The Concept of Self-Defence in International Law: Analytical Essay

The precise scope of the right of self-defence in international law is open to debate. For example, it may be possible to distinguish between a broad approach to self-defence, based on the customary right of self-defence, and a more restrictive approach, based on the wording of Articles 2(4) and 51 of the UN Charter read together.

Critically analyse different approaches to self-defence under international law with reference to relevant laws, cases and case studies.

The concept of self-defence can be divided into two different approaches. The first being the broad approach which is defined effectively by the Criminal Law Act 1967 as it states that ‘a person using such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.’[footnoteRef:1] The second being the restrictive approach which is where the attacking of a nation is last resort and is only possible if first an armed attacked occurred and then a similar response must adhere as shown in the UN Charter. With both approaches shows a different response to self-defence, throughout a comparison of both the strengths and weaknesses will be assessed with a conclusion to outline the effectiveness of both. [1: Criminal Law Act 1967, Chapter 58, section 3(1)]

To understand the broad approach to self-defence a historical timeline on how international conflicts were dealt with before the UN Charter was ratified must be explained. In the nineteenth and early twentieth centuries the theory and practice for the use of force begun with that of the Just War doctrine (otherwise known as Bellum justum). When discussing the theory there are two key parts. The first being Jus ad Bellum meaning ‘when it is right to go to war’. The second being Jus in Bello meaning ‘how the war is to be conducted’. These two aspects together established for many years what is seen as the just cause. It was believed that a state could be acting in a legal manner if it had a just cause, no matter what had actually been done.[footnoteRef:2] The famous philosopher St Augustine stated that ‘a just war is to be described as one that avenges wrongs when a nation or state has to be punished for refusing to make amends for wrongs inflicted by its subjects or to restore what has been seized unjustly’.[footnoteRef:3] The concept was further supported by the philosopher Aquinas in his book Summa Theologica[footnoteRef:4] which states ’those who are attacked, should be attacked because they deserve it on account of some fault’.[footnoteRef:5] However, just cause was not the only condition to merit when it is morally acceptable to go to war. There were five other conditions. The first two being the right authority and right intention as also established by the early roman philosophers as previously mentioned. Then later Francisco Suarez and Francisco De Vittoria added that war must also be the last resort, have a reasonable chance of success and must be proportionate to actions committed. Furthermore, when establishing the jus in Bello three rules were applied. These being that it must be proportionate to the enemies force; no civilians can be directly targeted and to use the most minimum force necessary to defeat the enemy.[footnoteRef:6] This shows even from the time of the roman empire even religious philosophers believed that there were on occasion reasons to go to war. That being if it was for self-defence but in a broad manner allowing for a pre-emptive approach to self-defence to be allowed. The JWT came with four strengths these being: It set out clear moral guidelines; changes how a soldier or politician may behave due to being countable to the International War Crimes Tribunal (E.g. Bosnian war leaders)[footnoteRef:7]; it is realistic as sometimes a pre-emptive approach is necessary to protect the innocent and lastly, it is universal and has formed the fundamental basics for the UN charter. Although, the JWT came with three weaknesses. Firstly, what is considered as justice depends on the perception of the state as it is relative. For example, the introduction of the Guantanamo Bay detention centre that holds people against Article 6 of the Human Right Act[footnoteRef:8] to fight the US war on terrorism. Secondly, the conditions are ineffective as all wars involve the deaths of the innocent as it is sometimes impossible to establish who the enemy is and who is innocent. As shown with the bombings in Iraq by the UK[footnoteRef:9]. Lastly, it is unfair to say that having no state, therefore, excludes themselves from the ethics of JWT as it is believed to have no legitimate authority as this is counterintuitive with the existence of terrorism. An example of this unfairness would be that Palestinians would be unable to use JWT as a result of the brutal conflict with Syria.[footnoteRef:10] [2: Textbook on International Law, Martin Dixon, (7th Edition, Pg 322)] [3: http://www.bbc.co.uk/ethics/war/just/cause_1.shtml] [4: http://www.documentacatholicaomnia.eu/03d/1225-1274,_Thomas_Aquinas,_Summa_Theologiae_%5B1%5D,_EN.pdf] [5: A2 Ethics] [6: AS Ethics Revision Guide for OCR, Peter Baron, (2nd Edition, Pg 77- 80) ] [7: https://news.un.org/en/story/2019/03/1035051] [8: Human Rights Act 1998, Article 6] [9: https://www.bbc.co.uk/news/uk-51900898] [10: https://blogs.timesofisrael.com/why-there-is-no-palestinian-state/]

Following this period of legal positivism, changes occurred. As due to a clash in Natural Law and Just War traditions moral issues came about. These issues came about through the Hobbesian tradition in the early 19th century. Jean Bodin and Thomas Hobbes created this doctrine of sovereignty. It was formed and documented with the desire to set up a legitimate authority which cannot be challenged as the law of the sovereignty is the actual law and they must determine a public order. Hobbes goes on further to say that citizens of a state reserve the freedom to disobey the government’s commands. This is only on the occasion that a member of that state is simply using a right of self-defence against the sovereign as it is abuses power. This shows that those whose lives are in danger are thereby able to abuse those who threaten them. This also extends internationally as Hobbes would agree to a pre-emptive attack if that a state has breached another sovereign state authority. This change originating from Hobbes it shows that a broad approach to self-defence is more beneficial as in cases in which their families or even their honour is at risk a more pre-emptive approach is needed. [footnoteRef:11] Furthermore, Hobbes ideology resolved issues with the original broad approach to self-defence with the weaknesses in the JWT. As it accepts that war will end with death, whilst still giving the power to those in charge of the capability to decide on international issues. But this theory is also ineffective as Hobbes would state that a nation could disobey an international organisation if that organisation had abused its power. For example, if a country attacked the United Kingdom as the international organisation does not ‘maintain international peace and security’ then the United Kingdom can disobey and attack without any discussions. This is clearly contradictory as a sovereign can not both be the ‘actual law’ and disobeyed as it would result in anarchy. [footnoteRef:12] [11: https://plato.stanford.edu/entries/hobbes-moral/] [12: https://www.un.org/securitycouncil/content/what-security-council]

A restrictive approach to self-defence is where, as previously mentioned a country may only act in self-defence if there has been a certain armed attack to the nation. This is best described by combining both Article 2 and Article 51 of the UN Charter. Article 2 states 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’.[footnoteRef:13] As well as Article 51 stating ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence 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’.[footnoteRef:14] [13: U.N. Charter art 2, para 4, 1996] [14: U.N. Charter art 51, 1996]

In 1837 an incident happened that changed the legal framework on how the self-defence is approached when facing international conflicts. This was when an American ship that was being used by Canadian rebels. To harass the British colonial administration in Canada by supplying men and material to the armed fighters. When the ship was moored in an American port close to the border, it was attacked by the British military and destroyed. The legality of this was then questioned when the British government tried to get released one of the men that were arrested for the attack. The name of this ship was the Caroline, which later formed the legislative writing (called the Caroline case.) [footnoteRef:15] Sir Daniel Webster reported back that the British government will have to provide evidence on how it acted in self-defence. Believing that as the United Kingdom was not in any danger of an ‘armed attack’ and thereby did not have to act in anticipatory self- defence. The ruling applied is that ‘there must be a necessity of self-defence which was instant, overwhelming, leaving no choice of means and no moment for deliberation’. This ruling was used in the International Military Tribunal at Nuremberg and Tokyo.[footnoteRef:16] On the other hand, in modern-day International Law, the principle used in the Caroline case has flaws. This is as with the wording of ‘overwhelming’ and ‘no moment for deliberation’ amongst others are ineffective in modern ages. This is as with the development of volatile missiles, that could damage the whole earth with a click of a button. Fears start to accumulate resulting in those in power to act in a more overwhelmed state a lot quicker.[footnoteRef:17] The Caroline principle strengths consist of the fact that it is very simple to understand. It does not allow for a pre-emptive attack which is beneficial as it will potentially calm down tensions between countries which ultimately reduces the number of deaths. Although, there are negatives as the principle is useless when nations have to deal with modern-day international law situations with rebels or terrorists where there is no clear armed attack. As with the more complex case with cyber warfare as this would not merit an armed attack but would need for pre-emptive force to fight against such situations. [15: Cases & Materials on International Law, Martin Dixon, Robert McCoriodale and Sarah Williams,(6th Edition, Pg 601) ] [16: https://history.state.gov/milestones/1945-1952/nuremberg] [17: Self-defence in International and Criminal Law: The Doctrine of Imminence, Onder Bakircioglu, Pg 130-140 ]

Following from these weaknesses, after World War 1 in 1919 there was then, a change in the structure of International Law was formed. This structure being the use of a collective security as it was seen as more favourable in the attempt of stopping the sheer number of casualties that was a result of the war. The Paris Peace Conference ratified the new Treaty of Versailles. With first negotiations mentioning covenants establishing a new international organisation to help tackle international issues. This was called the League of Nations with its first meeting taking place in 1920. The League aims of this new structure were to be the international political institution that goes through the process of de-escalating conflicts between countries in a peaceful manner. A system was formed by the league where it was planned that an obligatory period of time would be given to the international organisation to step in between the countries at conflict in the hope of stopping a war in whole. This was written into legislation when the Covenant of the League of Nations was formed, this is shown in Article 16 where it is stated. ‘Should any Member of the League resort to war in disregard of its covenants it shall be deemed to have committed an act of war against all other Members of the League, which hereby undertake immediately to subject it to the severance of all trade or financial relations and to prohibit all relations.’ [footnoteRef:18] Then in 1928 a pact was arranged with the USA also included. It was called ‘the Kellog- Briand Pact’ with a total of 63 state signatures.[footnoteRef:19] This all in the goal of forming a collective security that would defend nations from such atrocities from happening again. However, between the 1920s to 1930s the league failed in its peacekeeping agenda as the rise of World War Two started to commence. Clearly, this shows a change in the approach to self-defence. As the league uses the collective security as a new form of self-defence. The concept of collective security is effective as it acts as a deterrent to nations thinking of attacking one another and generally preventing world leaders from participating in international conflict. Although, this type of security can be seen as too restrictive when approaching matters of international self- defence. This is due to the fact that for a nation to claim that a wrongdoing has been undertaken and self-defence is needed. The UN Security Council must be contacted first, then they must determine who the attacker is and who is being attacked. This all takes a lot of time which is not effective when dealing with expanding international tensions between nations. Also, it is clear that nations use a more self-determinism approach for the national interest as growth will sometimes overbear the need to have an international peace organisation due to nations having greed for more. [18: https://history.state.gov/historicaldocuments/frus1919Parisv13/ch10subch1] [19: https://www.britannica.com/event/Kellogg-Briand-Pact]

Whilst the World War Two was ongoing president Roosevelt had an agenda to form a collective security. This security would help in promoting and protecting the Roosevelts vision of the Four Freedoms. The Four Freedoms were the freedom of thought, freedom of worship, freedom from want, and freedom from fear. This view was vital in forming the fundamentals of the current international legislation. The new organisation was formed under the name, the United Nations. It was introduced in 1945, along with the signing of the UN charter. This was done to maintain international peace and security. Also, to develop friendly relations among nations, promote social progress and better living standards and human rights as mentioned previously. [footnoteRef:20] This shows that the UN has grown and expanded to benefit those that are a member of it. This is evidential in the strict restrictions that are now put on self-defence as the organisations have the power to deter nations from potential risks that follow from countries using self- determinism when facing international conflicts. Furthermore, as previously mentioned with the wording of Article 2 and 51 of the UN charter a pre-emptive attack is not permitted which thereby reduces the amount of deaths. Although, the UN Charter is ineffective when dealing with self-defence as it has many weaknesses, due to its restrictive approach. As the UN vaguely describes in Article 51 Chapter 7, what exactly constitutes for it to be declared as an armed attack. This is a crucial factor that should be easy to determine but the Charter fails to achieve. Furthermore, the UN is unfair in dealing with international matters. As the Security Council who enforce the peacekeeping missions are not elected in a fair manner. The council is biased towards its permanent members these being the United Kingdom, United States, China, France and Russia. This is as they get a certain ability to veto matters that affect their national interests. This is contradictory to the peacekeeping of International matters for countries that are not permanent members. [20: https://www.un.org/un70/en/content/history/index.html]

To conclude, the broader approach and the restrictive approach are different when dealing with self-defence on an international scale. The main difference being the fact that a broad approach allows for a pre-emptive attack whereas a restrictive attack would not as mentioned throughout. Through the developed research that was undertaken, it is believed that a broader approach to international self-defence is more beneficial as evidentially shown throughout. However, it also believed that collective security is a concept that also is effective and should further be used alongside a broad approach. As mentioned it is an effective instrument to deterrent world leaders from starting conflicts. The UN should change the charter to a more understanding broader version that allows for the newer challenges in international law to be tackled.

Bibliography

Acts

1. Criminal Law Act 1967, Chapter 58, section 3(1)
2. Human Rights Act 1998, Article 6
3. U.N. Charter art 2, para 4, 1996
4. U.N. Charter art 51, 1996

Books

1. Cases & Materials on International Law, Martin Dixon, Robert McCoriodale and Sarah Williams,(6th Edition, Pg 601)
2. Self-defence in International and Criminal Law: The Doctrine of Imminence, Onder Bakircioglu, Pg 130-140
3. Textbook on International Law, Martin Dixon, (7th Edition, Pg 322)
4. A2 Ethics
5. AS Ethics Revision Guide for OCR, Peter Baron, (2nd Edition, Pg 77- 80)

Websites

1. http://www.bbc.co.uk/ethics/war/just/cause_1.shtml
2. https://www.bbc.co.uk/news/uk-51900898
3. https://blogs.timesofisrael.com/why-there-is-no-palestinian-state/
4. https://www.britannica.com/event/Kellogg-Briand-Pact
5. http://www.documentacatholicaomnia.eu/03d/1225-1274,_Thomas_Aquinas,_Summa_Theologiae_%5B1%5D,_EN.pdf
6. https://history.state.gov/historicaldocuments/frus1919Parisv13/ch10subch1
7. https://history.state.gov/milestones/1945-1952/nuremberg
8. https://news.un.org/en/story/2019/03/1035051
9. https://plato.stanford.edu/entries/hobbes-moral/
10. https://www.un.org/un70/en/content/history/index.html
11. https://www.un.org/securitycouncil/content/what-security-council