¹ Charter of the United Nations, 26 June 1945, Can TS 1945 No 7 (entered into force 24 October 1945) [UN Charter].

² See UNSCOR, 31st Year, 1939th Mtg, UN Doc S/PV.1939 (1976).

³ Ibid at para 137.

⁴ Ibid at para 222.

⁵ UNSCOR, 31st Year, 1943rd Mtg, UN Doc S/PV.1943 (1976) at paras 161 (vote declining to adopt a resolution proposed by the United Kingdom and the United States that would have condemned “hijacking and all other acts which threaten the lives of passengers and crews and the safety of international civil aviation” and called “upon all States to take every necessary measure to prevent and punish all such terrorist acts” (UN Doc S/12138 (1976) at para 1), 144, 148 (confirming the intent of delegates from Tanzania, Libya, and Benin not to present for a vote by the United Nations (UN) Security Council a draft resolution that would condemn “Israel’s flagrant violation of Uganda's sovereignty and territorial integrity” (UN Doc S/12139 (1976) at para 1)).

⁶ Quoted in Mia Swart, “To Stop a War: Did Soleimani Killing Violate International Law?” Al Jazeera (5 January 2020), online: <www.aljazeera.com/news/2020/01/stop-war-soleimani-killing-violate-international-law-200105050718644.html>.

⁷ Oona A Hathaway & Scott J Shapiro, “Making War Illegal Changed the World: But It’s Becoming Too Easy to Break the Law,” The Guardian (14 September 2017), online: <www.theguardian.com/news/2017/sep/14/making-war-illegal-changed-the-world-but-its-becoming-too-easy-to-break-the-law>.

⁸ Ibid.

⁹ Ibid.

¹⁰ International Law Association (ILA), Committee on the Use of Force, Final Report on Aggression and the Use of Force (2018) at 2, online: <www.ila-hq.org/images/ILA/DraftReports/DraftReport_UseOfForce.pdf> [ILA Use of Force Report].

¹¹ Ibid.

¹² Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Uganda), [2005] ICJ Rep 168 at para 148.

¹³ ILA Use of Force Report, supra note 10 at 3.

¹⁴ Ibid.

¹⁵ Ibid at 2.

¹⁶ Ibid.

¹⁷ UN Charter, supra note 1, art 1(2).

¹⁸ Ibid, art 1(3).

¹⁹ Raphael van Steenberghe, “The Law of Self-Defence and the New Argumentative Landscape on the Expansionists’ Side” (2016) 29 Leiden J Intl L 43 at 43.

²⁰ Waxman, Matthew C, “Regulating Resort to Force: Form and Substance of the UN Charter Regime” (2013) 24 EJIL 151 at 152 CrossRefGoogle Scholar.

²¹ Ibid.

²² Van Steenberghe, supra note 19 at 43.

²³ Daniel Bethlehem, “Self-Defense against an Imminent or Actual Armed Attack by Nonstate Actors” (2012) 106 AJIL 770.

²⁴ Mary Ellen O’Connell, “Dangerous Departures” (2013) 107 AJIL 380; Gabor Rona & Raha Wala, “No Thank You to a Radical Rewrite of the Jus Ad Bellum” (2013) 107 AJIL 386; Elizabeth Wilmshurst & Michael Wood, “Self-Defense against Nonstate Actors: Reflections on the Bethlehem Principles” (2013) 107 AJIL 390.

²⁵ Bethlehem, supra note 23 at 775.

²⁶ UN Charter, supra note 1, art 42.

²⁷ The qualification that there is “rarely” a dispute, rather than that there is “never” a dispute, is appropriate in this context to acknowledge the occasions for which ambiguous phrasing in an adopted resolution has led to a dispute related to whether the UN Security Council has exercised Chapter VII authority to truly express consent for member states to use all necessary means to address a situation that is deemed to constitute a threat to international peace and security. UNSC Res 1441 (2002) and UNSC Res 2249 (2015) constitute notable examples of disputable expressions of Security Council consent. While acknowledging that there is “rarely” a dispute of this nature, the present analysis is intended to briefly sketch the manner in which the Security Council exercises Chapter VII authority. As such, an in-depth analysis of the potential for ambiguity and a subsequent dispute is not conducted here.

²⁸ See e.g. UNSC Res 678 (1990) at para 2 (“[a]cting under Chapter VII of the Charter” and authorizing Member States “to use all necessary means to uphold and implement [Security Council] resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area”) [emphasis added]; UNSC Res 1973 (2011) at para 4 (“[a]cting under Chapter VII of the Charter of the United Nations” and authorizing Member States “acting in cooperation with the Secretary-General, to take all necessary measures … to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya”) [emphasis added].

²⁹ UN Charter, supra note 1, art 51.

³⁰ Ibid, art 2(4).

³¹ Corfu Channel (United Kingdom v Albania), Merits, [1949] ICJ 4 (separate opinion of Alvarez J) [Corfu Channel].

³² Ibid at 39, 42.

³³ Ibid.

³⁴ Ibid.

³⁵ UN Doc S/PV.1939, supra note 2 at para 217.

³⁶ Ibid at para 216.

³⁷ Ibid at para 214.

³⁸ Ibid at para 222.

³⁹ Ibid at paras 37 (remarks by the representative of Uganda, who called upon the Security Council “unreservedly to condemn in the strongest possible terms Israel’s barbaric, unprovoked and unwarranted aggression against the sovereign Republic of Uganda”), 171 (remarks of the chairperson of the Group of Arab States, who described the matter of concern as “the fact that a Member State of this Organization has dared to violate the territorial integrity of another Member State by flagrantly landing its troops on that State’s territory and menacing scores of people among its population and security forces” in an act that constitutes a “flagrant violation of international law and the United Nations Charter”), 224 (remarks by the representative of China, who characterized Israel’s incursion as “a premeditated and naked act of aggression committed against a sovereign State by Israeli Zionism” that “constitutes a gross violation of the United Nations Charter and further reveals Israeli Zionism’s behaviour and its determination to make itself an enemy of the Arab and African peoples”).

⁴⁰ Ibid at para 203 (focusing on the act of the terrorists who hijacked the aircraft at issue rather than Israel’s incursion into Uganda and observing that it “is perfectly clear that acts of terrorism jeopardize the stability of international relations and undermine the trust that should exist among States”).

⁴¹ Ibid at paras 104–20 (cataloguing a series of international law texts and examples of similar state practice to refute the characterization that the incursion into Uganda by Israel constitutes an act of aggression), 121 (asserting that “[w]hat mattered to the Government of Israel in this instance was the lives of the hostages, in danger of their very lives” and that the “Israeli forces were not attacking Uganda — and they were certainly not attacking Africa”).

⁴² For present purposes, a normatively neutral description of the process of “cultural diffusion” is deliberately adopted. Descriptions such as “colonial conquest” or “cultural subjugation” could just as accurately be utilized in this context. As a person of mixed European settler and Cherokee American Indian descent, the historical and cultural implications of the “cultural diffusion” described here are matters of both professional and personal interest to me. I acknowledge these implications and do not intend in the present inquiry to minimize the far-reaching impacts on affected Indigenous cultures by adopting a normatively neutral description. However, the goal of the present endeavour is to examine the impact of this “cultural diffusion” on the development of the contemporary international legal order. As such, a normatively neutral description is adopted, while acknowledging the profound implications of the process of European “cultural diffusion” being described.

⁴³ For a constructive and succinct overview of the influence of the Peace of Westphalia on the development of concepts of sovereignty in late-Renaissance Europe, see e.g. Kasper, Amy EP, “Global Governance 2.0” in Hosli, Madeleine O & Selleslaghs, Joren, eds, The Changing Global Order: Challenges and Prospects (Switzerland: Springer, 2020) 277 at 283–85.Google Scholar

⁴⁴ See e.g. John Locke, Two Treatises on Government (1689), reprinted in The Works of John Locke: A New Edition, Corrected, in Ten Volumes, vol 5 (London: 1823) 164 (asserting that “[a]bsolute arbitrary power, or governing without settled standing laws, can neither of them consist with the ends of society and government, which men would not quit the freedom of the state of Nature for, and tie themselves up under, were it not to preserve their lives, liberties, and fortunes, and by stated rules of right and property to secure their peace and quiet”).

⁴⁵ See e.g. Massachusetts, Provisional Congress of Massachusetts Bay, “Articles of War” (5 April 1775), preamble, reprinted in William Winthrop, Military Law and Precedents, 2nd ed (Washington, DC: Government Printing Office, 1920) 947 at 947 (finding that “the lust of power which of old oppressed, persecuted and exiled our pious and virtuous ancestors from their fair possessions in Britain, now pursues with ten-fold severity us, their guileless children,” and imposes upon the residents of Massachusetts an “indispensable duty, by all lawful ways and means in our power, to recover, maintain, defend, and preserve the free exercise of all those civil and religious rights and liberties, for which many of our forefathers fought, bled and died, and to hand them down entire for the free enjoyment of the latest posterity”).

⁴⁶ Woodrow Wilson, Message to Congress (8 January 1918), Records of US Senate, Record Group 46, online: <www.ourdocuments.gov/doc.php?flash=false&doc=62#> [emphasis added].

⁴⁷ Ibid, Point 14.

⁴⁸ See Treaty of Peace between the Allied and Associated Powers and Germany, 28 June 1919, Part I, online: <www.foundingdocs.gov.au/resources/transcripts/cth10_doc_1919.pdf>; Covenant of the League of Nations, 28 April 1919, (1919) 13 AJIL Supp 128 [League Covenant].

⁴⁹ League Covenant, supra note 48, preamble.

⁵⁰ Ibid, art 10.

⁵¹ UN Charter, supra note 1, art 2(4).

⁵² Ibid, art 2(7).

⁵³ See ibid, art 1(2).

⁵⁴ See ibid, art 1(3).

⁵⁵ Ibid, art 1(2) [emphasis added].

⁵⁶ Ibid, art 1(3) [emphasis added].

⁵⁷ Wilson, supra note 46.

⁵⁸ Universal Declaration of Human Rights, GA Res 217A (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) [UDHR].

⁵⁹ See International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976, accession by Canada 19 May 1976) [ICCPR].

⁶⁰ See International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976, accession by Canada 19 May 1976).

⁶¹ UDHR, supra note 58, preamble.

⁶² Ibid [emphasis added].

⁶³ Ibid.

⁶⁴ UN Charter, supra note 1, preamble.

⁶⁵ Ibid, art 39.

⁶⁶ Ibid, arts 41 – 42.

⁶⁷ Ibid, art 27(3).

⁶⁸ While again resisting the inclination to digress from the current focus on jus ad bellum and delve too deeply into international human rights law, aspirations reflected in the UDHR, such as “[e]veryone has the right to life, liberty and the security of person” (art 3); “[n]o one shall be subjected to arbitrary arrest, detention or exile” (art 9); and “[n]o one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation” (art 12) give context to the assertion reflected here. Aspirations such as these, of course, provide the foundations for the related prescriptions of subsequent central human rights treaties such as the ICCPR, supra note 59; the (European) Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953); the African (Banjul) Charter on Human and People’s Rights, 27 June 1981, 1520 UNTS 217, 21 ILM 58 (1982) (entered into force 21 October 1986); and the American Convention on Human Rights, 21 November 1969, 1144 UNTS 123 (entered into force 18 July 1978).

⁶⁹ Consider, for example, the diplomatic exchanges between senior political representatives of Iran and the United States that reportedly occurred prior to the retaliation by Iran. According to reports, senior US officials were warned “multiple hours” before the retaliatory strikes in order to give “plenty of time for [US] troops to take shelter in bunkers.” This precaution was reportedly implemented with the intent to “prevent the crisis escalating out of control while still signalling [Iran’s] resolve.” “Iran Missile Attack: Did Tehran Intentionally Avoid US Casualties?” BBC News (8 January 2020), online: <www.bbc.com/news/world-mId.dle-east-51042156>. While this limited retaliation was apparently designed to “signal resolve” and thereby to influence future decisions by the US administration, there is no indication that the retaliatory strike was designed or intended to constitute a substantial threat to the ability of the American government to continue to implement the supreme value of self-determination on behalf of the American population.

⁷⁰ Ohlin, Jens David, Election Interference: International Law and the Future of Democracy (Cambridge: Cambridge University Press, 2020) at 104 CrossRefGoogle Scholar.

⁷¹ Ibid.

⁷² Ibid.

⁷³ Ibid at 107 [emphasis added].

⁷⁴ Ibid.

⁷⁵ Ibid.

⁷⁶ The distinction between the two terms is, of course, reflected in the preliminary root of each word — where “inter” indicates “between” states and “trans” connotes “across” or “among” states. The UN Charter, then, is designed and intended, as an “international” treaty, to address and regulate relations between states. To preview the subsequent analysis to a certain degree, a use of force by a state against a non-state actor does not necessarily implicate the state in which that actor is located at the time of the attack. Such an attack would be a “transnational” use of force, which can be distinguished in concept and practice from the “interstate” relations between the attacking state and the territorial state.

⁷⁷ UN Charter, supra note 1, preamble.

⁷⁸ Statute of the International Court of Justice, 26 June 1945, Can TS 1945 No 7 (entered into force 24 October 1945).

⁷⁹ UN Charter, supra note 1, preamble.

⁸⁰ Ibid, art 2(3).

⁸¹ Ibid, art 1(4).

⁸² Ibid, art 2(3).

⁸³ Ibid, preamble.

⁸⁴ Ibid.

⁸⁵ UN Conference on International Organization, UN Doc 502 III/3/22, vol XII (23 May 1945) at 349.

⁸⁶ UN Conference on International Organization, UN Doc 768 III/3/42, vol XII (5 June 1945) at 449.

⁸⁷ Ibid.

⁸⁸ UK, HC Deb (24 November 1927), 5th ser, vol 210, col 2105.

⁸⁹ Ibid, cols 2104–05.

⁹⁰ See Definition of Aggression, UNGA Res 3314 (XXIX) (14 December 1974), annex, art 1. This definition of aggression adopted by the UN General Assembly is examined in greater detail below when examining the prevalent assertion that the use of force construct established by the UN Charter constitutes a proxy for aggression. It should also be noted that the Charter of the International Military Tribunal (IMT Charter), which was adopted in 1945, includes “initiation or waging of a war of aggression” in its description of the offense of “Crimes against peace.” While the International Military Tribunal judgments provide context for what the tribunal judges determined to qualify as “aggression,” the IMT Charter is decidedly sparse on details. See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945, 280 UNTS 251, annex, art 6(a).

⁹¹ Additional Protocol I to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978); Additional Protocol II to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978).

⁹² See e.g. Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, vol IX (1979), 31–32, 56, 228, 285, 497.

⁹³ Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) [Rome Statute].

⁹⁴ See Assembly of States Parties, Crime of Aggression — Amendments Ratification (updated 28 February 2019), online: <asp.icc-cpi.int/en_menus/asp/crime%20of%20aggression/pages/default.aspx>. The text for the crime of aggression is, of course, also now incorporated as Article 8 bis of the Rome Statute, supra note 93.

⁹⁵ Mary Ellen O’Connell, “The Killing of Soleimani and International Law,” EJIL Talk! (6 January 2020), online: <www.ejiltalk.org/the-killing-of-soleimani-and-international-law>.

⁹⁶ See UN Conference on International Organization, Dumbarton Oaks Proposals: Comments and Proposed Amendments, Doc 1, vol 3 (1945) at 1.

⁹⁷ See General Treaty for Renunciation of War as an Instrument of National Policy, 27 August 1928, 94 LNTS 57.

⁹⁸ Papers Relating to the Foreign Relations of the United States, vol 1 (23 April 1928) at 36.

⁹⁹ Ibid at 96.

¹⁰⁰ Ibid at 114.

¹⁰¹ The General Pact for the Renunciation of War Signed at Paris on August 27, 1928: Hearing before the Senate Committee on Foreign Relations, 70th Congress (7 December 1928) (statement of Frank Kellogg, Sec’y State).

¹⁰² UN Conference on International Organization, UN Doc 533 III/4/A/9, vol XII (5 June 1945) at 849.

¹⁰³ Ibid.

¹⁰⁴ Ibid at 687 [emphasis added].

¹⁰⁵ UN Conference on International Organization, UN Doc 972 III/6, vol XI (14 June 1945) at 58.

¹⁰⁶ Ibid at 52.

¹⁰⁷ UN Charter, supra note 1, art 51 [emphasis added].

¹⁰⁸ UN Doc S/PV.1939, supra note 2 at para 47 [emphasis added].

¹⁰⁹ Ibid at para 214.

¹¹⁰ Ibid at para 217.

¹¹¹ Ibid at para 47 (remarks of the representative of Mauritania); UNSCOR, 31st Year, 1940th Mtg, UN Doc S/PV.1940 (1976) at paras 80–81 (remarks of the representative of Guyana, citing UN Charter, supra note 1, art 2(4), and UNGA Res 3314 (XXIX), supra note 90, to support the characterization that the use of force by Israel “is nothing but naked and brutal aggression”).

¹¹² UNGA Res 3314 (XXIX), supra note 90, annex, art 1.

¹¹³ Ibid, preamble.

¹¹⁴ Ibid, art 6.

¹¹⁵ See UK, HC Deb, supra note 88.

¹¹⁶ Corfu Channel, supra note 31 at 42 (separate opinion of Alvarez J).

¹¹⁷ While opinions of the International Court of Justice (ICJ) similarly do not constitute binding international law, the ICJ provides a succinct and persuasive description by noting “that General Assembly resolutions, even if they are not binding, may sometimes have normative value” and that such resolutions “in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris.” Legality of theThreat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep 226 at 254, para 70.

¹¹⁸ See UN Doc S/PV.1939, supra note 2 and accompanying text.

¹¹⁹ Olivier Corten, “The ‘Unwilling or Unable’ Test: Has It Been, and Could It Be, Accepted?” (2016) 29 Leiden J Intl L 777 at 795–96.

¹²⁰ John Quigley, “The Afghanistan War and Self-Defense” (2003) 37 Val U L Rev 541 at 541, 562 (adopting a use of force construct consistent with a reductive, restrictivist application of the original Alvarez model, describing violation of this model as “aggression,” rejecting the claim by the United States that the use of force complied with Article 51 of the UN Charter and thereby concluding that “the United States violated this model of international law”).

¹²¹ For a comprehensive compilation of state reactions, see Alonso Gurmendi Dunkelberg et al, “Mapping States Reactions to the US Strikes against Syria of April 2018: A Comprehensive Guide,” Just Security (7 May 2018), online: <www.justsecurity.org/55835/mapping-states-reactions-syria-strikes-april-2018-a-comprehensive-guide>.

¹²² Vladimir V Putin, “A Plea for Caution from Russia,” New York Times (11 September 2013), online: <www.nytimes.com/2013/09/12/opinion/putin-plea-for-caution-from-russia-on-syria.html>.

¹²³ This observation is provided in acknowledgement of the recent activation by the International Criminal Court of the crime of aggression that is now reflected in Article 8 bis of the Rome Statute, supra note 93. Some primary challenges associated with characterizing this definition as authoritative or widely accepted are addressed briefly above when assessing whether the prevailing jus ad bellum interpretation qualifies as a proxy for aggression. For present purposes, however, it is worth noting that the current count of forty-one states that have accepted or ratified the Kampala Amendment casts substantial doubt regarding whether this definition qualifies as an authoritative expression of customary international law.

¹²⁴ That is, the United States was either unwilling or unable (based on the historical context, the truth is probably a mix of both) to sufficiently address the threat to (British) Canada posed by the Canadian separatist insurgent faction that was emanating from Buffalo and the greater upstate New York region. Because the United States was unwilling and/or unable to implement measures to adequately address the enduring threat to British Canada, the Canadians were arguably left with no alternative other than to employ necessary and proportional armed force to mitigate the threat to Britain. This use of force famously involved invading Navy Island on the US side of the international border, commandeering the Caroline, setting it ablaze, and setting the burning ship adrift to crash over Niagara Falls. For useful factual background and the content of the actual exchange of letters between Secretary Webster and Lord Ashburton, see Hunter Miller, Treaties and Other International Acts of the United States of America, vol 4 (Washington, DC: US Government Printing Office, 1934) at 363, 443–57.

¹²⁵ Craig Martin, “Challenging and Refining the ‘Unwilling or Unable’ Doctrine” (2019) 52 Vand J Transnatl L 387 at 390.

¹²⁶ Ibid [emphasis added].

¹²⁷ Ibid.

¹²⁸ UNSCOR, 36th Year, 2292nd Mtg, UN Doc S/PV.2292 (1981) at para 54.

¹²⁹ Hayati Güven, Deputy Permanent Representative Chargé d’affaires a.i. of the Permanent Mission of Turkey to UN, Letter Addressed to President of the Security Council, UN Doc S/1995/605 (24 July 1995).

¹³⁰ In addition to the characterization proffered by Craig Martin, supra note 125 and accompanying text, consider, as but a few examples of such characterizations, Olivier Corten, “A Plea against the Abusive Invocation of Self-Defence as a Response to Terrorism,” EJIL Talk! (14 July 2016), online: <www.ejiltalk.org/a-plea-against-the-abusive-invocation-of-self-defence-as-a-response-to-terrorism> (observing, “[p]articularly since 9/11, several States have supported a broad reading of the right to use force in self-defence, as allowing them to intervene militarily against terrorists whenever and wherever they may be”); Adil Ahmed Haque, “Self-Defense against Self-Defense, In Syria and Beyond,” Just Security (31 May 2018), online: <www.justsecurity.org/57223/self-defense-self-defense-syria> (citing the contemporary debate regarding the use of force in Syria against members of the Islamic State of Syria and the Levant (ISIL) and observing that, “[f]or many years, the United States and some of its allies have taken the view that one state (say, one of them) may use armed force on the territory of another state (say, Pakistan or Syria), without its consent, if the territorial state is ‘unwilling or unable’ to prevent a non-state armed group from launching armed attacks from its territory”); Corten, supra note 119 at 778 (citing a letter involving the use of force against ISIL in Syria that was submitted by the United States to the UN Security Council and asserting that the letter “refers to a formula that appeared a few years ago in certain scholarly writings: the ‘unwilling or unable’ test”).

¹³¹ Ashley S Deeks, “‘Unwilling or Unable’: Toward a Normative Framework for Extraterritorial Self-Defense” (2012) 52 Va J Intl L 483 at 549–50 (Appendix I). For a related post by the same author that provides an overview of the states that have expressed support for the doctrine, see Elena Chachko & Ashley Deeks, “Which States Support the ‘Unwilling and Unable’ Test?” Lawfare (10 October 2016), online: <www.lawfareblog.com/which-states-support-unwilling-and-unable-test>.

¹³² Corten, supra note 119 at 796–97.

¹³³ Miller, supra note 124 at 453.

¹³⁴ Ibid at 454.

¹³⁵ UN Doc S/1995/605, supra note 129 [emphasis added].

¹³⁶ UN Doc S/PV.2292, supra note 128 at para 56.

¹³⁷ Ibid at para 62.

¹³⁸ Michael Grant, Chargé d’affaires a.i. of the Permanent Mission of Canada to UN, Letter Addressed to President of Security Council, UN Doc S/2015/221 (31 March 2015).

¹³⁹ UN Charter, supra note 1, art 2(3).

¹⁴⁰ See e.g. Deeks, supra note 131 at 549–50, Appendix I (listing thirty-nine examples, dating from 1817–18 to 2011, of a use of force by one state that is directed to the territory of a second state but that targets a non-state actor or agents of a third state).

¹⁴¹ Miller, supra note 124 at 453.

¹⁴² UNSC Res 660 (2 August 1990).

¹⁴³ UNSC Res 661 (6 August 1990) [emphasis added].

¹⁴⁴ UNSC Res 677 (28 November 1990).

¹⁴⁵ UNSC Res 678 (29 November 1990).

¹⁴⁶ UNSC Res 687 (3 April 1991).

¹⁴⁷ See UNSC Res 2249 (20 November 2015).

¹⁴⁸ See Marko Milanovic, “The Syria Strikes: Still Clearly Illegal,” EJIL Talk! (15 April 2018), online: <www.ejiltalk.org/the-syria-strikes-still-clearly-illegal>.

¹⁴⁹ Ohlin, supra note 70 at 104.

¹⁵⁰ See S.S. “Lotus” (France v Turkey) (1927), PCIJ (Ser A) No 10 at 19 (articulating the understanding of the time, in 1927, that “every State remains free to adopt the principles which it regards as best and most suitable” and that, in the context of international relations, “all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty”).

¹⁵¹ Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Examples, 5th ed (New York: Basic Books, 2015) at 51.

¹⁵² Ibid.

¹⁵³ Ibid.

¹⁵⁴ Ibid at 51–52.

¹⁵⁵ O’Connell, supra note 24 at 380 [emphasis in original].

¹⁵⁶ See Rona & Wala, supra note 24.

¹⁵⁷ See e.g. Manisuli Ssenyonjo, “State Withdrawal Notifications from the Rome Statute of the International Criminal Court: South Africa, Burundi and the Gambia” (2018) 29 Crim LF 63.

¹⁵⁸ See “Russia's Putin Revokes Geneva Convention Protocol on War Crimes Victims,” Reuters (17 October 2019), online: <www.reuters.com/article/us-russia-warcrimes-convention-iduskbn1ww2in>.

¹⁵⁹ See US Department of Defense, News Release, “Statement From Secretary of Defense Mark T Esper on the INF Treaty” (2 August 2019), online: <www.defense.gov/Newsroom/Releases/Release/Article/1924386/statement-from-secretary-of-defense-mark-t-esper-on-the-inf-treaty>.

¹⁶⁰ United States et al v Göring et al (1946), Judgment, reprinted in Trial of the Major War Criminals before the IMT, vol 1 (Nuremberg, Germany: International Military Tribunal Nuremberg, 1947) at 186.

¹⁶¹ Marko Milanovic, “The Clearly Illegal US Missile Strike in Syria,” EJIL Talk! (7 April 2017), online: <www.ejiltalk.org/the-clearly-illegal-us-missile-strike-in-syria>.

¹⁶² Milanovic, supra note 148.

¹⁶³ Ibid.

¹⁶⁴ See Office of General Counsel, Department of Defense Law of War Manual, 3rd ed (2016) at para 1.11.4.4, nn 220–21 (citing an expression in 1999 by a legal adviser for the Department of State that describes a number of factors that justified the North Atlantic Treaty Organization intervention in Kosovo and that appear consistent with what may be described as the humanitarian intervention doctrine while also citing an expression from a Department of State legal adviser in 2004 asserting that the United States did not invoke the doctrine but instead “pointed to a range of other factors to justify” US involvement in the Kosovo campaign).

¹⁶⁵ See UNSC Res 2249 (2015) at para 5 (calling on member states “that have the capacity to do so to take all necessary measures … to redouble and coordinate their efforts to prevent and suppress terrorist acts committed specifically by ISIL” while emphasizing the requirement to do so “in compliance with international law, in particular with the United Nations Charter”).

¹⁶⁶ Louis Henkin, “The Use of Force: Law and US Policy” in Louis Henkin et al, eds, Right v Might: International Law and the Use of Force, 2nd ed (New York: Council on Foreign Relations Press, 1991) 37 at 60 (cited in O’Connell, supra note 24 at 386).

¹⁶⁷ O’Connell, supra note 24 at 386.