An evolving concept of self-defence?

Article 51 of the UN Charter protects the right of states to use force in self- defence:

‘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 the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.’

Under the modern jus contra bellum, the only permissible exceptions to the prohibition of the use of force by states are cases of self-defence, and in terms of Security Council action under Chapter VII of the UN Charter.209 Both individual state conduct and collective security measures210 can be viewed as permissible exceptions to the prohibition of the use of force. In the Legality of the Threat or

Use of Nuclear Weapons case (referred to above), the ICJ seemed to link the ‘right

to self-defence’ of every state to a rather high threshold, namely when the ‘survival’ of the state is at stake. The Court stated:

‘[The] Court cannot lose sight of the fundamental right of every State to survival, and thus its right to resort to self-defence, in accordance with Article 51 of the [UN] Charter, when its survival is at stake.’211

209 _{For a detailed discussion, see Yoram Dinstein (War Aggression and Self-Defence) (supra) 175-325.} 210 _{See also Ch 1 supra.}

The generally accepted position, however, seems to be that self-defence is available to states, not only in the most drastic instances when the very survival of the state is at stake, but indeed more broadly speaking when the rights of the state are violated.212 The analogy with inter-personal self-defence (which is a well- established notion under domestic criminal law of virtually all legal systems) as well as notions such as the ‘Just War theory’, clearly underpin the modern international law concept of self-defence. One can even recognise elements of the modern (international law) notion of self-defence in older (political) doctrines like those of raison d’état and state-interest, in terms of which the self-preservation of the state was paramount.213 _{But it is important to note the shift from doctrines like}

raison d’état and Just War (in terms of which states sought to use force as a means

to advance interests), to self-defence under the modern jus contra bellum, where the use of force is an exception (employed to defend the rights of the state under international law).214 But even this more limited scope of the modern right of states to use force in self-defence, need to be carefully considered.

Article 51 of the UN Charter does not define ‘armed attack’. It is generally accepted that the customary notion of self-defence is broader than that implied by Article 51. States should be allowed to use force in self-defence when the attack is

imminent, but publicists like Alexandrov pointed out that the use of force as part

of preventive or pre-emptive actions are not justified.215 _{Albrecht Randelzhofer}

212 _{Yoram Dinstein (War Aggression and Self-Defence) (supra) 175-176.}

213 _{See in general Richard Tuck The Rights of War and Peace – Political thought and the International order}

from Grotius to Kant (1999) Oxford University Press, Oxford 3-6.

214 _{Yoram Dinstein (War Aggression and Self-Defence) (supra) 176.}

215 _{SA Alexandrov Self-Defense Against the Use of Force in International Law (1996) Kluwer Law International,}

The Hague, 165. The author refers to a number of instances where force were used not in self-defence, but as preventive or pre-emptive actions: Israel on the Sinai Peninsula (1956), Israel in Beirut (1968), Israel against other targets in Lebanon (1966-1974, 1975, 1981, 1982), South Africa’s actions against Angola, Botswana and

noted that Articles 51 and 2(4) of the UN Charter do not correspond exactly in terms of scope. Thus, ‘not every use of force contrary to [Article] 2(4) may be responded to with armed self-defence.’ The rather startling conclusion is that ‘any State affected by another State’s unlawful use of force not reaching the threshold of an “armed attack”, is bound, if not exactly to endure the violation, then at least to respond only by means falling short of the use or threat of force, which are thus often totally ineffective.’216

It falls beyond the scope of this Chapter, and is furthermore not the aim of this dissertation, to fully explore the meaning and scope of the right to self-defence under modern international law. The aim here is rather to highlight the contentious nature of this right, and to use a particularly controversial phenomenon (the ‘war on terror’) to illustrate that the right to self-defence is indeed a notion in flux. This has certain implications for the debate on a suitable definition of aggression (for purposes of individual criminal liability) and of conditions for the exercise of jurisdiction by the ICC over this crime.217

2.5.1.1 The use of force and the ‘war on terror(ism)’

One of the most profound challenges to the dual requirements of ‘necessity’ and ‘proportionality’,218 _{as well as the condition of ‘imminent threat’, underlying the}

right to self-defence in terms of Article 51 of the UN Charter, came about as a result of the spectacular attacks on New York and Washington DC on 11 September

other states in the region (1976-1984) (many of these were condemned by the UN SC), Turkey’s use of force in Northern Iraq (1995).

216 _{Albrecht Randelzhofer ‘Article 51’ in Bruno Simma (Charter of the United Nations Vol I) (supra) 790.} 217 _{See Ch 6, 7 and 8 infra.}

2001 that killed approximately 3000 people. The immediate response of the US was in the form of Operation Enduring Freedom, by which the US invaded Afghanistan on the basis that the Taliban-regime — at the time in power in that state — harboured the Al Qaeda terrorists responsible for the planning of the attacks. The US removed the Taliban regime and started a military campaign to destroy Al Qaeda bases in Afghanistan. The legal basis for the US invasion of Afghanistan was thus presented as a classical case of self-defence, in accordance with the relevant provisions of the UN Charter, notably Article 51.219 UN Security Council Resolution 1368 (2001) of 12 September 2001, together with Resolution 1373, stated that the terrorist attacks constituted a threat to international peace and security. Both Resolutions confirmed the ‘inherent right of individual or collective self- defence’.220 But this initial use of force in self-defence was only the first chapter in the bigger ‘War on Terrorism’.221

The National Security Strategy of the United States of 2002 — published in the wake of the 11 September 2001 attacks — linked the phenomenon of international

219 _{For views on the justification for the US invasion of Afghanistan in the wake of the 11 Sept 2001 attacks, see}

Christopher Bertram ‘Afghanistan: A just intervention’ 6(2) Imprints (2002) (http://info.bris.ac.uk/~plcdib/imprints/bertram.html); Darrel Moellendorf ‘Is the War in Afghanistan just?’ Vol 6 (2) Imprints (2002) (http://info.bris.ac.uk/~plcdib/imprints/moellendorf.html); Garth Abraham and Kevin Hopkins ‘Bombing for humanity: The American response to the 11 September attacks and the plea of self-defence’ SALJ 783-801; Michael Reisman ‘Aftershocks: Reflections on the implications of September 11’ 6

Yale Human Rights & Development Law Journal (2003) 81-102.

220 _{UN SC Res 1368 (2001); UN SC Res 1373 (2001).}

221 _{The rhetoric and public discourse on these attacks reveal the political context of the later justifications for}

the notion of pre-emptive strikes against supposed terrorist targets and states that harbour terrorists, and also on states that allegedly possess weapons of mass destruction. For analyses of the rhetoric, see Parag Khanna ‘Terrorism as War’ 121 Policy Review (2003) (www.policyreview.org/oct03/khanna_print.html); Grenville Byford ‘The wrong war’ Foreign Affairs Jul/Aug 2002 (www.foreignaffairs.org/Sea.../printable_fulltext.asp?i=20020701FAEssay8518.xm). Although the Security Council did not call the terrorist attacks of 11 Sep 2001 ‘acts of aggression’, the Council declared that ‘acts of international terrorism constitute one of the most serious threats to international peace and security in the twenty-first century’. See UN SC Res 1377 (2001) Annex.

terrorism with the risk of these terrorists acquiring ‘weapons of mass destruction’. Furthermore, the National Security Strategy also identified the risk posed by so- called ‘rogue states’: States that not only harbour terrorists; but states that are themselves interested in acquiring weapons of mass destruction, thus posing a threat to the security interests of the US. In response to these threats, the National Security Strategy of 2002 states:

‘The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction – and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-emptively.’222

Since the drafters of the National Security Strategy was no doubt aware that more states would want to assert the right to use force pre-emptively, the document also made reference to aggression. Pre-emptive strikes should, according to the document, not serve as pretexts for aggression.223 In 2006 the US restated its assertion of the right to use force pre-emptively:

‘Taking action [against enemy state and non-state actors which possess weapons of mass destruction] need not involve military force. Our strong preference and common practice is to address proliferation concerns through international diplomacy, in concert with key allies and regional partners. If necessary, however, under long-standing principles of self-defence, we do not rule out the use of force before attacks occur, even if uncertainty remains as to the time and place of the enemy’s attack. When the consequences of an attack with [weapons of mass destruction] are potentially so devastating, we cannot afford to stand idly by as

222 _{The National Security Strategy of the United States of America, 17 Sept 2002, 15.} 223 _{National Security Strategy 2002 (supra), 15.}

grave dangers materialize. This is the principle and logic of preemption. The place of preemption in our national security strategy remains the same. We will always proceed deliberately, weighing the consequences of our actions. The reasons for our actions will be clear, the force measured, and the cause just.’224

In terms of its stated policy to strike pre-emptively against (rogue) states that harbour terrorists and/or possess weapons of mass destruction (thus posing a threat) US and allied forces attacked Iraq in 2003. The reason for this was that US President Bush believed (and his Vice-President, Dick Cheney, seemed to be convinced) that Iraq was somehow also involved in the 11 September 2001 attacks on US cities. This, together with Iraq’s alleged possession of weapons of mass destruction (including biological and chemical weapons, and an alleged programme to acquire nuclear weapons) formed the rationale for the US’s decision to go to war with Iraq, even without Security Council authorization.225 _{Britain supported the US}

in this, and put forward the same reasons as casus belli.226 _{By mid 2003 the}

government of President Saddam Hussein was removed from power and US and allied forces occupied the whole of Iraq.227

224 _{The National Security Strategy of the United States of America 16 March 2006, 23.}

225 _{See in general Bob Woodward Plan of Attack (2004) Simon & Schuster, New York, for an account of the Bush}

Administration’s planning for the invasion of Iraq, and of the reasoning behind the invasion in 2003. See also transcript of Pres Bush’s State of the Union Address of 2003, published in The New York Times 29 Jan 2003 (www.nytimes.com/2003/01/29/).

226 _{For the UK, see Iraq’s Weapons of Mass Destruction – The Assessment of the British Government ID 114567}

9/2002 776073, The Stationary Office (www.official-documents.co.uk). This document not only mentions the alleged weapons of mass destruction, it also refers (albeit as an afterthought) to reports of human rights abuses by the regime of Saddam Hussein.

227 _{For an historical and international law account of the Iraq-war of 2003, see in general Lori Fisler Damrosch}

and Bernard H Oxman (eds) Future Implications of the Iraq Conflict (2003) The American Society of International Law, Washington DC.

The assertion by the US of the right to use force pre-emptively (that is, not in cases of self-defence or as a collective security measure) came in for strong criticism.228 In the case of pre-emptive self-defence, the problem is articulated by Van der Vyver as follows: ‘Article 51 of the UN Charter authorises individual and collective self-defence “if an armed attack occurs”. Would, therefore, pre-emptive strikes by a country under the threat of attack be lawful?’229 _{Van der Vyver uses the concepts}

‘anticipatory self-defence’ and ‘pre-emptive strikes/action’ interchangeably. The way the author formulates his observations in this regard seems as if he regards ‘pre-emptive strikes/action’ as manifestations of or at least part of ‘anticipatory self-defence’. The author has a restrictive view of anticipatory self-defence:

‘Anticipatory self-defence must … remain confined to “situations in which the imminence of an attack is so clear and the danger so great that defensive action is essential for self-preservation”.’230

The use of armed force against Iraq in 2003 went beyond anticipatory self-defence. The invasion was furthermore not authorised by the UN Security Council (US arguments to this effect notwithstanding231) as a Chapter VII collective security measure. This distinguishes the Iraq invasion from the use of armed force against and the eventual removal of the Taliban-regime of Afghanistan in the wake of the 11 September 2001 attacks on US cities.232 _{Rhetorically, the phrases ‘war on terror’}

228 _{For a critique of the 2002 National Security Strategy, see Stanley Hoffmann ‘America goes backward’ Vol 50}

(10) The New York Review of Books, 12 Jun 2003 (www.nybooks.com/articles/16350).

229 _{Johan Van der Vyver (Ius contra bellum) (supra) 4.} 230 _{Johan Van der Vyver (Ius contra bellum) (supra) 5.}

231 _{Ruth Wedgwood argued that the US had the necessary legal basis (as presented by UN SC resolutions on}

weapons inspections in Iraq) to invade Iraq, after the latter did not adhere to relevant resolutions on its weapons programme. See Ruth Wedgwood ‘The fall of Saddam Hussein: Security Council mandates and Preemptive Self-Defense’ 97 AJIL (2003) 577.

232 _{For this argument, see Stephen P Marks ‘Branding the “War on Terrorism”: Is there a “New Paradigm” of}

and ‘war on terrorism’ became powerful instruments in the international media and in domestic and international political discourse. From a legal perspective, the question is whether the ‘war on terror/terrorism’ presents a paradigmatic shift from the traditional jus contra bellum as embodied in the UN Charter, notably Articles 2(4), 51 and the powers of the Security Council under Chapter VII. The High-level Panel (convened by the Security Council) drew a distinction between ‘the right to intervene in the event of an imminent or proximate threat’ (anticipatory self-defence) and ‘the right to intervene based on pure threat’ (preventive self-defence). The Panel concluded that international law recognises anticipatory self-defence, but on condition that the act of self-defence must be proportional to the imminent or proximate threat. The Panel indicated that ‘preventive self-defence’ would normally be regarded as contrary to international law. However, in certain circumstances (the Panel used the example of terrorists armed with a nuclear weapon) a state that would want to use preventive force, can put arguments before the Security Council which can authorise the necessary action.233

In light of the above, it is submitted that, although the National Security Strategy (and, indeed, practice) of the most powerful state on earth might present a new paradigm of justification for the use of force, ‘terrorism’ should in principle be treated as a criminal phenomenon234 _{and not necessarily as an attack by a state}

233 _{‘A more secure world: Our shared responsibility. Report of the Secretary-General’s High-level Panel on}

Threats, Challenges and Change’ UN Doc A/59/565, 1 Dec 2004. See further discussion of the report by Mireille Delmas-Marty ‘The Paradigm of the War on Crime – Legitimating inhuman treatment?’ 5 JICJ (2007) 584-598, in particular 593-594.

234 _{It is difficult to define international terrorism. A proposed definition is: ‘”Terrrorism” [is] “an ideologically}

strategy of internationally proscribed violence designed to inspire terror within a particular segment of a given society in order to achieve a power-outcome or to propagandize a claim or grievance, irrespective of whether

(although the acts of terrorism can be committed on behalf of or with the backing of a state). The use of armed force (even when it is primarily aimed at terrorists) as against Afghanistan and Iraq, should remain firmly within the paradigm of the UN Charter prohibition of the use of armed force. The UN Charter does not (as yet) provide for individual or collective self-defence and collective security measures beyond Article 51, and measures sanctioned by the Security Council under Chapter VII.235

By 2004 it became clear that the two main reasons for the US and its allies’ invasion of Iraq — weapons of mass destruction and Iraq’s alleged links with Al Qaeda terrorists — were without factual basis. President Bush himself admitted that there was no evidence to support the initial theory that Saddam Hussein had links to the 11 September 2001 attacks. It also became clear that Iraq did not possess weapons of mass destruction, and even the alternative rationale of going to war on the basis that Iraq had ‘programmes’ to develop weapons of mass destruction, turned out to be rather weak.236

In the absence of the two main reasons for going to war, the US and the UK started to present a somewhat ex post facto rationale for the invasion, namely that the invasion was justified, because it rid Iraq of the oppressive regime of Saddam

its perpetrators are acting for and on behalf of themselves, or on behalf of a state.”’ See Cherif Bassiouni (International Criminal Law Vol I) (supra) 777-778.

235 _{See also Stephen Marks (Branding the “War on Terrorism”) (supra).}

236 _{Christopher Scheer, Robert Scheer & Lakshmi Chaudhry ‘Bush’s lies about Iraq’ The Nation 29 March 2004}

Hussein. This justification seemed more akin to ‘humanitarian intervention’ than to self-defence.237