of nationals in the Congo

232

Rules of Engagement 182, 220 unilateral declaration of termination

of war with Germany in 1951 49 ‘Uniting for Peace’ Resolution 315–18 USSR. See Russia/Soviet Union

V

verification of identity of attacker and self-defence rights 209

veto powers, UN Security Council 291–2, 302, 315

W

war

avoidance of term 32, 326, 328 declarations of 9–10, 30–4, 152, 186 definition 15

duels compared to 151, 164 natural catastrophe, viewed as 73 numerous meanings of 3–5 Oppenheim’s definition of 5–15

single State only required to wage 11 war crimes 118, 122

war games 137 war of aggression

as mala in se 120

2annexations00 1, a t followingta ck s; 168–72 crime against peace, as 117–25 definition of aggression 125–31

equal application of jus in bello between opponents 159–62

ex post facto criminalization of 119 war of self-defence 235–43, 272. See also

entries at self-defence Warsaw Pact 262 weapons

choice of 196

embargoes See( arms embargoes) missile attacks 189, 197, 199 supply to irregular forces 202–3

weapons of mass destruction (WMDs) choice of arms and scale of attack justifying self-defence 196

first use of nuclear weapons 230 Gulf War 53, 58–9, 298

Israli strike at Iraq’s nuclear reactor 47–8, 186

occupation of Iraq 298 preemption against 183 reprisals 230

threat to the peace 287

UN Security Council resolution regarding proliferation of 287

wars of self-defence, use in 238 ‘without prejudice’ formula in armistice

agreements 44–5

WMDs. See weapons of mass destruction World War I

armistice 42

initial neutrality of US in 25 reparations 106 responsibility for 117 technical sense of war 9

World War II

Anglo-Soviet Alliance of 1942 253 Anschluss of Austria 269 armistices 42–3

composition of Grand Alliance in 298 debellatio of Germany in 49

initial neutrality of US in 25, 28, 166–7

Korean War compared 153

mutual assistance treaty between Poland and UK 258

neutrality of Soviet Union with regard to Japan in 25

Pearl Harbor 34, 190, 241 technical sense of war 9

treaties of peace ending 35–6, 38 ultimatum issued by France and Britain

to Germany 31 unconditional surrender 48–9,

153, 241

unilateral declaration of termination of war with Germany by US 49

war criminals’ trials 118–20

Y

‘Yom Kippur’ hostilities 55–6, 192 Yugoslavia, former. See also successor

countries

ad hoc international war crimes tribunal for 121

alliance with Greece and Turkey 262 non-Member States’ involvement in UN sanctions against 165–6

total vs. limited wars 13

transition from civil war to inter-State war 7–8

UN resolutions regarding 301–3

Z

Zaire 301