THE MEANING OF 'FORCE' AND THE BOUNDARIES OF THE JUSAD BELLUM: ARE 'MINIMAL' USES OF FORCE EXCLUDED FROM UN CHARTERARTICLE 2(4)?

摘要

Are there forcible acts that, because of their small scale or confined purposes, are not covered by the prohibition of the use of force in Article 2(4) of the UN Charter? The argument that there exists a "gravity threshold," below which the prohibition of the use of force is inapplicable, appears to be gaining ground in legal doctrine. In a similar vein, the Independent International Fact-Finding Mission on the Conflict in Georgia stated in its report that the "prohibition of the use of force covers all physical force which surpasses a minimum threshold of intensity" and that "[o]nly very small incidents lie below this threshold, for instance the targeted killing of single individuals, forcible abductions of individual persons, or the interception of a single aircraft." Other types of acts that have sometimes been characterized as insufficiently "grave" include operations aimed at rescuing nationals abroad, "hot pursuit" operations, small-scale counterterrorist operations abroad, and localized hostile encounters between military units. This article investigates relevant practice and legal statements from many such situations, while adding a number of conceptual observations. It concludes that excluding small-scale or "targeted" forcible acts from the scope of Article 2(4) is conceptually confused, inconsistent with customary practice, and undesirable as a matter of policy. The structure of the article is as follows. Part I identifies the stakes involved. Part II spells out a number of preliminary considerations. Part III examines both forcible responses to territorial incursions by military or police units of another state (by land, sea, or air) and localized acts against foreign aircraft, vessels, or troops - acts that are generally deemed lawful in practice. In addition, the acceptance of a de minimis threshold may well open Pandora's box by making it far easier for states to justify targeted killings, counterterrorist operations, and the like by reference, for example, to necessity, countermeasures, or distress. In the age of drone warfare, this concern is a very real one that threatens to erode the legal constraints on the use of force.