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.
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.
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