While the eyes of the world are riveted on the Russian-Ukrainian conflict, the recent conflict between Tajik and Kyrgyz forces along their borders on 14 September 2022 deserves particular attention even if the international community has not paid attention to it. These two countries are located in Central Asia and have been disputing the disputed neighboring provinces of Vorukh and Isfara of Kyrgyzstan and Tajikistan respectively for years. While it is true that the two countries blame each other, neither has claimed responsibility for the attack, although there are reports that Tajikistan appears to be the perpetrator of the attack on its neighbor. This incident highlights the security concerns of States regarding their sovereignty and territorial integrity. In this post, we discuss the legal issues relating to the right to self-defense that this conflict raises. For a brief historical overview of the conflict see Julia Emtseva’s article.
The « armed attack » by whom and against whom?
Article 51 of the UN Charter states « Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations until the Security Council has taken measures necessary to maintain international peace and security ». Two main conditions follow from this article. On the one hand, the State must be the victim of armed aggression and when measures of self-defense are taken, it must inform the Security Council. Since, according to some sources, neither Kyrgyzstan nor Tajikistan has sent a letter to the Security Council, we are discussing here the issue of aggression, which is relevant to this article, namely whether the threshold of armed aggression has been reached in this conflict that could give rise to the exercise of the right to self-defense under Article 51 of the UN Charter.
We know that the basic condition for the implementation of self-defense is armed attack. According to Article 1 of UN General Assembly Resolution 3314 of 14 December 1974, aggression « (…) is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State ». This means that any incursion by armed forces into the territory of a State constitutes armed aggression. This means that self-defense clearly refers to the reaction to crossing of the border by troops that constitutes an act of aggression. This is justified by the fact that the territorial integrity and sovereignty of a State are essential elements for the State as enshrined in the Montevideo Convention on the Rights and Duties of States. The ICJ’s reasoning suggests that an armed attack giving rise to the right of self-defense must take into account its gravity, scale and effects, which are relevant criteria for assessing whether the conflict between Tajikistan and Kyrgyzstan constitutes an armed attack. Furthermore, in the Nicaragua Military and Paramilitary Activities case as well as in the Oil Platforms case, the Court indicates that armed attack integrates the most serious acts of those less serious to force. It therefore concludes that a mere border incident cannot constitute an armed attack within the meaning of Article 51 of the United Nations Charter.
The perceptible difficulty in this conflict is that both sides do not take responsibility for the initial attack, making it difficult to analyze. Nevertheless, in terms of the severity, scale and effects of this conflict, it is clear that the scale of the fighting, the weapons used and the loss of life and property lead to the conclusion that this conflict has reached the threshold of armed aggression under international law. Indeed, from 14 September 2022, the military equipment, the quantity of heavy military machinery in use and the number of troops and the number of dead (62 for some and a hundred for others) lead to the conclusion that it was an armed attack. Moreover, in a statement, the Kyrgyz Minister of Foreign Affairs condemned the attack by his neighbor, describing it as a planned military attack. Although this qualification could mean an armed attack, several media sources claim that it was an act of aggression by Tajikistan against Kyrgyzstan. Therefore, the qualification of « border incident » can be questioned, as according to some sources the fighting intensified up to the undisputed town of Batken located 10 kilometers from the border. A border incident should in principle be limited to the perimeter of the border areas without going to a considerable distance as 10 kilometers seems considerable for an incident of this type. Moreover, in a telephone statement with the Secretary of the United Nations, the Kyrgyz minister confirmed that he had suffered an invasion against the territorial sovereignty of his country and stated that he had taken retaliatory measures to defend himself against the attacks from Tajikistan. In any case, a State that is the victim of armed aggression must inform the UN Security Council of the attacks directed against it. In the case of this conflict, neither side has done so. It is clear that this was an aggression, but the second condition was not met, which could have given rise to the exercise of the right to self-defense under Article 51 of the UN Charter. It is likely that this was a political decision not to open up several fronts in the region.
What relevance for collective self-defense?
The conflict between the two former members of the Soviet Union comes at the same time as the Collective Security Treaty Organization (CSTO) conference to which both States are a party. According to media sources, the Kyrgyz Minister of Defense has informed the Secretary General of CSTO. We know that collective self-defense is based on two pillars, namely that the attacked State must make a declaration to that effect and, secondly, there must be a link between the attacked State and the State from which the former is requesting assistance in acting in self-defense. In the case of the military and paramilitary activities in Nicaragua the Court’s reasoning suggests that « The exercise of the right of collective self-defense presupposes first that an armed attack has taken place; it is obvious that the aggressed State being most directly aware of the situation is likely to draw everyone’s attention to it ». This is the case with Article 5 of the North Atlantic Treaty Organization. Nowhere did the Kyrgyz authorities consider themselves to be the victims of an armed attack and therefore invoked their right to self-defense. Article 4 of the CSTO provides that if a member is the victim of armed aggression, the other States must assist it by making available all the means, including military means, at their disposal. From the above, it is difficult to implement collective self-defense because the two States in conflict are part of the CSTO and to be fair, only cooperation can be a way out of the crisis.
Proportionality and necessity of self-defense
Let us assume that both conditions are met, namely that the threshold of armed aggression has been reached and that one of the parties has informed the Security Council of its right to self-defense. In order to be valid, the exercise of this right would still have to meet the requirements of necessity and proportionality. As customary requirements, these have been enshrined by the ICJ in the Military and Paramilitary Activities in Nicaragua case (1986) and in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons. To contextualize with the Kyrgyz-Tajikistan conflict, it must be said that it is difficult to assess these two conditions in the light of the contradictory statements of the two States.