CYIL vol. 11 (2020)

JOSEF MRÁZEK CYIL 11 (2020) be “ general agreement ” on the nature of acts which can be treated as constituting armed attacks. 64 The ICJ distinguished the “ more grave forms of the use of force that amount to an armed attack from the less grave forms (e.g. frontier incidents), which do not trigger to right of self-defense, on the basis of “ scale and effects ”. 65 The International Law Association Use of Force Committee in its Final report in 2018 stated that armed attack “ provides the trigger for the exercise of the right of self-defense, thus requiring an understanding of which acts qualify as armed attacks ”. 66 The Report mentioned that there is “ controversy ” with the Court’s exclusion of “mere frontier incidents”. The Report stated that state practice indicates that small scale border attacks involving the use of “lethal force “ are not excluded from the concept of armed attack and may give rise to the right of self-defense . In any case, the term “armed attack” signifies a threshold providing the trigger for the exercise of the right of self-defense. It is not easy to estimate the “ gravity ” thresholds. The question of scale and damages casualties caused by military attack might be appraised by individual states very differently. Particularly sensitive will always be position of the Great Powers. Nevertheless, as the Report confirms the gravity of the attack will be “a crucial factor in assessing the necessity and proportionality of a forcible response”. 67 The Report also mentioned the very controversial “so-called accumulate of events theory ”, which on the basis of the accumulation of smaller attacks may (from the point of view of anticipatory self-defense) support the case for “ likelihood of imminent attack ”. The Report stated that it is “ unclear whether this theory has been widely accepted ”. This theory would enable the creation of a “ lower gravity threshold” of an armed attack and would certainly be advantageous for military strong countries. In any case, the acceptance of this doctrine would be a clear departure from Article 51 of the Charter. In the Oil Platforms case, the U.S. was required to demonstrate, that its attacks had been made for upon it for which Iran was responsible and that those attacks were of such a nature as to be qualified as “armed attacks” within the meaning of the Article 51 of the UN Charter. The Court found that the U.S. had submitted insufficient evidence to prove that Iran had carried out attacks on U.S. ships. The Court doubted the necessity of the U.S. counter-attacks even if attribution had been proven. 68 In the Nuclear Weapons case, the ICJ found a specific rule whereby self-defense would warrant only measures which are proportional to the armed attack and necessary to respond to it, as a rule “ well established in customary international law ”. 69 7.2 Targeted killings in self-defense against the acts of non-state actors Targeted killings in response to terrorist attacks were described by their actors as mostly acts of legitimate self-defense . Before 9/11, terrorist attacks were generally treated as crimes . 64 ICJ, Reports 1986, Case Concerning Military and Paramilitary Activities in and against Nicaragua , Merits, Judgement of 27 June 1986, p. 93, para 195. 65 Ibid, p. 91, 93, para 191, 195. 66 International Law Association Use of Force Committee, Report on Aggression and the Use of Force , p. 6; the author of this study was a Member of this Committee. 67 Ibid, p. 7. 68 “The Court is not satisfied that the attacks on platform were necessary to respond to these incidents… There is no evidence that the United States complained to Iran of the military activities of the platforms… In the case of the attack of 19 October, 1987, the United States forces attacked the R-4 platform as a “target of opportunity”, not one previously identified as an appropriate military target…” ICJ Report 2003, Iran versus United States , Judgement of 6 November 2003, para 51. 69 ICJ Report 1996, Legality of the Threat or Use of NuclearWeapons , Advisory opinion of 8 July 1996, p. 245, para 41.

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