Nature and Scope of Self-defence under the UN Charter and Customary International Law

By Bakampa Brian Baryaguma

[Dip. Law (First Class)–LDC; Cert. Oil & Gas–Mak; LLB (Hons)–Mak]

bakampasenior@gmail.com; www.huntedthinker.blogspot.ug

October 2022

1.                  Introduction

John Dryden remarked that, “War is the trade of kings.”^[1] Hence, on many occasions, the world’s kings led it into horrible incidents of human sacrilege, where human life was de-sanctified,^[2] with innocent civilians and soldiers used as pawns dying en masse. The vast majority of these wars were fought or resisted and prolonged in the name of self-defence.

1.1.            Understanding Self-defence

Self-defence refers to the use of force to repel an attack or imminent threat of attack directed against oneself, one’s close associates or a legally protected interest against an unlawful attack.^[3] It covers those planning, threatening, harboring, perpetrating and providing material support essential to an armed attack.^[4] Regardless of the tool used, the goal of self-defence is to survive and escape without injury by deterring or stopping aggressive behavior, but not to win a fight or harm another person per se.

Self-defence in international law refers to the inherent right of a state to use of force in response to an armed attack.^[5] It is traced to the “Caroline” incident of 29 December 1837,^[6] during which an expedition of Canadian militia, under the authority of Great Britain, crossed the Niagara River to the United States shore, burnt an American steamer called Caroline and untied it from its moorings leading to its destruction.^[7] Tensions ensued between the U.S. and Great Britain involving threats of war, but were resolved later – in 1842 – with mutual agreement. On behalf of the U.S., the Secretary of State, Daniel Webster said that a state must show, “a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation.”^[8] The British envoy, Lord Ashburton (Alexander Baring), agreed with this statement, which consequently is frequently invoked for the proposition that a state may use proportionate force in self-defence against “imminent” threats.^[9] Other scholars, however, link self-defence with the power and prerogative of states to wage wars whereby, “… a nation which considered itself to be wronged by another State and the intention of advancing 'good' was entitled to go to war to punish the wrongdoer …”.^[10]

1.2.            Customary International Law Defined

Customary international law refers to international obligations arising from established international practices, as opposed to obligations arising from formal written conventions and treaties.^[11] It results from a general and consistent practice of states that they follow from a sense of legal obligation.^[12] Examples of customary international laws are the doctrine of non-refoulement^[13] and the granting of immunity for visiting heads of state.^[14]

Under Article 38 (1) (b), (c) and (d) of the Statute of the International Court of Justice, customary international law is sourced from international customs evidencing general practices accepted as law, general principles of law recognized by civilized nations, judicial decisions and the teachings of the most highly qualified publicists of the various nations. Hence, customary international law can be established by showing state practice and opinio juris,^[15] which means a subjective obligation, a sense on behalf of a state that it is bound to the law in question.^[16]

2.                  Nature and Scope of Self-defence under the U.N. Charter and Customary International Law

Use of force is an ancient phenomenon in the history of human and state relations. But wars are nasty and unpleasant. Thus, in 1945, the nations of the world, under the auspices of the Charter of the United Nations (hereinafter “the U.N. Charter”), covenanted and undertook to eliminate the nuisance of war by maintaining international peace and security through “tak[ing] effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;”^[17] and, “… develop[ing] friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.”^[18]

The U.N. Charter aspires to achieve these objectives by outlawing the use of force in their interactions. Article 2 (4) of the Charter prohibits the use of force, stating that, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

However, there are exceptions to this prohibition,^[19] one of which is self-defence, as provided under Article 51 of the U.N. Charter, which inter alia states that, “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 the measures necessary to maintain international peace and security.”

The nature and scope of self-defence are implicit in the language of Article 51 of the U.N. Charter and in customary international law as discussed below.

2.1.            Nature of Self-defence

A joint reading of both the statement of Secretary Daniel Webster in the 1837 Caroline incident and Article 51 of the U.N. Charter reveals the following as comprising the nature of self-defence:

(i)                 Self-defence is a right.

Self-defence as a right. A state is therefore entitled to defend itself in response to an armed attack against it and/or its interests.

(ii)               Self-defence is inherent.

The right to self-defence is inherent and therefore not granted by or dependent on the whims of anyone.

(iii)             Self-defence should be necessary.

A state’s resort to use of force in self-defence must be necessary to deal with the particular threat that is faced and should be used only as a last resort.^[20] The armed attack should be either imminent or actual. Imminence entails anticipation of attack, necessitating anticipatory self-defence, such that a state may lawfully invoke self-defence in circumstances where there is evidence of further imminent attacks even if there is no specific evidence of where such an attack will take place or of the precise nature of the attack.^[21] The test of necessity is so important in warfare that even the celebrated Italian diplomat and political strategist, Niccolo Machiavelli said that, “… war is just when there’s no alternative and arms are sacred when they are your only hope.”^[22]

(iv)             Self-defence should be immediate.

A state should arise to defend itself immediately, without undue delay. Its actions should not be a mere afterthought.

(v)               Self-defence should be proportionate

Self-defence is not tantamount to a declaration of war. As such therefore, it must be proportionate to the attack sought to be repelled.^[23] Even in situations where the armed attack is just imminent and therefore merely anticipated, the force used must be proportionate to the threat faced and limited to what is necessary to deal with it.^[24] Force should not be excessive.

(vi)             Self-defence applies to both state and non-state actors.

A state’s right to self-defence covers both state and non-state actors. Its application to states is long settled. But its application to non-state actors is a relatively new phenomenon. It is submitted that it is by now reasonably clear and accepted that states have a right of self-defence against attacks by non-state actors – as reflected, for example, in U.N. Security Council Resolutions 1368 and 1373 of 2001, adopted following the terrorist attacks by Al Qaeda against the World Trade Center and elsewhere in the United States on 11 September 2001.^[25] The Security Council resolutions recognized that large-scale terrorist action could constitute an armed attack that will give rise to the right of self-defence and that force might, in certain circumstances, be used in self-defence against those who plan and perpetrate such acts and against those harboring them, if that is necessary to avert further such terrorist acts.^[26] Indeed, it was on that basis that United Kingdom forces joined the United States in military action against Al Qaeda and the Taliban in Afghanistan.^[27]

2.2.            Scope of Self-defence

(i)                 Does not cover remote threats.

Self-defence cannot be invoked to justify the use of force to mount pre-emptive strikes against threats that are remote.^[28]

(ii)               Continues until U.N. Security Council intervention.

By Article 51 of the U.N. Charter, the right to use force in self-defence continues until the Security Council has taken measures necessary to maintain international peace and security. Once the U.N. Security Council takes actions to address the problem, the state’s right of self-defence extinguishes.

(iii)             Does not cover civilian self-defence.

A state cannot invoke self-defence in response to vigilant efforts of civilians caught in armed conflict and thereby defending themselves, since civilian self-defence does not constitute direct participation in hostilities.^[29] The state’s right to self-defence is limited to attacks by armed combatants.

3.                  Conclusion

In the Westphalian world order,^[30] the right to self-defence is vital for protecting state sovereignty. States rely on self-defence to safeguard their territories from hostile activities by outsiders. Self-defence, however, is not a static concept but rather one that must be reasonable and appropriate to the threats and circumstances of the day.^[31] Consequently, I submit that much as the U.N. Charter and customary international law concern themselves with armed attacks against states, nevertheless their justifications for self-defence can (and should) be extended to new and emerging threats like cyber-attacks that are not necessarily armed, but are equally destabilizing and destructive, anyway.

 

 References

1.                  In his semi-opera, King Arthur (1691), jointly composed with Henry Purcell; quoted at http://www.notable-quotes.com/w/war_quotes.html. Accessed on 14 July 2022, at 16:44 hrs.

2.                  From openly blood thirsty and dictatorial tyrants, to covertly macabre political and administrative systems, and deadly petty rivalry between contending rulers, the world has seen it all. World War II rendered human life utterly worthless and marked the peak of human madness, as people took to ruthlessly butchering themselves on European battle fields.

3.                  International Committee of the Red Cross, ‘Self-defence’ (2022). Accessed online at https://casebook.icrc.org/glossary/self-defence, on 12 July 2022, at 19:20 hrs.

4.                  Daniel Bethlehem, “Notes and Comments: Principles Relevant to the Scope of a State’s Right of Self-Defense against an Imminent or Actual Armed Attack by Nonstate Actors” 106 AJIL (2012) 000, at 5.

5.                  International Committee of the Red Cross, supra note 3.

6.                  Daniel Bethlehem, supra note 4, at 3.

7.                  See Matthew Waxman, “The 'Caroline' Affair in the Evolving International Law of Self-Defense” (2018). Accessed online at https://www.lawfareblog.com/caroline-affair, on 15 July 2022, at 00:30 hrs.

8.                  Ibid.

9.                  Ibid.

10.              V.A.V. Andreias, “Anticipatory self-defense in international law: legal or just a construct for using force?” at 4-5.

11.              Legal Information Institute, “customary international law” (2022). Accessed online at https://www.law.cornell.edu/wex/customary_international_law, on 13 July 2022, at 03:29 hrs.

12.              Ibid.

13.              According to the Merriam-Webster Dictionary, non-refoulement is “a principle of international law providing a refugee or asylum seeker with the right to freedom from expulsion from a territory in which he or she seeks refuge or from forcible return to a country or territory where he or she faces threats to life or freedom because of race, religion, nationality, membership in a particular social group, or political opinion.”

14.              Legal Information Institute, supra note 5.

15.              Ibid.

16.              Legal Information Institute, “opinio juris (international law)” (2022). Accessed online at https://www.law.cornell.edu/wex/opinio_juris_%28international_law%29, on 14 July 2022, at 17:15 hrs.

17.              Art. 1(1) of the U.N. Charter.

18.              Art. 1(2) of the U.N. Charter.

19.              The other exception to this general rule is the responsibility to protect under which states considered it their right to intervene in the domestic affairs of other states in the following circumstances:

(i)                 the concept of humanitarian intervention, on humanitarian grounds for “purpose[s] of protecting or assisting people at risk.” See International Commission on Intervention and State Sovereignty, The Responsibility to Protect (2001), at 9;

(ii)               to prevent and punish genocide under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.

20.              Daniel Bethlehem, supra note 5, at 3.

21.              Ibid.

22.              Niccolo Machiavelli (Tim Parks (trans)), The Prince (2009), at 103.

23.              International Committee of the Red Cross, supra note 3.

24.              Daniel Bethlehem, supra note 5, at 3.

25.              Ibid., at 5.

26.              Ibid., at 3.

27.              Ibid.

28.              Ibid.

29.              International Committee of the Red Cross, supra note 3.

30.              This refers to the political and diplomatic settlement resulting in a peace treaty between the Holy Roman Emperor and the King of France and their respective Allies of 24 October 1648, codenamed the Treaty of Westphalia, which entrenched the principle of state sovereignty, under inviolable national borders.

31.              Daniel Bethlehem, supra note 5, at 3.

Offences of Misuse of Emblems in Armed Conflicts

By Bakampa Brian Baryaguma

[Dip. Law (First Class)–LDC; Cert. Oil & Gas–Mak; LLB (Hons)–Mak]

bakampasenior@gmail.com; www.huntedthinker.blogspot.ug

October 2022

1.                  Introduction

An emblem is a symbol or device that represents something.^[1] Emblems must be distinctive so that they are easily recognized. Under article 8 (l) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977 (commonly known as Additional Protocol I to the Geneva Conventions of 1949 but hereinafter referred to as “Additional Protocol I”) a, ““distinctive emblem” means the distinctive emblem of the red cross, red crescent or red lion and sun on a white ground^[2] when used for the protection of medical units and transports, or medical and religious personnel, equipment or supplies.”^[3] Emblems are intended to be universal, neutral and distinctive signs of protection, used and recognized by everyone.^[4]

International humanitarian law relies on the use of certain emblems to identify and protect certain personnel, installations, services and equipment in armed conflicts.^[5] Thus, in terms of uses, emblems are protective and indicative.^[6] Used protectively, emblems serve as a visible sign in armed conflict of the protection accorded to the entity concerned.^[7] Used indicatively, emblems are employed to identify the protected entity.^[8]

Emblems in armed conflicts are provided under the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 (commonly known as the Geneva Convention I), Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949 (commonly known as the Geneva Convention II), Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (commonly known as the Geneva Convention IV) and their Additional Protocol I. Under Article 39 of the Geneva Convention I, emblems should be displayed on the flags, armlets and on all equipment employed in the Medical Service, under the direction of the competent military authority.

2.                  Types of Emblems used in Armed Conflicts

The following emblems are recognized by the Geneva Convention I (that regulates the conduct of armed conflicts) and the Additional Protocol I:

1.                  the red cross on a white ground^[9] – recognized under Article 38 of the Geneva Convention I as the distinctive sign of the medical service of armed forces;

2.                  the red crescent^[10] – recognized under Article 38 of the Geneva Convention I;

3.                  the emblem of the United Nations – recognized under Article 38 (2) of Additional Protocol I;

4.                  the flag of truce – recognized under Article 38 (1) of Additional Protocol I;

5.                  the protective emblem of cultural property^[11] – recognized under Article 38 (1) of Additional Protocol I;

6.                  the emblems of nationality – recognized under Article 39 of Additional Protocol I. These are flags or military emblems, insignia or uniforms of neutral or other states not parties to the conflict or even those belonging to adverse parties; and

7.                  the red crystal – adopted by governments in 2005 as an additional protective emblem devoid of any national, political or religious connotation.^[12]

3.                  Prohibition of Misuse of Emblems in Armed Conflicts

Misuse of emblems is defined in international law as any use of the emblem not expressly authorized by international humanitarian law, which limits the use of the emblem to certain entities and/or persons.^[13] The Geneva Convention I and the Additional Protocol I prohibit misusing emblems in armed conflicts. The following are examples of prohibited misuse.

1.                  Article 44 of the Geneva Convention I prohibits the use of the emblem of the red cross on a white ground and the words “Red Cross”, or “Geneva Cross”, either in time of peace or in time of war, except to indicate or to protect the medical units and establishments, the personnel and material protected by the Convention and other Conventions dealing with similar matters.

2.                  Under Article 37 of Additional Protocol I, the feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other states not parties to the conflict is prohibited as acts of perfidy.

3.                  Under Article 38 (1) of Additional Protocol I, it is prohibited to make improper use of the distinctive emblem of the red cross,  red crescent or of other emblems, signs or signals provided for by the Geneva Conventions or by the Protocol itself.

4.                  Further, Article 38 (1) of the Protocol prohibits deliberate misuse in an armed conflict of other internationally recognized protective emblems, signs or signals, including the flag of truce and the protective emblem of cultural property.

5.                  Article 38 (2) of Additional Protocol I prohibits making the use of the distinctive emblem of the United Nations, except as authorized by that Organization.

6.                  Article 39 of Additional Protocol I provides prohibitions relating to emblems of nationality. Clause (1) thereof prohibits the making use, in an armed conflict, of the flags or military emblems, insignia or uniforms of neutral or other states not parties to the conflict. Clause (2) thereof prohibits the making use of the flags or military emblems, insignia or uniforms of adverse parties while engaging in attacks or in order to shield, favour, protect or impede military operations.

4.                  Offences of Misuse of Emblems in Armed Conflicts

Misuse of emblems in armed conflicts is an offence under international humanitarian law.

Under article 85 (3) (f) of Additional Protocol I, the perfidious use of recognized emblems which causes death or serious injury to body or health constitutes a grave breach of the Protocol and is a war crime under clause (5) of the article.

Misuse of emblems is also a war crime under Article 82 of the 1998 Rome Statute of the International Criminal Court (hereinafter “the Rome Statute”) that stipulates war crimes.

Clause (2) (b) of article 82 concerns, “… serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law …” that constitute war crimes, including acts of, “Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury,”^[14] and “Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law.”^[15]

Clause (2) (e) (ii) of article 82 concerns, “… serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law …” and includes acts of, “Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law”, therefore constituting a war crime.

Under article 77 (1) of the Rome Statute, a person convicted of misusing emblems in an armed conflict is liable to imprisonment not exceeding 30 years or life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. Under clause (2) thereof, in addition to imprisonment, the International Criminal Court may impose additional penalties of a fine and forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.

5.                  Conclusion

The purpose of humanitarian law is ensuring the display of more humanity in armed conflicts by protecting the lives and dignity of victims of armed conflict and other situations of violence and providing them with assistance. Distinctive emblems enable this objective by guaranteeing protection to neutral or rescue personnel on the battlefield. But emblems can be misused to achieve selfish benefits in warfare; hence the criminalization and punishment of their misuse.

References

1.                  A.S. Hornby, A.P. Cowie and A.C. Gimson, Oxford Advanced Learner’s Dictionary of Current English (1983), at 285.

2.                  It should be noted that the red lion and sun emblem on a white ground was discarded in favour of the Red Crescent effective 4 September 1980 when the Islamic Republic of Iran adopted the latter in lieu and place of the former. Iran was the only country to use the red lion and sun emblem after inheriting it from the defunct Persian Empire which had adopted the red lion and sun emblem as its own protective sign and was formally recognized by governments in 1929.

3.                  Medical personnel of armed forces are the historical beneficiaries of emblems in armed conflicts. But gradually, religious personnel, journalists on dangerous professional missions and independent international observers emerged as beneficiaries too.

4.                  International Committee of the Red Cross, ‘Emblems (Red Cross, Red Crescent & Red Crystal)’ (2022). Accessed online at https://casebook.icrc.org/glossary/emblems-red-cross-red-crescent-red-crystal, on 10 July 2022, at 04:40 hrs.

5.                  Ibid.

6.                  Ibid.

7.                  Ibid.

8.                  Ibid.

9.                  Fondly referred to as “the heraldic emblem,” this was the first emblem to come into being in 1864, after a decision of the governments attending the diplomatic conference which adopted the First Geneva Convention in that year, to the effect that a clear neutral sign was needed on the battlefield to protect medical staff and facilities. Those governments opted for a red cross on a white background, the exact reverse of the flag of Switzerland, as a compliment to Switzerland for its neutrality. The resulting symbol had the advantage of being easily produced and recognizable at a distance because of its contrasting colours. See ibid.

10.              This was adopted by the Ottoman Empire as its protective sign, serving the same purpose as the red cross, during the Russo-Turkish war, just over a decade later after the 1864 conference that adopted the red cross. Nevertheless, the Ottoman Empire still recognized and respected the red cross. See ibid.

11.              Article 16 of the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention provides for a distinctive emblem marking cultural property. Clause (1) of article 16 describes the form of the emblem, stating as follows: “The distinctive emblem of the Convention shall take the form of a shield, pointed below, persaltire blue and white (a shield consisting of a royal-blue square, one of the angles of which forms the point of the shield, and of a royal-blue triangle above the square, the space on either side being taken up by a white triangle).” Clause (2) thereof provides that, “The emblem shall be used alone, or repeated three times in a triangular formation (one shield below) …”.

12.              Since the 1990s there had been concern about respect for the neutrality of the red cross or red crescent in certain difficult conflicts. In 1992 the then president of the International Committee of the Red Cross and Red Crescent made public calls for an additional emblem consonant with popular demand. This resulted into creation of the red crystal emblem. See International Committee of the Red Cross, supra note 4.

13.              International Committee of the Red Cross, ‘Misuse (of the emblem)’ (2022). Accessed online at https://casebook.icrc.org/glossary/misuse-emblem, on 10 July 2022, at 04:52 hrs.

14.              Paragraph (vii) thereof.

15.              Paragraph (XXIV) thereof.