ARMED ATTACKS AND IMPUTATION: WOULD A
NUCLEAR WEAPONIZED IRAN TRIGGER
PERMISSIBLE ISRAELI AND U.S.
MEASURES OF SELF-DEFENSE?
JORDAN J. PAUST*
ABSTRACT
This Article addresses a pressing issue of global concern—whether Israel and
the United States would have a right under international law to engage in measures of self-defense against Iran if Iran creates a nuclear warhead. This specific
question is considered in connection with two more general issues regarding the
law of self-defense—first, the question of when an armed attack has commenced,
and second, the question of when non-state actor armed attacks can be imputed
to a state for the purpose of measures of self-defense against the state. As the
Article notes, too few legal writers have paid detailed attention to various aspects
of context that should be addressed when making realistic and policy-attentive
decisions regarding whether an armed attack has begun. Meanwhile, too many
legal writers have used the wrong test with respect to the interrelated issue of
whether non-state actor armed attacks can be imputed to a state. With respect to
imputation, the Article provides detailed attention to circumstances of direct and
complicit aggression by a state and clarifies the substantial involvement test.
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II. IF AN ARMED ATTACK OCCURS . . . . . . . . . . . . . . . . . . . . . . . . .
III. IMPUTATION OF ATTACKS BY OTHERS . . . . . . . . . . . . . . . . . . . .
A. The I.C.J.’s Articulated Criteria. . . . . . . . . . . . . . . . . . . . .
B. Direct and Complicit Aggression . . . . . . . . . . . . . . . . . . . .
1. Imputation Through Aggression . . . . . . . . . . . . . .
2. Clarifying Substantial Involvement . . . . . . . . . . . .
IV. THE ADDED FACTOR OF NUCLEAR WEAPONIZATION . . . . . . . . . .
V. THE START OF AN ARMED ATTACK . . . . . . . . . . . . . . . . . . . . . .
VI. PRESIDENT OBAMA’S “RED LINE” . . . . . . . . . . . . . . . . . . . . . . .
VII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I.
411
414
424
424
429
429
432
435
437
440
443
INTRODUCTION
Would Israel have a right under international law to engage in
measures of self-defense against Iran if Iran creates a nuclear warhead
* Mike and Teresa Baker Law Center Professor, University of Houston. © 2014, Jordan J.
Paust.
411
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
and does not renounce a previously stated desire to wipe Israel away or
off the map?1
This issue, which is of global concern and involves significant national and international security interests, and jus ad bellum, is interconnected with the question of whether the United States would have a
right under international law to engage in measures of collective
self-defense if Iran crosses what President Obama has described as a
“red line” by creating a nuclear weapon.2 Some might assume that even
if such a portentous weaponization occurs, Iran would not be mounting an armed attack. They might initially conclude that Israel would
not have a right to engage in self-defense and, therefore, that the
United States would not have a right to participate in measures of
collective self-defense. However, deciding whether an armed attack is
underway should involve awareness of additional and more complex
features of context and proper application of identifiable legal criteria.
Perhaps surprisingly in view of the significant legal policies that are at
1. See Ethan Bronner, Just How Far Did They Go, Those Words Against Israel?, N.Y. TIMES, June 11,
2006, http://www.nytimes.com/2006/06/11/weekinreview/11bronner.html?_r⫽0 (reporting that
when Iranian President Mahmoud Ahmadinejad spoke in October 2005 at a conference in
Tehran, it was reported that he stated that Israel “should be wiped off the map,” translations
appearing on his website www.president.ir/eng referred to “wiping Israel away,” and two translators stated that the phrase used could be translated as “wipe off” or “wipe away”); Nazila Fathi,
Iranian President Stands by Call to Wipe Israel Off the Map, N.Y. TIMES, Oct. 29, 2005, at A3; see also Nick
Cumming-Bruce & Thomas Erdbrink, Talks Continue on Iran’s Nuclear Program, INT’L HERALD TRIB.,
Nov. 21, 2013, at 8 (reporting that Ayatollah Khamenei called Israel “an ‘illegitimate regime’ led
by ‘untouchable rabid dogs’”); Ramin Mostaghim, Top Iran Leader Delivers Fiery Sermon, L.A. TIMES,
Feb. 4, 2012, at A3 (reporting that Ayatollah Ali Khamenei declared that Israel “is a real cancerous
tumor that should be cut and will be cut”); Dan Perry & Josef Federman, Tension Over Iran Reaches
New Peak, World Leaders Unsure if Israel Will Carry Out Threatened Strikes, PITT. POST-GAZETTE, Feb. 6,
2012, at A4; Ahmadinejad: Israel Is a Germ of Corruption That Will Be Removed, HAARETZ, Aug. 20, 2008,
http://www.haaretz.com/hasen/spages/1013733.html. See Glenn Kessler, Did Ahmadinejad Really
Say Israel Should Be ‘Wiped Off the Map’?, WASH. POST (Oct. 5, 2011, 6:00 AM), http://
www.washingtonpost.com/blog/fact-checker/post/did-ahmadinejad-really-say-israel-should-bewiped-of-the-map/2011/10/04/gIQABJIKML_blog.html (noting that “Iranian government entities began to erect billboards and signs with the ‘wipe off’ phrase in English,” with one banner
stating in English that “Israel should be wiped out of the face of the world”); but see id. (stating that
another translation of Ahmadinejad’s remarks was that Israel “must vanish from the page of time,”
which may be understood as advocating for a “dissolution of Israel though a ‘popular referendum’” and not “military destruction”).
2. See Chelsea J. Carter, Obama: Iran More Than a Year Away from Developing Nuclear Weapon,
CNN, Mar. 15, 2013, http://www.cnn.com/2013/03/14/world/meast/israel-obama-iran (quoting President Barack Obama’s statements made during a news interview); infra text accompanying
notes 76, 78; see also Michael D. Shear & David E. Sanger, Iran Nuclear Weapon to Take a Year or More,
Obama Says, N.Y. TIMES, Mar. 15, 2013, at A9.
412
[Vol. 45
ARMED ATTACKS AND IMPUTATION
stake, too few legal writers have paid detailed attention to various aspects of context that should be addressed when deciding whether an
armed attack has commenced, and too many legal writers have used the
wrong test with respect to a recurrent and interrelated issue of whether
non-state actor armed attacks can be imputed to a state so that responsive measures can also be directed at the state and its military components.
This Article seeks to provide clarification of relevant features of
context and appropriate legal criteria and tests that should be addressed for realistic and policy-serving decision making with respect to
two basic questions that have often emerged in connection with the use
of force in self-defense in accordance with Article 51 of the United
Nations Charter: (1) when does an armed attack occur and (2) when
are non-state actor armed attacks imputable to a state for purposes of
self-defense against the state? The more specific focus addresses the
question whether, in context, Iran’s creation of a nuclear weapon
would provide Israel with a right to engage in measures of self-defense,
a right that also would be relevant regarding the legality of United
States participation in measures of collective self-defense.
Part II of the Article identifies the widely shared expectation that
the right of self-defense is limited in Article 51 of the U.N. Charter
to a circumstance where an armed attack occurs, despite a potentially
more expansive trigger of permissibility under the French version of
Article 51 set forth with the phrase agression armée. The Part also
identifies three other claims: the assertion by many that a right of
anticipatory self-defense should be tolerated when an armed attack is
imminent; the rare preference of others for a manifestly unlawful form
of preemptive self-defense when a threat exists but an armed attack is
not imminent; and the somewhat ambiguous Obama doctrine, which
uses the problematic phrase “imminent threat.”
Part III addresses the issue of when non-state actor armed attacks can
be attributed to a state for the purpose of self-defense against the state,
which raises the question of whether Iran’s continued financing,
training, supplying, and equipping of Hezbollah and Hamas while they
engage in armed attacks against Israel can result in imputation of the
attacks to Iran. The International Court of Justice (I.C.J.) has articulated criteria for imputation, which this Part takes into account in
evaluating the relevance of direct and complicit aggression by a state. It
also clarifies the reach of the substantial involvement test that can be
used for imputation.
Part IV analyzes possible Iranian violations of international law if
Iran creates a nuclear weapon and how such violations could be an
2014]
413
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
added feature of context for inquiry into whether responsive measures
of self-defense are permissible. Finally, Part V provides detailed attention to the process of armed attack and when, in context, an attack is
underway or has begun. Specifically, it recognizes that, in context, Iranian creation of a nuclear weapon would be a logical and policy-serving
basis to claim that an armed attack is being mounted or underway.
II.
IF AN ARMED ATTACK OCCURS
Under Article 51 of the United Nations Charter, Israel would clearly
have an “inherent right” of self-defense “if an armed attack occurs.”3
Under the equally authentic French version of Article 51,4 which uses
the phrase armed aggression (agression armée) and not a more narrow,
literal, and equivalent phrase attaque armée,5 Israel might have an
3. U.N. Charter, art. 51. Some claim that an attack must be of a certain gravity in order to
constitute an armed attack, but there is nothing in the language of the Charter that requires
such an outcome. See also Harold Hongju Koh, Legal Adviser, U.S. Dep’t of State, Remarks at
USCYBERCOM Inter-Agency Legal Conference: International Law in Cyberspace (Sept. 18,
2012), available at http://www.state.gov/s/l/releases/remarks/197924.htm (“[T]he United States
has for a long time taken the position that the inherent right of self-defense potentially applies
against any illegal use of force. In our view, there is no threshold for a use of deadly force to qualify
as an ‘armed attack’ . . . . But that is not to say that any illegal force triggers the right to use any and
all force in response—such responses must still be . . . proportionate.”). Another former Legal
Adviser had rightly noted that “[t]he gravity of an attack may affect the proper scope of the
defensive use of force . . . but it is not relevant to determining whether there is a right of
self-defense.” William H. Taft, IV, Self-Defense and the Oil Platforms Decision, 29 YALE J. INT’L L. 295,
300 (2004); see also Abraham D. Sofaer, Terrorism, the Law, and the National Defense, 126 MIL. L. REV.
89, 93 (1989) (“any illegal use of force”); Elizabeth Wilmshurst et al., The Chatham House Principles
of International Law on the Use of Force in Self-Defense, 55 INT’L & COMP. L.Q. 963, 966 (2006) (“An
armed attack means any use of armed force, and does not need to cross some threshold of
intensity.”). An alleged gravity limitation of the inherent right of self-defense would also be
unrealistic. For example, no state is likely to tolerate continued sniper fire from across its border
that is killing some of its citizens.
4. U.N. Charter, art. 111 (“equally authentic”).
5. See, e.g., Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986
I.C.J. 14, 528, 543 (June 27) (Jennings, J., dissenting) (“It is a little surprising that the Court does
not at all consider the problems of the quite different French text: ‘où un Membre . . . est l’objet d’une
agression armée.’”); Albrecht Randelzhofer, Article 51, in 1 THE CHARTER OF THE UNITED NATIONS: A
COMMENTARY 803 n.140 (Bruno Simma ed., 2d ed. 2002) [hereinafter CHARTER COMMENTARY]
(stating that “the French text . . . tends to be less restrictive”); Thomas E. Behuniak, The Seizure and
Recovery of the Mayaguez: A Legal Analysis of United States Claims, 83 MIL. L. REV. 59, 85 (1979) (stating
that a more literal translation of “armed attack” in French would be “attaque armée”); Gregory
Francis Intoccia, American Bombing of Libya: An International Legal Analysis, 19 CASE W. RES. J.
INT’L L. 177, 204 (1987); David Kretzmer, The Inherent Right to Self-Defence and Proportionality in
Jus Ad Bellum, 24 EUR. J. INT’L L. 235, 249 n.77 (2013) (noting that under the French version, an
armed aggression “could conceivably be said to begin before the first shot has been fired”);
414
[Vol. 45
ARMED ATTACKS AND IMPUTATION
inherent right to engage in self-defense when Israel is the object of an
armed aggression that occurs even prior to initiation of an armed
attack. Despite this possibility of an expanded right of self-defense
under the French version two basic recognitions exist with respect to
the text of Article 51 and its generally shared meaning: (1) there is
widespread agreement that language in Article 51 places a limitation
on whatever had been the “inherent right” of self-defense under
customary international law prior to creation of the United Nations
Charter whether one uses the French or the English version, and
(2) there is general agreement that the English version of the phrase “if
an armed attack occurs” sets the limit by expressly requiring that an
“armed attack” be initiated.6
Samuel Maizel, Intervention in Grenada, 35 NAVAL L. REV. 47, 76 (1986); John Norton Moore,
Jus Ad Bellum Before the International Court of Justice, 52 VA. J. INT’L L. 903, 912, 932-33 (2012)
[hereinafter Moore, Jus Ad Bellum]; John Norton Moore, The Secret War in Central America and the
Future of World Order, 80 AM. J. INT’L L. 43, 83 (1986); Charles Pierson, Preemptive Self-Defense in an
Age of Weapons of Mass Destruction: Operation Iraqi Freedom, 33 DENV. J. INT’L L. & POL’Y 150, 158
(2004) (citing Nicar. v. U.S., 1986 I.C.J. at 543) (noting that the French version does not refer to
“the narrow concept of attaque armée”); see also Carin Kahgan, Jus Cogens and the Inherent Right to
Self-Defense, 3 ILSA J. INT’L & COMP. L. 767, 816, 819 (1997) (noting that debate during formation
of the Charter addressed self-defense responses to armed attacks as well as aggression); Wilmshurst
et al., supra note 3, at 970 n.23 (noting that agression armée is nonetheless more limited than other
forms of aggression by a state).
6. See, e.g., Nicar. v. U.S., 1986 I.C.J. ¶ 176 (“A definition of ‘armed attack,’ which, if found to
exist, authorizes the exercise of the ‘inherent right’ of self-defense is not provided in the
Charter . . . . It cannot therefore be held that Article 51 is a provision which ‘subsumes and
supervenes’ customary international law. It rather demonstrates that . . . customary international
law continues to exist alongside of treaty law.”); id. ¶ 193 (“[The court] notes that in the language
of Article 51 . . . the inherent right (or ‘droit naturel’) which any state possesses in the event of an
armed attack, covers both collective and individual self-defense.”); id. ¶ 195 (“The exercise of
this right is subject to the State concerned having been the victim of an armed attack.”); id. ¶ 21l
(“only when the wrongful act provoking the response was an armed attack”); Oil Platforms (Iran v.
U.S.), 2003 I.C.J. 161, 187, ¶ 51 (Nov. 6) (“In order to establish that it was legally justified in
attacking the Iranian platforms in exercise of the right of individual self-defence, the United States
has to show that attacks had been made upon it for which Iran was responsible . . . ‘the exercise of
this right is subject to the State concerned having been the victim of an armed attack.’”); id. ¶ 62
(“an armed attack giving rise to the right of self-defence”); id. ¶ 64 (“an ‘armed attack’ on the
United States justifying self-defence”); CHARTER COMMENTARY, supra note 5, at 792-93, 803; IAN
BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 273 (1963); THOMAS BUERGENTHAL
& SEAN D. MURPHY, PUBLIC INTERNATIONAL LAW IN A NUTSHELL 336 (4th ed. 2007); ANTONIO CASSESE,
INTERNATIONAL LAW 354-55, 359, 361 (2d ed. 2005); OLIVIER CORTEN, THE LAW AGAINST WAR: THE
PROHIBITION OF THE USE OF FORCE IN CONTEMPORARY INTERNATIONAL LAW 198-248, 414-16 (2010);
YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 183-85, 193 (4th ed. 2005); THOMAS M.
FRANCK, RECOURSE TO FORCE: STATE ACTION AGAINST THREATS AND ARMED ATTACK 50 (2002);
STEPHEN C. MCCAFFREY, UNDERSTANDING INTERNATIONAL LAW 241 (2006); Special Rapporteur to the
2014]
415
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
A number of states and legal writers prefer that the express limitation
of the right of self-defense to a circumstance when an armed attack or
armed aggression “occurs” not pertain when an armed attack is “imminent,”7 especially an imminent attack with a powerful nuclear weapon
International Law Commission, Eighth Report on State Responsibility, ¶ 114, U.N. Doc. A/CN.4/318/
add.5-7 (Jan. 24, 1979) (by Roberto Ago); Michael Bothe, Terrorism and the Legality of Pre-Emptive
Force, 14 EUR. J. INT’L L. 227, 228-29 (2003); Amos N. Guiora, Self-Defense—From the Wild West to
9/11: Who, What, When, 41 CORNELL INT’L L.J. 631, 657-59 (2008); Gregory E. Maggs, How the
United States Might Justify a Preemptive Strike on a Rogue Nation’s Nuclear Weapon Development Facilities
under the U.N. Charter, 57 SYRACUSE L. REV. 465, 473-80, 476 n.56 (2007) (citing writings of Chris
Bordelon, Richard N. Gardner, Michael J. Glennon, Brendan M. Howe & Jasper S. Kim, and
Jane E. Stromseth but preferring acceptance of preemptive self-defense against “rogue” states
engaged in aggressive conduct); Sean D. Murphy, The Doctrine of Preemptive Self-Defense, 50 VILL. L.
REV. 699, 708-10 (2005); Mary Ellen O’Connell & Maria Alevras-Chen, The Ban on the Bomb—and
Bombing: Iran, the U.S., and the International Law of Self-Defense, 57 SYRACUSE L. REV. 497, 501-03
(2007); Jordan J. Paust, Use of Armed Force Against Terrorists in Afghanistan, Iraq, and Beyond,
35 CORNELL INT’L L.J. 533, 534, 534 n.2 (2002) (citing writings of Thomas Buergenthal & Sean D.
Murphy, Oscar Schachter, Michael Byers, Mark A. Drumbl, Jules Lobel, Sean D. Murphy, and
Sreenivasa Rao Pemmaraju); Allen S. Weiner, The Use of Force and Contemporary Security Threats: Old
Medicine for New Ills?, 59 STAN. L. REV. 415, 415, 423 (2006); see also Legality of the Threat or Use of
Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ¶ 41 (July 8) (“self-defence would warrant
only measures which are proportional to the armed attack and necessary to respond to it, a rule
well-established in customary international law” (emphasis added)). But see Nicar. v. U.S., 1986
I.C.J. at 528, 543.
7. See, e.g., GEORGE P. FLETCHER & JENS DAVID OHLIN, DEFENDING HUMANITY: WHEN FORCE IS
JUSTIFIED AND WHY 90-91, 155-56, 158 (2008) (arguing that an attack can “occur” before it occurs by
pretending that when Article 51 uses the word “occur” instead of “occurs,” the word “occur”
means “about to occur,” which is illogical); id. at 162-63; THOMAS MICHAEL MCDONNELL, THE
UNITED STATES, INTERNATIONAL LAW, AND THE STRUGGLE AGAINST TERRORISM 245 (2011);
OSCAR SCHACHTER, INTERNATIONAL LAW IN THEORY AND PRACTICE 152 (1991); MICHAEL P. SCHARF,
CUSTOMARY INTERNATIONAL LAW IN TIMES OF FUNDAMENTAL CHANGE: RECOGNIZING GROTIAN MOMENTS 186-88 (2013); Daniel Bethlehem, Self-Defense Against an Imminent or Actual Armed Attack by
Nonstate Actors, 106 AM. J. INT’L L. 770, 771-72 (2012) (noting that the U.K. position approves
anticipatory self-defense); Charles J. Dunlap, Jr., Anticipatory Self-Defense and the Israeli-Iranian Crisis:
Some Remarks, 19 ILSA J. INT’L & COMP. L. 319, 325-27 (2013); Eric Talbot Jensen, Computer Attacks
on Critical National Infrastructure: A Use of Force Invoking the Right of Self-Defense, 38 STAN. J. INT’L L.
207, 218-21 (2002); Kretzmer, supra note 5, at 247-50; Moore, Jus Ad Bellum, supra note 5, at 912-13,
932, 956; Jane E. Stromseth, New Paradigms for the Jus Ad Bellum?, 38 GEO. WASH. INT’L L. REV. 561,
567 (2006); Matthew C. Waxman, The Use of Force Against States that Might Have Weapons of Mass
Destruction, 31 MICH. J. INT’L L. 1, 6-8 (2009); Wilmshurst et al., supra note 3, at 964-65, 967
(claiming that the propriety of anticipatory self-defense “is widely . . . accepted”); see also JUDITH
GARDAM, NECESSITY, PROPORTIONALITY AND THE USE OF FORCE BY STATES 142, 146-47 (2004) (“The
fiction is generally maintained in practice that a right of anticipatory self-defence is not available.”); id. at 154 (“One instance where there is general accord that a forceful action will be
legitimate is where there is overwhelming evidence of the intention ‘to launch a devastating attack
almost immediately’” (quoting BROWNLIE, supra note 6, at 259)); but see infra notes 65, 67-69, 74
(this could be a circumstance when an attack is underway). See JUDITH GARDAM, supra, at 165;
416
[Vol. 45
ARMED ATTACKS AND IMPUTATION
that can produce deadly effects in a matter of minutes. This latter
preference is best labeled “anticipatory” self-defense8 as opposed to an
ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND HOW WE USE IT 242 (1994);
Dapo Akande & Thomas Liefländer, Clarifying Necessity, Imminence, and Proportionality in the Law of
Self-Defense, 107 AM. J. INT’L L. 563, 564-66 (2013); Mark B. Baker, Terrorism and the Inherent Right of
Self-Defense (A Call to Amend Article 51 of the United Nations Charter), 10 HOUS. J. INT’L L. 25, 46 (1988);
Daniel H. Joyner, Jus Ad Bellum in the Age of WMD Proliferation, 40 GEO. WASH. INT’L L. REV. 233, 241,
244, 256, 262 (2008) (noting that Article 51 requires an armed attack, but claiming that customary
international law authorizes anticipatory self-defense (as circumscribed by imminence, necessity,
and proportionality), which the text of Article 51 “arguably incorporates,” and preferring a
“reconceptualization of the prudential character and attributes of international norms regulating
uses of force”); Rachel A. Weise, How Nuclear Weapons Change the Doctrine of Self-Defense, 44 N.Y.U.
J. INT’L L. & POL. 1331, 1335, 1342-43 (2012); A Secure World: Our Shared Responsibility, Report of
the High-Level Panel on Threats, Challenges and Change ¶ 188 (2004), U.N. Doc. A/59/565
(Dec. 2, 2004) [hereinafter High-Level Panel], available at http://www2.ohchr.org/English/bodies/
hrcouncil/docs/gaA.59.565_En.pdf (“A threatened State, according to long established international law, can take military action as long as the threatened attack is imminent, no other means
would deflect it and the action is proportionate. The problem arises where the threat in question
is not imminent but still claimed to be real: for example the acquisition, with allegedly hostile
intent, of nuclear weapons-making capability.” (emphasis in original)); id. ¶ 192 (“We do not
favour the rewriting or reinterpretation of Article 51.”); but see CHARTER COMMENTARY, supra
note 5, at 803 (“anticipatory right of self-defense” when an armed attack is imminent is “contrary
to the wording of Article 51”); BROWNLIE, supra note 6, at 273-76; ANTHONY D’AMATO, INTERNATIONAL LAW: PROCESS AND PROSPECT 79 (1987) (“The idea of ‘anticipatory’ self-defense is almost
self-contradictory . . . . Self-defense in the absence of an armed attack by the other side is,
according to Professor Henkin, ‘unfounded, its reasoning is fallacious, its doctrine pernicious.’”)
(quoting LOUIS HENKIN, HOW NATIONS BEHAVE 141 (2d ed. 1979)); DINSTEIN, supra note 6, at 184-86
(“barred by the Charter from exercising self-defence in response to a mere threat of force”);
FRANCK, supra note 6, at 50 (creators of the U.N. Charter “deliberately closed the door on any
claim of ‘anticipatory self-defense’”); CHRISTINE GRAY, INTERNATIONAL LAW AND THE USE OF FORCE
86, 111-12 (2000) (noting “the doubtful status of this justification”); Bothe, supra note 6, at 230,
237; Mahmoud Hmoud, Are New Principles Really Needed? The Potential of the Established Distinction
Between Responsibility for Attacks by Nonstate Actors and the Law of Self-Defense, 107 AM. J. INT’L L. 576,
578 (2013); James Mulcahy & Charles O. Mahony, Anticipatory Self-Defence: A Discussion of International Law, 2 HANSE L. REV. 232, 233 (2006); W. Michael Reisman & Andrea Armstrong, The Past
and Future of the Claim of Preemptive Self-Defense, 100 AM. J. INT’L L. 525, 532 (2006) (“[I]t is plain to
us that the language of Article 51, whether wise or not, was not designed to accommodate”
anticipatory self-defense, and the 2004 U.N. High-Level “panel’s interpretation appears to be an
attempt at adjustment of the Charter.”); Elizabeth Wilmshurst & Michael Wood, Self-Defense
Against Nonstate Actors: Reflections on the “Bethlehem Principles”, 107 AM. J. INT’L L. 390, 393 (2013)
(imminent armed attack and “unable or unwilling” claims “remain controversial, but . . . [are]
increasingly accepted in practice”); see supra note 6.
8. See supra note 7. In a given context, the existence of an imminent attack may coincide with
the occurrence of armed aggression prior to an armed attack. In such a circumstance, permissibility of anticipatory self-defense might be claimed under the equally authentic French phrase
contained in Article 51, since an armed aggression will have occurred and the claimant would be
l’objet d’une agression armée. See also supra note 5; but see supra note 6. In any event, at a particular
2014]
417
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
extremely rare preference for a manifestly impermissible form of
“preemptive” self-defense when merely a significant threat is posed but
an armed attack is not imminent.9
During a major policy speech on use of force in counterterrorism
moment the context can change from a circumstance of imminent attack to one in which an
attack is being mounted or is underway. See infra text accompanying notes 69-70; see also infra
note 74.
9. With respect to the impermissibility of preemptive self-defense, see, e.g., BROWNLIE, supra
note 6, at 275; DINSTEIN, supra note 6, at 182-85; GRAY, supra note 7, at 112; HENKIN, supra note 7,
at 141; Michael Bothe, Terrorism and the Legality of Pre-emptive Self-Defence, 14 EUR. J. INT’L L. 227
(2003); Moore, Jus Ad Bellum, supra note 5, at 956-57; Mulcahy & Mahony, supra note 7, at 236-37;
Murphy, supra note 6, at 715 (“preemptive self-defense cannot be regarded as lawful”); O’Connell
& Alevras-Chen, supra note 6, at 503-04, 506; Paust, supra note 6, at 537-38 & n.15 (“Predominant
trends demonstrate widespread expectation and intense demand that the use of armed force for
merely preemptive or retaliatory purposes is inconsistent with the purposes of the Charter, is
proscribed under Article 2(4), and is not authorized under Article 51 of the Charter.”);
Wilmshurst et al., supra note 3, at 965 (“Attack must be ‘imminent’ and this requirement rules out
any claim to use force to prevent a threat emerging.”); id. at 968 (“‘Pre-emption’ . . . [regarding]
threats which have not yet crystallized . . . has no basis in international law.”); Wilmshurst & Wood,
supra note 7, at 392 n.14 (quoting statements of a British foreign secretary that self-defense can
pertain “‘against an imminent attack, but does not authorise the use of force to mount a
pre-emptive strike against a threat that is more remote’”); id. at 393 (“only in case of armed
attack—actual or imminent”); High-Level Panel, supra note 7, ¶ 189 (stating that it is impermissible to use force “preventively (against a non-imminent or non-proximate one)” even if “the
potential harm from some threats (e.g., terrorists armed with a nuclear weapon) is so great that
one simply cannot risk waiting until they become imminent, and that less harm may be done (e.g.,
avoiding a nuclear exchange or radioactive fallout from a reactor destruction) by acting earlier”);
id. ¶ 191 (“The risk to the global order and the norm of non-intervention . . . is simply too great
for the legality of unilateral preventive action, as distinct from collectively endorsed action, to be
accepted.”); see also Armed Activities on the Territory of the Congo (Democratic Republic of the
Congo v. Uganda), 2005 I.C.J. 168 ¶ 148 (“Article 51 of the Charter may justify a use of force in
self-defense only within the strict confines there laid down. It does not allow the use of force by a
State to protect perceived security threats beyond these parameters.”); Nick Hopkins, Britain
Rebuffs US on Military Aid Against Iran: Secret Legal Advice Warns Against Backing Pre-Emptive Strike,
GUARDIAN, Oct. 26, 2012, at 1 (secret legal advice from U.K. to U.S. was that “a pre-emptive strike
would be a clear breach of international law” when Iran “has denied it has plans to develop a
nuclear weapon . . . [and] does not currently represent ‘a clear and present threat’”); Dapo
Akande, UK Government Rejects Pre-emptive Self Defence With Respect to Iran, EJIL:Talk!, Oct. 26, 2012,
http://www.ejiltalk.org/uk-government-rejects-pre-emptive-self-defence-with-respect-to-iran (adding “In my view, this remains the correct position under international law,” although “[i]t may be
that where a State or group is known to have an intention to attack, has the capability to do so and is
taking active steps in preparation for an attack, this is sufficiently imminent” (emphasis in
original)); but see Christopher Greenwood, International Law and the Pre-Emptive Use of Force:
Afghanistan, al-Qaida, and Iraq, 4 SAN DIEGO INT’L L.J. 7, 12-16 (2003); David Luban, Preventive War,
32 PHIL. & PUB. AFF. 207, 212-14 (2004); Abraham D. Sofaer, On the Necessity of Preemption, 14 EUR.
J. INT’L L. 209, 211-14, 220-25 (2003).
418
[Vol. 45
ARMED ATTACKS AND IMPUTATION
operations in May 2013, President Obama used the troubling phrase
“imminent threat” while identifying a threshold that, when crossed,
would supposedly justify self-defense targetings.10 It is important to
note, however, that an imminent threat logically and by definition is
not even a present threat and use of such a remarkably expansive
criterion as a trigger for permissible use of force in self-defense would
be legal nonsense. Perhaps President Obama and others who have used
such a phrase merely meant threat of imminent attack. Even then, use
of the word threat could create ambiguity if they meant to focus on a
circumstance when an attack is imminent, since the phrase “threat of
imminent” suggests that imminence is threatened or near but does not
yet exist.11 To avoid confusion, those who prefer that there be a right to
10. See, e.g., President Barack Obama, Remarks at the National Defense University (May 23,
2013), available at http://www.whitehouse.gov/the-press-office/2013/05/23/remarks-presidentnational-defense-university (stating during a major policy statement regarding targetings of
non-state actors in self-defense: “we act against terrorists who pose a continuing and imminent
threat to the American people”); Press Release, White House, U.S. Policy Standards and
Procedures for the Use of Force in Counterterrorism Operations Outside the United States and
Areas of Active Hostilities (May 23, 2013), available at http://www.whitehouse.gov/the-press-office/
2013/05/23/fact-sheet-us-policy-standards-and-procedures-use-force-counterterrorism (released by
the White House the same day as President Obama’s remarks and identified by him as a
Presidential Policy Guidance, it contains a second precondition for use of lethal force that “the
United States will use lethal force only against a target that poses a continuing, imminent threat”).
Others in the Obama Administration had also used this phrase. See, e.g., John O. Brennan,
Assistant to the President for Homeland Sec. & Counterterrorism, Strengthening our Security by
Adhering to Our Values and Laws address at Harvard Law School (Sept. 16, 2011), available at
http://www.whitehouse.gov/the-press-office/2011/09/16/remarks-john-o-brennan-strengtheningour-security-adhering-our-values-an (addressing views of others who might prefer to set a limit
regarding measures of self-defense against members of al Qaeda to circumstances where the
members’ conduct involves “planning, engaging in, or threatening an armed attack against U.S.
interests if it amounts to an ‘imminent’ threat”); Scott Shane & Charlie Savage, Legal Basis Cited to
Kill Americans in Al Qaeda, N.Y. TIMES, Feb. 5, 2013, at A6 (DOJ white paper used the phrase
“‘imminent threat of violent attack’”); Charlie Savage, U.S. Law May Allow Killings, Holder Says,
N.Y. TIMES, Mar. 6, 2012, at A18 (quoting Att’y Gen. Eric H. Holder: “‘imminent threat of violent
attack’”); Peter Finn & Aaron Blake, CIA Chief Confirmed After Debate Over Drones, WASH. POST,
Mar. 8, 2013, at A1 (remarks of Holder); Koh, supra note 3 (“A State’s national right of
self-defense, recognized in Article 51 . . . may be triggered by . . . activities that amount to an
armed attack or imminent threat thereof.”). Others outside the Administration had also used such
a phrase. See, e.g., High-Level Panel, supra note 7, ¶ 189 (“an imminent or proximate threat”).
With respect to the newly articulated Obama doctrine, it is apparent that a “continuing”
“imminent” threat necessarily continues to not be an actual threat. By focusing on an imminent
“threat,” the Obama doctrine does not coincide with what would be a normal and permissible set
of mixed motives when lawfully responding to continuous armed attacks that can involve both a
responsive and preventative objective. See Paust, supra note 6, at 536 & nn.8-9.
11. See also infra note 74.
2014]
419
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
use anticipatory self-defense should clarify that they are focusing on a
circumstance when an attack is actually imminent. For others, use of
the phrase “imminent threat” might be intentional and involve an
ominous new claim to use a markedly expanded concept of preemptive
force, not merely when a significant threat is posed and an attack is not
imminent, but also when a threat does not actually exist.12 Clearly, a
claim to use force in self-defense before a threat even materializes
would be more dangerous and manifestly unacceptable than a claim to
use preemptive self-defense.
What is especially relevant with respect to expanded notions of
preemptive force is that both the U.N. Security Council and General
Assembly condemned Israel’s use of armed force on June 7, 1981,
against an Osirak nuclear reactor in Iraq that was still under construc-
12. Part of the expansive and widely disparaged claims made in the Bush Administration’s
2002 National Security Strategy included a general goal to prevent “our enemies from threatening
us, our allies, and our friends, with weapons of mass destruction,” to use force “before they are
able to threaten,” and “to preempt emerging threats.” THE WHITE HOUSE, THE NATIONAL SECURITY
STRATEGY OF THE UNITED STATES OF AMERICA (2002), available at http://www.georgewbushwhitehouse.archives.gov/nsc/nss/2002/nssintrol.html; see also W. MICHAEL REISMAN, THE QUEST
FOR WORLD ORDER AND HUMAN DIGNITY IN THE TWENTY-FIRST CENTURY: CONSTITUTIVE PROCESS AND
INDIVIDUAL COMMITMENT 400 (2012) (“[preemptive self-defence] differs from anticipatory selfdefence” because its focus is on an “imminent threat,” “a possibility among a range of other
possibilities, a contingency” that is “speculative”); id. at 402 (it is “clearly incompatible with
conceptions of the legal use of force in self-defence as understood by the International Court of
Justice”); Anthony Anghie, The Bush Administration Preemption Doctrine and the United Nations,
98 AM. SOC’Y INT’L L. PROC. 326 (2004) (“The doctrine is clearly perceived as departing radically
from the system of order inaugurated by the United Nations.”); Bothe, supra note 6, at 232 (the
“overly broad construction” is not “customary law”); Chris Bordelon, The Illegality of the U.S. Policy of
Preemptive Self-Defense Under International Law, 9 CHAPMAN L. REV. 111 (2005); Thomas M. Franck,
What Happens Now? The United Nations After Iraq, 97 AM. J. INT’L L. 607, 610, 619 (2003); Kretzmer,
supra note 5, at 276 (“widely criticized”); Paust, supra note 6, at 537-38, 557 & n.125; Sofaer, supra
note 9, at 211-14 (preferring the validity of preemptive self-defense, but noting that “scholars in
general have refused to accept this view” and “international lawyers widely assert that, after the
UN Charter, no use of preemptive force . . . is allowed until after an ‘attack’”); Stromseth, supra
note 7, at 565 (“This conception of the preemptive use of force is open-ended and difficult to
reconcile with longstanding interpretations . . . of the scope of the right of self-defense.”);
Weiner, supra note 6, at 444-45 (also noting that “[p]roviding a legal basis for this doctrine
requires one of three modifications to the law governing the use of force”); id. at 448-49;
Wilmshurst et al., supra note 3, at 965 (quoted supra note 9); id. at 968 (quoted supra note 9). With
respect to the crime of aggression, see Res. RC/Res.6, Annex I (Amendments to the Rome Statute
of the International Criminal Court on the crime of aggression), art. 8 bis, ¶ 1 (2010) (the crime of
aggression that could be prosecuted later before the International Criminal Court will involve “an
act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the
Charter of the United Nations”). Use of an expanded form of significant preemptive force against
what is merely an emerging threat would be an example of a manifest violation of the Charter.
420
[Vol. 45
ARMED ATTACKS AND IMPUTATION
tion. The Security Council’s resolution “[s]trongly condemn[ed] the
military attack by Israel in clear violation of the Charter of the U.N. and
norms of international conduct”13 and “[c]all[ed] on Israel to refrain
in the future from any such acts or threats thereof.”14 The General
Assembly’s resolution “[s]trongly condemn[ed] Israel for its premeditated and unprecedented act of aggression in violation of the
Charter . . . and the norms of international conduct, which constitutes
a new and dangerous escalation in the threat to international peace
and security.”15 Importantly, both the Security Council and General
Assembly stressed that Iraq was “a party to the Treaty on the NonProliferation of Nuclear Weapons . . . [and] that in accordance with
that Treaty Iraq has accepted the [International Atomic Energy]
Agency safeguards on all its nuclear activities, and that the Agency has
testified that these safeguards have been satisfactorily applied to date.”16
Quite clearly the Security Council and the General Assembly have
recognized that a claim to use measures of armed force in self-defense
when an alleged threat is merely emerging is unacceptable and use of
armed force in such a context would be decidedly impermissible under
Article 51 of the U.N. Charter.17
13. S.C. Res., U.N. DOC S/RES/487 (June 19, 1981).
14. Id. ¶ 2.
15. G.A. Res., U.N. DOC G/RES/36/27 (Nov. 13, 1981) (vote: 109-2-34).
16. S.C. Res., U.N. DOC S/RES/487, supra note 13, pmbl; see also G.A. Res., U.N. DOC
G/RES/36/27, supra note 15, pmbl; O’Connell & Alevras-Chen, supra note 6, at 505-06 (noting
the existence of IAEA safeguards). Presently, this is not the circumstance that pertains with respect
to all Iranian nuclear production activities. See infra notes 59, 75.
17. See DINSTEIN, supra note 6, at 186 (claiming that a “legal justification should have rested
on the state of war which characterized the relations” between Israel and Iraq and recognizing
that, had they been at peace, “the bombing would have been prohibited, since . . . it did not
qualify as a legitimate act of self-defence consonant with Article 51”); GARDAM, supra note 7, at 154
(“the threat had not been established”); Anthony D’Amato, Israel’s Air Strike Upon the Iraqi Nuclear
Reactor, 77 AM. J. INT’L L. 584, 587-88 (1983) (noting that “anticipatory self-defense” cannot be
reconciled with Article 51 of the Charter, but claiming that the Israeli targeting of the nuclear
reactor may not have violated Article 2(4) of the Charter); Dunlap, supra note 7, at 329 (unlawful
when “a nuclear weapons program [is] at its very nascent stage”); supra note 12. Contrary to
Professor Dinstein’s claim with respect to the circumstance of war, a nuclear reactor that is still
being built and that complies with IAEA safeguards would not be a lawful military target during
war since it is not yet making an effective contribution to enemy military action and does not
yet provide regular, significant, and direct support of military operations. During war, even a
completed and functioning nuclear reactor might not be a lawful target. See, e.g., Protocol
Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of
Victims of International Armed Conflicts, 1125 U.N.T.S. 3, art. 52(2) (“Military objectives are
limited to those objects which by their nature, location, purpose or use make an effective
contribution to military action.”); id. art. 56(2)(b) (noting that special protection exists for
2014]
421
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
Among those who prefer that anticipatory self-defense be tolerated
when an armed attack is imminent, there have been unsubstantiated
claims that in response to the famous Caroline incident in 1837 the
United States and the United Kingdom had recognized the propriety
of anticipatory self-defense when an armed attack is imminent.18 The
claims are surprising because all that had been addressed was a claimed
right of “self-defense” and “self-preservation” against prior and ongoing armed attacks by insurgents against British rule in Canada
and complicit conduct of the U.S. vessel Caroline that had also already
occurred.19 The United States had claimed that there was a very strict
nuclear generating stations, and that such protection “shall cease . . . only if it provides electric
power in regular, significant and direct support of military operations and if such attack is the only
feasible way to terminate such support”); id. art. 56(2)(c) (the same criteria pertain regarding
“other military objectives located at or in the vicinity of these works or installations”).
For this reason, the Israeli targeting on September 6, 2007 of what was apparently a Syrian
nuclear reactor that was secretly under construction was too early to be justified under the laws of
war or the law of self-defense. See also David Sanger, Bush Administration Releases Images to Bolster Its
Claims About Syrian Reactor, N.Y. TIMES, Apr. 25, 2008, at A6; Seymour M. Hersh, A Strike in the Dark,
THE NEW YORKER, Feb. 11, 2008, at 58-59; David Sanger & Mark Mazzetti, Analysts Find Israel Struck A
Syrian Nuclear Project, N.Y. TIMES, Oct. 14, 2007, at A1; Glenn Kessler, N. Korea, Syria May Be at Work
on Nuclear Facility, WASH. POST, Sept. 13, 2007, at A12.
18. See, e.g., SCHARF, supra note 7, at 187, 200; Dunlap, supra note 7, at 325-26, 333; Joyner,
supra note 7, at 241-42, 244; Kretzmer, supra note 5, at 247-48; Maggs, supra note 6, at 476-77;
Stromseth, supra note 7, at 567 & n.19; Waxman, supra note 7, at 6; Wilmshurst et al., supra note 3,
at 965 n.9, 967.
19. See, e.g., DINSTEIN, supra note 6, at 184-85; R.Y. Jennings, The Caroline and McLeod Cases,
32 AM. J. INT’L L. 82, 82-85, 86 n.13, 87 (1938) (“It was under the head of ‘self-defence and
self-preservation’ that the destruction of the Caroline was ultimately justified.”); id. at 91 (“selfdefence presupposes an attack”); id. at 92 (“throughout the dispute there does not seem to have
been any disagreement as to the law involved: . . . the law of self-defence”); Jordan J. Paust,
Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Use of Drones in Pakistan,
19 J. TRANSNAT’L L. & POL’Y 237, 241-44 (2010); see also Murphy, supra note 6, at 711 n.40 (the U.K.
claimed “self-defense”). The Caroline incident is also noteworthy because it is among several
examples of permissible self-defense responses to non-state actor armed attacks emanating from
the territory of another country and involved recognition that sovereignty is relative, the
responding state does not need consent of the state from which such attacks emanate, non-state
attacks do not have to be imputed to that state, use of force against the non-state actors is not
against the state or its territory, and the targeting of non-state actors does not create a war between
the two states. See, e.g., Paust, supra at 243-61; but see Mary Ellen O’Connell, Dangerous Departures,
107 AM. J. INT’L L. 380, 383 (2013) (claiming that “[a]ttacking NSAs on the territory of another
state is attacking that state”). See also CHARTER COMMENTARY, supra note 5, at 799 (“For the purpose
of responding to an ‘armed attack,’ the State acting in self-defence is allowed to trespass on
foreign territory, even when the attack cannot be attributed to the State from whose territory it is
proceeding.”). Britain’s Lord John Campbell, who had written a justification for the British act of
self-defense that was used by the Foreign Secretary, subsequently wrote that “the Caroline had been
422
[Vol. 45
ARMED ATTACKS AND IMPUTATION
limitation on particular methods of responsive force as opposed to
when the right of self-defense pertains. No one disagreed that non-state
actor armed attacks trigger the right to engage in certain measures of
self-defense or that armed attacks had already occurred, but the United
States claimed that use of a particular means of self-defense when the
right of self-defense had been triggered should only be permissible
when the “‘necessity of that self-defense is instant, overwhelming, and
leaving no choice of means, and no moment for deliberation;’”20 and
when it can be shown that the authorities responding to an attack “did
nothing unreasonable or excessive; since the act, justified by the
necessity of self-defense must be limited by that necessity, and kept
clearly within it.”21 The United States had claimed that under the
circumstances the British could have waited until daylight and seized
the vessel Caroline when it re-entered Canadian waters and, therefore,
that the choice of means and the responsive act were not necessary,
although a general right of self-defense pertained.22
engaged, and when seized by us was still engaged, in carrying supplies and military stores from the
American side of the river to the rebels in Navy Island, part of the British territory,” and “although
she lay on the American side of the river when she was seized, we had a clear right to seize and
destroy her, just as we might have taken a battery erected by the rebels on the American shore, the
guns of which were fired against the Queen’s troops in Navy Island.” AUTOBIOGRAPHY OF LORD
CAMPBELL 19 (2d ed. 1881), reprinted in 2 JOHN BASSET MOORE, A DIGEST OF INTERNATIONAL LAW 414
(1906); see also Lord Alexander Baring Ashburton, letter to Secretary of State Daniel Webster
(July 28, 1842) (“If canon are moving and setting up in a battery . . . and are actually destroying
life and property by their fire, . . . when begins your right to defend yourself”), available at
http://avalon.law.yale.edu/19th_century/br-1842d.asp. The same day that the Caroline was destroyed there had actually been “‘two discharges of heavy Ordinance . . . made on a British Boat
from the American Shore, near’” Fort Schlosser in New York. Jennings, supra at 83 (quoting a
Feb. 21, 1838 report of the Law Officers of the Crown).
20. See Paust, supra note 19, at 242-43 & nn.11-12 (quoting two letters from Secretary of State
Daniel Webster—the first to Lord Ashburton on August 6, 1842, and the second to Minister Henry
S. Fox on April 24, 1841). Today, methods, “means,” and “the act” of self-defense are restricted by
general principles of reasonable necessity and proportionality as well as any relevant prohibitions
regarding particular weapons, tactics, and targets. There is no requirement that the “means” or
“act” of self-defense actually used be strictly necessary. See, e.g., id. at 270-71, 274-75.
21. Letter from Daniel Webster, U.S. Sec’y of State, to Lord Ashburton (July 27, 1842), in
4 TREATIES AND OTHER INTERNATIONAL ACTS OF THE UNITED STATES OF AMERICA 446, 449 (Hunter
Miller ed., 1934) (quoted in part in Paust, supra note 19, at 242-43).
22. See id. at 446; Paust, supra note 19, at 243. Contrary to Lord Campbell’s assertion, supra
note 19, there was a manifest difference between the need to stop a non-state actor’s artillery
battery from continually firing on troops across the U.S. border into Canada and the need to
intercept and seize a vessel engaged in complicit transport of rebels and weaponry into Canadian
territory, which could have occurred when the vessel crossed into Canadian waters. Cf. Jennings,
supra note 19, at 90 (noting the British response in a letter from Lord Ashburton to Secretary
2014]
423
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
It is theoretically possible to claim that some forms of anticipatory
self-defense would fit within the French phrase agression armée and
would be permissible under Article 51, because a state could be the
object of an armed aggression when an armed attack has not begun but
is imminent.23 Nonetheless, the majority view, backed by decisions of
the I.C.J., is that the inherent right of self-defense is conditioned by the
need for initiation of an armed attack24 and the majority of the Judges
of the I.C.J. have not chosen a different criterion under what might
logically be a broader reach when using the equally authentic French
phrase agression armée. Yet, an important question that is rarely explored in sufficient detail remains: exactly when does an armed attack
or agression armée commence? Moreover, does an attack by a state occur
when the state is complicit with respect to armed attacks by others? This
second question is addressed first in order to provide proper background for consideration of when a process of armed attack or agression
armée is initiated.
III.
A.
IMPUTATION OF ATTACKS BY OTHERS
The I.C.J.’s Articulated Criteria
The I.C.J. has ruled that the mere “provision of weapons or logistical
or other support” (and presumably mere general “financing, organizing, training, [and] supplying and equipping”) by a state to a group
engaged in armed attacks against another state is not sufficient for
attribution of the group’s armed attacks to the first state as if the first
state has engaged in armed attacks against the second state.25 This lack
Webster, July 28, 1842, claiming that the Caroline was “‘the important means and instrument by
which numbers and arms were hourly increasing’” and “‘[t]he time of night was purposely
selected as most likely to ensure the execution with the least loss of life’”).
23. See supra note 8. Cf. DINSTEIN, supra note 6, at 184 (“Only a special form of aggression
amounting to an armed attack justifies self-defense under Article 51. The French version . . .
sharpens its thrust by speaking of ‘une agression armée’ . . . [and, apparently seeing no difference
between the English and French phrases, stating that self-defense is permitted] only in response to
aggression which is armed.”); id. at 188-89 (“In many instances, the opening of fire is an unreliable
test of responsibility for an armed attack . . . . An invasion constitutes the foremost case of
aggression” and can start without the firing of weapons. “When a country sends armed formations
across an international frontier, without the consent of the local Government, it must be deemed
to have triggered an armed attack.” But see infra note 39 (not all invasions would be impermissible
under the U.N. Charter)).
24. See supra note 6.
25. See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. US.), 1986
I.C.J. 14, ¶¶ 109-15 (referring to a separate issue concerning state responsibility for specific
human rights and law of war violations by non-state actor contras and whether there was such
424
[Vol. 45
ARMED ATTACKS AND IMPUTATION
of imputation of the armed attacks pertains even if the first state is
somewhat complicit in the group’s attacks26 or has impermissibly
intervened27 and, therefore, would have state responsibility under
international law for its own violations of international law.28 With
control by the U.S. “that it would be right to equate the contras, for legal purposes, with an organ of
the United States Government, or as acting on behalf of that Government” [¶ 109] as opposed to
state responsibility that could otherwise exist for its “mere complicity in those acts, or . . .
incitement of the contras to commit them” [¶ 114], “United States participation, even if preponderant or decisive in the financing, organizing, training, supplying and equipping of the contras, the
selection of its military or paramilitary targets, and the planning of the whole of its operation, is
still insufficient in itself, on the basis of the evidence in the possession of the Court, for the
purpose of attributing to the United States the [specific] acts committed by the contras . . . . All the
forms of United States participation . . . , and even the general control . . . , would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of
the acts contrary to human rights and humanitarian law alleged,” and “[s]uch acts could well”
have been committed by the contras alone, and it would have to be proved that the U.S. “had
effective control of the military or paramilitary operations in the course of which the alleged
violations were committed” so as to equate the contras with an organ of the U.S.); id. ¶ 195 (with
respect to the issue regarding imputation of armed attacks for purposes of self-defense and what
acts constitute armed attacks, “an armed attack must be understood as including . . . the ‘sending
by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts
of armed force . . . of such gravity as to amount to’ (inter alia) an actual armed attack conducted by
regular forces, ‘or its substantial involvement therein’” (quoting G.A. Res. 3314 (XXIX), Annex, art.
3(g)., U.N. Doc. A/RES/3314(XXIX) (Dec. 14, 1974) [hereinafter Definition of Aggression]
(emphasis added)), but not mere “assistance to the rebels in the form of provision of weapons or
logistical or other support”); Democratic Republic of the Congo v. Uganda, 2005 I.C.J., supra
note 9, ¶ 146 (“There is no satisfactory proof of the involvement in these attacks, direct or
indirect, of the Government of the DRC. The attacks did not emanate from armed bands or
irregulars sent by the DRC or on behalf of the DRC, within the sense of Article 3(g) of” the
Definition of Aggression.).
26. See supra note 25; Paust, supra note 6, at 540-42; see also infra note 32; but see Nicar. v. U.S.,
1986 I.C.J., supra note 6, ¶ 195 (regarding the Court’s affirmation of the existence of imputation
when there is more than mere complicity and there is a “sending” by the state or its “substantial
involvement” in armed attacks).
27. See Nicar. v. U.S., 1986 I.C.J., supra note 6, ¶ 192 (quoting G.A. Res. 2625(XXV), at 123,
U.N. Doc. A/RES/2625(XXV) (Oct. 24, 1970) (addressing the principle of non-intervention and
its violation when a state organizes, assists, foments, finances, incites, or tolerates “‘subversive,
terrorist or armed activities directed towards the violent overthrow of the regime of another
State,’” or interferes “‘in civil strife in another State’”); id. ¶ 195 (“Such assistance may be
regarded as a threat or use of force, or amount to intervention.” This statement implies that not all
threats or uses of armed force in violation of Article 2(4) of the Charter amount to an armed
attack, a point explored also infra note 36 and accompanying text); id. ¶ 292 (3), (5); Paust, supra
note 6, at 541.
28. Such forms of state responsibility can lead to political, diplomatic, economic, and juridic
sanctions. See Nicar. v. U.S., supra note 6, ¶ 292(3) (impermissible intervention); id. ¶ 292(13)
(money reparations are owed for such and for other violations of international law); GRAY, supra
note 7, at 99 n.50, 100 (addressing the different issues regarding state responsibility for unlawful
2014]
425
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
respect to whether an armed attack by a group can be attributed or
imputed to the first state for purposes of self-defense, the Court has
recognized that this can occur, for example, if the first state sent the
armed group that carried out acts of armed force amounting to an
armed attack or had “substantial involvement therein.”29 The Court has
not declared that the state must direct the attacks or have effective
control over a group for purposes of imputation regarding an armed
attack as such, although it has used such a test in connection with the
separate issue of whether a non-state actor is under such control that it
can be considered to be acting as an organ of the state for purposes of
state responsibility for particular human rights and law of war violations,30 and one should not confuse the law of state responsibility with
intervention and imputation for self-defense); MCDONNELL, supra note 7, at 262 (regarding money
reparations); Paust, supra note 6, at 540 & n.25; infra notes 32-33.
29. See supra note 25; Nicar. v. U.S., 1986 I.C.J., supra note 6, at 343-44 (Schwebel, J.,
dissenting); id. ¶ 165-166; id. at 543 (Jennings, J., dissenting) (quoted infra note 47); see also
CHARTER COMMENTARY, supra note 5, at 801 (under the “substantial support” test, “[d]ecisive is, to
what extent State support has enabled private groups to commit acts of military force which,
committed by a State, have to be qualified as ‘armed attack’”); Bothe, supra note 6, at 233 (“the
‘substantial involvement’ formula”); Paust, supra note 6, at 540-43 (noting that imputation for
self-defense should pertain if the state is organizing, fomenting, directing, or otherwise directly
participating in the armed attacks); Tom Ruys, Crossing the Thin Blue Line: An Inquiry into Israel’s
Recourse Against Hezbollah, 43 STAN. J. INT’L L. 265, 275 (2007) (“‘substantial involvement’” is a
separate yardstick recognized by the I.C.J. for imputation); Michael N. Schmitt, Professor of
International Law, Bellum Americanum Revisited: U.S. Security Strategy and the Jus ad Bellum, The
Sixteenth Waldemar A. Solf Lecture in International Law (February 28, 2003), in 176 MIL. L. REV.
364, 399 (2003) (“‘sending’ terrorists or ‘substantial involvement’ in their activities”). Additionally, “[t]he sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries,
which carry out acts of armed force against another State . . . [of a certain “gravity”] or its
substantial involvement therein” can amount to proscribed aggression. See Definition of Aggression, supra note 25, art. 3(g).
30. States may bear responsibility for specific violations of international law committed by
non-state actors as if they were acting as the state. Compare Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro),
2007 I.C.J. 43, ¶ 391 (for purposes merely of state responsibility for acts of genocide, the I.C.J.
considered whether persons or groups were “under such strict control by the State that they must
be treated as its organs for purposes of . . . [that type of] attribution”); id. at 406 (disagreeing with
the broader Tadic overall control test) with Prosecutor v. Tadic, IT-94-1-A ¶ 137 (Int’l Crim. Trib.
For the Former Yugoslavia July 15, 1999) (Opinion and Judgment) (with respect to responsibility
for war crimes and an additional but primary issue whether an international armed conflict exists,
“overall control” does not require “the issuing of specific orders . . . [or] direction of each
individual operation” and it is not “necessary that the controlling authorities should plan all the
operations of the units dependent on them, choose their targets, or give specific instructions
concerning the conduct of military operations and any alleged violations of international
humanitarian law. The control required . . . may be deemed to exist when a State . . . has a role in
426
[Vol. 45
ARMED ATTACKS AND IMPUTATION
the law of self-defense.31 Importantly, even if attribution does not
pertain under the substantial involvement test a state can be liable for
its own conduct if it is complicit with respect to human rights and law of
war violations.32
With respect to Iranian financing, training, supplying, and equip-
organising, coordinating or planning the military actions of the military group”); id. ¶ 131 (there
must be “overall control over the group . . . [such as] coordinating or helping in the general
planning of its military activity”). Importantly, with respect to all forms of state responsibility,
relying on the tests noted above would be improper, because the tests would be too strict if used
outside the specific circumstance addressed, i.e., where non-state actor conduct can be considered
to be that of the state. See infra notes 32-33.
31. See supra notes 25, 30; infra note 52.
32. See, e.g., Foreign Sovereign Immunities Act, 28 U.S.C. § 1605A(a)(1) (2008) (providing
a cause of action and nonimmunity regarding a state that provides “material support or resources”
for torture, extrajudicial killing, aircraft sabotage, or hostage taking (emphasis added)); Leibovitch v. Islamic Republic of Iran, 697 F.3d 561, 562 (7th Cir. 2012); Owens v. Republic of the
Sudan, 531 F.3d 884, 885-86 (D.C. Cir. 2008); Wyatt v. Syrian Arab Republic, 266 Fed. App’x. 1,
2 (D.C. Cir. 2008); Rux v. Republic of Sudan, F. Supp. 2d, WL 6561469 (D.D.C. 2012);
Gates v. Syrian Arab Republic, 580 F. Supp. 2d 53 (D.D.C. 2008), aff’d, 646 F.3d 1 (D.C. Cir. 2011);
Smith v. Islamic Emirate of Afghanistan, 262 F. Supp. 2d 217, 228-32 (2003); CASSESE, supra
note 6, at 247-50 (addressing the I.C.J., ILC, and Tadic tests and noting that a state can also be
responsible “if it did not act with due diligence: if it omitted to take the necessary measures to
prevent attacks on foreigners or foreign assets” within its territory); JORDAN J. PAUST, JON M.
VAN DYKE, & LINDA A. MALONE, INTERNATIONAL LAW AND LITIGATION IN THE U.S. 819-22 (3d ed.
2009); W. MICHAEL REISMAN ET AL., INTERNATIONAL LAW IN CONTEMPORARY PERSPECTIVE 932-36, 938
(2004); Elizabeth Nielsen, State Responsibility for Terrorist Groups, 17 U.C. DAVIS J. INT’L L. & POL’Y
151, 153-54 (2010) (a state can be responsible “‘for violating its distinct duties to prevent, and
abstain from supporting, terrorist activities’” (quoting TAL BECKER, TERRORISM AND THE STATE:
RETHINKING THE RULES OF STATE RESPONSIBILITY 3 (2006))); John Quigley, Complicity in International
Law: A New Direction in the Law of State Responsibility, 57 BRIT. YB. INT’L L. 77 (1986); Steven R.
Ratner, Jus Ad Bellum and Jus in Bello After September 11, 96 AM. J. INT’L L. 905, 908-09 (2002)
(noting the difference between state responsibility for complicity and “imputation of direct
responsibility . . . to justify the use of force against . . . [a] state in self-defense”). Compare
2001 Report of the I.L.C. on State Responsibility, Report of the International Law Commission on
the Work of its Fifty-Third Session, U.N. GAOR, 56th Sess., Supp. No. 10, U.N. Doc. A/56/10,
at 155-68, Article 8 (2001) [hereinafter ILC Articles on State Responsibility] (“Conduct directed
or controlled by a State: The conduct of a person or group of persons shall be considered an act
of a State under international law if the person or group of persons is in fact acting on the
instructions of, or under the direction or control of, that State in carrying out the conduct.”),
with id. at 155-68, Article 16 (“Aid or assistance in the commission of an internationally wrongful act” by another state). Article 16 of the ILC draft is silent regarding state responsibility for
facilitation of non-state actor violations of international law. In any event, state responsibility for its
complicity should not hinge on the status of the direct perpetrator, especially because international law has never been merely state-to-state and there have been other formal actors, including
nations, peoples, tribes, belligerents, and insurgents. See, e.g., Jordan J. Paust, Nonstate Actor
Participation in International Law and the Pretense of Exclusion, 51 VA. J. INT’L L. 977 (2011).
2014]
427
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
ping of Hezbollah and Hamas while they have been engaged in
continued armed attacks against Israel, Israelis, and others,33 under the
Court’s test for imputation regarding self-defense, Iran has been recognizably violating international law and engaging in what some term
“indirect aggression,”34 but such unlawful complicit conduct involving
financing, training, supplying, and equipping of non-state actors appears to have been general in nature and not conduct in direct support
of specific armed attacks so as to meet the “substantial involvement”
test identified by the Court and clarified in Part III.B.2. below. As a
result, there might not be imputation of armed attacks by Hezbollah or
33. See, e.g., Hegna v. Islamic Republic of Iran, 495 Fed. App’x. 191 (2d Cir. 2012) (with
Hezbollah); Rubin v. The Islamic Republic of Iran, 637 F.3d 783, 785-86 (7th Cir. 2011) (with
Hamas); Peterson v. Islamic Republic of Iran, 627 F.3d 1117, 1121-22 (9th Cir. 2010) (addressing
the finding below of “significant financial and logistical support to Hezbollah in connection
with the Beirut bombing”); Weinstein v. Islamic Republic of Iran, 609 F.3d 43, 46 (7th Cir. 2011)
(with Hamas); Oveissi v. Islamic Republic of Iran, 573 F.3d 835, 837 (D.C. Cir. 2009) (with
Hezbollah); Bodoff v. Islamic Republic of Iran, 907 F. Supp. 2d 93, 96-98, 100-03 (D.D.C. 2012)
(with Hamas); Estate of Botvin v. Islamic Republic of Iran, 873 F. Supp. 2d 232, 234-35 (D.D.C.
2012) (with Hamas); Taylor v. Islamic Republic of Iran, 881 F. Supp. 2d 19, 21-22 (D.D.C. 2012)
(with Hezbollah); Fain v. Islamic Republic of Iran, 856 F. Supp. 2d 109, 118-19 (D.D.C. 2012)
(with Hezbollah); Rimkus v. Islamic Republic of Iran, 750 F. Supp. 2d 163, 167 (D.D.C. 2010)
(with Saudi Hezbollah); Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 61-64 (D.D.C.
2010) (with Hezbollah); Kilburn v. Islamic Republic of Iran, 699 F. Supp. 2d 136, 142-43
(D.D.C. 2010) (with Hezbollah); Wachsman v. Islamic Republic of Iran, 603 F. Supp. 2d 148,
151-54 (D.D.C. 2008) (with Hamas); Blais v. Islamic Republic of Iran, 459 F. Supp. 2d 40, 45
(D.D.C. 2006) (with Saudi Hezbollah); Dammarelli v. Islamic Republic of Iran, 370 F. Supp. 2d
218, 220 (D.D.C. 2005) (with Hezbollah); U.S. DEP’T OF STATE, OFFICE OF THE COORDINATOR FOR
COUNTERTERRORISM, COUNTRY REPORTS ON TERRORISM 2011, at 172, 232, 235-36 (2012), available at
http://www.state.gov/documents/organization/195768.pdf; U.S. DEP’T OF STATE, OFFICE OF THE
COORDINATOR FOR COUNTERTERRORISM, COUNTRY REPORTS ON TERRORISM 2009, at 192, 251, 255
(2010), available at http://www.state.gov/documents/organization/141114.pdf; Orde F. Kittrie,
Emboldened By Impunity: The History and Consequences of Failure to Enforce Iranian Violations of
International Law, 57 SYRACUSE L. REV. 519, 526-28 & n.61 (2007); Maggs, supra note 6, at 481;
O’Connell & Alevras-Chen, supra note 6, at 511; Anne Barnard, Hezbollah Says It Flew IranianDesigned Drone Into Israel, N.Y. TIMES.com, Oct. 12, 2012, at 10; Nicholas Kulish et al., Bulgaria Ties
Hezbollah to Blast on Israelis’ Bus, N.Y. TIMES, Feb. 6, 2013, at A6; Mark Mazzetti & Thom Shanker,
Arming of Hezbollah Reveals U.S. and Israeli Blind Spots, N.Y. TIMES, Jul. 19, 2006, at A12; Jad Mouawad
& Steven Erlanger, Israel Bombards Lebanon After Hezbollah Hits Haifa With Missiles, N.Y. TIMES,
Jul. 17, 2006, at A1; William O. Beeman, Examining Iran’s Ties to Hezbollah, IN THESE TIMES, Aug. 15,
2006, http://www.unz.org/Pub/InTheseTimes-2006sep-00032; Laila Bassam, Hezbollah Says Gets
Support, Not Orders, from Iran, REUTERS, Feb. 7, 2012, http://www.reuters.com/article/2012/09/03/
us-lebanon-hezbollah-israel-idUSBRE8820KU2012.
34. See, e.g., Nicar. v. U.S., 1986 I.C.J., supra note 6, at 341-44, ¶¶ 162, 164 (Schwebel, J.,
dissenting); Moore, Jus Ad Bellum, supra note 5, at 907-08, 934, 950, 953-54; see also supra
notes 27, 29.
428
[Vol. 45
ARMED ATTACKS AND IMPUTATION
Hamas to Iran as if they are acting as organs of Iran.35 Nonetheless,
Iran’s subversion of peace through continued complicity in armed
attacks on Israel and its stated animosity to the very existence of Israel
are necessarily significant features of context with respect to Iranian
intent and its overall conduct in relation to Israel.
B.
1.
Direct and Complicit Aggression
Imputation Through Aggression
In any event, a lack of imputation would not preclude inquiry
regarding whether an armed conflict exists between Israel and a
belligerent under international law (such as Hezbollah) and whether
additional Iranian conduct could amount to direct intervention sufficient to constitute its joining in the armed conflict. Whether or not the
type of direct intervention that constitutes joining a war should be the
same as “substantial involvement” in armed attacks that is needed for
imputation regarding armed attacks is not clear. If less, joining a war
might allow use of responsive force under a war paradigm36 that would
35. See also O’Connell & Alevras-Chen, supra note 6, at 509, 512 (otherwise assuming,
however, that the I.C.J. adopted an effective control test for imputation regarding armed attacks
and self-defense as opposed to using such a test merely with respect to state responsibility for
particular human rights and law of war violations as if non-state actors act as organs of a state).
36. When a third state joins a war in progress, a flexible, textually-sound, and policy-serving
interpretation of Article 2(4) of the Charter might allow use of responsive force against the new
enemy (the third state) that had not yet engaged in an armed attack or conduct in substantial
support of others sufficient for imputation with respect to their attacks under Article 51, although
one would have to consider the objects and purposes of the Charter in light of actual features of
context as well as its specific text. Concerning a textually-sound and policy-serving approach to
interpretation of Article 2(4), see, e.g., Paust, supra note 6, at 536-38 (noting that not every use of
armed force is prohibited in the text of Article 2(4), that the text does not prohibit “all” or “every”
use of force and does not contain the phrase “any use of force,” and that only three forms of force
are expressly covered); Jordan J. Paust, US Use of Limited Force in Syria Can Be Lawful Under the
UN Charter, JURIST, Sept. 10, 2013, http://jurist.org/forum/2013/09/jordan-paust-forcesyria.php; see also RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES
§ 905 cmt. g (1987) (“It is generally accepted that Article 2(4) does not forbid limited use of
force in the territory of another state incidental to attempts to rescue persons whose lives are
endangered there, as in the rescue at Entebbe in 1976”); but see Albrecht Randelzhofer, Article 2(4),
in CHARTER: A COMMENTARY, supra note 5, at 117 (noting that the terms contained in Article 2(4)
have not been clarified “beyond doubt”); id. at 123 (claiming that Article 2(4)’s prohibition of the
use of force “cover[s] any possible kind of transfrontier use of armed force . . . even if it is not
intended to deprive that State of part of its territory and even if the invading troops are meant to
withdraw immediately after completing a temporary and limited operation” and, therefore, what
is prohibited is “any kind of forcible trespassing”). The third type of armed force that is expressly
proscribed under Article 2(4) compels one to consider whether an actual use of armed force is “in
2014]
429
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
not be permissible under an Article 51 self-defense paradigm. Fuller
clarification might involve highlighting the difference between (1) intervention that amounts to “indirect aggression” and does not lead to
imputation for purposes of self-defense, and (2) direct and complicit
aggression that can result in imputation37 and that will also constitute
an act of war. Such might even be relevant to a reconsideration of the
meaning and reach of the French phrase agression armée and what forms
of direct and complicit armed aggression might be in between “indirect
aggression” and an “armed attack” that should be encompassed within
the equally authentic French version of Article 51.38
The 1974 Definition of Aggression identifies certain examples of
direct and complicit aggression that might provide additional guidance. With respect to the Definition’s example of an armed invasion,
some might logically conclude that an armed attack will occur when
there is an impermissible invasion by one state of another state whether
any . . . manner inconsistent with the Purposes of the United Nations.” U.N. Charter, art. 2(4).
Force used by a state (state x) against a third state (state z) that joins a war in progress between
state x and state y on the side of state y would not unavoidably constitute a use of force by state x
that is inconsistent with the many purposes of the Charter, which include the need to serve peace,
security, self-determination of peoples, and human rights. See U.N. Charter, pmbl., arts. 1, 55-56.
Yet, it should be important to identify how state z joins the war. For example, if state z merely
declares war against state x and state x responds with a declaration of war against state z, states x
and z will be in a technical state of war and the declarations of war might also be viewed as “threats”
of force within the meaning of Article 2(4). See DINSTEIN, supra note 6, at 9, (declarations of war
place the “countries . . . in a state of war in the technical sense”); id. at 186 n.62 (“A declaration of
war patently unaccompanied by deeds may be deemed ‘an overt threat of the use of force.’”). But
even if state z’s declaration constitutes a violation of Article 2(4), would state x have a right to
respond with military force if state z has not initiated an armed attack against state x? See DINSTEIN,
supra note 6, at 186 (“Self-defence under the Article is not vindicated by any violation of
international law other than an armed attack. Even declarations of war, if it is evident that they are
unaccompanied by deeds, are not enough”). Would state x’s use of force during a technical state
of war with state z not violate Article 2(4) under the circumstances? Cf. id. at 48 (addressing a
“plausible legal justification” where conduct represents “another round of hostilities in an
on-going armed conflict”); id. at 186 (when a “state of war . . . characterized the relations between
the two countries”).
37. Compare Definition of Aggression, supra note 25, art. 3(g) (quoted in part supra note 29),
with Nicar. v. U.S., 1986 I.C.J., supra note 6, ¶ 195 (quoted in part supra note 25). Democratic
Republic of the Congo v. Uganda, 2005 I.C.J., supra note 9, ¶ 146 (quoted in part supra note 25).
38. See also Definition of Aggression, supra note 25, art. 3(a) (“invasion or attack”); id. art. (c)
(“The blockade of the ports or coasts of a State”); id. art. (f) (“The action of a State in allowing its
territory, which it has placed at the disposal of another State, to be used by that other State for
perpetrating an act of aggression against a third State”).
430
[Vol. 45
ARMED ATTACKS AND IMPUTATION
or not shots are actually fired39 even though the example in the
Definition is phrased as “invasion or attack”40 and the word “or” can
imply that an invasion may be different than and might not constitute
an attack. Another example listed involves an impermissible armed
blockade.41 For some, a blockade that is a traditional act of war and an
armed aggression could constitute an armed attack even prior to the
firing of any weapons.42 Another example listed involves the circumstance where a state allows its territory to be used by another state for
impermissible armed attacks against a third state.43 Such a form of
complicit aggression would apparently meet the I.C.J.’s analogous
test regarding substantial complicity with respect to non-state actor
armed attacks (i.e., sending those who engage in attacks or “substantial
involvement” therein), especially if the international community recognizes what is quite logical and policy-serving—that the state from which
the armed attacks emanate is substantially involved therein when it
provides essential support by allowing its territory to be used to mount
armed attacks even though it does not organize, foment, direct, or
otherwise control the attacks.44 In any event, whether this form of
complicit aggression amounts to an armed attack by the state from
39. See supra note 23. It should be emphasized that each type of conduct listed in Article 3 of
the Definition of Aggression is subject to further inquiry whether in a particular context the
conduct is “in contravention of the Charter.” See Definition of Aggression, supra note 25, art. 2
(“armed force . . . in contravention of the Charter”); id. art. 3 (listed acts, “subject to and in
accordance with the provisions of Article 2,” are acts of aggression); see also id. art. 6 (“Nothing in
this Definition shall be construed as in any way enlarging or diminishing the scope of the Charter,
including its provisions concerning cases in which the use of force is lawful”). For this reason,
some invasions might be permissible under the Charter and, therefore, would not be acts of
aggression or armed attacks under Article 51 of the Charter—for example, an invasion authorized
by the Security Council under Article 42 as enforcement action, authorized by a regional
organization as regional action under Article 52, or that is permissible as responsive action in
self-defense under Article 51. See Paust, supra note 6, at 533-34, 536, 539, 544-47.
40. Definition of Aggression, supra note 25, art. 3(a).
41. Id. art. 3(c).
42. See CHARTER COMMENTARY, supra note 5, at 797 (“At least if maintained effectively, the
blockade is also to be considered ‘an armed attack.’”).
43. See Definition of Aggression, supra note 25, art. 3(f).
44. See also CHARTER COMMENTARY, supra note 5, at 799 (by “allowing its territory” to be used
by another State for armed attacks on a third State, “the act of aggression [is] imputable . . . to the
State allowing its territory to be used” and “the connivance of the two States may be taken to
comprise an ‘armed attack’ also by the State which remains passive from the military point of
view”); Hmoud, supra note 7, at 578 (where “a series of attacks” emanate from territory of a state
over which it has “effective control,” the state “must be considered as complicit in the campaign”
of non-state actor attacks and self-defense will be permissible).
2014]
431
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
which the armed attacks emanate should not hinge on whether the
actual attacks are made by a state or non-state actor.45
2.
Clarifying Substantial Involvement
Additionally, in view of the type of U.S. involvement identified in the
Nicaragua decision that was found to be insufficient for imputation of
non-state actor armed attacks,46 it is not clear what the difference might
be between insubstantial involvement that is insufficient and various
forms of “substantial” involvement that can result in imputation under
the law of self-defense.47 Apparently, mere “assistance to . . . rebels in
45. It is widely recognized that non-state actor armed attacks can trigger a right of selfdefense under Article 51 and there is no need for consent from or imputation to the state from
which the non-state actor armed attacks emanate in order to selectively engage the non-state
actors. Additionally, selective force against non-state attackers is not against the foreign state or
against its territory as such. See, e.g., Akande & Liefländer, supra note 7; Bethlehem, supra note 7;
Paust, supra note 19, at 238-58 (and numerous other authors cited); Jordan J. Paust, Permissible
Self-Defense Targeting and the Death of bin Laden, 39 DENV. J. INT’L L. & POL’Y 569, 569-72 (2011); see
also CHARTER COMMENTARY, supra note 5, at 799 (quoted supra note 19); Lord Campbell, supra note
19; Hmoud, supra note 7, at 577-78 (claiming that the propriety of self-defense in cases of non-state
actor attacks is limited to circumstances such as a state’s failure to prevent attacks from its territory
and the collapse of a state or governmental control). But see Dire Tladi, The Nonconsenting Innocent
State: The Problem With Bethlehem’s Principle 12, 107 AM. J. INT’L L. 570, 570-576 (2013).
46. See generally Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.),
1986 I.C.J. ¶¶ 115, 195 (quoted in part supra note 25).
47. See also id. at 543 (Jennings, J., dissenting) (“It may be readily agreed that the mere
provision of arms cannot be said to amount to an armed attack. But the provision of arms may,
nevertheless, be a very important element in what might be thought to amount to armed attack,
where it is coupled with other kinds of involvement . . . . Logistical support may itself be crucial.”);
CHARTER COMMENTARY, supra note 5, at 801 (“‘Substantial involvement’ . . . allows for a variety of
value-oriented assessments . . . [and should be] interpreted restrictively . . . . Decisive is, to what
extent State support has enabled private groups to commit acts of military force.”); CASSESE, supra
note 6, at 365 (mere economic, military, “logistical or other assistance to rebels . . . does not
amount to armed attack (unless the provision of significant military support to an insurgency is
major and demonstrable)”); DINSTEIN, supra note 6, at 202-03 (addressing points of dissenting
Judges Jennings and Schwebel); GRAY, supra note 7, at 97-99 (“what degree of state involvement is
necessary” is not fully clear, and in Nicaragua v. United States the I.C.J. “did not expressly go into the
issue of whether a lesser degree of state involvement [than sending armed bands], such as
acquiescence or even inability to control armed bands operating on its territory, could even be
enough to constitute an armed attack”); id. at 128 (on “the particular facts . . . there had been no
significant assistance [by Nicaragua] to the opposition in El Salvador [and there had been only]
limited assistance”); Moore, Jus Ad Bellum, supra note 5, at 954 (stating that the I.C.J. should
recognize that whether imputation occurs with respect to military assistance should be “contextually determined based on the seriousness of the threat to major values and the overall involvement
of the assisting entity”); Paust, supra note 6, at 541-42 & n.30; W. Michael Reisman, International
Legal Responses to Terrorism, 10 HOUS. J. INT’L L. 3, 39 (1999) (claiming that use of the I.C.J.’s stated
432
[Vol. 45
ARMED ATTACKS AND IMPUTATION
the form of provision of weapons or logistical or other support”48 is not
“substantial” involvement, but allowing one’s territory to be used to
mount armed attacks by others can meet the substantial involvement
test and result in imputation. Although not used by the I.C.J. regarding
the issue of imputation of non-state actor armed attacks for purposes of
self-defense as opposed to the separate issue concerning state responsibility for particular human rights and law of war violations, there is an
evident distinction between general support of a non-state actor (e.g.,
through general financing, training, or provision of weapons and
logistical support) and direct and substantial support of particular
armed attacks through “selection of its military and paramilitary targets, and the planning of the whole of its operation.”49 Whether or not
there is effective control of a non-state actor (which is not determinative), such forms of direction and direct support of armed attacks
should be recognized as “substantial involvement” in the attacks,50
which the I.C.J. has affirmed is sufficient for purposes of imputation
under the law of self-defense even though, according to the Court, they
would not automatically result in the type of attributed state responsibility for specific human rights or law of war violations committed by
non-state actors that can exist as if their conduct is considered to be
that of an organ of the state.
For these reasons, the markedly more stringent criteria identified by
the I.C.J. for attribution of state responsibility for particular human
rights or law of war violations by non-state actors (e.g., involving the
need for effective control in connection with specific violations51) are
not the same as those used for imputation regarding armed attacks.
The issues are separate and should not be confused,52 and, according
criteria may increase violence and should be revisited); Anne-Marie Slaughter & William BurkeWhite, An International Constitutional Moment, 43 HARV. INT’L L.J. 1, 20 n.98 (2002) (“A number of
U.N. documents have called on states to refrain from supporting or allowing terrorist activity, thus
bolstering the claim for attribution of such acts when states fail to prevent them.”).
48. See Nicar. v. U.S., 1986 I.C.J., supra note 6, ¶ 195.
49. See Nicar. v. U.S., 1986 I.C.J., supra note 6, ¶ 115. Although forms of direct support
addressed might not involve “effective control,” they are substantial and might be “directed”
conduct with respect to the armed attacks.
50. See also ILC Articles on State Responsibility, supra note 32, art. 8; infra note 54.
51. See supra notes 25, 30.
52. Regarding unnecessary and surprisingly persistent confusion concerning these two
separate international legal issues, the relevant criteria identified by the I.C.J. regarding each
issue, and an errant assumption by talented legal writers that a state must have effective control for
imputation with respect to the law of self-defense, see, e.g., SCHARF, supra note 7, at 185-86; Louis
Doswald-Beck, Unexpected Challenges: The Increasingly Evident Disadvantage of Considering International
2014]
433
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
to the I.C.J., “substantial involvement” in armed attacks is sufficient for
imputation.53 As noted elsewhere, substantial involvement in armed
attacks should include “organizing, fomenting, directing, or otherwise
directly participating in armed attacks.”54 In particular, substantial
involvement in armed attacks should recognizably include provision of
air or artillery cover for non-state actor (NSA) armed attacks, transportation of NSA armed groups to specific attack sites, direction of
particular attacks, selection of particular targets, provision of intelligence for specific attacks, provision of technical advice for use of
particular weapons during specific attacks, and provision of significantly upgraded weaponry (e.g., from assault rifles and shoulder-held
rockets to tanks, sophisticated weaponized drones, and guided missiles). Even general complicity in armed attacks by others over time
could logically become substantial, especially if complicitous involvement directly produces significant or essential support of ongoing
armed attacks. For this reason, the process of involvement should be
viewed over time as when viewing a video and not a single snapshot.
Whether or not these ambiguities with respect to appropriate criteria
and features of context for identification of direct and complicit
aggression and substantial involvement in attacks that can result in
Humanitarian Law in Isolation, 11 SANTA CLARA J. INT’L L. 1, 9-10 (2012); Mary Ellen O’Connell,
Enhancing the Status of Non-State Actors Through a Global War on Terrorism, 43 COLUM. J. TRANSNAT’L L.
435, 449-50 (2005); Mary Ellen O’Connell, Re-Leashing the Dogs of War, 97 AM. J. INT’L L. 446, 449-52
(2003); Mary Ellen O’Connell, Lawful Self-Defense to Terrorism, 63 U. PITT. L. REV. 889, 899-900
(2002); O’Connell & Alevras-Chen, supra note 6, at 511-12; Theresa Reinold, State Weakness,
Irregular Warfare, and the Right of Self-Defense Post-9/11, 105 AM. J. INT’L L. 244, 259-60 (2011);
Robert D. Sloane, The Cost of Conflation: Preserving the Dualism of Jus ad Bellum and Jus in Bello in the
Contemporary Law of War, 34 YALE J. INT’L L. 47, 68-69 (2009); Christian J. Tams, The Use of Force
Against Terrorists, 20 EUR. J. INT’L L. 359, 368-69, 385-86 (2009) (nonetheless recognizing that a
change has occurred by permitting imputation where there is “complicity in the activities of
terrorists based on . . . [a state’s] territory”); Weiner, supra note 6, at 431-33; Ryan T. Williams,
Dangerous Precedent: America’s Illegal War in Afghanistan, 33 U. PA. J. INT’L L. 563, 573-74 (2011).
53. See Nicar. v. U.S., 1986 I.C.J., supra note 6, ¶ 195; supra note 29.
54. Paust, supra note 6, at 540-41; see also CASSESE, supra note 6, at 365 (“significant . . . major”
military support, more fully quoted supra note 47); Bethlehem, supra note 7, at 775 (lawful
measures of self-defense against non-state actors who are not actually fighting should include the
targeting of “those in respect of whom there is a strong, reasonable, and objective basis for
concluding that they are taking a direct part in those attacks through the provision of material
support essential to the attacks”). Bethlehem’s focus on those who directly participate in armed
attacks are those referred to as persons who are DPAA and targetable under the law of
self-defense. See, e.g., Jordan J. Paust, Propriety of Self-Defense Targetings of Members of al Qaeda and
Applicable Principles of Distinction and Proportionality, 18 ILSA J. INT’L & COMP. L. 565, 574-75, 578
(2012); Paust, supra note 45, at 576. When they continue to directly participate over time, they may
be considered to be persons that have a continuous armed attack function (CAAF).
434
[Vol. 45
ARMED ATTACKS AND IMPUTATION
imputation are further clarified, the type of known and suspected
Iranian complicit involvement with Hezbollah and Hamas appears to
have been general and might not be considered “substantial.”55
IV.
THE ADDED FACTOR OF NUCLEAR WEAPONIZATION
Nonetheless, another circumstance involving significant violations
of international law might arise. Iran would be violating international
law if it creates a nuclear weapon. Iran is a party to the Treaty on the
Non-Proliferation of Nuclear Weapons56 and, as such, is bound by
treaty law to not “manufacture or otherwise acquire nuclear weapons or
other nuclear explosive devices.”57 Acquisition of a nuclear weapon in
manifest violation of its treaty obligations would be an ominous development, and in view of Iranian claims that its nuclear enrichment
program is designed merely for peaceful non-military purposes, creation of a nuclear warhead would demonstrate that reliance on Iranian
treaty commitments, diplomatic initiatives that began in September
2013, and public statements concerning its nuclear aims would be
seriously misplaced.58
55. Cf. supra note 33. Cases against Iran noted therein have involved application of the
FSIA’s provision of “material support or resources” test and not a substantial involvement test. See
supra notes 32-33.
56. Treaty on the Non-Proliferation of Nuclear Weapons, opened for signature July 1, 1968,
28 U.S.T. 483, 729 U.N.T.S. 161.
57. Id. art. II; see Kittrie, supra note 33, at 535-46; O’Connell & Alevras-Chen, supra note 6,
at 498-99 (affirming that “it would be unlawful for Iran to acquire nuclear weapons” or “to develop
nuclear weapons”; infra note 58).
58. During historic negotiations with Iran, a “Joint Plan of Action” was agreed to in Geneva
on November 24, 2013. See, e.g., Michael R. Gordon, Long-Term Deal With Iran Faces Big Challenges,
N.Y. TIMES, Nov. 25, 2013, at A1. It is basically an agreement to possibly agree to a “long-term
comprehensive solution that would ensure Iran’s nuclear programme will be exclusively peaceful”
and that “would constitute an integrated whole where nothing is agreed until everything is
agreed.” Joint Plan of Action (Nov. 24, 2013), available at http://www.cnn.com/2013/11/24/world/
meast/iran-deal-text. Nevertheless, Iran reiterated a commitment to not seek or develop a nuclear
weapon. Id. (“Iran reaffirms that under no circumstances will Iran ever seek or develop any
nuclear weapon”). The process contemplated in the Joint Plan of Action will involve taking steps
to reach a comprehensive solution, with a first step to be completed in six months (near the end of
May 2014). Id. Iran “would undertake” listed “voluntary measures” and “[i]n return, the E3/
EU⫹3 would undertake” listed “voluntary measures.” Id. Among Iran’s voluntary measures, Iran
would dilute half of its present stock of uranium enriched to 20% “to no more than 5%;” would
“not enrich uranium over 5% for the duration of the 6 months;” and has announced that it “will
not make any further advances of its activities at the Nantanz Fuel Enrichment Plant, Fordow, or
the Arak reactor.” Id. Of course, Iranian enrichment up to 5% will necessarily violate present
Security Council demands to suspend all nuclear enrichment. See infra note 59.
However, a few days after the agreement Iran’s Foreign Minister Javad Zarif stated that “Iran
2014]
435
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
The United Nations Security Council has demanded that Iran suspend all of its nuclear enrichment-related and reprocessing activities,
but Iran has been in continual violation of a number of resolutions of
the Security Council and has been subjected to harsh but ineffectual
economic and other sanctions for its violations.59 Because Iran has
violated several Security Council resolutions, Iran also has been in
manifest violation of the United Nations Charter.60 In a December
2012 letter to President Obama, fifty-seven U.S. Senators warned that
Iran “has taken a significant step closer to possible weapons-grade
uranium by enriching up to 20 percent,”61 an enrichment level that
was also noted “with serious concern” by the United Nations Security
Council.62 Although an Iranian nuclear weapon would violate the
Non-Proliferation Treaty, Security Council resolutions, and the United
Nations Charter, by themselves such violations would not constitute
an armed attack.63 However, the violations would necessarily be part
will pursue construction at the Arak heavy-water reactor” and the head of Iran’s Atomic Energy
Organization declared that “[w]ork at the Arak reactor will continue . . . . [t]here are no activities
that won’t continue.” See Alireza Jafarzadeh, Iran’s Version of the Geneva Accord, BALT. SUN, Dec. 6,
2013, at 19A. See also Rick Gladstone, Examining the Status of Iran’s Nuclear Program and Talks,
N.Y. TIMES (Oct. 16, 2013), http://www.nytimes.com/2013/10/17/world/middleeast/examiningthe-status-of-irans-nuclear-program-and-talks.html (Iran’s twenty percent enrichment program
has sparked criticism that such a level of enrichment is not necessary for civil nuclear fuel and
there is concern that Iran’s enriched material can be shifted quickly to weapons grade material).
59. See, e.g., S.C. Res., U.N. DOC S/RES/2049 (June 7, 2012); S.C. Res., U.N. DOC
S/RES/1984 (June 9, 2011); S.C. Res., U.N. DOC S/RES/1929 (June 9, 2010); S.C. Res., U.N.
DOC S/RES/1803 (Mar. 3, 2008); S.C. Res., U.N. DOC S/RES/1747 (Mar. 24, 2007); S.C. Res.,
U.N. DOC S/RES/1737 (Dec. 23, 2006); S.C. Res., U.N. DOC S/RES/1696 (July 31, 2006); see also
Dunlap, supra note 7, at 319; Kittrie, supra note 33; O’Connell & Alevras-Chen, supra note 6,
at 513; Press Release, Security Council Press Statement on Doha Document For Peace in Darfur,
U.N. Press Release SC/10291 (June 23, 2011).
60. See U.N. Charter, arts. 25, 48.
61. See Letter, from Robert Menendez, Joseph Lieberman, & Kelly Ayotte, U.S. Sens., to
President Barack Obama (Dec. 20, 2012), available at http://www.foreignpolicy.com/files/
fp_uploaded_documents/121218_Menendez%20Lieberman%20Ayotte%20letter%20Iran.pdf; see
also Scott Shane, In Din Over Iran, Rattling Sabers Echo, N.Y. TIMES, Feb. 22, 2012, at A1 (some
Senators wrote to President Obama warning of Iran’s stalling regarding its nuclear program); infra
note 75; Thomas Erdbrink, Iran: Official Says Enrichment Goes On, N.Y. TIMES, Oct. 31, 2013, at A8
(“Iran’s top nuclear official” states that “Iran has never stopped 20 percent uranium enrichment,”
but claims a need to do so to power its nuclear reactors); but see Ken Dilanian, U.S. Does Not Believe
Iran Is Trying to Build Nuclear Bomb, L.A. TIMES, Feb. 23, 2012, http://articles.latimes.com/2012/
feb/23/world/la-fg-iran-intel-20120224.
62. S.C. Res., U.N. DOC S/RES/1929, supra note 59, pmbl. (“[n]oting with serious concern
that Iran has enriched uranium to 20 per cent”).
63. See Mary Ellen O’Connell & Reyam El Molla, The Prohibition on the Use of Force for Arms
Control: The Case of Iran’s Nuclear Program, 2 PENN. ST. J.L. & INT’L AFF. 315, 318-19 (2013) (noting
436
[Vol. 45
ARMED ATTACKS AND IMPUTATION
of important features of context with respect to Iranian intent and
trustworthiness, its overall conduct during a time of international
tension, what is reportedly a stated desire to wipe Israel away or off the
map, continued unlawful complicity in armed attacks on Israel, and an
ominous and unlawful creation of a nuclear warhead that could have a
devastating impact within Israel in a matter of minutes.
V.
THE START OF AN ARMED ATTACK
While focusing on when a process of armed attack commences,
Professor Yoram Dinstein has affirmed that “a State may resort to
force in self-defence, even before its territory is penetrated by another
State” and that, if one state “launches inter-continental ballistic missiles against” another state, the armed attack has occurred before the
missiles impact, since with “the launching of the missiles, which resembles the firing of a gun: once a button is pressed, or a trigger is
pulled, the act is complete.”64 Moreover, if “no missile has been
fired” but “an armed attack is clearly in the process of being unleashed,” it can be proper to respond in self-defense.65 “The crux of
the issue,” Dinstein wrote, “is not who fired the first shot but who
embarked upon an apparently irreversible course of action”—“[t]he
casting of the die, rather than the actual opening of fire, is what starts
that armed attack”—and “[i]t would be absurd to require that the
defending State should sustain and absorb a devastating (perhaps a
fatal) blow.”66
that the mere “possession or development of weapons, even weapons of mass destruction, cannot
be classified as anything more than a threat” and “neither the development nor the possession of
nuclear weapons is classified as an armed attack”); O’Connell & Alevras-Chen, supra note 6, at 509;
see also Joyner, supra note 7, at 244 (customary anticipatory self-defense “prior to actual armed
attack” would not be lawful against states “that simply possess or are developing WMD, without the
existence of a meaningful threat to use such weapons”). Cf. Legality of the Threat or Use of
Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 247 (July 8) (whether possession of a nuclear
weapon violates Article 2(4) of the Charter “depends upon whether the particular use of force
envisioned would be directed against the territorial integrity or political independence of a
State”).
64. DINSTEIN, supra note 6, at 189-90.
65. Id. at 190.
66. Id. at 191; see also FLETCHER & OHLIN, supra note 7, at 155 (“[N]o one could reasonably
propose a doctrine of self-defense that was limited to striking back only after being struck by a
phalanx of bombers or guided missiles . . . [or] requiring states to wait until the missiles were
under way or had struck their targets.”); Mary Ellen O’Connell, The Myth of Preemptive Self-Defense
8-9, Am. Soc’y Int’l L. Task Force on Terrorism (Aug. 2002), available at http://asil.org/taskforce/
oconnell.pdf (quoting C.H.M. Waldock, The Regulation of the Use of Force by Individual States in
2014]
437
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
Addressing Article 51 of the Charter, Dinstein also recognized that
what he terms “[i]nterceptive self-defence” is permissible, “for it takes
place after the other side has committed itself to an armed attack in an
ostensibly irrevocable way” and “there is nothing preventive about
nipping an armed attack in the bud.”67 However, “[i]t has to be demonstrably apparent that the other side is already engaged in carrying
out an armed attack (even if the attack has not yet fully developed).”68
The authors of the Chatham House Principles of Self-Defence also
note that many who expect that an armed attack must begin accept that
an attack has commenced “when there are active preparations at an
advanced stage, if there is the requisite intent and capability” to carry
through,69 adding that those who expect that anticipatory self-defense
can be permissible noticeably “require not dissimilar conditions . . . in
respect of an imminent attack.”70 With these recognitions, it is apparent that the launching of a missile with a nuclear warhead (the firing of
a shot) is not required for a nuclear attack to begin. Whether a nuclear
attack is being mounted or is underway can depend on other features
of context that demonstrate, for example, requisite intent and active
preparations for a missile launch and that the process to unleash has
begun.71
Although it can provide an imperfect analogy, recalling what allegedly happened in the old West when one person went gunning for
International Law, 81 HAGUE RECUEIL 451, 498) (“‘Where there is convincing evidence . . . of an
attack being actually mounted, then an armed attack may be said to have begun to occur.’”);
O’Connell & Alevras-Chen, supra note 6, at 503 (permissible self-defense can occur if an attack is
“underway” or “in progress”).
67. DINSTEIN, supra note 6, at 191.
68. Id. at 191-92; see also id. at 187 (“as soon as it becomes evident . . . that the attack is in the
process of being mounted”).
69. See Wilmshurst et al., supra note 3, at 965; see also GARDAM, supra note 7 (quoting IAN
BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 259 (1963)); Akande, supra note 9
(quoted therein); Joyner, supra note 7, at 244 (quoted supra note 63 regarding permissibility when
there is “a meaningful threat to use such weapons”); Murphy, supra note 6, at 712 (“When a state
begins massing an army in an attack configuration along the border of another state, the first state
has commenced the initial step of a multi-step armed attack.”).
70. Wilmshurst et al., supra note 3, at 965.
71. See also Baker, supra note 7, at 46 (“preparations for atomic warfare would have to be
treated as an armed attack”); supra note 69. But see MCCAFFREY, supra note 6, at 242 (regarding a
claim that it should “be enough that satellite photographs show missile silo doors opening and
other intelligence indicates the targeting of a specific country, or even a city,” such a claim is
logical, but in general “how far back can this logic be taken? To the placing of the missile in the
silo? The development of the missile? The development of nuclear weapons?” Of course,
appropriate answers will depend on awareness of additional features of context).
438
[Vol. 45
ARMED ATTACKS AND IMPUTATION
another and they met in the street, staring each other down, can allow
recognition that a process of attack can move through various stages
and can be underway prior to the firing of a weapon. In movie and
television portrayals, the “good guy” was often faster on the draw than
the “bad guy” who was gunning for him. The good guy usually waited
until the bad guy began to draw his pistol from his holster, but the good
guy was faster and accurate, defending himself with a precise and
deadly shot. It was not necessary that the bad guy shoot first, although
this happened occasionally. Moreover, upon reflection it is evident that
the good guy could have drawn first once it was known that the bad guy
was gunning for him and they were staring each other down in the
street.72 Someone was about to draw first and, in context, the process of
attack had begun and a right of self-defense had been triggered even
though it was possible that the bad guy might back down and make this
clearly known before the good guy fired.
By analogy, when would a process of armed attack by Iran begin? It is
evident that an attack would begin not merely when Iran has fired a
missile with a nuclear warhead toward Israel, not merely when Iran has
“drawn” a missile with a nuclear warhead and aimed it at Israel, and not
merely when Iran has pulled a missile with a nuclear warhead out of its
“holster.” In context, given the facts that (1) Iran has been publicly
gunning for Israel, (2) Iran has been continuously complicit in ongoing armed attacks against Israel by Hezbollah and Hamas in violation of
international law, and (3) Iran is bound by treaty law to not produce
weapons-grade nuclear material and nuclear weapons, one can recognize that a process of attack would be underway at least when Iran
continues to violate international law, creates a nuclear warhead that it
is bound to not produce or otherwise acquire, and starts to load the
warhead onto a missile without backing down and making such clearly
known. If it is known that Iran is building a nuclear weapon for use
against Israel, in context it would also be logical to claim that active
preparations at an advanced stage have occurred and that an armed
attack is being mounted or is underway when Iran starts to create such a
weapon in manifest violation of its treaty obligations, and in clear
72. See also DINSTEIN, supra note 6, at 191-92; JORDAN J. PAUST ET AL., INTERNATIONAL CRIMINAL
LAW 156 (4th ed. 2013) (in a case against Weiss and Mundo before a U.S. General Military
Government Court in Ludwigsburg, Germany in 1945, two German policemen were acquitted of
unlawfully shooting a captured U.S. airman when they had reasonably believed that he was
drawing a gun); Guiora, supra note 6, at 648 (when Wyatt Earp was warned about those gunning
for him and his brothers, “the Earp brothers’ actions . . . [—in seeking out those involved]—are
justifiable . . . [as] self-defense”).
2014]
439
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
contrast to more recent diplomatic commitments and public statements73 about the nature of its nuclear program.
Some might prefer to focus on a different point at which an armed
attack or armed aggression is underway, but choice should be informed
by consideration of what generally occurs during a process of initiation
of an armed attack as well as various features of context and international legal policies at stake in a given circumstance.74 It would necessarily be of great significance with respect to a nuclear attack if a state is
complicit in ongoing armed attacks by others and is bound by international law to not produce or acquire a nuclear weapon.
VI.
PRESIDENT OBAMA’S “RED LINE”
Some fear that Iran, contrary to its public claims and diplomatic
initiatives, is planning to create a nuclear warhead.75 President Obama
has stated that, as of mid-March, “we think it would take over a year or
73. See supra note 58.
74. Consideration of the following sequence of events might be helpful:
1. Emerging threat (extreme form of unacceptable preemptive self-defense claims).
2. Imminent threat.
3. Significant threat exists (unacceptable preemptive self-defense claims).
4. Threat of imminent armed attack.
5. Imminent armed attack (anticipatory self-defense claims).
6. Agression armée prior to an attack (possibly legitimate claim under authentic French
version).
7. Armed attack (lawful self-defense).
a. nuclear warhead is being built by Iran (in context).
b. nuclear warhead is mounted on a missile (in context).
c. nuclear weaponized missile is fired toward the West.
d. missile leaves Iranian airspace.
e. missile is flying over Iraq, Saudi Arabia, or Jordan.
f. missile enters Israeli airspace.
g. warhead explodes and destroys Tel Aviv.
75. See, e.g., Jodi Rudoren & David E. Sanger, Israel Increases Pressure on U.S. to Act on Iran,
N.Y. TIMES, Jul. 15, 2013, at A4; Matthew Kroenig, Time to Attack Iran: Why a Strike Is the Least Bad
Option, FOREIGN AFF. (Jan.-Feb. 2012), available at http://www.foreignaffairs.com/articles/136917/
matthew-kroenig/time-to-attack-Iran?page⫽2; James Kirkup et al., Iran’s “Plan B” for a Nuclear
Bomb, TELEGRAPH, Feb. 26, 2013, http://www.telegraph.co.uk/news/worldnews/middleeast/iran/
9896389/Irans-Plan-B-for-a-nuclear-bomb.html; Iranian Company Tried to Smuggle Nuclear Parts from
China, US Report Says, AUSTRALIAN, Feb. 16, 2013, at 12; Iran Upgrades Devices at Nuclear Plant as Talks
Resume, N.Y. TIMES, Feb. 14, 2013, at A9; U.N. Atomic Agency: Iran Rapidly Expands Nuke, SEATTLE
TIMES, Nov. 24, 2012, at A7; Iran Uranium Enrichment to Hit “Red Line” by June, GUARDIAN, Nov. 17,
2012, at 30; Joby Warrick, U.N. Sees Spike in Iran’s Uranium Production, WASH. POST, Feb. 25, 2012,
at A10; David E. Sanger & William J. Broad, U.N. Agency Says Iran Data Points to A-Bomb Work,
N.Y. TIMES, Nov. 9, 2011, at A1.
440
[Vol. 45
ARMED ATTACKS AND IMPUTATION
so for Iran to actually develop a nuclear weapon, but obviously we don’t
want to cut it too close” and, although the United States is pursuing a
diplomatic solution, “I continue to keep all options on the table.”76
One option envisioned would involve U.S. use of military force, as
Vice President Biden stated earlier, “to prevent Iran from acquiring a
nuclear weapon.”77 Apparently use of the phrases “don’t want to cut it
too close” and “to prevent . . . from acquiring” are intentional, and they
point toward a line that would be crossed prior to Iran’s creation of a
nuclear warhead. With respect to such a line, President Obama added:
“I have been crystal clear about my position on Iran possessing a
nuclear weapon. That is a red line for us. It is not only something that
would be dangerous for Israel. It would be dangerous for the world.”78
As noted in this Article, it would be logical for Israel to claim that if
Iran starts to build a nuclear weapon for use against Israel, in view of
other relevant features of context, active preparations at an advanced
stage will have occurred and an armed attack or agression armée against
Israel is being mounted or is underway.79 However, if Iran starts to
build such a weapon but Iran is not clearly poised to strike U.S. military
forces in the Persian Gulf area and Afghanistan, the United States
will not have a viable claim of self-defense against an attack that is being
mounted or is underway against U.S. military forces. In such a cir-
76. See supra note 2. In context, if the U.S. can engage in lawful measures of collective
self-defense if Iran ever creates a nuclear warhead, claiming such a right to use permissible force as
an option “on the table” that is not certain to be employed soon is not an unlawful threat of armed
force within the meaning of Article 2(4) of the Charter. See also CHARTER COMMENTARY, supra note
5, at 124 (“State practice reveals a relatively high degree of tolerance towards mere threats of
force. . .some of the most obvious threats of force are legitimized by the right of self-defense,
[and] [o]nly a threat directed towards a specific reaction on the part of the target State is
unlawful”). But see Noam Chomsky, U.S. Has Been “Torturing” Iran for 60 Years, Since 1953 CIA-Led
Coup, DEMOCRACY NOW (Sept. 11, 2013), http://www.democracynow.org/blog/2013/9/11/noam_
chomsky_us_has_been_torturing_iran_for_60_years_since_1953_coup (The U.S. is “constantly
threatening Iran with attack . . . in violation of the U.N. Charter”).
77. See Scott Wilson, Biden Seeks to Reassure AIPAC of Loyalty, WASH. POST, Mar. 5, 2013, at A2
(Biden adding: “[p]revent—not contain—prevent”); see also Craig Whitlock, Hagel Gets Geography
Lesson, WASH. POST, Apr. 23, 2013, at A8 (Secretary of Defense Hagel affirms a U.S. commitment to
Israel and common purpose to prevent Iran from acquiring a nuclear weapon, including possible
use of force); Joint Press Conference with Secretary Hagel and Israeli Defense Minister Ya’alon in Tel Aviv,
Israel (Apr. 22, 2013), Def. Dep’t Docs., available at 2013 WLNR 9803171 (U.S. might use force to
prevent Iran from creating a nuclear weapon).
78. See supra note 2.
79. See also Dunlap, supra note 7, at 323 (quoting Professor Anthony D’Amato regarding a
circumstance where Iran constructs a nuclear weapon and “‘wants to push Israelis into the sea’”);
supra note 8; supra text accompanying notes 69-70.
2014]
441
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
cumstance, lawful U.S. participation in the use of armed force to
prevent Iran from acquiring a nuclear weapon would have to be part of
conduct engaged in as collective self-defense with Israel that is authorized under Article 51 of the U.N. Charter.80 The United States might
also be contemplating a claim to engage in anticipatory self-defense
once an armed attack on U.S. military forces is imminent but is not
being mounted or underway. However, as noted, such a claim would be
inconsistent with the majority view and the English version of Article 51
of the U.N. Charter, although some forms of anticipatory self-defense
might be claimed under the equally authentic French phrase contained in Article 51 when an armed aggression occurs or the claimant is
l’objet d’une agression armée.81
Does President Obama have constitutional authority to authorize
measures of self-defense or collective self-defense that are lawful under
international law? Yes, especially since the President has a duty and
concomitant competence under Article II, Section 3, of the Constitution to take care that the laws are faithfully executed and treaty-based
and customary international laws are part of constitutionally-based laws
of the United States.82 Short-term and protracted war has resulted
when measures of self-defense have been used by the United States
80. See U.N. Charter, art. 51 (“individual or collective self-defense”). According to the I.C.J.,
“the State which is the victim of an armed attack . . . must form and declare the view that it has
been so attacked” and another state that might claim to be assisting in “collective self-defense . . .
[must not do so merely] on the basis of its own assessment of the situation.” Military and
Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, ¶ 195 (June 27).
But see CHARTER COMMENTARY, supra note 5, at 803 (“It is sufficient, but also necessary, that the
support be given with the consent of the attacked States. But this consent does not, as the ICJ
states . . . , need to be declared in the form of an explicit ‘request.’”); Moore, Jus Ad Bellum, supra
note 5, at 956 (arguing that the I.C.J. should recognize that “[t]here is no requirement in the
Charter that . . . [a victim] state must first publicly declare itself to have been attacked”).
Collective self-defense would not be unlikely, since President Obama’s statement about a “red
line” was made in connection with recognized danger to Israel if Iran creates a nuclear weapon. See
supra text accompanying note 78. Similarly, Vice President Biden’s and Secretary of Defense
Hagel’s statements had been made in connection with a U.S. commitment to Israeli security in the
event that nuclear weapons are developed for use against Israel. See supra note 77.
81. See supra notes 5, 8.
82. See, e.g., Jordan J. Paust, Constitutionality of U.S. Participation in the United Nations-Authorized
War in Libya, 26 EMORY INT’L L. REV. 43, 47, 49-55, 66-67 (2012) [hereinafter Paust, Constitutionality]; see also JORDAN J. PAUST, JON M. VAN DYKE, LINDA A. MALONE, INTERNATIONAL LAW AND
LITIGATION IN THE U.S. 271-73, 1100 (3d ed. 2009) (regarding the President’s duty of faithful
execution and enhancement of presidential power); Jordan J. Paust, In Their Own Words:
Affirmations of the Founders, Framers, and Early Judiciary Concerning the Binding Nature of the Customary
Law of Nations, 14 U.C. DAVIS J. INT’L L. & POL’Y 205, 240-45 (2008) (the President is bound by and
must faithfully execute customary international law).
442
[Vol. 45
ARMED ATTACKS AND IMPUTATION
against other states,83 and war with Iran would be predictable if the
United States uses military force.
VII.
CONCLUSION
If Iran creates a nuclear warhead, it is evident that Iran’s conduct
might trigger a disastrous defensive response by Israel that would
otherwise involve lawful measures of self-defense under international
law. Iran has claimed that if this happens, its response will also be
devastating,84 and it is not unlikely that Iran and Israel would thereafter
be engaged directly in protracted warfare that could also lead to more
extensive use of armed violence by various non-state actors against
Israel. Israel might also seek and receive assistance from the United
States as part of permissible collective self-defense. If so, Iran might
significantly expand the conflagration, as it has warned if the United
States uses military force.85
Instead of massive death and destruction that no one should prefer,
one hopes that Iran’s leaders will wisely decide to avoid a predictable
catastrophe for both the Iranian and Israeli people as well as others in
the Middle East, continue to shift their attention to peace, comply with
the Nuclear Non-Proliferation Treaty and relevant Security Council
resolutions, and not create a nuclear weapon. If so, Iran will deserve
widespread public acclaim. In any event, working towards peace through
diplomacy is still possible, especially if Iran will provide the International Atomic Energy Agency full access to nuclear production and
related sites and an agreement can be reached and implemented with
respect to Iran’s twenty percent enrichment program.
83. See, e.g., Paust, Constitutionality, supra note 82, at 52-54.
84. See, e.g., CNN Newsroom, Jul. 5, 2012, in Westlaw as 2012 WLNR 14017795; Iran Threatens
US, Israel With Strikes, AUGUSTA CHRON., Jul. 5, 2012, at B6; Thom Shanker, Helene Cooper, Ethan
Bronner, U.S. Sees Iran Attacks as Likely if Israel Strikes, N.Y. TIMES, Feb. 29, 2012, at A1; Iran: Attack
Will Lead to Israel’s Collapse, USA-TODAY, Feb. 25, 2012, http://usatoday.com/news/world/story/
2012-02-25/iran-israel/53246740/1.
85. See, e.g., supra note 84. Iran’s warning would be relevant to the measures of self-defense
that would be needed to be used by the United States in order to protect, for example, U.S. naval
vessels in the Persian Gulf area and U.S. military personnel located in Afghanistan and Turkey
from threatened Iranian missile, air force, naval, and shore-battery attacks. Because Iran has such
a capability, it is likely that a so-called surgical strike on a number of Iranian nuclear facilities and
discoverable storage areas would not avoid protracted war. See also Zbigniew Brzezinski, Let
Hearings Air Risks of Pre-emptive Iran Strike, FT. WAYNE J. GAZETTE, Jan. 6, 2013, at 15A (also outlining
potentially serious consequences and questioning whether a U.S. war with Iran would be in our
national interest).
2014]
443