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The Notion of ‘Armed Attack’ in the Nicaragua Judgment and Its Influence on Subsequent Case Law

Published online by Cambridge University Press:  02 May 2012

JUDGE ABDULQAWI A. YUSUF
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Abstract

The notion of ‘armed attack’ is at the heart of the law on the use of force in self-defence. The ICJ first addressed the issue in its judgment in Nicaragua; however, its formulation of the legal parameters of ‘armed attack’ has not been without controversy. In particular, the high threshold of force required for an ‘armed attack’ and the consequent distinction between ‘armed attack’ proper and acts of lower intensity (termed ‘frontier incidents’) is said to have reduced the barrier to armed aggression. More recently, the formulation has also been criticized for not being fully applicable to large-scale terrorist attacks such as the events of 11 September 2001. This article examines the Court's first pronouncement on the concept of armed attack, with a specific focus on the rationae materiae aspect of ‘armed attack’, which situates it in the context from which it arose and analyses its development through subsequent case law, particularly the Court's judgments in Oil Platforms and Armed Activities (Congo v. Uganda) and the decision of the Eritrea–Ethiopia Claims Commission.

Keywords

armed attackfrontier incidentsNicaraguaself-defenceuse of force
Type
HAGUE INTERNATIONAL TRIBUNALS: International Court of Justice: Symposium: The Nicaragua Case 25 Years Later
Information
Leiden Journal of International Law , Volume 25 , Issue 2 , June 2012 , pp. 461 - 470
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2012

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References

1 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, [1986] ICJ Rep. 14 (hereafter, Nicaragua).

2 Ibid., at 103, para. 195.

3 Eritrea–Ethiopia, Partial Award, Jus Ad Bellum Ethiopia's Claims 1–8, Eritrea–Ethiopia Claims Commission, 19 December 2005, paras. 11–12 (hereafter, Eritrea–Ethiopia, Jus Ad Bellum).

4 Nicaragua, supra note 1, at 101, para. 191.

5 Ibid., at 94, para. 176.

6 Ibid., at 127, para. 249.

7 See Harry, M. A., ‘Casenote: The Right of Self-Defense and the Use of Armed Force against States Aiding Insurgency’, (1986–87) 11 SIULJ 1289Google Scholar, at 1302–3 (‘the Court's concept of “armed attack” effectively reduces rather than raises the barriers to armed aggression’ and, as a result of the Court's restrictive interpretation of Art. 51 in the absence of the United Nations’ ability to intervene, ‘The consequence, assuming that the prohibition is effective, is that no military deterrence will exist to deter states such as Nicaragua, bent on exporting revolution in a manner short of an actual “armed attack” as defined by the Court’).

8 See Dinstein, Y., War, Aggression and Self-Defense, 4th edn (2005), 193CrossRefGoogle Scholar (Nicaragua decision undermines right of self-defence); R. Higgins, Problems and Process: International Law and How We Use It (1994), 250 (Nicaragua decision may undermine self-defence).

9 Nicaragua, supra note 1, at 103, para. 195.

10 Ibid., para. 195.

11 Ibid., para. 195 (internal citations omitted).

12 Ibid., para. 195 (emphasis added).

13 Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, [2003] ICJ Rep. 161 (hereafter, Oil Platforms).

14 See, e.g., Harry, supra note 7, at 1302–3; Higgins, supra note 8, at 250–1.

15 Nicaragua, supra note 1, para. 231.

16 Oil Platforms, supra note 13; Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), Merits, Judgment, [2005] ICJ Rep. 168 (hereafter, Armed Activities).

17 See Dinstein, supra note 8, at 195 (frontier incidents can be grave enough to justify self-defence and the gravity and scale measure is only useful when the attack in question is mostly de minimis); see also Higgins, supra note 8, at 250–1 (‘When a State has to decide whether it can repel incessant low-level irregular military activity, does it really have to decide whether that activity is the equivalent of an armed attack by a foreign army – and, anyway, is not any use of force by a foreign army entitled to be met by sufficient force to require it to withdraw . . . . Is the question of level of violence by regular forces not really an issue of proportionality, rather than a question of determining what is an “armed attack”?’).

18 See also Gray, C., International Law and the Use of Force, 3rd edn (2008), 180Google Scholar, where she points out that there were ‘serious reasons for the Court's distinction between armed attacks and mere frontier incidents. Its concern was with collective self-defense; it wanted to limit third State involvement . . . the use of necessity and proportionality alone would not exclude third party involvement, merely limit the scope of their permissible response’.

19 Nicaragua, supra note 1, at 127, para. 249.

20 Oil Platforms, supra note 13, at 187, para. 51, citing Nicaragua, supra note 1, at 101, para. 191.

21 Ibid., Oil Platforms, supra note 13, at 187, para. 51, citing Nicaragua, supra note 1, at 103, para. 195.

22 Oil Platforms, supra note 13, at 191, para. 64.

23 Ibid., at 191, para. 64 (stating with respect to the Sea Isle City ‘that a Silkworm missile fired from (it is alleged) more than 100km away could not have been aimed at the specific vessel, but simply programmed to hit some target in Kuwaiti waters’ and, regarding the Bridgeton, that ‘it has not been established that the mine struck by the Bridgeton was laid with the specific intention of harming that ship’).

24 Ibid., at 191, para. 64 (‘as regards the alleged firing on United States helicopters from Iranian gunboats and from the Reshadat oil platform, no persuasive evidence has been supplied to support this allegation’).

25 Ibid., at 195, para. 72 (‘The Court does not exclude the possibility that the mining of a single military vessel might be sufficient to bring into play the “inherent right of self-defence”; but in view of all the circumstances, including the inconclusiveness of the evidence of Iran's responsibility for the mining of the USS Samuel B. Roberts, the Court is unable to hold that the attacks. . . have been shown to have been justifiably made in response to an “armed attack” on the United States by Iran’).

26 Ibid., at 191, para. 64 (‘the Texaco Caribbean, whatever its ownership, was not flying a United States flag, so that an attack on the vessel is not in itself to be equated with an attack on that State’).

27 Ibid., Separate Opinion, Judge Simma, at 331, para. 12.

28 Ibid.

29 Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), Merits, Judgment, [2005] ICJ Rep. 168 (hereafter, Armed Activities).

30 Ibid., at 223, para. 146.

31 Ibid., at 223, para. 146.

32 Eritrea–Ethiopia, Jus Ad Bellum, supra note 3, para. 12.

33 Ibid., para. 6.

34 Ibid., para. 14.

35 Ibid., para. 9.

36 Ibid., para. 9.

37 Ibid., para. 9.

38 Ibid., para. 11.

39 Ibid., para. 11.

40 Nicaragua, supra note 1, at 103, para. 195.

41 Eritrea–Ethiopia, Jus Ad Bellum, supra note 3, para. 12 (emphasis added).

42 Ibid., para. 14.