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.”

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.

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.

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

Ibid

., p. 20.

KRESS, C.

Forcible Protection of National Abroad.

The ILA’s Use of Force Committee, Sofia Meeting,

2012, p. 58.

Ibid.

, p. 3; RUYS, T. The Protection of Nationals, Doctrine Revised

Journal of Conflict & Security Law.

2008, No. 13, pp. 233-271.