• No need to have any specific connectionwith the State being assisted. • If an attack is not of sufficient ‘scale and effect’ –then no right of collective self defence because no attack. Unclear that a State in this circumstance of a ‘frontier incident’ has a right of forceful response (in kind) – a proportionate counter measure, also unclear whether in this specific circumstance there is an exception to the prohibition on the use of force. UN Charter – Anticipatory Self Defence • Art 51 ‘if an armed attack occurs’ • Avoided by the ICJ (more than once) • Historically was permissible – When is an attack underway? • Physical invasion across a border? • Strategic firing of weapons across a border? (of sufficient scale and effect). • Amassing troops/Material/ships/Aircraft outside a border – Hostile commentary: 1967 Arab/Israeli War? • Computer attack and disruption? The collapse of modern IT infrastructure • Bellicose Statements? North Korea 2013? Russia 2014? • Increased War material production? • New Weapons capability acquisition – Stealth, Nuclear technology? • Massive increased defence spending?
Anticipatory Self Defence • Israel-Arab war 1967(6 day war) – Bellicose statements, substantial military forces amassing on Israeli border (80,000 soldiers, 900 tanks), Peacekeepers in Egypt withdrawn at Egyptian request – Israeli reaction accepted generally within international community. • Osarik Nuclear Reactor attack1981 – June 1981, Israeli Air Force destroyed an Iraqi Nuclear reactor near Baghdad. Israeli defence based upon anticipatory self defence, Iraq acquiring nuclear weapons capability attack hence permissible under anticipatory self defence. – General political condemnation of attack – not accepted as being within realms of armed attack or anticipatory self defence – UNSCR 487condemned the attack • Iranian Air Forcehad previously attacked and damaged the reactor in Sept 1980, 8 days into the Iran-Iraq war – no significant international reaction. Jus ad bellum & Jus in bello. – There was no condemnation because they were in armed conflict PROCEDURAL REQUIREMENTS • When faced with an armed attack you need to report it to the security council. • When you act in collective or active self defence – report it to the SC • Aus reported when Aus forces landed on the ground – because they could have turned back if they wanted • UN Charter - Reporting Requirements– ‘Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council’: