Delegation Republic of the Gambia Represented by St. Gallen Model UN Position Paper for the Legal Committee The Republic of the Gambia would like to express its deep appreciation of the efforts that the sixth committee of the General Assembly is making to bring its members together to tackle the topic of the legality of pre-emptive wars. The issue of pre-emptive wars and their legality under international law started in the 19th century with the Caroline affair and has since generated more and more discussions and opinions across years. Gambia’s position on the topic is in line with the statement of the Non-Aligned Movement; while the sacred principles of the prevention of the use of force as enshrined in art. 2 (4) of the Charter of the United Nations shall prevail at all time, art. 51 allows a State to defend itself in case it is subject to an armed attack from another state. However, we believe that the legal committee should not limit itself to a pure teleological approach of the meaning of art. 51 and should thus go beyond the permission of self-defence in the sole case of the actual use of military force from another state. The question of the legality of pre-emptive wars has to include the development made on this issue since 1945. While Gambia has supported most of the United Nations resolutions and judgments by the International Court of Justice that have tackled this topic - notably Security Council Resolution 188, General Assembly Resolution 36/27 and the ICJ cases Nicaragua v. United States, Iran v. United States and Democratic Republic of the Congo v. Uganda – we would like to emphasize the importance of General Assembly Resolution 3314 on the Definition of Aggression and in particular art. 1 of its annex that establishes that ‘’Aggression is the use of armed force by a State […]’’. Though self-defence was first in the purpose of responding to an armed attack by another state, our modern world is composed by a more complex constellation of actors on the international stage. Therefore, we are of the opinion that a constructive interpretation of aggression shall today include the attacks against the sovereignty of Member States by third parties. Armed responses in this context imperatively have to respect the Geneva Conventions and their common art. 3 as well as the Second Additional Protocol to the Geneva Conventions. The criteria of the Caroline doctrine – that is to say the attack is instant, overwhelming, leaving no choice of means and no moment for deliberation – are necessary but not sufficient criteria for the use of force in the context of self-defence. Self-defence must remain the exception and has to respect the principles of discrimination and proportionality. The aggression or instance aggression committed by the other state has to be alleged and cannot fall in the domain of probability. Gambia strongly opposes any justifications in favor of preventive attacks considering that self-defence against potential threats is against the very principles of the United Nations. We will strongly oppose any resolution that would be an attempt to justify the legality of preventive wars, and encourage the other Member States to do the same. To complete the provisions given by the Caroline doctrine, the Republic of the Gambia believes that in order to maintain international peace and security, all nonviolent means feasible in the given situation should be exhausted; all Member States shall agree to use their best efforts to insure the pacific settlement of international differences as underlined in art. 2 (3) of the Charter of the United Nations. Moreover, an act of self-defence shall only be for the purpose of avoiding or limiting the damages that the instant war would cause and has to be immediately referred to the Security Council and the Secretary General of the United Nations. Finally, selfdefence shall in no case be in the purpose of humanitarian intervention. In the light of this debate, the Republic of the Gambia calls the sixth committee of the General Assembly to ask for an advisory opinion of the International Court of Justice in accordance with its right to do so established in art. 96 of the Charter on the following question: ’’What are the conditions – notably the degree of anticipation and the principles of distinction and proportionality – under which a pre-emptive attack shall respect the principles of international law and art. 51 of the UN Charter?’’ Gambia welcomes all Member States wishing to collaborate on and elaborate this initiative.
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