DE LAS INFRACCIONES Y SANCIONES

The use of defensive force in response to an armed attack has been claimed to be insufficient by the realists and expansionists.36 This is because it is unreasonable for a state to wait until being attacked first in order for using defensive force.37 Moreover, the nature and extent of the attack can be so severe that the attacked state might not get the chance to use defensive force due to being devastated by the attack.38 On this basis, the combined provisions of Articles 2(4) and 51 do not provide for the self-preservation of states which are under threat of an imminent armed attack. This is known as ‘index legitimacy deficit’ of international law on the use of force.39

The problem that persists with the ‘index legitimacy deficit’ is that for the rule being indeterminate the normative standards not only make it harder to know what conformity is expected, but also make it easier to justify non-compliance.40 Although some rules are more determinate than others,41 _{the degree of a determinacy of a rule directly affects the degree of} its perceived legitimacy.42 The higher the degree of determinacy the higher the degree of legitimacy, and hence higher degree of rule-conforming behaviour.

Index legitimacy deficit is an inherent problem of the law as it questions the effectiveness of the law in dealing with contemporary challenges of use of force.43 One way of overcoming this legitimacy deficit is by ascertaining and agreeing on the types of attack, in scale and effect, that

34 _{See section 2.3 of chapter 2.}

35 _{See section 5.2.3 of this chapter (below).} 36 _{See section 2.3.1 and 2.3.2 of chapter 2.}

37 _{Jutta Brunnée and Stephen Toope, Legitimacy and Legality in International Law (Cambridge University Press}

2010) 292.

38 _{See section 2.3.4.1 of chapter 2.}

39 _{Thomas Franck, ‘Legitimacy in the International System’ (1988) 82 American Journal of International Law}

705, 712.

40 _{ibid, 714.}

41 _{Duncan Kennedy, ‘Toward a Critical Phenomenology of Judging’ (1986) 36 J. Legal EDUC 518; for contra}

see Ludwig Wittgenstein, Philosophical Investigations (G.E. Anscombe trans, 1953) 81.

42 _{Thomas Franck, ‘Legitimacy in the International System’ (1988) 82 American Journal of International Law}

705, 716.

176

can be categorised as ‘armed attack’.44 _{This could be done by ICJ through active involvement} in its decision-making process. For instance, defining the term ‘armed attack’ when opportunity comes before it rather than being reluctant to do so.45 The development of an efficient and consistent jurisprudence in the ICJ is necessary to overcome the indeterminacy that exists in the categorisation of situations triggering ‘armed attack’ under Article 51.

Although another way of overcoming this legitimacy deficit has been addressed by recognising pre-emptive self-defence within the Charter system in case of imminent armed attack46_{, the} decision to determine if such an armed attack is imminent is left in the hands of the states. The problem with this approach is that states are prone to abuse this option against their opponents if there is no provision for scrutiny by an independent body.47 For example, the decision of the coalition force to attack Iraq in 2003 on their own assessment of imminent threat of Weapons of Mass Destruction (WMS).48 In these circumstances, who or what institution, what judge or jury, should decide whether the norm’s requisites for pre-emptive action have been met.49 In order to resolve this issue, the high-level panel has rendered a real service in drawing a distinction between an imminent threat, as to which states may take proportionate pre-emptive action when there remains no viable alternative, and what it described as non-imminent or non- proximate threats, which may still be very serious and as to which action may, indeed, highly desirable but must be fully justified by the claimant before the Security Council acting as a global jury.50 However, this solution has not been very effective so far.51

44 _{Jutta Brunnée and Stephen Toope, Legitimacy and Legality in International Law (Cambridge University Press}

2010) 293; see also Dominic Raab, ‘Armed Attack after the Oil Platforms Case’ (2004) 17 Leiden Journal of International Law 719.

45 _{Thomas Franck, The Power of Legitimacy Among nations (OUP 1990) 88; see also Steven Wheatley, The}

Democratic Legitimacy of International Law (Hart Publishing 2010) 262; Thomas Franck, ‘The Power of

Legitimacy and the Legitimacy of Power: International Law in an Age of Power Disequilibrium’ (2006) 100 America Journal of International Law 88, 101.

46 _{See section 2.3.4.1 of chapter 2.}

47 _{David Miller, ‘The Responsibility to Protect Human Rights’ in Lukas Meyer (ed), Legitimacy, Justice and}

International Law (Cambridge University Press 2009) 247.

48 _{George W. Bush, Address before a Joint Session of the Congress on the State of the Union (Jan. 28, 2003) 39}

Weekly Comp. Press. Doc. 109 (Feb. 3, 2003); see also Ex-Inspector (David Kay) Again Says Forbidden Arms Probably Didn’t Exist, Wash. Post, Jan. 29, 2004, A1; see also Glorai Borger, A Vice President Unbound, U.S. News & World Rep., June 28, 2004, 34.

49 _{Thomas Franck, ‘The Power of Legitimacy and the Legitimacy of Power: International Law in an Age of Power}

Disequilibrium’ (2006) 100 America Journal of International Law 88, 102.

50 _{A More Secure World: Our Shared Responsibility, Report of the High-Level Panel on Threats, Challenges and}

Change, UN Doc. A/59/565, 63, para 189 (2004) <http://www.un.org.secureworld/report.pdf> accessed 17 July 2017.

51 _{Christine Gray, ‘The Charter Limitation on the Use of Force: Theory and Practice’ in Vaughan Lowe, Adam}

Roberts, Jennifer Welsh and Dominik Zaum (eds), The United Nations Security Council and War (OUP 2008) 96; Jutta Brunnée and Stephen Toope, Legitimacy and Legality in International Law (Cambridge University Press

177

To secure higher degree of legitimacy, it is necessary that international law be amended to include an implied undertaking by states that ‘if they recourse to force in self-defence in response to an imminent armed attack then they will be automatically accountable to the Security Council for scrutiny’.52 _{The Security Council may be able to refer the task of} scrutinising the recourse to force to an independent body or institution, namely ICJ or ICC.53 This measure of accountability is likely to control the use of force in an effective manner and hence promote legitimacy, both before and after using such force. This legitimacy can even achieve a higher degree if such undertaking includes criminal responsibility for abusing the state authority of using defensive force against imminent attack.54