War^ggression and Self-Defence
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1 A/ War^ggression and Self-Defence Yoram Dinstein Fourth edition CAMBRIDGE UNIVERSITY PRESS
2 Contents Introduction to the fourth edition From the introduction to the first edition Table of cases Table of treaties Table of Security Council and General Assembly resolutions List of abbreviations page xi xii xiv xvi xx xxii Part I The legal nature of war 1 What is war? 3 A. The definition of war 3 (a) The numerous meanings of war 3 (b) An analysis of Oppenheim's definition of war 5 i. Inter-State and intra-state wars 5 ii. War in the technical and in the material sense 9 iii. Total wars, limited wars and incidents'short of war' 11 iv. War as an asymmetrical phenomenon 14 (c) A proposed definition of war 15 B. Status mixtus 15 (a) Peacetime status mixtus 16 (b) Wartime status mixtus 18 C. The region of war, 19 (a) The territories of the parties to ;,the conflict 20 (b) The high seas and the exclusive economic zone 22 (c) Outer space 24 D. Neutrality 24 (a) The basic principles 24 (b) Some concrete rules 25 i. Passage of belligerent military units and war materials 26 ii. Enrolment in belligerent armed forces 26 iii. Military supplies to belligerents 27 2 The course of war 30 A. The beginning of war 30 (a) War in the technical sense 30 (b) War in the material sense 33
3 vi Contents B. The termination of war 34 (a) Treaties of peace 34 i. The significance of a treaty of peace 34 ii. Peace preliminaries 39 iii. The legal validity of a treaty of peace 39 (b) Armistice agreements 42 (c) Other modes of terminating war 47 i. Implied mutual consent 47 ii. Debellatio 48 iii. Unilateral declaration 49 C. The suspension of hostilities 50 (a) Different types of suspension of hostilities 50 i. Local cease-fire agreement 51 ii. General cease-fire agreement 51 iii. Cease-fire ordered by the Security Council 52 (b) The nature of cease-fire 54 (c) Denunciation and breach of cease-fire 56 Part II The illegality of war 3 A historical perspective of the legal status of war 63 A. The 'just war' doctrine in the past 63 (a) The Roman origins 63 (b) Christian theology 64 (c) The'fathers'of international law 65 B. Recent concepts of'just war' 67 (a) Kelsen's theory 67 (b) 'Wars of national liberation' 68 (c) 'Humanitarian intervention' 70 C. The extra-legality of war 73 D. The legality of war 75 E. Exceptions to the general liberty to go to war 77 (a) Special arrangements 77 (b) The Hague Conventions 79 (c) The Covenant of the League of Nations 80 4 The contemporary prohibition of the use of inter-state force A. The Kellogg-Briand Pact B. The Charter of the United Nations (a) The prohibition of the use of inter-state force (b) Attempts to limit the scope of the prohibition C. Customary international law (a) The general prohibition of the use of inter-state force (b) The relationship between customary and treaty law D. Treaties other than the Pact and the Charter E. The prohibition of the use of inter-state force as jus cogens (a) The significance of jus cogens (b) How can jus cogens be modified?
4 Contents F. State responsibility (a) Application of general rules of State responsibility (b) State responsibility for international crimes G. Consent (a) Ad hoc consent (b) Consent by treaty The criminality of war of aggression A. War of aggression as a crime against peace B. The definition of aggression C. Individual responsibility for crimes against peace (a) The scope of the crimes i. Ratione materiae ii. Ratione personae iii. Ratione temporis (b) Mens rea (c) Inadmissible defence pleas (d) The penal proceedings (e) Immunities from jurisdiction Controversial consequences of the change in the legal status of war 151 A. War in the technical sense 152 B. Inconclusive'police action' 153 C. Equal application of the jus in bello 156 (a) Self-defence 156 (b) Collective security 162 D. Impartial neutrality 163 E. Territorial changes 168 Part III Exceptions to the prohibition of the use of inter-state force 7 The concept of self-defence 175 A. The right of self-defence 175 (a) The meaning of self-defence 175 (b) Self-defence as a right 178 (c) Self-defence as an'inherent'right 179 B. Self-defence as a response to an armed attack 182 (a) Armed attack and preventive war 182 (b) The nature and scope of an armed attack 187 (aa) An armed attack by a State 187 i. The beginning of an armed attack and interceptive self-defence 187 ii. A small-scale armed attack 193 iii. The locale of an armed attack 196 iv. The target of an armed attack 199 v. Support of armed bands and terrorists 201 (bb) An armed attack by non-state actors 204
5 viii Contents C. Conditions precedent to the exercise of self-defence 208 D. The role of the Security Council 211 (a) The two phases rule 211 (b) The options before the Security Council 213 (c) Failure to report to the Security Council The modality of individual self-defence 219 A. Self-defence in response to an armed attack by a State 219 (a) Measures 'short of war' 219 i. On-the-spot reaction 219 ii. Defensive armed reprisals 221 iii. The protection of nationals abroad 231 (b) War 235 i. Necessity 237 ii. Proportionality 237 iii. Immediacy 242 B. Self-defence in response to an armed attack from a State 244 (a) Extra-territorial law enforcement 244 (b) The practice of States ' 247 (c) Webster's formula Collective self-defence 252 A. The meaning of collective self-defence 252 B. Collective self-defence treaties 256 (a) Mutual assistance treaties 257 (b) Military alliances 260 (c) Treaties of guarantee 263 C. The legal limitations of collective self-defence 267 (a) The primacy of the Charter of the United Nations 267 (b) The requirement of an armed attack 268 (c) Other conditions for the exercise of collective self-defence 270 D. The modality of collective self-defence 271 E. The Gulf War and collective self-defence Collective security 278 A. The meaning of collective security 278 (a) Definition 278 (b) The Covenant of the League of Nations 278 (c) The Charter of the United Nations 279 (d) The discretion of the Security Council 283 B. The decision-making process 289 (a) The duties incumbent on UN Member States 289 (b) The responsibility of the Security Council 290 C. An overview of the Security Council's record 292 (a) The 'Cold War' era 292 (b) The Gulf War 294 i. The invasion and liberation of Kuwait (1990-1) 294 ii. The cease-fire period ( ) 296 iii. The occupation of Iraq (2003) 297 (c) The post-'cold War' era (other than the Gulf War) 300
6 Contents D. The mechanism of employing collective force (a) Article 42 and the absence of special agreements (b) Peacekeeping forces (c) Enforcement action beyond the purview of Article 42 E. Is there an alternative to the Security Council? (a) The General Assembly (b) The International Court of Justice i. Concurrent or consecutive competence of the Council and the Court ii. Can the Court invalidate binding decisions adopted by the Council? IX Conclusion 326 Index of persons Index of subjects
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