Without Legal Force Not Legitimate

It must be distinguished from the separate U.S. legal assertion that al-Qaeda`s armed attack continued beyond the destruction of the organization`s strongholds in Afghanistan in 2001 and 2002 because al-Qaeda had joined the „allied forces.” The implicit claim that it is possible to combine the use of force emanating from different terrorist cells spread over several territories into a continuous armed attack if these cells are somehow „associated” – perhaps only by a common ideology – is unconvincing and risks an endless individualization of the concept of self-defence in international law. The use of force against the so-called Islamic State in Syria is likely to provoke a similar temptation, and the international response to such individualization remains to be seen. If criminal activity generates significant profits, the affected person or group must find a way to control the funds without drawing attention to the underlying activity or the individuals involved. Criminals do this by obfuscating sources, changing shape, or moving funds to a place where they attract less attention. There is no consensus in sight in this legal debate. Intensive discussions in recent years seem to have contributed to a growing awareness that it is normatively different whether a state itself carries out an attack or simply does not prevent an attack from its territory – and that this difference should have an impact on the proportionality of defensive measures. In general, it seems widely accepted that the use of force in self-defence, if necessary, may be of greater intensity than the armed attack to which it responds. But this principle is called into question when a state does not carry out the attack itself, but is simply unable to stop a powerful violent non-state actor operating from its territory. Such a State – and by this means above all its population – should not suffer much more serious damage during violent defensive measures than the imminent consequences of non-State armed attack for the defending State itself – and its people.

In short, the specific nature of the right of self-defence under consideration should result in a particular limitation stemming from the principle of proportionality. The previous overview clearly showed that the right to self-defence recognized in Article 51 of the Charter of the United Nations is characterized by significant grey areas. However, as mentioned earlier, it is certain that only States are holders of this right. In fact, the right of an attacked State to defend itself naturally includes the defence of its people. However, if a population becomes the target of an attack by its own government – in extreme genocidal cases – the attack is not directed against the respective state, which is why its right to individual self-defense does not arise. For the same reason, a foreign State cannot invoke the collective right to self-defence to provide military assistance to a population attacked by its own Government. Such use of force by a foreign State is subject to the prohibition of force under Article 2, paragraph 4, of the Charter of the United Nations. This is because the almost unanimous reading of this article, as discussed above, encompasses the use of force for non-aggressive purposes. This leads to the provisional conclusion that current international law grants the right of individual and collective self-defense in the event of an armed attack on a warship, but not in the event of an armed attack by a government against its own population.

Some scholars, however, depart from Weber, arguing instead, following the tradition of Thomas Hobbes, that the ideal of the monopoly of the use of force concerns not only its control, but also its application, so that the state is the only actor that can legitimately exercise violence, except in cases of immediate self-defense. From this point of view, the State`s monopoly on the use of force may also be jeopardized by phenomena such as the growth of private security companies or organized crime. Much can be done to combat money laundering and, in fact, many governments have already put in place comprehensive anti-money laundering regulations. These regimes aim to raise awareness – both within government and the private sector – and then provide the necessary legal or regulatory tools to the authorities tasked with tackling the problem. The last four cases have one thing in common: the UN Security Council has clarified who it considers to be the government of the state concerned at any given time. The Council therefore played an indirect role in the legalization of these acts of force. By recognising the legitimate candidate as a government under international law where there was a tension between effectiveness and legitimacy, the Council gave foreign States the possibility, at the invitation of that candidate, to resort to the traditional legal basis for intervention without incurring too great an international legal risk. The position set out by the Arab League at its 2013 Doha summit is not limited to the Assad regime`s use of chemical weapons, and is therefore particularly noteworthy. There, Arab states claimed the right to provide military support to the Free Syrian Army rebels against Assad. This, according to the statement, is about defending the Syrian people. Thus, another group of „non-Western” States has taken a position under international law in a specific conflict that is not compatible with the rigorous rejection of a right to humanitarian intervention in the statements of the Group of 77.

In any case, the Doha Declaration seems remarkable in that it replaces the concept of humanitarian intervention with the defence of a people. For the latter immediately recalls the heavy historical idea of a European civilizing mission. On the other hand, the notion of defence of a population expresses the fact that the population attacked must be at the centre of the exception to the prohibition of violence in question. It was only after the end of the cold war, when Saddam Hussein`s Iraq began to annex Kuwait`s small neighbour, that the UN Security Council was offered the opportunity to revive the system of collective security despite the absence of an international force. Finally, the Council responded by authorizing States to take the necessary steps to restore peace in the region, and it was clear to all parties concerned that such „necessary means” also meant the use of force. For a short time, there was uncertainty about the international legal classification of the actions of the UN Security Council. International jurisprudence considers that the Council referred to Kuwait`s right to collective defence against armed attack. But soon the conviction spread that it was not a question of collective defence, but of collective security.

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