CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ SOME CRITICAL REFLECTIONS ON THE EXTENDED USE OF MILITARY FORCE… other state, especially in the case of the “evacuation operations” of nationals from an area of armed conflict or unrest. It cannot be excluded that such an evacuation will not include the use of armed force. The differentiation of so called “non-combatant evacuation operations” and “forcible hostage rescues” without the acceptance of the territorial state is not legally substantial and in both cases means a violation of international law. The rescue operations involving direct use of military force without approval of the territorial state leads to a violation of Art. 2 (4) of the UN Charter and other principles of international law, including the principle of state sovereignty. According to the ILA Report “for such operations to be lawful, there must be independent grounds that justify them, especially reliance on the principle of necessity and self-defence.” 68 This position extends the right of self-defence to situations without the appearance of an armed attack and narrows the general principle of prohibition of the use of force. Reliance on the right to self-defence is in this case controversial. Claus Kress reached the conclusion that the forcible protection of nationals abroad is lawful under the UN Charter if “certain conditions are being met”. On the other hand, he acknowledged that there is a considerable number of state and scholars according to which the use of force to protect national abroad constitutes a violation of Art. 2 (4) of the UN Charter. 69 Kress has recalled that after the eruption of the Libyan conflict in February, a number a states, including Germany, the United Kingdom and the Netherlands, sent armed forces to “evacuate nationals” as the Libyan conflict unfolded. In his and Tom Ruy’s view, “this most recent practice has been accompanied by new scholarly thought. 70 This “new thought“ means, however, a “retreat” from basic principles of the UN Charter, including Art. 2 (4). It is no secret that the Russian Federation in 2008 likewise put forward the claim of protection of nationals abroad in self- defence before the UNSC. Evacuation of nationals was one of the results of the armed conflict in Libya and of the forcible removal of M. Kaddáfí. The forcible protection of nationals abroad means the use of military (or police) forces on the territory of another state without its permission. The categories of “nationals” endangered in life and health may include common private persons, state officials or national of other states. There are also many instances of an “abusive” reliance on the concept of “forcible protection of nationals” on foreign soil. Another discussed problem is an “implied consent” to rescue action. Germany used this argument for justification of its rescue operation of 26 February on the 68 Ibid ., p. 20. 69 KRESS, C. Forcible Protection of National Abroad. The ILA’s Use of Force Committee, Sofia Meeting, 2012, p. 58. 70 Ibid. , p. 3; RUYS, T. The Protection of Nationals, Doctrine Revised . Journal of Conflict & Security Law. 2008, No. 13, pp. 233-271.


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