In launching its rescue mission for its nationals, Aramis prima facie violates Article 2 (4), a rule of customary international law, which states, "All members shall refrain… from the use of force against… the political independence of any state." Article 2(4) may also be considered a rule of jus cogens, that is a pre-emptory norm with no exceptions. Naturally, any proposed intervention on the part of Aramis, without the authorisation of the Security Council, would contravene the terms of this principle.
Therefore, any rescue mission must find support as a legitimate exception provided by the UN Charter, or an exception to the rule of jus cogens backed by the requisite support required in state practice and opinio juris. American arguments that the Israeli rescue mission to Entebbe was justified by a temporary cessation of the obligations under Article 2(4) finds little support, and doctrines of self help on the use of force are not recognised under the UN Charter, even where the government is complicit in the action. This was the view of the International Court of Justice in the US Diplomatic and Consular Staff in Iran Case, in response to the attempted rescue mission by the US to free its diplomatic personnel.
In theory, there may be a number of legal options which Aramis may consider as a basis for any possible use of force in Drakkar, those which are relevant to this scenario include, rescue missions or protection of nationals, the right to self defence, reprisal and collective self defence (upon the invitation from the head of the Drakkar national government).
To justify its actions, Aramis must point to a legal right under the UN Charter, which provides for the legitimate use of force in self-defence or collectively through the Security Council and regional organisations. Article 51 provides that a state may use force in self-defence where it is the victim of an armed attack. As the right to self defence is vested in the state and 'the state is more than a territory, it is also a people, the attack on its nationals may be seen as an attack against the people'. Therefore, Aramis may argue that any attack on its national in Drakkar would be an attack against Aramis as a state. In the Nicaragua Case, the IC indicated that the right of self-defence would be present only where the attack had 'scale and effect' and, in the absence of such a level of intensity, the state's right would be proportionate counter measure only. Although there is no developed jurisprudence on the issue of scale and effect, it would seem that Aramis's actions may be justified either under the rules on self-defence, or as proportionate military counter-measures. The Caroline Case again emphasised the customary test, which is used to determine that for a state to act in self-defence it had to show, 'a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation'. The right of Aramis to self-defence is therefore extended to a situation where it fears imminent threat, and where Aramis has exhausted all peaceful alternatives. Dinstein distinguishes between anticipatory self-defence, which remains unlawful and interceptive self-defence, which is lawful, in circumstances where the attack is imminent and unavoidable. As we are not told about any kind of attack on the nationals of Aramis, therefore, Aramis is well advised to continue to use peaceful measures to rescue its nationals, it must be noted that any aggressive form of anticipatory self-defence will be unlawful.
Prior to 1945, the protection of nationals abroad was construed as a legitimate exercise of the right of self-defence, recognised in both writings of jurist and the practises of judges. In the Spanish Zones of Morocco Claim, Umpire Huber Stated: "It cannot be denied that at a certain point, the interests of a state in exercising protection over its nationals and their property can take precedence over territorial sovereignty, despite the absence of any conventional provisions. This right of intervention has been claimed by all states; only its limits are disputed." However, it is unclear whether its customary right continues to exist in the light of the active interpretation of self- defence stipulated in art 51. Notwithstanding this certain legal situation, a number of states have justified the use of force for the protection of nationals. The best known of example is of the Israeli rescue mission to Entebbe in 1976. Even though this received negative response form the international Community, Israel argued, "...that the right of the State to intervene by the use or the threat of force for the protection of its nationals...within the territory of another State is generally admitted..."
Similarly, attempts by the US to justify full-scale intervention in Grenada in 1984 and in Panama in 1989, on the basis of the need to protect US nationals, have found universal condemnation and may not, in any case, be justified given the requirement of proportionality. The General Assembly declared the action ' a flagrant violation of international law.' Many academic commentators such as Akehurst hold such rescue missions to be 'incompatible with the provisions of article 2(4).'
In relation to the present scenario, despite these illustrations, it remains unclear whether the international community as whole is prepared to accept the legitimacy of such actions which clearly extend beyond the literal phrasing of article 51, if this option is taken by Aramis, then it may prima facie violate Article 2(4) and its actions will be deemed unlawful.
Moreover, the state of Aramis may argue that it is within its rights to retaliate with force for the protection of its nationals. In the pre-charter aged, states were entitled to use force in retaliation for prior international wrong by other states. In the Naulilaa Case the International Court recognised the general principle that a state could use force as a form of self-help in response to an international wrong, which had not been satisfactorily addressed in terms of reparation. In this case a legitimate reprisal wad defined as an act of 'self-help by the injured state, acts in retaliation for acts contrary to international law on the part of the offending state, which remind unredressed after a demand for amends. In consequences of such measures, the observance of [the] rule [on the non-use of force] is temporarily suspended in the relations between the two states'. However, in the particular case, Germany's claim for reprisal, (after the mistaken killing of three Germans in Angola, which lead to Germany attacking Angola) had failed, as it was held that Portugal "had committed no act contrary to international law; no effort had been to obtain satisfaction through legal means; and there was a clear disproportion between the incident at Naulilaa and the acts of reprisal that followed".
Thus, the state of Aramis must be advised that under international law reprisals are considered as being unlawful and are not compatible with Article 2(4). The US bombing raids on Libya in 1986, in retaliation for terrorist attacks against US personnel, were unlawful. Similarly the Harib Fort Incident, this involved the British bombing the Harib Fort in Yemen further highlighted that International law will not recognise and accept such reprisals as being justifiable. The General Assembly Declaration on the Friendly Relations of States, specifically notes 'that states have a duty to refrain from acts of reprisals'. Any intervention by way of use of force by Aramis in order to rescue its nationals and quell the rebellion would not be legally permissible and contrary to international law, article 2(4) in particular.
What if the head of national government has invited the help of Aramis?
In the Nicargua Case the International Court recognised that the effective exercise of the right of collective self-defence would depend upon a declaration by the victim state that it had been attacked with a request for assistance. There are a number of academic commentators who believe that intervention is legally permissible, so long the democratically elected government invites another state for military assistance. "It is accepted that if the government of the state in a civil war requests another state to provide military assistance then that assistance may be given." Therefore, Aramis may intervene using force, only if the head of the national government has invited it to do so.
Furthermore, Article 51 not only allows the state to defend itself, but also permits other states to join in collective self-defence and provide military assistance. This right of collective self-defence is the legal basis for the existence of organisations such as NATO and the Warsaw Pact. However, there is generally believed to be an obligation on outside states not to intervene in another state's civil war by supporting one side or the other. The Declaration on Friendly Relations requires 'Every State to refrain from organising, instigating, assisting or participating in acts of civil strife or terrorist acts [against another state]'. However, Aramis cannot be found guilty of doing this, as it did not in any way instigate the civil war in Drakkar, (if anything the guilty party to this is the state of Xeryus, who have been accused of stirring up the tribe to revolt against the government). If Aramis does provide military assistance, it would be fair to say that they will be assisting a democratically elected government.
In our scenario if the government of Drakkar (who are in a civil war) request Aramis to provide it with military assistance then Aramis would be justified by giving that assistance.
In sum, Aramis would be best advised to engage in vigorous diplomatic protests to the authorities of Drakkar for the safe return of its nationals. Also if this is unsuccessful, Aramis should bring the matter before the UN Security Council for an emergency debate. While at this point Aramis could offer its services for deployment in Drakkar upon the invitation of the head of the national government of Drakkar.
Bibliography
Books
D,J, Harris, Cases and Materials on International Law, 5th Ed (1998, Sweet & Maxwell Ltd, London).
Brownlie, International Law and the Use of Force by States (1963).
Dixon, M, Textbook on International law, 3rd Ed, Blackstone Press, London, 2001
Article/Journals
Akehurts, 'The Use of Force to Protect Nationals Abroad' (1976-77) 5 International Relations 3.
Dinstein, War, Aggression and Self-Defence (1988).
Dosweld-Beck, 'The Legal validity of Military Intervention by Invitation of the Government' 56 BYIL 189 (1985)
T. Meron, The Humanisation of Humanitarian Law (2000) 94 AJIL 239
Cases
Caroline Case (837) 2 Moore Digest 412.
Harib Fort Incident 1964
Hostages Case: USA v Iran (1980) ICJ Rep 3.
Naulilaa Case (1928) 2 RIAA 1012.
Nicaragua v United States (Merits) (1986) ICJ Rep 14, Paras 187-201.
Spanish Zones of Morocco Claim (1952) 2 RIAA 615
The United Nations Charter
The Declaration on the Friendly Relations 1965 GA Res 2131.
Hague Conventions for the Pacific Settlement of Disputes of 1899 and 1907.
A recent example of this is the War in Iraq lead by the USA and the UK.
Quoted in DJ Harris, “Cases and Materials on International Law” 5th Ed (1998, Sweet & Maxwell Ltd, London).
Mi.Dixon, “Textbook in International Law” 3rd Ed (1996, Blackstone Press Ltd, London).
Article 2 (3) of the United Nations Charter.
Hague Conventions for the Pacific Settlement of Disputes of 1899 and 1907.
T. Meron, “The Humanisation of Humanitarian Law” (2000) 94 AJIL 239 at 240.
Hostages Case: USA v Iran (1980) ICJ Rep 3.
Brownlie, International Law and the Use of Force by States (1963).
Nicaragua v United States (Merits) (1986) ICJ Rep 14, Paras 187-201.
Caroline Case (837) 2 Moore Digest 412.
Dinstein, War, Aggression and Self-Defence (1988).
Spanish Zones of Morocco Claim (1952) 2 RIAA 615.
Harris, Cases and Materials on International Law 1991, pp 870-5.
Akehurts, 'The Use of Force to Protect Nationals Abroad' (1976-77) 5 International Relations 3.
Naulilaa Case (1928) 2 RIAA 1012.
Harib Fort Incident 1964; Harris, Cases and Materials on International Law 1991, pp 870-1.
The Declaration on the Friendly Relations 1965 GA Res 2131.
Dosweld-Beck, 'The Legal validity of Military Intervention by Invitation of the Government' 56 BYIL 189 (1985).
