¹ Conference at St. Petersburg, convened by the Czar of Russia, resulting in the Declaration of 1868.

² Finally resulting in Protocol Iv to the Convention on Certain Conventional Weapons.

³ Ottawa Convention, 1997.

⁴ Convention on Cluster Munitions, 2008.

⁵ E.g., Beard, Jack, Law and War in the Virtual Era, 103 AJIL 409, 431-33 (2009)Google Scholar.

⁶ See, E.g., Rivera, Ray, Sahak, Sharifullah & Schmitt, Eric, A New Terror in Afghanistan: Death Squads, Int’l Herald Trib., Nov. 30, 2011.Google Scholar

⁷ Int’l Herald Trib., Jan. 21-23, 2012.

⁸ See, particularly, Beard, supra note 5, at 443; Remold, Theresa, State Weakness, Irregular Warfare, and the Right to Self-defense Post-9/11, 105 AJIL 244, 281 (2011)Google Scholar.

⁹ UN Charter, pmbl., paras. 1, 5, 7, 8.

¹⁰ Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. 14, para. 191 (June 27); Oil Platforms (Iran v. U.S.), Judgment, 2003 I.C.J. 161, paras. 51, 64 (Nov. 6).

¹¹ E.g., Reinold, supra note 8 at 245.

¹² Vienna Convention on the Law of Treaties, Art. 31, para. 1. Paragraph 3(b) only includes subsequent practice of states if it “establishes the agreement of the parties regarding its interpretation.”

¹³ E.g., Reinold, supra note 8; Anderson, Kenneth, More Predator Drone Debate, in the Wall Street Journal, and What the Obama Administration Should do as a Public Legal Position, Volokh Conspiracy (Jan. 9, 2010 Google Scholar, 5:37 PM), http://volokh.com/2010/01/09; Tams, Christian J., The use of Force Against Terrorists, 20 Eur. J. Int’l L. 359 (2009)Google Scholar; Solomon, Solon, The Great Oxymoron: Jus in Bello Violations as Legitimate Non-Forcible Measures of Self-Defense: The Post-Disengagement Israeli Measures Towards Gaza as a Case Study, 9 Chinese J. Int’l L. 501 (2010)Google Scholar.

¹⁴ Described by IIIBellinger, John in Will Drone Strikes Become Obama ‘s Guantanamo? Wash. Post, Oct. 2, 2011 Google Scholar.

¹⁵ Tarns, supra note 8, at 378-81; Reinold, supra note 11, at 252-76.

¹⁶ Bellinger, supra note 14.

¹⁷ Reinold, supra note 8, at 279.

¹⁸ Id. at 274, referring to the declaration of March 7, 2008.

¹⁹ Id. at 270.

²⁰ Principles of International Law on the use of Force by States in Self-Defence, Principle 6, Doc. No. Ilp Wp 05/01, Oct. 2005 [hereinafter Chatham House Principles].

²¹ Id, Principle 4.

²² Id. at 373.

²³ Id., commentary to Principle 6, at 13.

²⁴ G.A. Res. 60/288 and Annex, Sept. 8, 2006.

²⁵ Chatham House Principles, supra note 20, commentary to Principle 6, at 12.

²⁶ E.g., Silver, Daniel B., Computer Network Attack as a use of Force Under Article 2(4) of the United Nations Charter, in Computer Network Attack and International Law 73, 83 (Schmitt, Michael N. & O’Donnell, Brian T. eds., 2002)Google Scholar.

²⁷ Ian Brownlie, writing in 1960, was already of the view that such justfication was dubious: he considered that a government giving support to a beleaguered regime was objectionable because of the principles of self-determination and non-interference in internal affairs, and because of the danger of making an internal armed conflict an international one. Ian Brownlie, International Law and the use of Force by States 327 (1963). (The book was based on his thesis that he completed in 1960.) This author came to the same conclusion on the basis of extensive research into state practice. The conclusion was based on the fact that all governments who requested outside help justified the request on the basis of self-defense, alleging that the rebels were encouraged and helped by another state (state practice has not changed in this regard). Doswald-Beck, Louise, Legal Validity of Military Intervention by Invitation of the Government, 1985 Brit. Y.B. Int’l L. 189-252Google Scholar.

²⁸ Explained in Bellinger, supra note 14.

²⁹ Philip Alston, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Addendum: Study on Targeted Killings, paras. 35-41, UN Doc. A/HRC/14/24/Add.6 (May 28, 2010); Chatham House Principles, supra note 20, Principle 6.

³⁰ For a description of this problem, see, for example, Report by Ms. Hina Jilani, Special Representative of the Secretary-General on Human Rights Defenders, paras. 96-105, UN Doc. E/CN.4/2002/106 (Feb. 27, 2002); Report of the Special Representative on Human Rights Defenders, paras. 11-25, UN Doc. A/58/380 (Sept. 18, 2003); Report of the Special Rapporteur on the Promotion and Protection of Human Rights While Countering Terrorism, Martin Scheinin, §§ 22-23, UN Doc. A/61/267 (Aug. 16, 2006); Report of the United Nations High Commissioner for Human Rights on the Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, paras. 15, 20, 22 & 23, UN Doc. A/HRC/8/13 (June 2, 2008). Definitions that cover non-violent actions include some regional treaties: Treaty on Cooperation among the States Members of the Commonwealth of Independent States in Combating Terrorism, 1999, Art. 1 ; Convention of the Organisation of the Islamic Conference on Combating International Terrorism 1999, Art. 1, para. 2.

³¹ Bellinger, supra note 14.

³² S.C. Res. 1973, para. 4 (Mar. 17, 2011). On civilian casualites, see Chivers, C.J. & Schmitt, Eric, In Strikes on Libya by Nato, an Unspoken Civilian Toll, N.Y. Times, Dec. 17, 2011, at A1 Google Scholar.

³³ Justifications based on prior UN Security Council resolutions do not stand up to scrutiny. Resolution 1441 of November 8, 2002, did not authorize the use of force. Resolution 678 of November 29, 1990, was limited to authorization to use force to remove Iraq from Kuwait. Resolution 687 of April 3, 1991, adopted after Kuwait was liberated, insisted that Iraq abandon all weapons of mass destruction. The only consequence, if this were not undertaken, was described in paragraph 22 of that resolution, namely, that the economic sanctions against Iraq would not be lifted. Furthermore, preambular paragraph 2 affirmed the “commitment of all Member States to the sovereignty, integrity and political independence of . . . Iraq.”

³⁴ See, e.g., 3 Jean de Preux, Commentary on the Geneva Convention Relative to the Treatment of Prisoners of War, at 37 (1960). There also must be a certain intensity of the fighting for a non-international conflict (as reflected, for example, in the the definition of a non-international armed conflict in Prosecutor v. Haradinaj, Balaj and Brahimaj, Case No. IT-04-84-T, Judgment, paras. 37-60 (Int’l Crim. Trib. for the Former Yugoslavia Apr. 3, 2008). Such intensity is not required for an international conflict.

³⁵ For a description of the history of the use of force and the law of war, see Brownlie, supra note 27, at 38-48.

³⁶ G.A. Res. 3314 (Dec. 14, 1974).

³⁷ Id., Art. 3(b).

³⁸ Following Resolution RC/Res.4, adopted on June 11, 2010. by the states parties to the ICC Statute, The crime of aggression was defined by reference to G.A. Res. 3314. The new Article 8 bis, containing this definition, will be included in the Statute further to a decision in 2017 by the states parties to the ICC.

³⁹ For example, The invasion and occupation of Iraq in 2003 was suspected to have been the motivation for the attacks in London on July 7, 2005. See, e.g., http://news.bbc.co.uk (July 25, 2005). This fact was recalled more recently in War in Iraq Drove U.K. Terror Plots, Ex-Aide Says, Int’l Herald Trib., July 21, 2010, at 3.