Attributability, responsibility and right of self-defense on the acts of Rigalia against

Ardenia.

Oliver Ortiz.

Spring 2010

Preamble

In order to determine the attributability of the attack occurred on the Bakchar Valley hospital, it

is of great importance to consider the context within such attack happened.

On paragraph number 27th of the Compromis we can take a glance of which was the situation:

“Still frustrated with his inability to address the Zetian situation and annoyed by the lack of

cooperation Ardenia was providing in investigating the alleged corruption of MDI, President

Khutai sought assistance on behalf of Rigalia from his long-time friend and ally, President

Sophia Ratko of Morgania.”

“…Recently, Zetian attacks have started to target locales where Morganian expatriates

generally congregate, and credible threats have been made against Morganian interests around

the world.”

Paragraphs 28th and 29th demonstrate how a relation of cooperation was built between both

states, Rigalia and Morgania:

“President Khutai asked Morgania to deploy Predator Drones, unmanned aerial vehicles, to

attack suspected Zetian separatists in the mountainous region along the border between Rigalia

and Ardenia. Upset by Zetian threats to Morganian citizens and interests, President Ratko

agreed to cooperate with the Rigalian Defense Force in combating Zetian terrorism.”

“The drones, launched from Fort Raucus under the supervision of Morganian soldiers, are

operated by members of the Morganian army in Morganville, who receive targeting

information from informants on the ground, and then decide whether or not to fire the missiles

from the drones. The informants are paid by the Rigalian government, which recruits them from

Rigalian prisons by offering them large sums of money and relocation for them and their

families to homes in Rigalia outside of the Northern Provinces.”

Therefore, it is clear that the drones are operated by members of the Morganian army, but the

targeting information they receive comes from Rigalian informants, paid by the Rigalian

government. Then, although the final action of shooting is performed by the Morganian Army,

this one is not made without the cooperation and help provided by Rigalian informants.

Then, the responsibility, and attributability related with the damages caused on the Bakchar

Valley hospital, should be analyzed as the result of a work of cooperation between Rigalia and

Morgania. However, and even though Morgania is deeply involved on the case, we will not

extensively refer to its responsibility on the strike which caused the death of 150 persons, as

referred on paragraph 30th of the Compromis, because the ICJ already stated on paragraph 36

that: “The majority determined that Morgania was not a necessary third party because the

questions presented to the Court by Rigalia and Ardenia did not require the Court to determine

the rights and obligations of Morgania”.

Then, in this memorial we will only try to determine the attributability to Rigalia of the acts

which entailed the death and wounds of several innocent people in the Bakchar Valley hospital.

To do so we will take 2 different positions:

I. The attack to the Bakchar Valley Hospital is attributable to Rigalia.

II. The attack to the Bakchar Valley Hospital is not attributable to Rigalia.

1. The attack to the Bakchar Valley Hospital is attributable to Rigalia.

1.1 Introduction.

Under Article 2 of the United Nations Charter, states are generally prohibited from engaging in

the use of force against other states:  

“All members shall refrain in their international relations from the threat or use of force against

the territorial integrity or political independence of any state, or in any other manner

inconsistent with the Purposes of the United Nations.”

Three exceptions apply to this prohibition – self-defense, consent, and Security Council

authorization pursuant to Article 42 of the UN Charter. The right to self-defense is in law “and

is fundamental to the system of states.” It is recognized and protected by Article 51 of the UN

Charter:

“Nothing in the present Charter shall impair the inherent right of individual or collective self-

defense if an armed attack occurs against a Member of the United Nations, until the Security

Council has taken measures necessary to maintain international peace and security...”

As recently mentioned, states are not legally allowed in the use of force against other states.

Yet, it is possible when mediating self-defense, consent, or Security Council authorization. We

obviously discard, according to the facts described on the Compromis, the possibility of consent

or Security Council authorization. Then, the only option for Rigalia to be excluded on its

possible responsibility for the attack to the Bakchar Valley hospital, is the use of the right of

self-defense. In this sense the article 21 of the Annex of the Resolution adopted by the General

Assembly, on the report of the Sixth Committee (A/56/589 and Corr.1) states that:

“Article 21 Self-defence:

The wrongfulness of an act of a State is precluded if the act constitutes a lawful

measure of self-defence taken in conformity with the Charter of the United Nations.”

1.2 Attributability.

According to the Resolution adopted by the General Assembly, on the report of the Sixth

Committee (A/56/589 and Corr.1), article 1 and 2, of the Annex, named Responsibility of States

for internationally wrongful acts, Part one: The Internationally Wrongful Act of a State, we can

say about an internationally wrongful act that:

“Article 1 Responsibility of a State for its internationally wrongful acts

Every internationally wrongful act of a State entails the international responsibility of that State.

Article 2 Elements of an internationally wrongful act of a State

There is an internationally wrongful act of a State when conduct consisting of an action or

omission:

(a) Is attributable to the State under international law; and

(b) Constitutes a breach of an international obligation of the State.”

In the case object of our study, which is the attack to the Bakchar Valley Hospital, there is an

evident internationally wrongful act committed by Rigalia. Yet, in order to generate

responsibility, this attack should be attributable to Rigalia. This same Resolution adopted by the

General Assembly of the United Nations gives us some important hints in order to determine the

cases in which a wrongful act is attributable to a State. One of these is the one referred on the

article 17 of the Resolution:

“Article 17 Direction and control exercised over the commission of an internationally

wrongful act:

A State which directs and controls another State in the commission of an internationally

wrongful act by the latter is internationally responsible for that act if:

(a) That State does so with knowledge of the circumstances of the internationally wrongful act;

and

(b) The act would be internationally wrongful if committed by that State.”

Then, it is in evidence that the attack is attributable to Rigalia, due it exercised control over the

commission of the attack to the hospital, which was, as we know, performed by the drones

operated by the Morganian Army, every since the Morganian soldiers would not shoot without

the guidance provided by Rigalian informants.

That was the criteria used by the ICJ on the case Nicaragua v. United states: “The degree of

control which must be exercised by the State in order for the conduct to be attributable to it was

a key issue in the Military and Paramilitary Activities in and against Nicaragua case. The

question was whether the conduct of the contras was attributable to the United States so as to

hold the latter generally responsible for breaches of international humanitarian law commit- ted

by the contras. This was analyzed by the ICJ in terms of the notion of “control”., which finally

held that the United States was responsible for the “planning, direction and support” given by

the United States to Nicaraguan operatives.”1

1.3. Legal consequences of an internationally wrongful act.

According to the Annex of the Resolution named before, in its article 28, Part Two: Content of

the international responsibility of a State, Chapter I, we have that:

“Article 28: Legal consequences of an internationally wrongful act:

The international responsibility of a State which is entailed by an internationally wrongful act

in accordance with the provisions of part one involves legal consequences as set out in this

part.”

Finally, these consequences, according to articles 30 to 33 of the Resolution, may

consist, depending on the case, of:

A) Cessation and non-repetition. This consequence entails that if the act is continuing,

must cease immediately. Moreover, if the circumstances require it, it will imply the

obligation of offering the appropriate insurances of non-repetition.

B) Reparation. The responsible state must make full reparation for the injury caused by the

international act. In this case, it will be the equivalent to the immediate cost of the

medical supplies and healthcare to the wounded people on the hospital, and also the

moral damage caused to the relatives of the ones who died on the strike. As article 31 of

the Resolution states it, by means of “injury”, any sort of damage is included. The

1 Military and Paramilitary Activities in and against Nicaragua , p. 51, para. 86., cited by the Report of the International Law Commission on the work of its fifty-third session

forms of reparation, as stated by article 34 and the ones after the latter, may take the

form of: restitution, compensation, and satisfaction.

From our personal view, the only forms of possible reparation are constituted by

compensation and satisfaction, every since it is not materially possible to restitute a

human being who has passed away. Then, from this position, from which we claim for

the attributability to Rigalia of the attack to the Bakchar Valley Hospital, we ask Rigalia

for a compensation, for its internationally wrongful act, which caused an enormous

damage to the nation of Ardenia, consisting of 150 people dead, and 200 wounded ones.

Besides this we ask to the State of Rigalia to publicly recognize its mistake, and to

apology for it, in proportion to the described caused injury.

C) Irrelevance of internal law. This means that Rigalia will not be able to justify its acts

under its internal law.

D) The scope of international obligations. If necessary, this might imply that the obligation

of the responsible State could be owed to one, several States, or the whole international

community. We think it is not the case, and that the responsibility of Rigalia, is only

owed to Ardenia.

1.4. Discarding the exercise of the right of self-defense.

Finally it is important to remark that although the attack on the Bakchar Valley hospital may be

attributable to Rigalia, such attribution will have no effect when a circumstance precluding

concurs, as it could happen with the right of self-defense.

Then, in order to ensure the thrive of the demands placed by Ardenia before the ICJ, it is

important to argument the reasons of why the right of self-defense cannot be applied to this

case.

(i) Necessity of self-defense.

There is no necessity of self-defense for Rigalia. When it exists, “necessity of self-defense is

instant, overwhelming, leaving no choice of means, and no moment for deliberation”2. Then, it

is logical to say that Rigalia could have chosen other pattern of conduct, different to an armed

response.

2 B. Welling Hall, Addendum Relating To Self-Defense: Crimes OfWar Project, AM. SOC’Y INT’L L., at http://www.asil.org/insights/insights77htm .

(ii) Imminent threat of force.

The existence of a threat qualified as imminent, must be based on evidence of an “imminent

second attack or on a continuing attack that needs to be pre-empted”3. As seen on the

Compromis, the “attacks” performed by Zetian terrorists, which supposedly trigger the

aggressive response of Rigalia, are vague, non determined, and which really triggered the

aggression of Rigalia, was not the terrorism of the Zetian tribes, but the feelings of frustration

and revenge of its President, which came from other situations diferrent that terrorism:

Paragraph 27:

“Still frustrated with his inability to address the Zetian situation and annoyed by the lack of

cooperation Ardenia was providing in investigating the alleged corruption of MDI, President

Khutai sought assistance on behalf of Rigalia from his long-time friend and ally, President

Sophia Ratko of Morgania.”

Paragraph 28:

“President Khutai asked Morgania to deploy Predator Drones, unmanned aerial vehicles, to

attack suspected Zetian separatists in the mountainous region along the border between

Rigalia and Ardenia. Upset by Zetian threats to Morganian citizens and interests, President

Ratko agreed to cooperate with the Rigalian Defense Force in combating Zetian terrorism.”

(iii) Proportionate armed response.

O’Connell says “… beyond armed conflict hostilities, we limit the use of lethal force to what is

necessary to save a human life immediately. The corollary of this principle is that we do not

tolerate the loss of collateral lives. In law enforcement there is no principle proportionality

where in the intentional use of lethal force we tolerate the deaths of innocent bystanders so long

as those deaths are not disproportionate to the objective in using force. We tolerate such loss of

innocent lives only on the battlefield in the exigent circumstances of armed conflict

hostilities.”4

Therefore, the proportionality test has to do with the results of the use of the force: if was it or

not proportionate with the objective of using that force. “…the ‘Victim State’ must be

proportionate to the purpose of driving back aggression”5. The response must be directed

against “military objectives within the bounds set by international humanitarian law;”

3 Id.4 Mary Ellen O’Connell, Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004-2009, in SHOOTING TO KILL, THE LAW GOVERNING LETHAL FORCE IN CONTEXT (Simon Bronitt ed., forthcoming) available at http://ssrn.com/abstract=1501144 and Mary Ellen O’Connell, The Choice of Law Against Terrorism, J. NAT. SEC. L. (forthcoming) available at http://ssrn.com/abstract=1654049.5 Id.

commonly referred to as the law of war.6 Then we believe the attack to the Bakchar Valley

Hospital was not proportionate to the ones performed by Zetian terrorists. The magnitude of the

death of 150 people, cannot be compared to random terrorist attacks.

2. The attack to the Bakchar Valley Hospital is not attributable to Rigalia.

II.1 Introduction

According to Kelsen the internationally wrongful act and its effects have to do with “ the legal

order, which is a coercive order, and saw the authorization accorded to the injured State to apply

a coercive sanction against the responsible State, as the primary legal consequence flowing

directly from the wrongful act.”7 According to this view, general international law empowered

the injured State to react to a wrong; the obligation to make reparation was treated as

subsidiary, a way by which the responsible State could avoid the application of coercion.8

Although this opinion is not adequate with the modern theories, which explain the effects of

internationally wrong acts, it gives space to one the introduction of one of the most basic rights

of a party on an international controversy: the right of self-defense, which w will deeply analyze

on this memorial.

In this sense, even though in this part we try to defend Rigalia, as of guilty of the damages

caused on the Bakchar Valley hospital, and that in order to establish the innocence of Rigalia, it

is important to trigger the right of self-defense within Rigalia exercised its counterattacks with

predator drones, we should not forget these were acts that also respond to a mistake on the

operation of the drones as stated on paragraph 31 of the Compromis:“Rigalia’s defense minister

issued a statement to the press claiming that his instructions to Morgania were to “avoid

unnecessary and disproportionate” military actions and that the incident was “a regrettable

consequence of Rigalia’s fight to defend itself and its people.”

II.2 Attributability

6 See Antonio Cassese, Terrorism Is Also Disrupting Some CrucialLegal Categories Of International Law: The Attack On The World Trade Center, Legal Responses, EUR. J.INT’L L. At 5 (2001) at http://www.ejil.org/forum_WTC/ny-cassese.html.7 H. Kelsen, Principles of International Law, 2nd ed., R. W. Tucker, ed. (New York, Holt, Rinehart and Winston, 1966), p. 22.8 Report of the International Law Commission on the work of its fifty-third session, p.4.

Many “complex issues arise in determining whether conduct was carried out “under the

direction or control” of a State, as would be the criteria of the ICJ on determining the

attributability on the Nicaragua v. United States case. Such conduct will be attributable to the

State only if it directed or controlled the specific operation and the conduct complained of was

an integral part of that operation. The principle does not extend to conduct which was only

incidentally or peripherally associated with an operation and which escaped from the State’s

direction or control.”9

Thus, it is not sustainable the thesis which attributes to Rigalia the attack occurred on the

Bakchar Valley Hospital, since the help provided by the Rigalian informants was only

peripheral and incidental, but the operation of the predator drones, and finally the actual act of

killing was performed by the Morganian Army.

On the opposite, Rigalia acted on the exercise of its legal right of self-defense, which is referred

on the Charter of the United Nations.

II.3 Establishment of international customary law.

The importance of customary law to understand the right of self-defense.

In seeking to define international law, one should look to Article 38 of the International Court of

Justice (the “ICJ”). Traditionally, Article 38 has been accepted as the most authoritative

expression of the sources of international law. Accordingly, Article 38 acknowledges that

international law arises from international conventions or agreements, international custom,

general principles of law recognized by civilized nations, and judicial decisions and the

teachings of the most highly qualified publicists of various nations; however, these are viewed

as subsidiary or secondary sources.

For our purposes, however, we will focus on international custom. International custom or

international customary law (hereinafter “Customary Law”) “results from a general and

consistent practice of states followed by ... a sense of legal obligation.” This is known as opinio

juris sive necessitatis also referred to as opinio juris. Accordingly, Customary Law is made up

of two distinct elements “general practice” and “its acceptance as law.”10

Consequently, in order for a particular practice to be regarded as Customary Law, it must first

be considered by States as a “general practice.” In defining what constitutes a “general

9 Report of the International Law Commission on the work of its fifty-third session, p. 3.10 Robert J. Beck and Anthony Clark Arend, “Don’t Tread On Us”: International Law And Forcible State Responses To Terrorism, 12 Wis. Int’l L.J. 153, 157 (1994).

practice,” traditional international law considers whether a particular common practice is “the

result of the repetition of individual acts of States constituting consensus in regard to a certain

content of a rule of law”11. Traditionally speaking, this process extends over a long period of

time, for instance, over centuries. However, in today’s contemporary age of highly developed

techniques of communication and information, this process has greatly been accelerated,

whereby establishment of Customary Law may take no more than one generation or even less

than that in certain circumstances.

This hastening may be attributable to the formation of numerous international institutions which

have greatly facilitated international relations in recent times, and which consequently have lead

to the establishment of numerous international agreements. As evidenced by the Restatement

(Third) of the Foreign Relations Law of the United States, such international agreements may

lead to the creation of Customary Law upon gaining wide acceptance.

Moreover, contemporary approaches adopted by the ICJ suggest that opinio juris may be

construed from the attitude of States toward the adopted text of the United Nations Resolutions,

regardless of whether or not the new obligation is a previously existing treaty obligation.

Therefore, it is reasonable to presume that “general practice” may be established through

numerous means.

Secondly, as a necessary ingredient in the formation of Customary Law, States must also

possess a “sense of legal obligation” in adhering to certain legal principles. In the words of the

late English jurist J. L. Brierly, “international law is the sum of the rules by which states have

consented to be bound, and that nothing can be law to which they have not consented.”12

As a result, Customary Law must be authoritative.

As such, this norm should control state behavior by having them comply with the requirements

of that particular norm. One must be aware, however, that neither compliance nor a perception

of authority is required for ... a rule to constitute authentic Customary Law. All that is needed to

establish Customary Law is a “general perception of authority and regular, wide-spread

compliance.”13

II.4 The right to self-defense is rooted in customary international law.

11 Restatement (Third) of the Foreign Relations Law of the United States §102 (1986).12 J.L. Brierly, The Law Of Nations 1, 51 (6th ed. 1962).13 Helen Duffy, Responding To September 11: The Framework Of International Law, at http://www.interrights.org (2001).

Then, the right of self-defense does not solely emanate from Article 51 but is rooted in

customary international law. Therefore, Rigalia enjoys customary self-defense rights regardless

of whether Article 51 is applicable.

As noted by Rosalyn Higgins, a justice on the International Court of Justice (ICJ) and an

authority on international law, “there is, with respect, nothing in the text of Article 51 that thus

stipulates that self-defense is available only when an armed attack is made by a State.”  She

further notes that : 

“I also find unpersuasive the Court's contention that, as the uses of force emanate from

occupied territory, it is not an armed attack “by one State against another”. I fail to understand

the Court's view that an occupying Power loses the right to defend its own civilian citizens at

home if the attacks emanate from the occupied territory -- a territory which it has found not to

have been annexed and is certainly “other than” Israel.”

II.5 Legality of use of force.

The legality of use of force, or more generally, when force may lawfully be used under

international law, has been expressed as jus ad bellum. In examining the circumstances under

which use of force, or more specifically, the right of self-defense is permissible to combating

terrorism, one must first apprehend the fundamental function of international law.

As Louis Henkin stated once, “violence is not a term known to international law. It is not even a

term of art in international politics.”14 However, violence does exist. As a result, municipal as

well as international law must tackle this issue.

Addressing this matter, one should realize that the establishment of the Charter in 1945 signaled

new times to come. The “UN Charter represented a moment of legal metamorphosis, when

traditional legal concepts such as ‘just war’ and ‘lawful reprisals’ were radically altered by the

new law of the UN.” Following this transformation, the new law restricted the circumstances

under which use of force may lawfully be deployed. This limitation was attributable to the fact

that the Charter now came to be regarded as jus contra bellum, otherwise referred to as the “law

against war.”15

14 Louis Henkin, Conceptualizing Violence: Present And Future Developments In International Law, 60 ALB. L. REV. 571, 571 (1997).15 Leah M. Campbell, Defending Against Terrorism: A Legal Analysis Of The Decision To Strike Sudan And Afghanistan, 74 TUL. L. REV.1067, 1078 (2000), citing Judith Gail Gardam, Proportionality And Force In International Law, 87 AM. J. INT’L L. 391, 403 (1993).

II.6 Imputing non-state actors conduct to states in order to trigger the right of self-defense.

How to impute the conducts performed by Zetian terrorists to Ardenia.

While it is true, that terrorist acts which are imputed onto States may trigger the right to self-

defense, it is unsettled, however, what is really required when the circumstances of such actions

are not transparent. This inconsistency is due in part to the law of jus ad bellum which was

founded on the assumption that disputes would arise between States, and as such did not address

non-state actors.

In seeking to resolve this dilemma by means of the Charter, however, there is nothing in its

language to necessarily require proof of state involvement in an existing armed attack. Thereby

leaving the possibility that non-state actors, like terrorists, may trigger the right to self-defense

of Article 51.

Nonetheless, it seems illogical to simply attack States founded on assumptions of terrorist

involvement, without direct proof of their participation. In resolving this unsettled question,

based on the ICJ decision in Nicaragua v. United States, it appears that where “private

individuals or groups with no ‘transparent relationship’ with the state are responsible,” one

must look at whether the State or States in question exercised “effective control” over the

wrongdoers.

It is imperative to note, that as a general rule, states are not responsible for all wrongs that

are orchestrated on or emanating from their territory. At the same time, international law

does not ordinarily distinguish between states that are capable of controlling their territory and

those that are not16. This is due to the normative principle that States have an obligation to other

states based upon their “claim to territorial sovereignty.”

Consequently, State obligation to oversee their citizens or guests within its borders is said to be

a well-established principle. In his dissent in Lotus, Judge John Basset Moore affirmed that “it

is well settled that a State is bound to use due diligence to prevent the commission within its

dominions of criminal acts against another nation or its people.”17

Accordingly, it may be possible for “Victim States” to respond with force against terrorist

groups that carried out the attacks, as well as, the State or States that failed to exercise “effective

16 Reisman, supra note 57 at 50 citing Desmond Mcforan, The World Held Hostage: The War Waged By International Terrorism, 46-47(1986)17 Lotus (Fr. v. Turk.) 1927 P.C.I.J. (ser. A) No. 10, at 4, 88 (Moore, J., dissenting).

control” over the wrongdoers. Therefore, no more comments are needed to state that Ardenia

has failed to control the Zetian terrorists, and has even made arrangements with them, causing

danger and imminent threats of violence for other States, as for Rigalia.

2.7 The requirements to trigger the right of self-defense.

While States are instructed to seek peaceful coexistence, there are some, very limited

circumstances, under which States are entitled to resort to the use of force under international

law.

Article 51 of the Charter, provides a narrow exemption to the use of force18. Article 51 provides

that “nothing in the present Charter shall impair the inherent right of individual or collective

self-defense if an armed attack occurs against a Member of the United Nations, until the

Security Council has taken measures necessary to maintain international peace and security”.

According to Article 51 of the Charter, Member States may resort to use of force if (1) such

force is a necessary self-defensive measure to an armed attack or (2) such force has been

authorized by the Security Council on the basis that the Council “deems it necessary in order

to maintain or restore international peace and security.”

While on its face, Article 51 may lead some to believe that States have now been given a carte

blanche, permitting them to exercise force under the “right of self-defense” exception in most

circumstances; even to combat terrorism. It is important to note, however, that this is simply not

true. What Article 51 of the Charter provides to Member States is a “narrow authorization” to

“defend themselves against a continuing armed [attack] until such time as the Security Council

intervenes to maintain and restore peace and security”19.

Appropriately, States may seek to employ the right of self- defense only in “self-defense.”

Central to this right is the level of threat that is directed against the ‘Victim State.’ As suggested

by United States Secretary of State Daniel Webster in 1842, in the Caroline Case, 42 self-

defense only applies in extraordinary circumstances where the “necessity of self-defense is

instant, overwhelming, leaving no choice of means, and no moment for deliberation”20.

18 U.N. Charter art. 51. (signed at San Francisco on June 26, 1945; entered into force on October 24, 1945).19 Gail Davidson, International Law: The Illegality Of The War OnAfghanistan, Defense Of Canadian Liberty Committee, at http//www.canadianliberty.bc.ca/liberty-vs-security/gail-davidson-war-on- afghanistan.html citing to Michael. A. Akehurst, A Modern Introduction To International Law 261 (6th Ed., 1997).20 B. Welling Hall, Addendum Relating To Self-Defense: Crimes OfWar Project, AM. SOC’Y INT’L L., at http://www.asil.org/insights/insights77htm .

It is important to note that this test of “instant and overwhelming necessity” was employed in

the deliberations of the Nuremberg Trials21.

As the Caroline Case demonstrates, for self-defense to be justified, there must be an imminent

threat of force or a continuing attack upon the ‘Victim State.’22 Necessity implies a degree of

immediacy 23 . As such, while immediate response by a ‘Victim State’ is not mandatory, the

“longer the time lapse,” the more “tenuous the argument becomes as to the urgency of”

employing the self-defense exception24. Equally, use of force must also be based on evidence of

an “imminent second attack or on a continuing attack that needs to be pre-empted”25. Therefore,

it is not the first “armed attack” that triggers the right of self-defense; on the contrary, it is the

imminent threat of the second attack that triggers such right.

Taking this into consideration, as the term indicates, use of force under the right of self-defense

does not allow States to carry out retaliatory attacks or to engage in the use of force to repel

anticipated armed attacks if such attacks have not yet occurred26. The Charter does not create

this right, nor does it permit such action. What it simply provides is that self-defense is “to be

exclusively directed to repel, ongoing or imminent, armed attacks of the aggressor state”.27

That is all that it provides.

Also, it is important to note, that any armed response by the ‘Victim State’ must be

proportionate to the purpose of driving back aggression28. Under the traditional or classic self-

defense theory, this response must be directed against “military objectives within the bounds set

by international humanitarian law;” commonly referred to as the law of war.29

Moreover, the armed response must come to an end, since an indefinite ongoing response to

21 Id.22 Helen Duffy, Responding To September 11: The Framework Of International Law, at http://www.interrights.org (2001).23 Id.24 Id.25 Id.26 Gail Davidson, International Law: The Illegality Of The War On Afghanistan, Defense Of Canadian Liberty Committee, at http//www.canadianliberty.bc.ca/liberty-vs-security/gail-davidson-war-on- afghanistan.html citing to Michael. A. Akehurst, A Modern Introduction To International Law 261 (6th Ed., 1997).27 Helen Duffy, Responding To September 11: The Framework Of International Law, at http://www.interrights.org (2001).28 Id.29 See Antonio Cassese, Terrorism Is Also Disrupting Some CrucialLegal Categories Of International Law: The Attack On The World Trade Center, Legal Responses, EUR. J.INT’L L. At 5 (2001) at http://www.ejil.org/forum_WTC/ny-cassese.html.

an ‘armed attack’ would be outside the bounds of constituting self-defense30. According to

Article 51 of the Charter, armed force must terminate as soon as the aggression has ceased to

be a threat or once the Security Council has taken the necessary measures to alleviate the

armed attack.

Then, was the attack to the Bakchar Valley Hospital justified by an imminent

threat of force or a continuing attack, necessary, and proportionate with the

damages caused by the Zetian?

As stated by the request of declaration before the ICJ set by Rigalia, we believe that “The attack

on the Bakchar Valley hospital was not attributable to Rigalia and Rigalia has no obligation to

investigate the attack or to compensate Ardenia therefore; moreover, the act was not an act of

aggression but part of a legitimate and proportionate operation to defend against Zetian

terrorists”. Let’s see it point by point:

(i) Imminent threat of force.

As it can be seen in the next paragraphs of the Compromis, the threat of force against Rigalia is

evident, and definitely imminent:

Paragraph 15

“Ethnic Zetians were incensed by President Khutai’s remarks and sporadic fighting broke out

in the Northern Provinces, with Rigalian soldiers attempting to quell the disturbance. Tens of

thousands of Zetians marched on both the Rigalian and Ardenian capitals, the Ardenian Zetians

to show their solidarity with their Rigalian brethren. Many of the marchers wore arm bands

with the initials “ZRF”, and many carried a proposed Zetian “flag,” which was purple with five

white stars, the traditional banner of the ZDP.”

Paragraph 16

“…Provinces and contributed to the radicalization of Zetians living in the tribal areas. In his

speech introducing the bill, President Khutai vowed to “enforce the human rights of all

Rigalian women and children.” In addition, President Khutai noted that Mavazis posed a threat

to public safety, as the garments permitted terrorists and suicide bombers to escape

detection.”

Paragraph 18:

30 Id.

“As tensions increased between Rigalians, Zetians and Ardenians, a group of Zetian tribal

leaders, all known ZDP members, began mounting a violent campaign to press for full

independence by attacking infrastructure in Rigalia, kidnapping citizens of Rigalia, and

demanding the release of arrested Zetian protestors in exchange for the safe release of the

kidnap victims. In December 2008, a bridge was blown up in Rigaliaville, killing more than

130 Rigalians, and soon afterwards, in January and February of 2009, a series of suicide

bombings took place at two government buildings – a school and a hospital – killing more than

25 civilians, and wounding 112 others. One of the suicide bombers was a man wearing a

Mavazi, who had been able to approach the government-run school without being questioned

because of the garment he was wearing”.

Thus, it is in evidence that the threat of an attack by the Zetian terrorists is imminent, since they

had already caused damages on the Rigalian population, and as previously said, it is the

imminent threat of the second attack that triggers the right of self-defense.

(ii) Necessity of Self- Defense.

As it can be seen on the paragraphs above, we are in presence of a real necessity of defense,

which is “instant, overwhelming, leaving no choice of means, and no moment for deliberation”,

since the attacks performed by the Zetian terrorists constitute an actual danger for the Rigalian

State and its population. It is a must for the Rigalian government to ensure security to its people,

and to guarantee the public order. The urgency and need of immediate response is appropriate

according to the damages caused by the Zetians.

(iii) Proportionate Armed Response.

The results of the strike on the Bakchar Valley hospital, where obviously not expected by the

Rigalian government. So says the paragraph 31st of the Compromis, where Rigalia’s defense

minister held that military actions and that the incident was “a regrettable consequence of

Rigalia’s fight to defend itself and its people”. Then, because they respond to an incident

occurred while exercising the right of self-defense, it is not the proportionality of the damages

caused on the hospital the ones which must be analyzed, but the ones caused to Adar Bermal,

“who was a prominent leader of the ZDP and committed to the Zetian separatist movement”.

Therefore, we believe, the response given by Rigalia to the terrorist attacks of the Zetians, was

actually proportionate, since it was done in the same proportion as to the purpose of driving

back the suffered aggression31, and had as its main target, the Leader of the ZDP, which is

31 Id.

completely reasonable, since its this movement the one that has caused all the damages and

disorders and Rigalia, and all collateral damages cannot entail the attributability of the attack to

the Bakchar Valley hospital to Rigalia, since they occurred while the exercise of the right of

self-defense, which is a circumstance of precluding wrongfulness, according to the Resolution

Resolution adopted by the General Assembly, on the report of the Sixth Committee (A/56/589

and Corr.1).