i
ANTICIPATORY SELF-DEFENSE: PERPLEXING ISSUES CONCERNING THE ICC JURISDICTION IN REGARD TO THE CRIME OF AGGRESSION
A thesis submitted to the Amsterdam Graduate Law School at the University of Amsterdam (UvA) in partial fulfilment of academic requirements for the award of a Master Degree in International and European Law with the Title of Master of Laws (LLM)
Supervisor: Prof H.G. van der Wilt
ii DEDICATION
To my beloved daughters and sons; To my lovely late wife Claudine; To my sisters and brothers;
To all the creative thinkers and researchers; I dedicate this work
iii ACKNOWLEDGEMENT
This Thesis is a stage of achievement that leaves me highly grateful to the Netherlands Defence Forces in co-operation with the Rwanda Defence ministry for the financial and moral support to the realization of my dreams. To them, I salute!
Sincere gratitude goes to Prof H.G. van der Wilt who committed his time with good humour to guide me through this demanding work. He is a mentor and a cheerleader.
Much appreciation is owed to the entire administration of the University of Amsterdam (UvA) for the contribution for the ample knowledge obtained.
Much appreciation goes to Mrs. Heather Kurzbauer who sacrificed much of her time to attend to my grammar issues.
Particular and sincere thanks go to Mrs Irith Kist and Ms Wieteke de Jong for their constant accessibility whenever the situation called for. Thank you indeed for being at my disposal!
Last but not least, to all my learned friends in the International and European Law Master program 2015/2016, who inspired me for their constructive discussion points.
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LIST OF ACRONYMS AND ABREVIATIONS
DRC. Democratic Republic of Congo Et al. and others
Erga omnes. A Latin word meaning “towards all”
Ex ante. Based on forecasts rather than actual facts Ex post. Based on actual results rather than forecasts G A. General Assembly
Ibid in the same cited work
ICC. International Criminal Court ICJ. International Court of Justice Jus ad bellum. Latin for “right to War”
Jus in bello. Latin for “Law in War”
Mens rea. The intention or knowledge of wrongdoing
NATO. North Atlantic Treaty Organization SC. Security Council
UK. United Kingdom UN. United Nations
UNEF. United Nations Emergency Force US. United States
v Table of International instruments
26 October 1945. Charter of the United Nations, 26 October 1945, 1 UNTS XVI 17 July 1998. Rome Statute of the International Criminal Court as amended by the
Resolutions adopted by the Review Conference in June 2010 concerning article 8 (Res 5) and the crime of aggression (Res 6) (2187 UNTS 3)
18 October 1907. The Hague Convention (IV) respecting the Laws and Customs of War
on Land and its annex: Regulations concerning the Laws and Customs of War on Land.
16, October 1925. Treaty of Mutual Guarantee between Germany, Belgium, France, Great Britain and Italy;( (The Locarno Pact),
27, August 1928. Treaty Providing for the Renunciation of War as an Instrument of National Policy (Kellogg-Briand Pact), Signed in Paris, entered into force 24 July 1929 Stat.46, 2343, TS No. 796, 94 LNTS 57
vi Table of Judgements
a. International Court of Justice
ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), Judgment, 27 June 1986, Merits, ICJ Reports 1986.
ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, (I.C.J. Reports 2005
ICJ, Gabcikovo – Nagymaros project case, (Hungry V Slovakia), ICJ Reports 1997
ICJ, Legality of the threat or use of nuclear weapons, Advisory opinion, ICJ Reports 1996, b. The International Arbitration Tribunal
Naulilaa Case (Portugal v. Germany), 2 UN Reports of
vii ABSTRACT
The concept of self-defence is a legally recognized right in both International and domestic legal orders. Moreover, the proper application of the concept in question leads to exclusion from criminal responsibility as a result of justification. Particularly, the right of self-defence under international is enshrined in the codifications of the Charter of the United Nations, and accepted as one of the customary international rules. Moreover, the provisions article 51 of the UN Charter textually limits the use of armed force in self-defence only “if an armed attack occurs”.
However, state practice has developed the concept as being inherent in nature, to include self-defence even when no armed attack has occurred, or after the actual attack have ceased. The vindication of this right before an armed attack occurs is famously known as “anticipatory self-defence”.
Nevertheless, the applicability of anticipatory self-defence is flawed by the lack of clear-cut limits; hence aggressive behavior by individual states under the guise or claim of the inherent right of self-defense. Given the fact that anticipatory self-defense remains a legitimate right, this thesis is geared to examine the level at which anticipatory self-defense could spill over to aggression as a crime under the jurisdiction of the ICC.
viii Table of Contents
DECLARATION ... Error! Bookmark not defined.
DEDICATION ... ii
ACKNOWLEDGEMENT ... iii
LIST OF ACRONYMS AND ABREVIATIONS ... iv
Table of International instruments ... v
Table of Judgements ... vi
ABSTRACT ... vii
Table of Contents... viii
1. GENERAL INTRODUCTION ... 1
I. PROBLEM SATEMENT ... 4
II. RESEARCH QUESTIONS... 5
III. The connection between the problem statement and the research sub-questions ... 5
IV. RESEARCH OBJECTIVES ... 6
V. METHODOLOGY ... 6
VI. THE SCOPE OF THE RESEARCH STUDY ... 6
VII. PROVISIONAL OUTLINE ... 7
CHAPTER ONE: THE NOTION OF ANTICIPATORY SELF-DEFENSE IN GENERAL INTERNATIONAL LAW ... 8 1.1. Introduction ... 8 1.2. Proportionality requirement ... 10 1.3. Necessity requirement ... 15 1.4. Immediacy requirement ... 19 1.5. Conclusion ... 22
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CHAPTER II: ELEMENTS OF SELF-DEFENSE AS PERCEIVED UNDER CRIMINAL LAW
2.1. General ... 24
2.2. Qualifying self-defense as a legitimate action in criminal law ... 25
2.2.1. The attack must be overt ... 26
2.2.2. The attack must be Unlawful... 27
2.2.3. The defense must be an intentional or knowing response ... 28
2.3. The justified cause v the excusable cause ... 28
2.4. Conclusion ... 31
CHAPTER THREE: THE CHARACTERIZATION OF ANTICIPATORY SELF-DEFENSE AS TANTAMOUNT TO AGGRESSION ... 32
3.1. General ... 32
3.2. The rights forfeiture theory of punishment ... 35
3.3. Conclusion ... 36 4. General conclusion ... 36 5. BIBLIOGRAPHY ... 40 I. Books ... 40 II. Resolutions ... 41 III. Journals ... 42
1 1. GENERAL INTRODUCTION
The concept of self-defence is related to the just war theory1that authorized the resort to war for self-help. The relative nature for both concepts lies in their conditions whereby just war requirements included competent authority, a just cause and right intentions2 while for self-defence the requirement is that of reacting to an already existing armed attack.3 However, the precondition to repel an already existing attack which could have already inflicted devastations on the victim State created much debate which led to the broader concept to include the customary right to use force pro-actively by a State before suffering the attack.4
Nevertheless the use of violence under any circumstances is restricted according to the provisions of Article 2 of the UN Charter in its fourth paragraph 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 any other manner inconsistent with the purpose of the United Nations” The foregoing provision implies that in certain instances the use of force could be considered as being consistent with the Charter if the situation falls within the ambit of Article 51 of the Charter which necessitates the presence of ‘an armed attack’. However, the preceding assumption is circumvented by the conditions that developed from the 19th century Caroline Case later invoked by states as a justification for anticipatory self-defence.5
The notion of anticipatory self-defence has been contested by several legal scholars where for instance Bradr opined that the scope and content of the right of self-defence is clearly delineated by Article 51 of the UN Charter, thus any other quasi-judicial arguments based on strategic
1 L. Van de hole. "Anticipatory Self-Defense Under International Law." American University International Law
Review 19, no. 1 (2003): 69-106 at 70.
2 H Wehberg, L 'interdiction du Recours a la Force. Le Principe et les Problmes qui se posent, 1951-I RECUEILS
DES COURS 1, 11-20 (1951) (cited in L. van de hole).
3 art.51, UN Charter (1945). 4 L. Van de hole (no 1), 72
5 L. Philippe Rouillard, The Caroline Case: Anticipatory Self-defense in contemporary international Law,Miskolc
2
considerations could not justify the use of anticipatory self-defence.6 Others have argued that the
negotiators of Article 51 outlawed resorting to anticipatory self-defence by the fact of emphasizing that “an armed attack” must have occurred in order to trigger any action of self-defence.7 Conversely, McCormack argued that a target state need not wait to suffer the first blow before responding, thus the right of self-defence under Article 51 of the Charter includes the right of anticipatory self-defence.8 Taking a great number of dissenting arguments from different commentators into consideration, McCormack opines that both the Israeli raid on an Iran nuclear plant, and the 1986 US bombing on Libya were instances of anticipatory self-defence.9
Subsequently, others have interpreted self-defence in line with the conditions laid down by the Caroline Case (1837) that holds: a state may act in anticipatory self-defence whenever the threat is deemed instant and overwhelming with no more room for deliberations.10 The International Court of Justice (ICJ) upheld the pre-existence of the right to self -defence in the Military and Paramilitary Activities case, Nicaragua v. United States of America judgement, but emphasized that justification would depend on the proper application of the criteria of necessity and proportionality requirements.11 Mulcahy and Mahony in their scholarly work argued that article 51 of the Charter is exhaustive thus; any contrary could be equated to defeating the Charter’s object and purpose.12 Subsequently, Mulcahy and Mahony have argued to refute the legality of anticipatory self-defence maintaining that it runs short of the criterion of ‘consistent and
6 G M Badr, ‘The exculpatory effect of self-defense in state responsibility’ Vol.10, (Georgia Journal of
International and Company Law, 1980, 1-28) at 28.
7 K S Tibori, Anticipatory action in self-defense: The law of self-defense – past, present and future, Amsterdam
center for International law, (2010) p.15.
8 T LH McCormack, “Self-defense in international law: The Israel Raid on the Iraqi Nuclear Reactor (Book
Review), American journal of international law, vol. 91(4), (American society of international law, 1997) p. 758.
9 idem.
10 M Franklin lohr, Legal analysis of the U.S. military responses to state-sponsored international terrorism (Naval
law Review,1985, Vol 34,1) p 1-48 at16.
11 ICJ, Military and Paramilitary Activities in and against Nicaragua, (Nicaragua v. United States of America),
June1986, operative part of the judgement, part X, par.3.
12 J Mulcahy & C O Mahony, ‘Anticipatory Self-defense’: A discussion of International Law, (Hanse Law Review,
3
widespread’ state practice as prerequisite for a norm to be accepted as a rule of customary international law.13
Despite the divergent arguments surrounding the applicability of anticipatory self-defence, the bottom line is that it remains legitimate and has been relied upon regularly.14 Moreover, none of the major international treaties beyond the boundaries of customary law has ever stipulated in its explicit words the criteria of anticipatory self-defence. This holds that states have continued to act within the ambit of the customary nature whereby some have mistakenly invoked it in either, preventive or pre-emptive armed attacks with no legal justification.15 Apparently, the concept of anticipatory self-defense is further rendered perplexing by the lack of a clear-cut approach to applicability whereby in certain instances such acts could spill over to aggression leading to the crime thereof. Fair is fair, the aforementioned acts and their related crimes are eventually punishable before the International Criminal Court (ICC)16 despite some lacunae,17 thanks to the international community.18
However, the perplexity that lies within the concept of anticipatory self-defense seems to be a potential hurdle to ICC jurisdiction over such acts, as envisaged by Sandoz who once wrote that
13 ibid. p. 242.
14 R. Ago, Addendum to the 8th Report on State Responsibility, [1980] 2 Y.B. Int'l L. Communication 52, para. 70,
U.N. Doc. A/CN.4/318/ADD. 52.
15 . P. Andreas, ‘Second Thoughts on the Crime of Aggression’, The European Journal of International Law Vol. 20
no.4 (2009) 117 – 1128 at 1122. “The Definition and Controversial Uses of Force That leads us to the context of the past 10 years since the drafting of the Rome Statute. After Kosovo, Afghanistan, Iraq, and recently Georgia, the task of drafting a definition of aggression has become more and more problematic.”
16 Art. 8 bis, Rome Statute of the ICC (Rome Statute), (Rome on 17 July 1998, in force on 1 July 2002), United
Nations’ TS, vol. 2187, No. 38544.
17 D M Ferenz, the crime of aggression: “Who is fooling whom”? (ASSER Institute, The Hague9 Oct 2013, lecture).
Available at; http://www.internationalcrimesdatabase.org/Commentary/VideoAndAudio201213 accessed on 6/4/2016.
18 T. B Anouk, ‘The definition of the crime of aggression and its relevance for contemporary armed conflict’, (ICD
brief 1, June 2013) p.1. available at; http://www.internationalcrimesdatabase.org/Commentary/IcdBriefs2013 accessed on 6/4/2016.
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‘It has often been said that one of the most pressing tasks for international criminal law is to set out clearly what violations are punishable under that law and to define them in specific terms’.19 On one hand, the preceding assertion is outdated since aggression has been integrated into the ICC’s jurisdiction as a punishable violation. On the other hand, the assertion could be credible by the fact that the ICC statute does not clearly define in specific terms whether or not anticipatory self-defense could be invoked as a justification leading to exclusion from responsibility for aggressive acts.
This research paper aims to investigate if, in view of its imprecise scope, anticipatory self-defense could crossover to aggression. The paper argues that without clear-cut criteria, anticipatory self-defense remains perplexing within the ambit of ICC jurisdiction in regard to the acts of aggression and their related crimes.
I. PROBLEM SATEMENT
The diverse approach to the normally lawful right of self-defense according to the provisions of the UN charter20 have caused controversies as to what should be the scope of a legitimate action in self-defense. At first blush, the pre-condition “when an armed attack occurs” could suffice to justify the legitimacy of acting in response to an overt attack.21 However, the co-existence of both the Charter provisions and the pre-existing customary rules on the use of force have resulted into the broader interpretation of the scope of self-defense, embracing situations whereby self-defense could be justifiable even in the absence of an actual armed attack.22
19Y Sandoz, ‘Penal Aspects of International Humanitarian Law’, in M.C Bassiouni, International Criminal Law (2nd
edn 1998), p. 406.
20 Art. 51, Charter of the United Nations (Charter), (1945).
21 G.P Fletcher& J.D Ohlin, “Defending humanity”: When force is justified and why, (2008), oxford university press,
chp.4, p.87.
22 T Ruys, “Armed attack and Article 51 of the UN Charter”: Evolution in Customary Law, Cambridge University
5
Consequently, the broad interpretation short of precision has led to aggressive behavior by individual states claiming to act within the legitimate scope of self-defense advancing imminence and necessity as a justification.23
Moreover, on several occasions states have engaged in actions of armed attack against others while invoking anticipatory self-defense basing on a unilaterally perceived cause, without an independent authoritative judicial organ to investigate whether or not a particular conduct could be justifiable and hence, exclusion from responsibility. However, given the elements of legitimate self-defense as discussed by Fletcher24 that intersects between general international law and criminal law, it is crystal clear that the current practice is foggy and therefore not self-justifiable. Therefore, the present research paper investigates if the actions of anticipatory self-defense could in certain instances spillover to aggression according to the criteria of self-defense in both general international law and criminal law.
II. RESEARCH QUESTIONS
After I have consulted different scholarly works and doctrines, the following questions will be answered:
a). Could the criteria of self-defense in general international law and the rules of customary law match with those of self-defense in criminal law to justify anticipatory self-defense?
b). What could be the dividing line between the lawful anticipatory self-defense and the unlawful one leading to aggression?
III. The connection between the problem statement and the research sub-questions
In today’s state of affairs, the concept of self-defense has evolved drastically involving situations where individual states resort to the use of force on the pretext of the prerogative in question.
23 G.P Fletcher& J.D Ohlin, (n0.21). p. 90- 91. 24 Ibid. p.86- 106.
6
However, it is pertinent to mention that exercising such rights may as well result into violations calling for accountability. Since self-defense is permissible in both criminal and general international law, the sub questions serve to elaborate on the connecting factors between the two legal orders.
IV. RESEARCH OBJECTIVES
The present research aims to enlighten the academic arena on the perplexity that lies within the concept of anticipatory self- defense in regard to the ICC approach to aggression as a crime under its jurisdiction. Consequently, the research is geared to illuminate the fact that any unlawful self-defense would be tantamount to aggression.
Finally, the research paper intends to come to a conclusion that anticipatory self-defense should be regulated and guided by practical criteria. Any flouting of these criteria, so I will argue, would qualify as an act of aggression leading to the crime thereof.
V. METHODOLOGY
The research methodology adopted includes a comparative approach to investigate the concept of anticipatory self-defense from both a general international law and criminal law perspective. In the process, a documentary technique will be utilized to attain a doctrinal contribution to the problem in argument. Different sources of literature will be reviewed ranging from books, jurisprudence, relevant international legal instruments and other viable materials relating to the concept of anticipatory self-defense. Substantially, the comparative approach will explore determinants and characteristics of anticipatory self - defense in both legal orders with a view to draw a conclusion whether and in which cases anticipatory self-defense would spillover to aggression.
VI. THE SCOPE OF THE RESEARCH STUDY
Since this research falls within the field of public international law, particularly a combination of general public international law and international criminal law, it will be limited to the confines of those branches of law. Indeed, the concept of anticipatory self-defense is permissive in both criminal and general international law.
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Therefore, the research paper limits the investigations to the scope of application of self- defense in both legal orders while examining the characteristics in a comparative approach. In doing so, the research examines the criteria for self-defense as perceived in international law in comparison with the criminal law approach to the concept.
VII. OUTLINE OF THE PAPER
Apart from the general introduction, the present research paper comprises three chapters. Mindful that anticipatory self-defense shares the common criteria with other modes of self-defense, the first chapter embarks on the benchmarks of self-defense in general international law. The guiding criteria for self-defense are examined taking into account their relevancy for the notion of anticipatory self-defense. The second chapter dwells much on the assessment of the elements that qualify self-defense in a criminal law approach.
The criteria for self-defense in criminal law hinge on corresponding criteria in international law to engender interlocking criteria. The last chapter endeavors to link up the findings in both legal orders aiming at a delineation of the scope of anticipatory self-defense. The chapter also sheds light on the contextual and the threshold requirements for the crime of aggression purposely to probe on the conjunction with the practice of anticipatory self-defense within the international realm. Finally, the general conclusion integrates the findings from the preceding chapters to close with harmonized views.
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CHAPTER ONE: THE NOTION OF ANTICIPATORY SELF-DEFENSE IN GENERAL INTERNATIONAL LAW
1.1. Introduction
Historically, according to General Clausewitz, wars were waged by states against others mainly as viable instruments to achieve a political objective.25 However, as time evolved state practice of war evolved that in fact departed from the notion of “war” and resorted to the concept of “measures short of war” which included small-scale clashes justified on the basis of self-preservation as a principle.26 Since the declaration of war could be indicated thorough preparations in terms of both human and financial resources, states opted to take on such small-scale coercive measures, which seemed to be cost effective while serving the same purpose as a state of declared war.27
Consequently, self-defense was identified within the aforementioned category as a primary and natural law right of nations that could be exerted on any serious and immediate dangers.28 This ‘measure short of war’, which existed as far back as the seventeenth and eighteenth centuries, depicts the present notion of anticipatory self-defense, which involves acting in reaction to eminent threat.29 It is so contentious that some commentators have advanced further to refute the term ‘anticipatory self-defence’ hence embracing rather ‘anticipatory action’ in self-defence as a mere measure of precaution for the future.30
Though this contention is not the question of concern in as far as this paper is concerned, one may leave a comment behind to encourage the reader to scrutinize as to how the two terms do differ. In the author’s opinion, anticipatory actions may pave the way to the practical exercise of
25 C Von Clausewitz, “On War”, (Princeton, Princeton University Press, 1976) Bk.1, chp.1, p.75. 26 K S Tibori (no.7) p.76.
27 Idem. 28 Idem. 29 ibid. p.79.
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self-defence in the coming future which would mean that anticipatory actions could be prior to the actual armed action in self-defence of the nature.
If China for instance embarks on the construction of military facilities and deployment of missile defence systems in the disputed body of water, the South China Sea, it could be among the actions of defence in anticipation of any threat of armed attack that is not yet imminent. Other scholars have argued that interceptive strike in self-defence is more legitimate than anticipatory self-defence since the former counters a manifestly irrevocable armed attack.31 Egypt claimed that its mobilization of troops in the Sinai, which sparked the Six-Day War in 1967, was in anticipation of an armed attack due to tensions that prevailed between Israel and Egypt and other Arab states. Indeed, even if these claims were true the question remains as to what could have been the next step after mobilization? Thus, Israel anticipated the imminence of an attack and hence, reacting pre-emptively. Ultimately if anticipation entails foresight of a probable threat, actions in self-defence would include mobilization of military capabilities prior to the actual armed attack rather than launching an attack on presumptions.
Further, the notion of self-defense was viewed as a natural prerogative for both the sovereign and individual who could wage wars that could not necessitate the permission from public authority to defend themselves and their property since it was considered as natural rights.32 Nevertheless, the right in question could only be invoked purposely to ward off any likely injuries but not to act excessively. The fact that anticipatory self-defense is a legitimate concept, its assessment relies on the criteria common to the concept of self-defense in general which includes; Necessity, the immediate need to act, and the requirement that measures applied be proportionate.33
Nevertheless, the criterion of imminence remains crucial to the assessment of the legality of anticipatory self-defense is it comes into play before an actual armed attack occurs.
31 D Delibasis, “The right to National Self-defense: In information Warfare Operations”, (Arena Books,2007), p.211. 32ibid, p.120.
10 1.2. Proportionality requirement
Proportionality is a legal principle that can be traced far back from the Code of Hammurabi of 1722BC which included the “an eye for an eye and “a tooth for a tooth” provisions.34 Though
language used in the code is very direct because you cannot imagine such a tooth extraction if the so-called perpetrator hit the victim and the tooth fell out: the rationale in the present case could be that a state invoking self-defense needs to apply the amount of force that is equivalent to the attacking force. Apparently, this provision seems inapplicable to the concept of anticipatory self-defense since the amount of the attacking force is not overt but merely conceived. Further, proportionality is said to have been applied in a court of law as early as 1882 when the Prussian Administrative Court examined whether the measures taken by the police exceeded the necessary require to achieving the intended objective.35
Apparently not much attention has been paid in legal scholarship to define proportionality, but at least a dictum by Lord Diplock shades light to the meaning in plain English: “You must not use a steam hammer to crack a nut, if a nutcracker would do”.36 Consequently, the applicability of proportionality in Jus ad bellum goes hand in hand with the temporal dimension when it comes to self-defense during, before, or after an armed attack.37 Moreover, in certain instances proportionality in self-defense should be determined by the purpose of using force as Roberto Ago put it in his report on state responsibility: ‘The requirement of the proportionality of the action taken in self-defense, as we have said, concerns the relationship between that action and its purpose, namely – and this can never be repeated too often – that of halting and repelling the
34 Arts. 196 & 200, The Code of Hammurabi, (translated by L W King), The Avalon Project documents in Law,
History and diplomacy, (Lillian Goldman Law Library, 2008), Available at;
http://avalon.law.yale.edu/subject_menus/hammenu.asp , accessed on 11/4/2016.
35 Y Arai-Takahashi, ‘Proportionality – a Germany approach’, (Amicus Curiae, issue 19, July, 1999) PP. 13 at 11.
Available at; http://sas-space.sas.ac.uk/3907/1/1458-1702-1-SM.pdf accessed on 11/4/2016.
36 Arden Dbe (Rt Hon. Lady justice), Proportionality: the way ahead? Annual Address of the United Kingdom
Association for European Law (UKAEL), Kings London, Nov. 12 2012, Speech. Available at; https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Speeches/lj-arden-speech-ukael-proportionality-12112012.pdf accessed on 11/4/2016.
11
attack or even, in so far as preventive self-defense is recognized, of preventing it from occurring’.38 Ago seems to have used the term preventive to denote either pre-emptive, preventive or anticipatory self-defense since these terms have been used inconsistently in literature to mean the act that prevents an attack from the aggressor prior to the launch.39
The practice by states may hold otherwise, but unlike pre-emptive self-defense that is also debatable, preventive self-defense seems entirely unacceptable having been termed as the use of military force in response to the threat that is not imminent.40 Therefore, if the latter is confirmed unacceptable, then in the present author’s view any act of that nature is straight forward an act of aggression that may constitute crimes thereof without the need to assess proportionality. Arguably, the practicability of proportionality was critiqued by the committee reviewing the NATO bombing campaign against the Federal Republic of Yugoslavia in its report that;
‘The main problem with the principle of proportionality is not whether or not it exists but what it means and how it is to be applied. (….) Unfortunately, most applications of the principle of proportionality are not quite so clear-cut. It is much easier to formulate the principle of proportionality in general terms than it is to apply it to a particular set of circumstances because the comparison is often between unlike quantities and values. One cannot easily assess the value of innocent human lives as opposed to capturing a particular military objective’.41
Indeed, the applicability of proportionality is flawed due to lack of clarity as to the approach to be taken for better testing of the principle.
38 R Ago, Special Rapporteur to the International Law Commission, Eighth Report on State Responsibility, (ILC, Yr.
bk,1980, ii, I, 13, at para. 121, UN Doc A/CN.4/318/ADD.5–7.
39 D A Sadoff, ‘A question of determinacy: the legal status of anticipatory self-defense’, (Georgetown journal of Int’l
Law, wntr 2009, Vol. 40(2),) p. 523 at 530.
40 T Ruys, ‘Armed Attack’ and Article 51 of the UN Charter”: Evolutions in customary Law and practice,
(Cambridge University press, Nov 2010) p.53-60.
41Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the
Federal Republic of Yugoslavia, (par. 48) available at http://www.icty.org/x/file/Press/nato061300.pdf , accessed on 10/4/2016.
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In his view, Badr opined that there is no mathematical formula for measuring the relative magnitude of the means used by one side or the other, thus it is not the exact equivalence of forcible means used on both sides but as a general rule, disproportion could be assessed through the manifest intention to inflict injury beyond what is required to repulse the attack.42 Both Badr’s view and the committee on NATO share a common factor that, quantifying and valuing the amount of proportionality in self-defense is a conundrum. Moreover, these experts did not specify what could be the fate of proportionality in case of anticipatory self-defense whereby no attack to repulse, and hence no tangible damage incurred by the respondent state.
Trying to puzzle through the issue further, Akande adopted three conceptions that also bear different implications.43 First, proportionality may be used to describe the requirement that the defending state use no more force than is necessary. Second, the defensive action be quantitatively corresponding to either the attack to which it is responding or to the threatened attack. Lastly, proportionality may require that the damage inflicted in self-defense not be disproportionate in comparison to the pursued objective. Ultimately the preceding conceptions tend to address the proportionality requirement from different perspective. However, it seems somewhat difficult to ascertain some of the conceptions on anticipatory self-defense since in the latter situation both the damage and the quantity of the attacking force are uncertain.
Further, the proportionality requirement was stressed by Sir Daniel Bethlehem, the former principle legal advisor at the UK Foreign and Commonwealth Office. While elaborating on the indicative principles relevant to the state’s right to self-defense against an imminent or actual armed attack by non-state actors, Bethlehem asserted:
“Armed action in self-defense must be limited to what is necessary to address an imminent or actual armed attack and must be proportionate to the threat that is faced.”44
42 G M Badr (n0.6), p.27.
43 D Akande & T Lieflander, ‘Clarifying Necessity, Imminence, and Proportionality in the Law of Self-defense’,
(The American journal of Int’l Law, Vol. 107, n0.3, 2013) pp. 563-570 at 566.
44 art. 3, Principles relevant to the scope of a state’s right of self-defense against an imminent or actual attack by
13
Evidently it would be problematic to ascertain the degree of the anticipated threat and to calculate the amount of damage in advance, thus with anticipatory self-defense the probability to meet the proportionality requirement remains uncertain.
Both Akande’s conceptions and Bethlehem’s principles rotate on the requirement to ‘use no more force than necessary’ to address an imminent threat which implies that, the results should also be commensurate to the prevented damage. Additionally, if force applied is commensurate to the necessary amount of force, obviously the damage to be inflicted on the attacker is likely proportional to the damage inflicted on the victim.
This would suppose a situation whereby state A proactively directs a long-range artillery fire into state B’s territory destroying various infrastructure as a result of a merely presumed attack having observed the massing of troops by state B near the common borders. The foregoing scenario can be complemented with reference to the US invasion of Iraq on 19 Match 2003 in which the US acted on presumptions that Iraq had the ability to deploy Weapons of Mass Destruction (WMD), thus the invasion sparked hot debates in the academic world. Moreover, the US had secured legitimacy from the international order as it convinced the UN Security Council that Iraq possessed WMDs. However, the conduct by the US led coalition resulted into what Fletcher asserted as ‘conducting a just war unjustly’.45
Obviously, the lawfulness of self-defense is preceded by an assessment of the proportionality requirement. This was emphasized by the International Court of Justice (ICJ) in the Armed Activities in the DRC v. Uganda case, where, the Court handed down the following obiter dictum after rejecting Uganda’s claim for self-defense:
(……The Court cannot fail to observe, however, that the taking of airports and towns many hundreds of kilometers from Uganda’s border would not seem
Available at; http://www.un.org/law/counsel/Bethlehem%20-%20Self-Defense%20Article.pdf accessed on 12/4/2016.
14
proportionate to the series of trans border attacks it claimed had given rise to the right of self-defense, nor to be necessary to that end”.46
However, the Court neglected the ruling to recognize this as aggression while it was obvious as highlighted by Judge Bruno Simma in his separate opinion:
‘One deliberate omission characterizing the Judgment will strike any politically alert reader: it is the way in which the Court has avoided dealing with the explicit request of the DRC to find that Uganda, by its massive use of force against the Applicant has committed an act of aggression. (…..)
Judge Simma further criticized the court for overlooking its reasoning where it had stated in the judgement:
“[t]he unlawful military intervention by Uganda was of such a magnitude and duration that the Court considers it to be a grave violation of the prohibition of the use of force expressed in Article 2, paragraph 4, of the Charter. So, why not call a spade a spade”?47
Apparently, the magnitude and duration according to Simma should have been considered to qualify Uganda’s responsibility for aggressive acts to DRC only if self-defense was confirmed lawful. Otherwise it is a clear violation of Article 2(4) with no protection from Article 51. Now, suppose that Uganda acted in anticipation of a threat from the DRC, what would the Court have ruled?
Judge Simma further criticized the Court for the failure to exercise its duty as a principle judicial organ of the UN whose raison d’ệtre is to arrive at a decision based on law rather than a decision
46Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, (I.C.J.
Reports 2005, p. 168) par. 147.
47Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, (I.C.J.
15
based on other sources.48 Though the claim in preceding case did not concern anticipatory
self-defense, its significance is hinged on the need to highlight the difficult conundrum for qualifying the requirement of proportionality in any mode of self-defense.
The discussions in this section observed that proportionality is an important principle to test the lawfulness of acts in jus ad bellum. It is evident that the applicability of the principle in acts of selfdefense lacks consistency to the extent that if no clear designated criteria to test it on case -to-case basis, aggressors may go unpunished. The situation becomes more complicated in case of anticipatory self-defense since determining the gravity of the anticipated damage is almost impossible. Perhaps whilst defining the parameters anticipatory self-defense, the principle of proportionality could be successfully tested in synchronicity with the criteria of immediacy and necessity. The following section examines the criterion of necessity in view to establish the lawfulness of a legitimate anticipatory self-defense.
1.3. Necessity requirement
According to Fletcher, the word ‘necessity’ in a legal sense does not take the same meaning as the normal grammatical understanding thereof.49 Fletcher opined that necessity in legal terms more particularly in a self-defense perspective is determined by the possibility of using less costly means of defense to repel the attack.50 Fletcher seemed to intertwine necessity and proportionality in the following police incident in Los Angeles in 1991 when twenty police officers assaulted the unarmed Rodney King in an attempt to arrest him.51 Though the action of
arresting the suspect was necessary, the proportion of twenty policemen to one unarmed man is disproportionate and at the same time unnecessary. Therefore, necessity plays a pivotal role in determining both proportionality and immediacy.
48 idem. Par. 3.
49 G.P Fletcher& J.D Ohlin, (n0, 21) p.91. 50 ibid. p.92.
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In the US and Vietnam cases, some members of the Security Council contended that the US response exceeded the limits of self-defense and hence, were disproportionately unnecessary.52
Conversely, the Israel strike on the Egyptian war planes that sparked the Six-Day War in 1967 was considered to be necessary as it took place following a series of events launched by Egypt which included: the expulsion of the UN Emergency Force (UNEF) which had been initiated by the UN to supervise the cessation of hostility between the two states, the closure of the Straits of Tiran, the extensive mobilization of troops on the Israeli border and the repeated threats from Egyptian authority.53 It has been concluded that the Israeli actions of self-defense were generally accepted to have met the requirements of necessity based on the information available at the time and in the face of the escalating events engendered by Egypt’s actions.54
However, necessity lost credibility with regards to the Israeli’s annexation of several territories, which was considered to have surpassed the limits of legitimate self-defense. If the sequence of events in this case would be adapted to the Webster criteria in the Caroline Case, Israel should be considered as to have exhausted all the criteria and hence there was no more room for deliberations.55 Accordingly, the Israel’s immediate actions are said to have been necessary to halt the prevailing threat despite the continued occupation of the Arab territories by Israel who turned down the lawfulness thereof. This is more or less conducting the just war unjustly according to Fletcher’s argument as discussed in the preceding section.56 Necessity can further be
tested in reference to the behavior of both Israel and Egypt in the Yom Kippur War (The holiest day in the Jewish calendar) in which Egypt and Syria launched a coordinated surprise attack against Israel on October 6, 1973.57
52 K S Tibori (n0.6), p. 150. 53 K S Tibori (n0.6), p. 153. 54 Idem.
55 L. Philippe Rouillard, (n0.5).
56 G.P Fletcher& J.D Ohlin, (n0, 21) p.11, (at footnote 49 in this paper)
57 X, The Yom Kippur War: Background & overview, 1973, (Jewish virtual Library) par.12. available at;
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Failure by Israel’s leadership to process all the information supplied from different sources led to a loss of intelligence and hence discrediting the imminence of the threat.58 At this stage Israel
could be said to have met the necessity requirement by considering that no imminent threat was envisaged, thus no right to exercise self-defense whatsoever.59 On the other hand, Egypt’s armed attack could not pass the necessity test since there was no imminent threat from Israel and hence no need for anticipatory armed attack except for President Sadat’s ambitions to weaken Israel by launching the War of Attrition.60 Further, the wrong invocation of the necessity requirement can be viewed with reference to the Iraq and Iran wars (1980-1988) that are critiqued with regard to two aspects.61 First, it was not necessary for Iraq to carry out armed actions in claim of preventive self-defense since there were more options for deliberations rather than armed actions. Second, the alleged cross-border shelling by Iran never reached the threshold of an armed attack, thus it was not necessary to occupy larger areas in Iran territory. The necessity requirement can also be tested through the notion of ‘temporal dimension’ as opined by TD Gill:
‘The important point is that self-defense is exercised within a reasonable time frame in response to an ongoing attack or, a clear threat of attack in the proximate future. It is not a punitive measure to be undertaken long after the attack has been carried out.’62
In response to an armed attack by Argentina on the Falkland Islands, which sparked off the Falklands War (1982), the UK took four weeks to take any action in self-defense.
58 ibid. par. 11.
59 T D. Gill & P A L. Ducheine, ‘Anticipatory Self-Defense in the Cyber Context’, (International Law Studies, U.S Naval
War College, 2013, Vol. 89, 438- 471) at P.449. available at;
https://www.google.nl/#q=what+is+meaning+of+the+temporal+dimension+in+self-defense%2Fpdf accessed on 5/6/2016.
60 K S Tibori (n0.6), p. 154. 61 ibid.p.156.
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Critics of the action by the UK argue that the time taken to react went out of the temporal scope of self-defense, thus retaliation by armed attack was no longer necessary since there was no more overwhelming situation.63
Nevertheless, there is a problem as to what should be the ‘reasonable’ time frame to react or act and hence, the door opens for any defending state to consider reasonable time in relation to time taken for the preparations to respond to the attack. Furthermore, necessity could be assessed through the US bombing on Libya’s air fields and military facilities in 1986 claiming pre-emptive self-defense following provocative statements by the then Libya President Gadhafi preceded by the bombing of a discotheque in West Berlin which was attributed to Libya.
The actions that were suspected to have been backed by Libya due to the President’s statements could not have necessitated the bombing of air fields and military facilities unless the US could produce more evidence to justify imminence. Finally, the US airstrikes against Iraq in 1993 are another example of a state-to-state clash where necessity was invoked while the US claimed preventive self-defense based on the information that Saddam Hussein the Iraqi President at the time planned to assassinate former US President George Bush.64 Necessity in this case could be justified only upon credibility of the information that triggered the bombing. Otherwise, there were more possibilities for deliberations.
In a nutshell, the requirement of necessity can be viewed as an intermediary tool between proportionality and immediacy requirements. Meaning where the situation necessitates action, there is a need to act proportionally, and where imminence is envisaged, there is a necessity to act immediately. However, establishing the credibility of necessity invoked in anticipatory
63 K S Tibori. (n0.6), p. 154-160. 64 ibid p. 164.
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defense where the temporal factor is questionable poses a difficult conundrum since there is no recognized standard time for a state to react to an imminent situation.65
Finally, this section holds in affirmative that the necessity requirement applies ipso facto to all three temporal dimensions of self-defense which imply that: though the action in self-defense could not be instantaneous, it must be taken within a reasonable time either ‘before’ or ‘after’ an armed attack and moreover in conditions were no other possible means to carter for the threat.66 The next section will explore the applicability of immediacy as a requirement to justify legitimate self-defense.
1.4. Immediacy requirement
The application of the immediacy requirement as one of the criteria for the exercise of self-defense is conditioned by two factors.67 First, the defender must put into consideration all the relevant circumstances before any action. Second, once an action is to be taken, it must be unduly delayed. If the aforementioned conditions are elaborated with regards to anticipatory self-defense, it could be viewed that the defender must prove that there is an imminent threat, and the situation is overwhelming to the extent that there is no other choice of means other than armed action. The requirement to act in due time is intended to distinguish the overall objective of self-defense as a recognized legal concept from other punitive actions such as armed reprisal which is considered unlawful under contemporary international law.68 Moreover, the requirement of immediacy plays
a significant role in both general international law and criminal Law as a justification for the use of force in self-defense.69 The condition to act without delay in criminal matters can be viewed
from the wording of the Model Penal Code where it is written in relevant part:
65 ibid. p. 248
66K S Tibori. (n0.6), p 222.
67 T D. Gill & P A L. Ducheine, (n0.59), p.451
68 D W Bowett, “Self-Defense in international Law” (The Law book Exchange, Ltd, Clark, New Jersey, 2009) p.20 69 B Sangero, “Self-Defense in Criminal Law” (Hart Publishing, Oxford and Portland, Oregon, 2006) P.151.
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(…… the use of force upon or towards another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.70
Despite their possible grammatical difference, the term ‘immediacy’ in international law seems to apply synonymously with ‘Imminent’. The interchangeability of the two terms was addressed by the ICJ in the Gabcikova-Nagymaros project case of 1997 where the court held that; ‘Imminent is synonymous with ‘immediacy’ or ‘proximity’ and goes far beyond the concept of ‘possibility’.71
Conversely, the present author’s opinion is that the two terms may apply simultaneously at closer moments but with different meanings since an imminent threat of attack triggers the immediate action to counter the attack.
In other words, there is no immediacy without imminent threat. Before the Six Day War, Israel assessed the information available at the time and the escalating events such that an armed attack was imminent and therefore assessed that it was necessary to take immediate actions.72 Ultimately, it would serve much better to apply the term ‘immediacy’ since it covers the three situations of self-defense namely; where the attack is in progress, where the attack is imminent or where it has been completed.73 Fletcher seemed to criticize the action of anticipatory self-defense where he opined that a pre-emptive strike against a suspected aggressor is illegal since that could imply that force is used too soon.74
70 Art.3, § 3.04. Model Penal Code, (adopted at the 1962 Annual meeting of The American Law Institute,
Washington, DC) p.44, available at; http://use-of-force.info/images/un/use-of-force/western-europe-others/UnitedStatesofAmerica/Model%20Penal%20Code%20United%20States%20of%20America%201962.pdf , accessed on 18/4/2016.
71Case concerning the Gabcikovo – Nagymaros project (Hungry V Slovakia), 1997, ICJ Rep,7,42. (as cited in Y
Dinstein, “War, Aggression and Self-Defense” (Cambridge University Press, 2011) p.205.
72 K S Tibori (n0.6), p. 153.
73 G.P Fletcher& J.D Ohlin, (n0. 21)p.90. 74 Idem.
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If the foregoing conditions are applied to the three temporal dimensions of interstate self-defense, it is likely that acting too early before a threat is imminent could result into other punitive actions.75 Moreover, the purpose of self-defense is clearly known to be neither a means of
punishment nor an act of law enforcement but as postulated by Kremnitzer, ‘it is rather an act of emergency that is temporally and materially confined to the narrow purpose of warding off the pending threat, not to re-establish the disturbed public order or to penalize the aggressor.’76However, state practice indicates that the observance of both the ‘too soon’ and the
‘too late ’phenomena may sometimes be prejudicial to individual states. In the Yom Kippur War, Israel seemed to refrain from acting too soon to avoid becoming the aggressor instead, but Egypt exploited that reluctance and successfully inflicted a fast blow on Israel.
More so, it is feared that with the expansion and development of weaponry systems if a state observes the condition not to act too soon it may end up in great danger. The ICJ underlined this point in its advisory opinion on the legality of recourse to nuclear weapons where the court impliedly admitted the use of nuclear weapons in extreme circumstances of self-defense.77 Be that as it may, a state that commits itself to action of anticipatory self-defense must account for the immediacy requirement as a tool for justification to avoid responsibility for aggression. Conversely, the US invasion of Iraq in 2003 could serve a practical example of acting too soon and without restricting to the narrow purpose of warding off the threat but occupying the territory on pretext to restore order which ended up in naked aggression. Apparently, the applicability of immediacy requirement is based on individual state assessment whereby the probability to act either too late or too soon is dependent to individual state deductions. To this extent, the consequences are likely to affect either sides as result of hindsight.
75 Idem.
76 M Kremnitzer & Ghanyim, “Proportionality and the aggressor’s culpability in Self-defense”,
(2004), as cited in O Bakircioglu, “International and Criminal Law”: The doctrine of Imminence, Routledge, London, (2011), and p .209.
77Legality of the threat or use of nuclear weapons, Advisory opinion, ICJ, reports 1996, p.226,
par.105 (2) e. available at; http://www.icj-cij.org/docket/files/95/7495.pdf accessed on 18/4/2016.
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Further, though immediacy may be applied synonymously with imminence, they seem to diverge in a way that, immediacy covers all forms of self-defense while imminence applies to anticipatory action in self-defense. Finally, the present section has established that the imprudent application of the imminence requirement before an action in anticipatory-self-defense may affect the immediacy requirement and hence, other punitive actions hence, aggression.
1.5. Conclusion
In a nutshell, the present chapter revealed that self-defense as a measure short of war can only be lawful if the defending state legally applies proportionality, necessity requirement and at the same time observes the immediacy factor in terms of time lag. It has been observed that the applicability of proportionality requirement in case of anticipatory self-defense is controversial since there is no tangible force from the perceived attacker to gauge. The applicability of the necessity requirement also lacks coherence since some actors tend to interpret the requirement in line with the quantity of force to employ, while others refer to the degree of assessment as to whether self-defense actions are necessary at a given time.
It is here argued that necessity must be evaluated upon an analysis of the available information pertaining to the threat at hand and the degree of imminence, and hence acting immediately. It is further argued that the immediacy requirement is an important factor in any state of emergency since the immediate action in self-defense would not only save the life of defender but also acts as a sound ground for justification. Moreover, it was opined that legitimate self-defense must not be either too soon or too late since any of the two situations could lead to aggression.
Undisputedly, self-defense is a natural prerogative for both states and individuals as a mode of justification. However, it is argued that the applicability of that concept to both inter-state self-defense and individual self-self-defense under criminal law is divergent to the extent that a state may go unpunished. Indeed, the applicability may differ but the overall aim of self-defense should be restricted with in the scrutiny of proportionality, necessity and immediacy in order to maintain its legitimacy. Undisputedly, anticipatory self-defense remains a legally recognized concept in both international customary law and impliedly in treaty law.
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This being said, it is very evident that the state’s conduct while exercising anticipatory self-defense may spillover to aggression as defined in article 8bis of the ICC statute. The next chapter will embark on examining the elements of self-defense as perceived under criminal law. The investigation aims at establishing the justification of the legitimate anticipatory self-defense in relation to the proportionality, necessity and immediacy in comparison with their applicability in criminal law.
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CHAPTER II: ELEMENTS OF SELF-DEFENSE AS PERCEIVED UNDER CRIMINAL LAW
2.1. General
Analyzing the elements of self-defense in both public international law and criminal law is neither newly invented nor devoid of a theoretical basis. Though the rules for self-defense in international law are regulated by Art. 51 of the UN Charter and customary international law, the concepts of self-defense in public international law and self-defense in criminal law are conceptually linked in so far as the structure that regulates the concept of defensive force applies to both.78
Additionally, Hans Kelsen argued in favor of the complementarity of both legal orders where he asserted that; ‘norms of international law character may possess national law qualities and vice versa’ and hence, he rejected any borderline thereof.79 However, Kelsen’s emphasis of not having
any borderline between the two legal orders is flawed by the fact that, in international law, self-defense is doctrinally considered a justification for total exclusion from criminal responsibility basing on the fact that a state cannot advance duress or insanity as an excuse,80 while in criminal law one may claim ‘excuse’ as a ground for mitigation of criminal responsibility due to either of the above mentioned grounds.81 Nevertheless, the concept of self-defense is said to be a natural phenomenon in both legal orders as de Vattel deduced, ‘every nation as well as every man has a right to preserve himself from all injuries’.82
78 A Cassese (end), The Oxford Companion to International Criminal Justice’, (Oxford University Press, 2009, New
York), P. 507.
79 H Kelsen, A General Theory of Law and State 325 (Anders Walberg trans., The Law book Exchange 1999)
(1945). (Cited in, O Bakircioglu, Right to self-defense in National and International Law: the role of the imminence requirement, (Ind, Int’l & Comp. Law Review, Vol. 19.1, 2009) p. 3.
80 A Cassese (ed), (n0. 78) idem.
81 G.P Fletcher& J.D Ohlin, (n0. 22) p.58.
82 De Vattel, The Law of Nations, (Philadelphia: T. & J. W. Johnson & Co., 1883), at bk. Il/IV/XLIX. (cited in, O
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De Vattel’s assertion seems to reinforce the arguments by proponents of the inherent right of self-defense who opined that it is a natural right that pre-existed before the law of treaties.83 Though,
it is not the aim of this paper to examine the controversies in international and national legal systems, but the domestic analogy is here imported due to its insights and intuitions as a practical tool to analyze the criteria of self-defense.84 The comprehensive nature for the criteria of self-defense in criminal law can be viewed from their broad interpretation as addressed by Fletcher whereby self-defense can be invoked as either a justification or an excuse for mitigation due to either irresistible duress or insanity defense85 as will be discussed in this chapter.
2.2. Qualifying self-defense as a legitimate action in criminal law
Whereas the permissible use of defensive force in public international law is guided by the criteria of proportionality, necessity and immediacy common to both legal orders, criminal law subscribes to more criteria as a way of assessing its lawfulness. Fletcher discussed six elements that qualify legitimate self-defense in criminal law that according to him should apply parallel to international law as well.86 Since three of them, proportionality, necessity and imminence, requirements have been discussed in the previous chapter. This sub section therefore explores the additional requirements that; the attack be overt, unlawful, and that the defender act intentional in response to the attack.87
83 D B Koppel, ‘The Natural Right of Self-defense: Heller’s lesson for the World’ (Syracuse Law Review, Vol. 59:
XXX, 2008) pp.999-1013 at 1000. Available at; http://www.davekopel.org/2A/LawRev/Natural-right-self-defense.pdf accessed on 23/4/2016.
84 O Bakircioglu (n0.79).
85 G.P Fletcher& J.D Ohlin, (n0. 21) p.57 -58. 86 Ibid. p. 86
26 2.2.1. The attack must be overt
The requisite that the attack must be overt implies that something must be happening obviously in the eyes of the real world, not just in the minds of those who fear an attack.88 If it is put in the
context of international law, the drafters of the UN Charter seem to have observed this pre-requisite by inserting in Article 51 the term “if an armed attack occurs”. Practically, there must be an evident manifestation of the intention to carry out an attack from the suspected aggressor.89 The expulsion of UNEF, closing the Straits of Tiran and mobilization of troops by Egypt on its common borders with Israel could be qualified as overt actions rendering reasonable grounds for reaction on the part of Israel.
However, it is argued that such actions are merely preliminary to an actual attack while the precise action could be determined once the values set out in Article 2(4) of the Charter, that is to say “the territorial integrity” and “political independence” have been jeopardized.90 Though such
a situation could be undoubtedly overt, it is difficult in practice for a state to keep monitoring the preliminaries until the initial blow. This triggers a debate between those who think that self-defense should be evaluated only against real events and those who believe that the defender’s belief should be evaluated too.91 Be that as it may, bottom line is that the defender must act upon acquiring sufficient tangible evidences obvious to the World community rather than mere political sentiments as asserted by Fletcher,
(…...) When the requirement is not met, when individuals engage in pre-emptive attacks against suspected future aggressors, (…...) they exceed their authority as citizens; they take the “law into their hands” (….) the requirement must be both objective and public.
88 G.P Fletcher& J.D Ohlin, (n0. 21), p.87. 89 idem.
90 idem. 91 ibid. p.88
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There must be a signal to the community that this is an incident in which the law ceases to protect, that the individual must secure his or her own safety.92
Whereas this could be self-justifiable with regard self-defense when an armed attack has occurred, it poses a conundrum to apply this requirement to anticipatory self-defense since the grounds that lead to such an action are most likely presumed and not overt.
2.2.2. The attack must be Unlawful
Though it may sound queer in real life to talk about lawful and unlawful attacks, but the essence in this case is that self-defense is a fight of right against wrong.93 The reason behind this requirement is to permit the defender to act lawfully with justified actions while excluding any attempt of self-defense against those justified actions.94 This is what is called according to Fletcher ‘the thesis of incompatible rights’.95
To contextualize Fletcher’s thesis, if troops mandated by the UN Security Council lands on the territory of a country, they are lawfully acting in a manner that is consistent with Article 2(4) and therefore no action of self-defense is permitted against them. Conversely, this diminishes the possibility of an individual state acting in self-defense to benefit from the incompatibility theory in case of anticipatory self-defense since the presumed aggressor could also retaliate and hence the result could be something like; “self-defense against self-defense” leading to endless conflicts. Assuming that Iraq was able to counter the invasion by the coalition forces in 2003, it would have had the right to do so while invoking self-defense too and hence jeopardizing Fletcher’s thesis. It follows therefore that, while invoking anticipatory self-defense, the unlawful intentions of the aggressor must be salient to the world and the defending state is required to prove the requirements of imminence and necessity.
92 G P. Fletcher, Domination in the Theory of Justification and Excuse, 57 U. Prrr. L. REV. 553, 570 (1996) as cited
in, O Bakircioglu (n0. 97) p.22
93 J Keileret al, ‘Criminal Law’, in J Hage& B Akkermans, (eds), “Introduction to Law”, (Springer International
publishing, Switzerland, 2014) p.140
94 G.P Fletcher& J.D Ohlin, (n0. 21) p. 89. 95 ibid. p.46
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2.2.3. The defense must be an intentional or knowing response
It would sound strange to ask the defender if they knew anything about the attack when one analyzes the requirements of proportionality and necessity96 since in such circumstances the
defender should be aware of the threat and decide to respond. However, the point at hand is intended to assess actions of self-defense beyond the abstract, and questions whether the defender undoubtedly knew what the facts to a threat that was responded to. To elaborate on this, Fletcher questioned the US invasion to Iraq by drawing a comparison in which a white passenger is surrounded by four black men on a subway, no threatening move is made towards the white passenger but the black men are in possession, albeit secretly, of knives. Based on the passenger’s suspicious assessment, he pulls a gun and shoots to harm the men. It was later established that they possessed knives and were presumably about to attack.97 The question in the forgoing scenario is whether the white man could claim anticipatory self-defense on the grounds that the four black men possessed knives that were not visibly apparent.
Could the US invasion continue to retain the status of legitimate anticipatory self-defense whereas no WMDs were found in Iraq? The answer to both scenarios is that defenders acted within the de facto nature of self-defense, which relied the claim for justification after the action (ex ante) whereas normally it should be justified on the basis of true facts that were in place before the action (ex post).98 It follows that if an attack need to be overt, and so the intention or the targeted response by the defender must be hinged on clear observable facts to the general public.99
2.3. Justified cause v. excusable cause
Basically the actions of self-defense in criminal matters can be invoked as either a justification for full exclusion from criminal responsibility, or as claim of excuse, which recognizes the
96 ibid. p.103. 97 idem. 98 ibid. p.105. 99 idem.
