1.2 Two paradigms of Analysis: The LOAC vs IHRL (law enforcement)
1.2.3. The Caroline Test and Article 51 of the UN Charter
After the Second World War, delegates from fifty one states drafted the UN Charter, their main objective: to protect succeeding generations from the afflictions of war.123 As, already noted, this charter established a strict principle under Article 2(4) that obliged states to 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, except the use of force is in exercise of the right under Article 51 UN Charter against anticipated armed attack as described above.
The anticipatory self-defence doctrine was first established under the oft-cited Caroline Case.124 In the early nineteenth century, an anti-British insurrection took place in Canada which was at the time still a British colony. The US and Great Britain were not in conflict at the time, however, the Caroline, a ship owned by US nationals was allegedly providing assistance to the rebels.125 At dusk on 29th December 1837, while the ship was moored on the US side of the Niagara River, some British soldiers crossed the river, boarded the ship, killed several U.S. nationals; set fire to the ship, and sent the vessel over Niagara Falls. The British claimed that they were acting in self-defence, but after some deliberations with the American Secretary of
121
P. Alston, ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Execution Study on Targeted Killings [2006] 33, U.N. Doc. A/HRC/14/24/Add 6.
122 D. Kretzmer, ‘The Inherent Right to Self-Defence and Proportionality in Jus ad-bellum.’ [2013] 24 (1) EJIL P239.
123
The Preamble, UN Charter, 1945.
124T. Mori, ‘Origins of the Rights of Self-Defence in International Law: From the Caroline Incident to the United Nations Charter.’ [2019] 36 (1) The Austrian Year Book of International Law P 245; Moore, Digest, II, 24-30, 409- 14; VI, 261-62; VII, 919-20.
125 Ibid
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State Daniel Webster, (as he then was) the British government apologised for their actions.126 This led to the 1842 Webster-Ashburton Treaty with the British North American colonies.127 Nevertheless, over the course of diplomatic communications between the US and Britain, two principal criteria for permissible self-defence—including pre-emptive self-defence—were articulated:
1. The use of force must be necessary because the threat is imminent and, thus, pursuing peaceful alternatives is not an option (necessity); 128
2. The response must be proportionate to the threat (proportionality). 129
The terms ‘anticipatory self-defence’, ‘pre-emptive self-defence’ and ‘pre-emption’ traditionally refer to the right of a state to strike first in self-defence when faced with imminent attack.130
As Webster explained in a letter to Lord Ashburton, who, at the time, was a special British representative to Washington; ‘in order for Britain’s claim of self-defence to succeed it must be demonstrated that the necessity of self-defence must be instant, overwhelming, and leaving no choice of means, and no moment of deliberation.’131
This has come to be referred to as ‘instant and overwhelming necessity’ or the ‘imminent threat doctrine’. In other words, the exercise of such right of self-defence from imminent attack was a ‘last resort.’132 Killings in self-defence are considered necessary under international law only if there are no other non-lethal means of preventing the threat to human lives. It was upon this concept that the Caroline test was formed as a prerequisite for exercising the right to strike first in self defence.133
126
Mori Supra P 248
127 Available at: http://www.ehow.com/about_6382299_definition-imminent-threat.html [accessed on 28/11/15] 128British-American Diplomacy. ‘The Caroline Case’ Available at: http://avalon.law.yale.edu/19th_century/br- 1842d.asp#web2 [Accessed on 19/02/18];T. B. Earle, ‘Transatlantic Diplomacy, North Atlantic Environments, and
the Fisheries Dispute of 1852.’ [2018] 23 (4) Environmental History, P775.
129 Ibid
130 M.C. Waxman, ‘The Caroline Affair in the Evolving International Law of Self-Defense.’ (2018), The LawFare
Book Review, P2.
131 Ibid 132
B. G. Chow, ‘Space Arms Control: A Hybrid Approach.’ [2018] 12(2) Strategic Studies Quarterly, P107. 133 Ibid
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This test came to be accepted as part of customary international law.134 The notion of self- defence was acknowledged prior to this, but it was the test that established specific criteria by which it could be determined whether there had been a legitimate exercise of the right of self defence from imminent attack.135 Thus, if an individual or a state can demonstrate necessity- that the opposing party was about to engage in an armed attack- and act proportionately, premeditated self-defence in the form of a counter attack would be deemed lawful.136 The problems with establishing imminent threat, in practice, are a subject for debate in chapter two of this thesis. It seems though that the recognition of the problems has led the UNSC to approve of targeted killings.
In the exercise of the right of self-defence under article 51 of the UN Charter, the Resolutions 1368 and 1373 permit states to take necessary steps towards preventing future terrorist attacks.137The UNSC has ultimate responsibility on matters of international peace and security and has to be informed of any measures taken in self-defence; according to Article 24 of the UN Charter, the Security Council is the main body responsible for the maintenance of international peace and security138. The UN charter permits both application of force authorized by the Security Council and force exercised in self-defence.139 Under Article 39, the Council is empowered to determine acts that constitute a “threat to peace, breach of peace, or an act of aggression”. If the Security Council so determines, it can authorize the use of force against the
134
Chow Supra P 118.
135 J. Brunnée, et al, ‘Self-Defence Against Non-State Actors: Are Powerful States Willing But Unable To Change
International Law?’ [2018] 67(2) International & Comparative Law Quarterly, P265.
136 Ibid 137
UN doc. S/RES/1368 [2001], SC Res. 1368 [2001] of 12 September 2001; UN doc. S/RES/1373 (2001), SC Res. 1373 (2001) of 28 September 2003; Also available at: https://www.un.org/press/en/2001/sc7158.doc.htm [accessed on 30/06/18]; Article 42 and 51, Charter of the UN
138 Article 39, 40 UN Charter 139
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offending state under Article 42.140 Thus, the UNSC reserves the right to limit use of force in self-defence.
One fact worthy of note is that the UNSC has not prohibited targeted killing in general and the use of drones in particular. This suggests that international law approves of targeted killing as a necessary counter-terrorism strategy and drones as permissible weapons for carrying out the killings. Whilst this implied permission to use targeted killing raises contention in the literature, it is argued that the absence of discussions on terrorism related conflicts in the laws that regulate the use of force is what causes debates. Although the UNSC perceives that the new threat in terrorism may require an active counter terrorism approach like targeted killings, legislators are slow to endorse targeted killings. The reason for this will be explored in the hermeneutic discussions gleaned from several schools of thought in chapter three of this thesis.
The US has continued to launch attacks aimed at eliminating suspected terrorists since 2004.141 However, terrorism continues to such an extent that it casts doubt on the effectiveness of targeted killing counterterrorism strategy. On the one hand, it is strongly recommended in this thesis that targeted killing be seen as a practical counterterrorism strategy albeit unlawful. On the other hand, it is the argument that targeted killing is effective that remains debatable, giving rise to a thorough evaluation of the effectiveness of targeted killing in chapter five of this thesis.
1.3 Overview of the Literature: (Theoretical Underpinnings and Original Contribution