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* Judge, International Court of Justice [
]. Speech given at the Conference 'The Nicaragua Case 25 Years Later: Its Impact on the Law and the Court', held on 25 June 2011.
1.
Introduction
When I was asked by the organizers of the conference to speak on the subject of the use of force, I thought that I should limit my remarks to the notion of an 'armed attack' as defined by the Court in the Nicaragua case,1 particularly the rationae materiae aspect of the concept. The reasons were twofold. First, one of the two instances in which states may lawfully resort to the use of force, under the UN Charter, is for the exercise of self-defence; but this is conditional on an 'armed attack' against the state invoking self-defence. So, the notion of 'armed attack' is at the heart of the use of force in self-defence. Second, the notion of an 'armed attack' - that is, the type of action that constitutes an 'armed attack' - still remains the subject of controversy among states.
I will therefore deal in my address with a narrow subject within the wider area of the use of force. I will not deal with the temporal aspects of 'armed attack' - in other words, when does an armed attack take place? - nor shall I deal with its rationae personae aspect - that is, from whom the attack emanates. But, either of these two aspects may occasionally intrude into the analysis, which will principally focus on the acts that may be considered to constitute an 'armed attack' as determined by the Court in Nicaragua, and as distinguished from what the Court referred to as 'mere frontier incidents'.2 I will then examine the extent to which the definition by the Court of the notion of 'armed attack' in Nicaragua has impacted the subsequent jurisprudence of the International Court of Justice (ICJ) as well as the case law of other fora for the peaceful settlement of disputes, particularly in the context of the use of force in African conflicts.
It might be argued that, of the three aspects mentioned above, I have decided to address the least controversial one. However, as...