James Devaney

Applying Necessity and Proportionality to Anti-Terrorist Self-Defence

Recent years have seen increasing reliance on self-defence as a concept justifying the use of force against armed attacks by terrorists operating from within a foreign state. While the matter has prompted major debates, a good case can be made that contemporary international law now begins to recognise a right of self-defence against attacks by terrorists. (We will refer to this in the following as ‘anti-terrorist self-defence’, meaning a response directed against an attack carried out by a terrorist organisation.) This article deliberately does not rehearse the major debates about the scope of self-defence, but moves beyond them. It seeks to assess whether and how the two main limitations on the exercise of self-defence – namely necessity and proportionality – could be adapted to self-defence outside the inter-state setting. It shows that both limitations do indeed require some adaptation in order to be applied to anti-terrorist self-defence. With respect to necessity, we argue that this adaptation is actually a chance to make sense of a requirement that is of very limited practical relevance in the inter-state setting. As the article shows, necessity can assume a crucial role in the anti-terrorist setting: in order for trans-border uses of force to be necessary, states invoking self-defence must demonstrate that the terrorist threat cannot be repelled by the host state (on whose territory the terrorists are based). As for proportionality, recent debates about anti-terrorist self-defence expose the weaknesses of proportionality as a restraint on self-defence. Construed primarily as a prohibition against excessive force, even in the inter-state setting, proportionality has always been dependent on the nature of the aims pursued in the name of self-defence. Recent anti-terrorist practice suggests that many states are prepared to accept far-reaching uses of force against terrorists. It also suggests that, in applying proportionality, the targeted (or otherwise) character of the response is of crucial importance. The law is clearly in a state of flux, but in debates such as those about Turkeys use of force against the PKK or Israels military operations against Hamas or Hezbollah, one can see the beginning of a process of developing guidelines on proportionality.

Rules of evidence before the International Court of Justice

This chapter evaluates the evidentiary provisions of the Courts Statute and Rules of Court and the fact-finding powers that the Court possesses in order to consider the extent to which it has utilised those powers in practice. It will be shown that whilst the Court in fact possesses relatively broad fact-finding powers, due to a number of factors it has never made use of them to any significant extent. Instead, the Court operates under extremely broad rules of admissibility of evidence that allow almost any piece of evidence to come before the Court that the State parties so choose. That the Court operates in this manner is to a large extent necessitated by the principles of State sovereignty and equality that espouse that States should be able to choose what evidence they place before the Court. Further, the Court is shackled by resource and time constraints that make independent fact-finding in each and every case largely impractical. As a result of its truncated fact-finding role, the Courts fact-assessment role takes on added significance, an issue examined in the second half of the chapter. The development of the rules of evidence before the International Court of Justice Rules of evidence and procedure before international courts and tribunals seek to enable them to establish a factual foundation upon which to base legal determinations, even where the parties before the tribunal cannot come to an agreement on the facts relating to the dispute. The provisions of the Courts Statute relating to evidence were adopted by the First Committee on Draft Statute during the United Nations Conference on International Organization (UNCIO), being ‘greatly facilitated’ by the Washington Committee of Jurists who had met prior to the San Francisco Conference from 9 to 20 April 1945 to undertake an article-by-article revision of the Statute of the Permanent Court of International Justice (PCIJ). The draft adopted by First Committee took the report of the Washington Committee of Jurists as the basis of its discussions and many articles (‘particularly those relating to procedure’) were taken over without substantial amendment. In fact, the following provisions relating to the Courts fact-finding powers were adopted at the UNCIO without amendment or deliberation, as the First Commission ‘unanimously approved without discussion, Articles 39–64 en bloc of draft Statute of the Committee of Jurists’.

Winds of change: the possibility of reform

Richard B. Lillich famously argued that the Court often fails ‘to take advantage of existing procedures to help unearth the facts that may be the key to the resolution of disputes’. This point was made and developed at length in Chapters 1 and 2. However, it is the conclusions that Lillich drew from this state of affairs that are the subject of this chapter, namely that the Court should ‘be far more aggressive in seeking the facts’ and utilising the fact-finding tools it already possesses. This chapter seeks to draw on the practice of the other international tribunals examined in Chapter 3 and suggests that there are a number of avenues open to the Court that could potentially remedy some of its current fact-finding weaknesses: 1. The first relates to the possibility of making greater use of the fact-finding powers that the Court already possesses. Section 4.1 explores the possibility of the Court taking a teleological approach to its Statute and Rules and the so-called duty of collaboration in asking whether the Court could construe its fact-finding powers to compel the production of evidence, as opposed to merely requesting it. 2. Secondly, the possibility of better utilising the Courts power to order provisional measures under Article 41 of its Statute is examined. 3. Thirdly, relating to both the fact-finding and fact-assessment processes, Section 4.3 explores the possibility of increased use of experts, the refinement of the current procedure for the presentation of expert evidence and greater use of cross-examination as a way of aiding the Court in effectively assessing the facts put before it by the parties. Subsequently Chapter 5 examines the merits of taking a more proactive approach to fact-finding as facilitated in the manner set out in the present chapter. Developing a power to compel the disclosure of evidence The first avenue the Court could explore in taking a more proactive approach to the facts relates to the possibility of making greater use of the fact-finding powers the Court already possesses. This section explores the possibility of the Court taking a teleological approach to its Statute and Rules and relying on the so-called duty of collaboration in asking whether the Court could potentially construe its fact-finding powers to compel the production of evidence, as opposed to merely requesting it.

The practice of other international courts and tribunals

Introduction The preceding chapter set out a number of recent criticisms of the ICJs current reactive approach to fact-finding. It was argued that the Courts current reactive approach to fact-finding is not fit for purpose both (i) where there are abundant, particularly complex or technical facts, since the Courts reluctance to appoint experts or conduct cross-examination impede the Court in its attempts to effectively assess the evidence presented and (ii) where there is a paucity of facts, since the Court struggles to fulfil its Article 53 ICJ Statute obligation to satisfy itself the case is sound in fact and in law. It might be said that this much is uncontroversial. As such, this chapter takes the next step and explores whether it is possible to envisage an approach that would allow the Court to conduct fact-finding more effectively. In doing so, this chapter takes advantage of the much-discussed proliferation of international courts and tribunals and draws upon the substantial body of practice in this area. The ICJ itself has ‘shown increased openness to drawing insights from other international courts and tribunals’ in recent judgments and the practice of other courts and tribunals suggests a number of procedural mechanisms that the Court could adopt in order to, in the words of Judge Donoghue in the recent Maritime Dispute (Peru v. Chile) case, ‘further enrich its practice and jurisprudence’. By way of clarification, due to the fact that the ICJ deals exclusively with inter-State cases, the focus of Chapter 3 is likewise limited to inter-State adjudicatory bodies. Of course, various other (less exclusively State-centric) areas of international law such as investment arbitration and human rights law regularly deal with interesting and important issues relating to fact-finding. However, focusing exclusively on inter-State cases ensures the most meaningful comparisons possible. For example, it was felt that drawing conclusions from a dispute between an individual and a State, such as a case before the European Court of Human Rights, would be of dubious utility as a comparison owing to the fact that the courts seek to achieve such different goals, deal with parties of a diverse nature and apply significantly different law and procedure.