The Traditionally Non-Forceful Nature of Countermeasures as Conceived in Art. 50.1 lit. a) DARS

This chapter deals with the legal questions of whether countermeasures, as conceived in the DARS, can even be re-interpreted to accommodate humanitarian countermeasures. At the center of this problem is Art. 50.1 lit. a) DARS, which is generally held to guarantee the traditionally non-forceful nature of countermeasures. According to Art. 50.1 lit. a) DARS, “[c]ountermeasures shall not affect […] [t]he obligation to refrain from the threat or use of force as embodied in the [UN Charter]”. Prima facie, this shows the intent of the ILC to exclude the admissibility of forcible countermeasures, which it explicitly reveals in its Commentaries. However, such an across-the-board exclusion of forcible countermeasures proves to be premature in light of the erroneous equation of reprisals and countermeasures and, secondly, an analysis of the UN Charter to which Art. 50.1 lit. a) DARS refers.