Intercultural Human Rights Law Review

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There is a little discussed but critically important gap in the U.N. Charter's law of force regime. While Article 2(4) prohibits all threats and uses of force by a state or non-state actor, Article 51 only authorizes self-defense when an armed attack or "most grave" use of force has occurred-leaving a considerable spectrum of low-gravity coercion below that threshold, where a victim state may be violently assaulted, but have no lawful recourse to protect itself with military action. This Paper explores the loophole in the Charter's regulatory architecture, and finds that it provides a safe harbor, protected from military counter-strikes, for those contemplating aggression. Designed to contain escalation in the aftermath of World War II, the 'force gap' reflects an intentional choice by the Charter's drafters to prioritize the interests of peace over justice; perpetuated by the Security Council's failure to fulfill its intended enforcement role in policing low-intensity conflict and the courts' consistently strict interpretation Article 51. The Charter's regime makes less sense today, when isolated strikes by non-state actors and low-intensity coercion like targeted killing, terrorism, and cyber-warfare have replaced large-scale military invasions as the primary threats to geopolitical stability. For practical, legal, and normative reasons, therefore, the force gap requires repair. To provide a flexibility of responsive deterrent that is both appropriate and effective for addressing low-gravity warfare in the modem world, this Paper proposes that the international community do what many states, and, at times, the Security Council, appear to have quietly acknowledged as a necessary adjustment and reform the law of countermeasures to permit force.

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