SOLDIERS’ SELF-DEFENCE UNDER THE NEW
PATTERNS OF WARFARE
A limited ex post justification or an ex ante authority?
Legal Basis of Self-defence Doctrines
by
Mariana Galante Afonso
A thesis submitted in the fulfilment of the requirements for the degree of
LL.M. International and European Law: Public International Law at the
University of Amsterdam
Supervisor: Prof. Dr K. J. Heller
Student’s number: 12525774
E-mail: afonsomsg@gmail.com
July 2020
Mariana Galante Afonso 1
ABSTRACT
What are the legal sources of self-defence under the modern armed conflicts? In the last decade, new patterns of warfare have emerged. Conflicts between States and Non-state actors are more common. Self-defence has become a concept used on several occasions to justify incredibly dubious uses of force by soldiers within such conflicts. The concept of self-defence has been accompanied by other ambiguous concepts such as hostile intent and hostile act.
It is generally agreed that soldiers have the right to defend themselves when engaged in an armed conflict. Nevertheless, there is no theoretical basis for the origin of a concept such as a soldiers’ self-defence. This cause for a lack of civilian protection and accountability problems in armed conflict zones.
Practice from the United States, France and Germany shows three very different approaches to the right of self-defence. Such views demonstrate that the use of force that relies on the ambiguous concept of self-defence can have very different outcomes- from expanded use of force to restrictive use of force. Overall, soldiers respond differently to similar situations.
This usage of force as self-defence or hostile act or intent led to the separation of the concept from International Humanitarian Law (IHL) without clarifying where such relationship stood. To mitigate the problem, this Thesis will try to articulate the sources and the scope of the right to soldier’s self-defence and then will follow a two ways solution to the problem. First, a proposition on how the problem could be solved by applying the combatants’ privilege to soldiers fighting in a Non-international armed conflict. Second, it will propose reconceptualizing the concept self-defence as part of IHL and part of the combatant’s privilege.
Mariana Galante Afonso 2 TABLE OF CONTENTS ABSTRACT ... 1 TABLE OF CONTENTS ... 2 LIST OF ABBREVIATIONS ... 3 I. INTRODUCTION ... 4
A. EXPANDED RELIANCE ON SELF-DEFENCE ... 4
B. HOSTILE ACT AND HOSTILE INTENT ... 7
II. LEGAL BASIS FOR SELF-DEFENCE DOCTRINES ... 9
A. JUS AD BELLUM/ARTICLE 51 OF THE UNCHARTER ... 9
i. USA Practice ... 12
a) Standing Rules of Engagement... 12
B. DOMESTIC CRIMINAL LAW ... 14
i. French Practice ... 15
ii. German Practice ... 17
III. LEGAL DIFFERENCES BETWEEN THE DISTINCT SELF-DEFENCE APPROACHES AND ITS CONSEQUENCES ... 19
A. IMMINENCE AND NECESSITY ... 21
B. BROAD (U.S.)JUS AD BELLUM STANDARDS AND CIVILIAN PROTECTION RIGHTS 24 C. RESTRICTIVE CRIMINAL LAW STANDARDS AND SOLDIERS’LIABILITY ... 25
IV. RELATIONSHIP BETWEEN SELF-DEFENCE AND IHL ... 28
A. SELF-DEFENCE AS AN INDEPENDENT MECHANISM OF IHL ... 29
B. THE COMBATANT PRIVILEGE UNDER NIAC ... 30
C. SELF-DEFENCE AS PART OF THE COMBATANT PRIVILEGE ... 34
Mariana Galante Afonso 3
LIST OF ABBREVIATIONS
AP II – Additional Protocol II of the Geneva Conventions
ECHR - European Convention on Human Rights Fundamental Freedoms
IAC – International Armed Conflict
ICC- International Criminal Court
IED - Improvised Explosive Device
ICTY - International Criminal Court for the Former Yugoslavia
IHL – International Humanitarian Law
IHRL – International Human Rights Law
IRCR- International Committee of The Red Cross
NIAC- Non-International Armed Conflict
ROE – Rules of Engagement
RPG - Rocket-propelled Grenade
SROE- USA Standing Rules of Engagement
UN – United Nations
Mariana Galante Afonso 4
I. INTRODUCTION
New patterns of warfare have marked armed conflicts, since 9/11. Conflicts between States and Non-state actors, non-international conflicts (NIAC) are more common than a direct conflict between States’ parties also. NIACs are also characterized by disproportional and different strategies.1 Nowadays, deadly threats come from anyone and anywhere, insurgent tactics and asymmetric plans of actions turned the battlefield into an undefined space and the armed conflict per se, head-on combat, into an ambiguous structure of events.2
The difference between what represents a combatant and a civilian has become quite faded. Several examples that can be seen as threats in which force could be used are often carried out by an individual without a distinctive characteristic that soldiers could identify to consider them as part of the conflict. For instance, could soldiers shoot on someone out-of-uniform that was carrying a rocket-propelled grenade (RPG), or digging something that looked like an improvised explosive device (IED)?3
In the changing context, people tend to refer to self-defence to justify the use of force in multiple situations. States, individuals and International Organizations justify the resort to force referring to self-defence instead of using the lawful approach of International Humanitarian Law (IHL) when it comes to an armed conflict. It seems that self-defence has become a scapegoat to the use of force which everyone understands differently.4
a. Expanded reliance on Self-defence
The right of States to use force to defend themselves “where the necessity of self-defence was instant, overwhelming, leaving no choice of means, and no moment for deliberation” was established in the Caroline Affair, 1837.5 After that, the principle of sovereign
self-1 Erica L Gaston, “When Looks Could Kill: Emerging State Practice on Self-Defense and Hostile Intent”
(2017) https://www.gppi.net/2017/06/22/when-looks-could-kill-emerging-state-practice-on-self-defense-and-hostile-intent accessed May 19, 2020. p. 6
2 Erica L Gaston, “Reconceptualizing Individual or Unit Self-Defense as a Combatant Privilege” (2017) 8
Harvard National Security Journal 283 https://harvardnsj.org/wp-content/uploads/sites/13/2017/02/Gaston-NSJ-Vol-8.pdf accessed June 4, 2020. p. 295
3 Ibid, p. 309
4 Gloria Gaggioli, “Soldier Self-Defense Symposium: Self-Defense in Armed Conflicts–The Babel Tower
Phenomenon” (Opinio Juris, May 3, 2019) http://opiniojuris.org/2019/05/03/soldier-self-defense-symposium-self-defense-in-armed-conflicts-the-babel-tower-phenomenon/ accessed May 18, 2020.
Mariana Galante Afonso 5 defence was incorporated in article 51 of the UN Charter6. In the Nicaragua Case, it was further confirmed, by the ICJ, the customary nature of the right to use force in self-defence.7 Ultimately, that is how self-defence became a fundamental principle of international law. For an attack in self-defence to be considered lawful, it must be necessary, proportional, and triggered by an imminent or ongoing attack.8
On the other hand, when force is used in an armed conflict, the mechanism that is usually applied is International Humanitarian Law (IHL). The concept of self-defence does not have a proper legal basis in IHL. So, it tends to be dismissed as a national or military concept that does not belong in international law. Thus, over time, these military and national concepts seem to overlap and even substitute IHL.9 There are no standards or a common understanding of its relationship with other IHL principles.
In a standard armed conflict, where IHL applies, soldiers are granted the right to use force, establishing combatant privilege. However, this right is limited - first of all, unnecessary violence is prohibited10 and the only attacks that can be justified are the ones that are military necessary.11 Besides, the principle of distinction also applies, in which the parties must distinguish between civilians and combatants, the target being only the latter.12 Thus, indiscriminate and disproportionate attacks are not permitted.13
Foreign State Papers (1841) 1137–1138, available at: “Avalon Project - British-American Diplomcay : The Caroline Case” (Yale.edu, 2019) https://avalon.law.yale.edu/19th_century/br-1842d.asp accessed May 30, 2020.
6 The United Nations Charter, 1945. (UN Charter) Art. 51
7 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America).
Merits, Judgment. I.C.J. Reports 1986, p. 14.
8 Terry D Gill and Dieter Fleck, The Handbook of the International Law of Military Operations (Oxford
University Press 2015). p. 484
9 Gaggioli, above n. 4
10 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of
Victims of International Armed Conflicts (Protocol 1), June 8, 1977, Art. 35(2).
11 Gary D Solis, The Law of Armed Conflict: International Humanitarian Law in War (2nd edn, Cambridge
University Press 2016)
https://www.cambridge.org/core/books/law-of-armed-conflict/frontmatter/5F550D80AE144CA1AC683E51E65909DF/online-view?action=view-book-online accessed June 10, 2020. p.258
12 International Committee of the Red Cross [ICRC], Customary International Humanitarian Law “Rule 1.
The Principle of Distinction between Civilians and Combatants,” International Committee of the Red Cross
(ICRC), https://ihl-databases.icrc.org/customary-ihl/eng/docs/home; ICRC Customary IHL Study.
Mariana Galante Afonso 6 The problem with the application of these rules, which otherwise would be sufficient, is the new patterns of warfare mentioned before.14 The modern warfare is mostly composed by non-state actors or individuals, there is no chain of command or control, they do not have a significant trait such as a uniform or insignia, and they can either be civilians or combatants.15 IHL has been responding to these demands by creating the principle of “direct participation in hostilities” and continuous combat function, which approximates status-based targeting in International Armed Conflict (IAC) and allows the soldiers to respond to the threat coming from individuals that are not regular members of an armed group.16
Nevertheless, confronted with these ambiguous scenarios, soldiers tend to depend on their right of unit and individual self-defence and on the mechanisms of hostile act and hostile intent established in the Rules of Engagement (ROE). Such dependence is often showed on trial or when interviewed, or it is even invoked by the States.17 Besides from being recognized internationally, self-defence is a right also recognized in most national criminal codes as a limited defence against criminal liability.18This is such a predominant justification under criminal codes that the International Criminal Court for the Former Yugoslavia (ICTY)19 established article 31 of the Rome Statute to be contemplative of the most national criminal codes, hence part of international customary law.20
The question that remains to be answered is what are the legal sources behind such a concept? As it will be mentioned, for some States, national self-defence under ius ad bellum is seen as the source to individual and unit self-defence, and for that reason, it
14 Hew Strachan and Sibylle Scheipers, The Changing Character of War (Oxford University Press 2014)
https://www.oxfordscholarship.com/view/10.1093/acprof:osobl/9780199596737.001.0001/acprof-9780199596737 accessed June 1, 2020.
15 Gaston, above n. 1 p. 14
16 Additional Protocol I, 1977, Art. 51(3); Additional Protocol II, 1977, Art. 13(3).
17 Charlie Savage, “Is the U.S. Now at War with the Shabab? Not Exactly” The New York Times (March
14, 2016) https://www.nytimes.com/2016/03/15/us/politics/is-the-us-now-at-war-with-the-shabab-not-exactly.html?_r=1 accessed July 3, 2020.; Helene Cooper, Ben Hubbard and Thomas Gibbons-Neff, “U.S., Britain and France Strike Syria over Suspected Chemical Weapons Attack” The New York Times (April 14, 2018) https://www.nytimes.com/2018/04/13/world/middleeast/trump-strikes-syria-attack.html accessed July 4, 2020.
18 Art. 41, para. 1, of the Criminal Code of the Netherlands establishes the mechanism of self-defence; Art.
32 of the Portuguese Criminal Code provides the same right.
19 Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2-T, Judgment, 451 (Int’l Crim. Trib. for the Former
Yugoslavia Feb. 26, 2001)
20 Rome Statute of The International Criminal Court, Art. 31 - codifies self-defence as grounds for
Mariana Galante Afonso 7 should be invoked only before the conflict begins. After that, when an armed conflict starts, International Humanitarian Law (IHL) applies immediately.21 This is the reason why national self-defence is a justification to why States engage in armed conflicts and not an ex-ante authority for fighting one. 22 Hence the problem - soldiers engaged in an armed conflict continue to use the authority provided by ius ad bellum to justify the use of force to fill a gap in an ius in bello situation.23 Other States, including most European NATO countries, base this right on domestic criminal law. However, this can putt the soldiers in a very difficult position because it narrows the standard of self-defence excessively and it is ill-fitted to respond to conflict situations.24
Besides, there is another issue that aggravates this expanded reliance on self-defence. Soldiers sometimes have the right to act upon some ambiguous threats. Such right can be written under specific ROEs. These ambiguous threats, as mentioned before are called “hostile acts” or “hostile intents”, and even though these concepts are not part of self-defence, they sit in the same spectrum of threats to which force can be used against.25 The problem is that soldiers tend to use these concepts instead of depending on IHL to justify the use of force in these ambiguous situations created by modern conflicts, and when such concepts are not available, they turn to the justification of self-defence. This is creating an almost independent authority distinct from IHL, it is working as a separated legal basis for the use of force.26
b. Hostile act and Hostile Intent
Germany, France and the majority of the countries, with the exception of the U.S. experience a very narrow threshold for the trigger of self-defence: an “imminent threat” has to be an immediate, direct or ongoing attack, and most of the times the soldiers can
21 Randall Bagwell, “Soldier Self-Defense Symposium: Individual Self-Defense in Armed Conflict – a US
Perspective” (Opinio Juris, April 30, 2019) https://opiniojuris.org/2019/04/30/soldier-self-defense-symposium-individual-self-defense-in-armed-conflict-a-us-perspective%EF%BB%BF/ accessed May 28, 2020.
22 Gaggioli, above n. 4
23 Randall Bagwell and Molly Kovite, “It Is Not Self-Defense: Direct Participation in Hostilities Authority
at the Tactical Level” (2016) 224 Department of the Army Academic Journal 1 https://www.loc.gov/rr/frd/Military_Law/Military_Law_Review/pdf-files/224-issue1-2016.pdf accessed June 1, 2020.
24 Gaston, above n. 2 p. 289 25 Gaston, above n. 1 p. 10 26 Gaston, above n. 2 p. 288
Mariana Galante Afonso 8 only respond as a last resort.27 As it will be addressed, most States, in theory, do not allow for the use of force in these circumstances. Nevertheless, soldiers tend to argue with hostile act and hostile intent and place them within the same spectrum of defensive responses as self-defence. According to the San Remo Book on Rules of Engagement, some States relate the terms of hostile act and intent with the mission-accomplishment objective, rather than self-defence, and usually require specific authorization.28
The challenge of creating a general rule regulating the highly varied threat of situations develops difficulties in defining or distinguish hostile act and intent. Hostile intent is often defined as the intent to commit a hostile act, or as NATO defines it: “the intention to inflict damage”29. Some member states of NATO and even the Organization provide some examples of what constitutes a hostile act – breaching the perimeter of an aerial zone or military base, laying mines, failure to respond to warning signs in a speeding aggressive vehicle.30
When most non-U.S. soldiers respond to the more time distant and indirect threats, they rely on the terms of “hostile act” and “hostile intent” established in the Rules of Engagement (ROE), when such exist. Because relying on self-defence would be unlawful.31But what happens when such concepts are not established, or when several States deployed in the same territory have a very different understanding of what a hostile act and intent mean?
Neither of the legal basis mentioned above seems to envisage a balance or a solution. The additional conceptual ambiguities of hostile threat and hostile act also do not help. In chapter IV of this Thesis, it will be argued that the solution would be the possibility of using the combatants' privilege in NIACs, for government forces, “absorbing”
self-27 Gaston, above n. 2 p. 314-315; Gill, above n. 8 p. 490-491.
28 Commander Allan Cole, “SANREMO HANDBOOK ON RULES OF ENGAGEMENT” (2009)
https://www.acq.osd.mil/log/ps/.psc.html/ROE_handbook_ENG_May%202011_PRINT_RUN.pdf accessed June 8, 2020.
29 Ibid, p. 4
30 État-Major Des Armees, Division Emploi 1, Directive Interarmees Sur L’usage De La Force En
Operation Militaire Se Deroulant A L’exterieur Du Territoire National (26th–27th edn, 2006) https://www.irsem.fr/data/files/irsem/documents/document/file/106/20060725-NP-EMA-EMP-PIA-5.2-USAGE-FORCE-OPMIL-EXT-TN-2006.pdf. accessed June 4, 2020. -French Ministry of Defense Interarmy Publication PIA-5.2.
31 Rob Mclaughlin, “An Australian Perspective on Non- International Armed Conflict: Afghanistan and
East Timor” (2012) 88 International Law Studies Journal 293 https://digital-commons.usnwc.edu/cgi/viewcontent.cgi?article=1065&context=ils accessed June 10, 2020.
Mariana Galante Afonso 9 defence.32 Furthermore, when it comes to ambiguous situations, like a soldier shooting someone out of uniform or carrying something that looks like an IED, the right to self-defence could be used. However, there should be a reconceptualization of such right within the legal framework of IHL, so it can be homogenous to everyone, including troops from different countries, as Erica L. Gaston does.33
To do so, several States’ practices will be analysed, one of them basing this self-defence right in the sovereign right to self-defence belonging to the States (ius ad bellum), the US prespective. One the other hand, Germany and France will be mentioned to explain how some countries derive the right of soldiers’ self-defence from domestic criminal law.
II. LEGAL BASIS FOR SELF-DEFENCE DOCTRINES a. Jus ad Bellum/ Article 51 of the UN Charter
Article 51 of the U.N Charter recognizes the “inherent right of individual or collective self- defence if an armed attack occurs against a Member of the United Nations.”34 This is the ius ad bellum concept of defence, also known as “national” or State self-defence, which regulates when States may resort to the use of force. It is different from IHL that establishes the conduct of States once they are engaged in the conflict.
For Hans Boddens Hosang this is the legal source of soldiers’ self-defence. The reasoning used affirms that military units are representatives of the sovereign State and for that reason, some of the inherent sovereign rights enjoyed by the State are conferred to them. Thus, unit self-defence is a unit-level representation of the national right to self-defence.35 This approach proclaims that a State’s self-defence has different rights entailed and sub levels, and the soldiers’ self-defence works at the level of military unit and at the level of the individual soldier as a state representative.36
Hosang raises two questions. The first issue regards the fact that States use force in national self-defence after a political decision-making process at the highest levels of
32 Ian Henderson and Bryan Cavanagh, “Military Members Claiming Self-Defence during Armed Conflict:
Often Misguided and Unhelpful,” Accountability for Violations of International Humanitarian Law: Essays
in Honour of Tim McCormack (Routledge 2014)
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2384261 accessed July 20, 2020.
33 Gaston, above n. 2 p. 314-315; Gill, above n. 8 p. 490-491. 34 UN. Charter, art. 51
35 Gill and Fleck, above n. 8 p. 483 36 Gaggioli, above n. 4
Mariana Galante Afonso 10 government has happened. These decisions involve aspects of national security, foreign policy or even constitutional requirements. So, how does a unit commander make such decisions on the battlefield, without ever have taken them before, and without collecting all the information needed for the decision-making process?37
The second problem concerns the trigger for the use of force in national self-defence. For an armed attack to occur under the context of national self-defence it needs another armed attack against the State that triggers it. One can see, that the same is impossible at the unit level. As Hosang describes
An attack on a unit does not ordinarily lead to an activation of all national self-defence responses (…) but will usually be only a piece in a larger composition of events and circumstances that define the national security situation at the time in question. (Hosang 483)
These are different scenarios and the act that triggers the use of force in self-defence does not have the same definition of an armed attack like the one used for national self-defence. This trigger will be an act more present, of immediate response, and smaller in scale compare to an attack on a nation.38
These concerns are solved by distinguishing different levels of action between national and unit self-defence. The right of national self-defence can be seen as a strategic-level right whereas the unit self-defence is a tactical-level right. The scale of the response and the requirements for command lessen when there is a downscaling from the strategic level to the tactical level. Thus, the commander of the unit has the authority to defends her or his unit against an attack, and that is the only authority that she or he needs. The commander is not required to have the authority to order the entire military assets of her or his nation to respond to a unit attack, which is considerably smaller than an attack to the State.39
37 Gill and Fleck, above n 8 p. 483
38 Dale Stephens, “Rules of Engagement and the Concept of Unit Self Defense” (1998)
https://heinonline.org/HOL/PrintRequest?public=true&handle=hein.journals/naval45&div=7&start_page =126&collection=journals&set_as_cursor=0&men_tab=srchresults&print=section&format=PDFsearchab le&submit=Print%2FDownload accessed June 2, 2020.
39 J Ashley Roach, “Rules of Engagement” (1986) 36 Naval War College Review 46
Mariana Galante Afonso 11 For that reason, an assault on a unit will not necessarily contribute to the triggering of all national self-defence measures in a State whose unit is under attack. Accordingly, it can typically instead be part of a broader range of activities and situations that determine the national security situation at the moment, as mentioned before. Therefore, it seems that for Hosang, even though the concept still lacks some definition, its proportional reduction to a tactical level rationally explains the right of unit self-defence under international law.40
As mentioned before, customary international law established the criteria for the use of force in self-defence.41 The exercise of unit self-defence must correspond to an attack that is proportional to the level of the attack defending against. It must be necessary, meaning that there were no alternative responses besides the one adopted.42 Finally, it must relate to an imminent attack, being such imminence broadly defined.43
The requirement of immediacy raises some concerns. Can States use force preemptive self-defence - in self-defence when an armed attack is imminent? Or do states have to wait until an armed attack has occurred before responding?44 Or, taking a wider approach, can future attacks, be prevented by the States (preventive self-defence), even though not imminent but inevitable?45
While the concept of preemptive self-defence has been widely accepted, even though the definition of imminence it is still unclear, preventive self-defence has been highly disapproved due to its broad and ambiguous significance.46 Thus, it seems that for most
40 Gill and Fleck, above n 8 p. 484
41 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America).
Merits, Judgment. I.C.J. Reports 1986, p. 14.
42 Roach, above n. 39
43 Chairman of the Joint Chiefs of Staff, Instruction 3121.01B, Standing Rules of Engagement/Standing
Rules for the Use of Force for U.S. Forces, June 13, 2005
https://www.loc.gov/rr/frd/Military_Law/pdf/OLH_2015_Ch5.pdf - reprinted in David H. Lee, “The Operational Law Handbook” (2015) http://loc.gov/rr/frd/Military_Law/pdf/operational-law-handbook_2015.pdf accessed June 2, 2020. p. 84
44 Winston S Williams and Christopher M Ford, Complex Battlespaces: The Law of Armed Conflict and
the Dynamics of Modern Warfare (Oxford University Press 2018). p. 73
45 Memorandum from William J Haynes II, General Counsel to Secretary of Defence, “Legal Distinction
Between Preemption, Preventive Self-Defense, and Anticipatory Self-Defense” (2002),
http://library.rumsfeld.com/doclib/sp/2564/2002-10-16%20from%20William%20Haynes%20re%20Legal%20Distinction%20Between%20Preemption,%20Pr eventive%20and%20Anticipatory%20Self-Defense.pdf accessed June 2, 2020.
46 See S.C. Res 1373, UN Doc S/RES/1373 (28 Sep 2001); Recently the US, the UK and France used the
mechanism of preemptive self-defence to justify the attack against ISIS in Syria - Christine M. Chinkin and Mary Kaldor, International Law and New Wars (Cambridge University Press 2017)
Mariana Galante Afonso 12 States, one can act in self-defence when it comes to an imminent attack and does not need to wait for it to occurs. However, future inevitable attacks cannot be prevented by self-defence. Nevertheless, the latter is the approach typically used by the US in jus ad bellum of self-defence, which is one of the reasons for such a broader approach on individual and unit self-defence by the U.S.47 This issue will be dealt with in Part III.
The US approach on individual and unit self-defence is addressed in the US Standing Rules of Engagement (SROE). It establishes three subsets of self-defence: collective, national and inherent, being this inherent right defined as individual and unit self-defence.48
i. USA Practice
The USA provides two types of Self-defence: one provided under the criminal law paradigm, that is normally used when a soldier is facing trial and another provided by the US Standing rules of Engagement which is based on the paradigm of ius ad bellum.49 Soldiers tend to mix these two.
a) Standing Rules of Engagement
The Standing Rules of Engagement’s (SROE) goal is to provide instructions to commanders on the use of force if their unit is threatened during peacetime, while at the same time offering flexible IHL-based guidelines that allow for a swift transition to a more comprehensive use of force when armed combat takes place.
In the SROE national, unit and collective self-defence are addressed. However, even though there are different levels of self-defence, the SROE only focus on the ius ad bellum paradigm, so only addresses national self-defence. National, unit, collective and individual self-defence are purely concepts for when and by whom national self-defence may be used. Besides, individual self-defence as stated in the SROE is not the same as
https://www.cambridge.org/core/books/international-law-and-new-wars/selfdefence-as-a-justification-for-war-the-geopolitical-and-war-on-terror-models/9338749E5B4FB77BDB17E4CE68D4239A/core-reader accessed June 3, 2020. p. 143
47 Office of The Gen. Counsel, Dep’t Of Defense, Law of War Manual 26 (2015, updated July 2016),
https://assets.documentcloud.org/documents/2997317/DoD-Law-of-War-Manual-June-2015-Updated-May-2016.pdf
48 Lee, above n. 38 p. 83 49 Randall, above n. 23 p.13
Mariana Galante Afonso 13 criminal self-defence. The authority present in the SROE does not derive from criminal law but international law. Colonel Bagwell created an interesting analysis which compares the SROE with a Russian stacking doll, defending that the SROE work as a nest where national self-defence holds the other concepts of self-defence.50
National self-defence can be defined as - “Defense of the United States, US forces, and, in certain circumstances, US persons and their property, and/or US commercial assets from a hostile act or demonstration of hostile intent.”51. In its turn Unit Self-defence as a concept constructed with the one above mentioned – “Unit commanders may exercise National Self-Defense”, furthermore “Unit commanders always retain the inherent right and obligation to exercise unit self-defence in response to a hostile act or demonstrated hostile intent.”52. The SROE also mention the concept of Collective Self-defense in which when applied is considered to be an extent of unit self-defence, hence nested by national self-defence under international law – “Defense of designated non-US military forces and/or designated foreign nationals and their property”.53
Finally, there is the concept of individual self-defence which is also nested under the concept of unit self-defence. This perspective is the one where more differences can be drawn between the concept of self-defence under domestic criminal law in the US and the concept of soldier’s self-defence under the SROE. Individual self-defence under the former derives from unit self-defence because the soldier is part of the unit of the US military. On the other hand, this is not done in a criminal law context, but rather in the context of the ius ad bellum principle, hence the transcription: “When individuals are assigned and acting as part of a unit, individual self-defence should be considered a
subset of unit self-defence”. Besides, the last part of the definition includes the possibility
for commanders to limit a soldier’s ability to exercise national self-defence - “commanders may limit individual self-defence”.54 This authority is not present in criminal law self-defence.
50 Randall, above n. 23 51 SROE, above n.38, A-3, 3(b) 52 Ibid, A-2, 2 (a)
53 Ibid, A-2, 3 (c) 54 Ibid, A-2, 3 (a)
Mariana Galante Afonso 14 Furthermore, the requirements for the use of self-defence according to the SROE are different from the ones used for criminal law self-defence. According to the Rules of Court Martial (RCM) 916(e), self-defence can be applied when there is a threat of harm, but that threat has to be wrongful. 55 Under the SROE a threat that triggers self-defence can either be a hostile act: “an attack or other use of force against the United States, forces or other designated persons or property,”56 or it can simply be considered a demonstration of hostile intent, “the threat of imminent use of force against the United States, US forces or other designated persons or property”. Besides, it is also necessary that the threat is aimed at precluding or impeding the mission and duties of the US forces.57
Nevertheless, by applying these requirements, one can conclude that threat has a much broader meaning for the SROE than it has for criminal law self-defence, including also the mere intent. Moreover, the word imminent stated above does not necessarily mean that the hostile act or intent has to be instantaneous or immediate.58 Under the RCM59 the threat has to be immediate. Additionally, the principles of proportionally and necessity, according to the SROE, are phrased taking into account the ius ad bellum perspective under international law and not the ones under ius in bello.
b. Domestic Criminal Law
Self-defence is also ground for excluding criminal responsibility also under International Criminal Law. Article 31, paragraph 1 (c) of the Rome Statute that establishes the ICC determines that
A person shall not be criminally responsible if, at the time of that person's conduct: The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against imminent and unlawful use of force in a manner proportionate to the degree of danger
55 United States. Department of Defense, Manual for Courts-Martial, United States. (RCM) (2019 edn,
Dept of Defense]: [Supt of Docs, US GPO, Distributor 1998). 916(e)
56 SROE, above n. 38, A-2, 3 (e) 57 Ibid, A-2, 3 (f)
58 Ibid, A-2, 3 (g)
59 RCM, above n. 55 - “The test here is whether, under the same facts and circumstances present in this
case, an ordinary, prudent adult person faced with the same situation would have believed that there were grounds to or serious bodily harm”
Mariana Galante Afonso 15 to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph. (Rome Statute of the ICC, Art. 31)
Nevertheless, the Statue of the ICTY never recognized self-defence as a ground to exclude criminal responsibility. However, in the Kordic case, as already mentioned, it recognized this right, as it can be found in the majority of national criminal codes, a constituting rule of international customary law.60
Thus, another commonly used approach is to derive self-defence from domestic criminal law. Personal self-defence and unit self-defence are concepts that derive from domestic criminal law, unit self-defence being a collective form of personal self-defence.61 Germany and France use domestic criminal law to ground their soldiers’ self-defence, even though only France has clear military guidance in this point.62 Hence, the criminal law of these two States apply extraterritorially, even in it comes to an armed conflict, and they both contain provisions of self-defence.
i. French Practice
The French criminal-law based conception of self-defence is very narrow, it is usually more limited than in Germany. For instance, the restrictions mentioned above also applies to defence from hostile acts and hostile intent, which also requires a commander’s approval. In these situations, there is an extraterritorial application of the French criminal code, meaning that it applies regarding of whether the French citizen is overseas or in France, so it applies to soldiers deployed in as armed conflict. 63
The French criminal code allows for the use force in self-defence, or defence of others, in order to prevent a crime, when the attack was unjustified, where it is “strictly necessary” to do so, and establishes that the response has to be proportionate and
60 Williams, above n. 44, p. 77 61 Gaggioli, above n. 4
62 Centre Interarmees De Concepts, De Doctrines Et D’experimentations, Ministere De La Defense, Dia,
5.2: L’usage De La Force En Operation Militaire Se Deroulant A L’exterieur Du Territoire National (7th edn, 2006) https://www.irsem.fr/data/files/irsem/documents/document/file/90/20060725-NP-EMA-EMP-DIA-5.2-OPS-EXT-TN-2006.pdf accessed June 4, 2020. p. 14 (French Interarmy Directive DIA 5.2); French Ministry of Defense Interarmy Publication PIA-5.2, above n. 30, 2020. p. 34
Mariana Galante Afonso 16 necessary.64 The response in self-defence has to coincide with the attack and is limited in time, meaning it must cease as soon as the attack ceases.65 Overall, there has to be already a beginning of an aggression, for instance, threatening someone with a weapon. Thus, the attack has to be ‘imminent’, in the sense that should be immediately forthcoming or ongoing, and the defenceh as to be ‘necessary’ and ‘proportionate’ to the attack. Besides, the attacker has to be identified by the soldier when the latter consummates the defending act.66
Under French law, the defence has to be towards an attack that is imminent or ongoing, as previously mentioned. Thus, there must be a commencement of act aggression, for instance, the presence of arms that suggests an imminent open fire. Besides, the act of defence cannot continue after the cessation of the act of aggression.67 There is no extended self-defence under the French doctrine. Thus, hostile acts and intents are not something to be included directly with French self-defence. Nevertheless, there is some guidance on what can be considered a hostile act: “intrusion or attempted intrusion into a protected military zone; penetrating the airspace of a military adversary that is above a protected military zone;” and a hostile intent: “the regrouping of armed individuals; suspect behaviour by individuals belonging to armed groups in the immediate proximity of vehicles belonging to (French/NATO) forces; preparations to destroy necessary means of communication, or pointing arms at a French or NATO soldier”.68
It is clear that soldiers, if this paradigm was kept, would be held liable for criminal responsibility, even if acting on orders to do so, for using lethal force against a hostile intent or act, because the French criminal law applies to all citizens overseas even if such citizens are deployed in an armed conflict. Thus, without the lawful use of self-defence soldiers might be held liable for firing on a non-combatant enemy, for instance. The level of protection is very narrow, the legal gap obliged the French troops to limit their attacks, even though it was never tested in trial, it created a great deal of confusion.69
64French Criminal Code (Code pénal), art. 122–5, See also French Interarmy Directive PIA 5.2, above n.
30, p. 34–35
65 French Interarmy Directive DIA 5.2, above n. 62, p. 14.
66 Col. Gilles Castel, “Self-Defense: A French Perspective,” NATO Legal Gazette No. 36, 135-140;
https://www.act.nato.int/images/stories/media/doclibrary/legal_gazette_36special.pdf p.135
67 French Ministry of Defense Interarmy Publication PIA-5.2., above n. 30 68 Gaston, above n. 1 p. 34
Mariana Galante Afonso 17 Article L4123-12-II was the foreseen solution. It is a provision inserted in the French Defense Code in 2005, in which States that in addition to the cases of self-defence, a soldier who is deployed pursuing a French military operation is exempted from French criminal liability if the act that he or she has taken is necessary to further the mission; such act does not violate international law, to which France is bound or either treaty or customary law; the act has fallen within the ROE that were applicable at the time it was committed.70
Even though there was a possible solution where French troops could respond in self-defence, and under French ROEs they could also respond to a hostile act and intent, French soldiers would still not act under such concepts and did not rely much on them. So, in practice, on the field, the defence acts committed by the soldiers continued to be restricted by the spirit of the French domestic self-defence concept, under the Criminal Code. For instance, French troops described that, in the field, hostile intent still has to be serious, imminent and the defence act still has to be proportionate. Thus, in the middle of the conflict, hostile intent has the same requirements has self-defence. 71
There are two significant reasons for such an occurrence. The first one relates to the fact that French soldiers cannot use preemptive force when it comes to responding to a hostile intent or act. Besides, for such response a superior order has to come, so French soldiers and commanders need a specific and direct authorization at the time to fire upon hostile intent and act. When commanders provide such authorization they do so, not because of the legal requirement, but more as a matter of common practice, and command style, rather than a written legal rule. Furthermore, the second significant reason tends to the application of the strict requirement of imminence associated with self-defence by French lawyers.72 These restrains in the use of force create one of most restrictive use of the mechanisms of self-defence, hostile act and hostile intent.73
ii. German Practice
Germany has a severely narrow provision for self-defence but, in practice, a more flexible application of hostile intent. Section 32 and 33 of the German Criminal code states the
70 Article L4123-12-II 71 Gaston, above n. 1 p. 35 72 Castel, above n. 66, p. 42 73 Gaston, above n. 1 p. 37
Mariana Galante Afonso 18 following: “Who commits a crime, that is necessary for emergency defence, shall not have acted illegally. Notwehr is the defence, which is necessary, to defend against an ongoing imminent, unlawful attack against one’s self or another)”. Under German law, self-defence can be argued when it was necessarily used to avoid an imminent or actual illegal attack against one’s self or another. This is clear in the literal translation of the Notwehr which means emergency defence- individual self-defence and Nothilfe means to come to the rescue of others – might be a form of unit self-defence.74
The minimal level of force must be used by the individual, such defence has to effectively and definitively rehabilitate the safety of the attacked individual. A firearm should only be used in self-defence as a last resort.75 Besides, even though there is no strict proportionality requirement for domestic self-defence, the training performed by German soldiers and German constitutional law emphasizes the need for proportionality when a firearm is used.76
Similar to French soldiers, Germany argues that hostile act and intent in the ROE’s, initially at least, go beyond the limits of self-defence, and are a form of offensive force. Initially at least shows a shift in the paradigm of the German doctrine. In 2009 German soldiers experienced, in Afghanistan, a posture’s change in the response that could be given in hostile intent and act situations. After recognizing that Germany was engaged in an armed conflict in Afghanistan, new ROE’s were implemented which allowed for the use of force beyond “immediate threat” situations.77
This change allowed for a more flexible use of force to respond in different situations. Soldiers were able to rely on the hostile act and hostile intent paradigm. In that sense, they could use force to respond to ambiguous threats that would not have met the threshold for ‘pure self-defence’. For instance, after the introduction of the 2009 paradigm, a soldier could open fire on an enemy that appeared to be ready to fire on she
74 Bundesministirium Der Justiz Und Für Verbraucherschutz, Strafgesetzbuch § 32
(2017), http://www.gesetze-iminternet.de/stgb/BJNR001270871.html#BJNR001270871BJNG000902 ; Prof. Dr. Michael Bohlander, German Ministry Of Justice, Translation Of The German Criminal Code § 32 (2016), http://www.gesetze-iminternet.de/englisch_stgb/englisch_stgb.html
75 BGH June 29, 1994, NJW 539, 1994;
76 Deutscher Bundestag, Beschlussempfehlung Und Bericht Des Verteidigungsausschusses: Drucksachen
[Bt] 17/7400 (Resolution and Report of the Defense Committee)
http://dip21.bundestag.de/dip21/btd/17/074/1707400.pdf .
77 Sebastian Fischer and Matthis Gebauer, “Westerwelle wagt sich an die Wahrheit über Afghanistan,”
Spiegel Online, February 10, 2010, http://www.spiegel.de/politik/ausland/bundeswehreinsatz-westerwelle-wagt-sich-an-die-wahrheit-ueberafghanistan-a-677063.html
Mariana Galante Afonso 19 or he before they had done so, just because such enemy would appear to act with a hostile intent.
III. LEGAL DIFFERENCES BETWEEN THE DISTINCT
SELF-DEFENCE APPROACHES AND ITS CONSEQUENCES
The legal basis analysed before tend to cause upon soldiers’ different reactions to the same situations. For instance, a French soldier has to wait to be fired upon before responding in self-defence, whereas a U.S. soldier can fire if the other person represents a mere threat. Thus, the U.S. has a more flexible and much broader conception of self-defence than the European countries.78 This expansive interpretation of self-defence is due to the more loosely interpretation of the immediacy of the threat and how much force can be used to respond to it.79 In this section, several possible scenarios will be analysed as well as the response from soldiers from different States. Such response will vary in accordance with the interpretation of the different requirements of self-defence - imminence, necessity and proportionality.
These scenarios tested how immediate and imminent the threat has to be and how ambiguous might be to fire upon a primarily or personal threat analysis. For instance, one of the scenarios already mentioned involved the possibility of opening fire on someone possessing, but not appearing to aim or use, an RPG, or other heavy. Another one concerned the digging of what looked like to be an IED. The “dicking” scenarios will also be addressed- can soldiers fire on someone that is watching from a high point of view, a convoy of troops moving, and she or he is providing the details and information to encourage an ongoing attack, or to remotely detonate an IED or other threat?80 Such scenarios can also vary if some contextual facts are added. For instance, was the person that posed a threat wearing any uniform? Was she or he in an area where she or he should not have been? Was the behaviour of such individual consistent with other civilian patterns or not?
For most of these scenarios, the attack was evident enough to confirm an imminent threat under the U.S. doctrine. Thus the U.S. soldiers were allowed to use lethal force in
self-78 Gaston, above n. 1 p. 22 79 Gaston, above n. 2 p. 308 80 Ibid, p.309
Mariana Galante Afonso 20 defence. Contrasting with European countries, for the U.S the threat not materializing immediately or even for days is less important than the threat itself.81 On the other hand, European soldiers can only respond in self-defence when the scenario at stake represents an immediate threat. Thus, when a soldier comes across someone digging what appears to be an IED or possessing an RPG, or surveying troops to pass on information that might facilitate an attack if it poses a less-than-immediate threat, she or he cannot lawfully use the right to self-defence.82
Another question that might arise deals with the possibility of soldiers relying on the mechanisms of hostile act and hostile intent under the applicable ROEs, presuming they existed at the time of the attack, instead of relying on self-defence. For European soldiers this seemed to be a feasible possibility, meaning that using lethal force in such scenarios seemed to be following the response that can be given to a hostile act or intent under the ROEs. When such rules are available, such as the response for a hostile act or intent, the position of European soldiers is close to the one from the U.S. soldiers, but not equal. The European paradigm on the use of force still suffers from an overall restrain in response to non-imminent, or more ambiguous threats than the U.S. Besides, even between French and German troops’ responses there are still some variations, which are caused by tactical or policy restrictions and different domestic law doctrines. 83
Finally, it seems that the European paradigm of self-defence applies to a narrower range of scenarios than the U.S. doctrine, because of differing interpretations of the concept of imminence. Furthermore, the concept of necessity is also interpreted differently, which allows U.S. soldiers to rely on self-defence in a wider range of scenarios than European soldiers. Ultimately, the incorporation of hostile act and intent within the U.S. self-defence definition, allows U.S. soldiers to use force more expansively in response to different threats.84
Such concepts and respective examples will be analysed on part a) of this subchapter. Part b) and c) will focus on the consequences of the legal differences in the requirements of self-defence. The different interpretations of the self-defence paradigm give rise to
81 Gaston, above n. 1 p. 26 82 Ibid, p. 33, 38
83 Ibid, p. 54
Mariana Galante Afonso 21 different consequences that involve a range of civilian protection, soldiers’ liability and accountability issues.
For US soldiers an expanded interpretation seems to provide a justification for strikes beyond declared conflict zones, which creates several issues. One of them concerns the creation of a greater risk of civilian casualties. Besides, it can also impact on accountability under IHL. Furthermore, it gives an ius ad bellum solution for an ius in bello situation, mixing up the two concepts. Notwithstanding, the European perspective also creates some concerns. A narrow interpretation of self-defence can cause soldiers their lives, which prevent them from carrying out their mission, their mandate and increases soldier’s liability.85
a. Imminence and Necessity
The U.S. interpretation of the concept of imminence and its relation to individual self-defence is the primary reason for the U.S. forces to be able to apply the mechanisms of self-defence, hostile act and hostile intent. Such mechanisms are implicit in self-defence to a boarder range of scenarios than for European soldiers. As it was already mentioned, under the French and German paradigm of individual self-defence imminence is required, and such imminence means immediacy, the attack as to be immediate. For that matter, German domestic law is clear in restricting temporally the requirement of imminence, which can only be fulfilled with foreclosing preemptive attacks. For instance, previous jurisprudence has claimed that drawing a weapon is the same as reaching for the pocket where the weapon is located, in terms of imminence.86
Besides, preparations must have already been underway for the attack to be imminent. Thus, the attack has to be ongoing or to take place in that very moment.87 For France, the Ministry of Defence, in the French Interarmy Directive, explains the imminence criteria by establishing that the exercise of self-defence must be “concurrent” with the act of aggression, imminent must correspond to the “commencement of the execution of the act
85 Ibid, p. 318-319
86 BGH 7.11.1972 – 1 StR 489/72, NJW 1973, 255; zust. HK-GS/Duttge Rn. 13; compare with BGH
12.3.1997 – 3 StR 627/96, NStZ 1997, 402; BGH 9.5.2001 – 3 StR 542/00, NStZ 2001, 530.
87 Münchener Kommentar zum Strafgesetzbuch, § 32 (Professor Dr. Bernd von Heintschel- Heinegg, ed.,
Mariana Galante Afonso 22 of aggression”, like threatening someone with a firearm, position of an individual suggesting imminent opening of fire.88
However, the U.S. interpretation of self-defence contrasts completely with such narrow views. The SROEs establish that: “imminent does not necessarily mean immediate or instantaneous”.89 Imminence in unit and individual self-defence is fulfilled when there is no other opportunity or time to repel the attack.90 Thus, in the situation where someone is digging an IED, the threat could be considered imminent, if there is no there no other way to prevent the IED from causing harm, even if there is no immediate risk of it being detonated. This seems to extend the use of self-defence to the point of infinity. Nevertheless, eventually, the necessity of the use of force will be the constraint of the requirement of imminence, meaning that if there is a direct threat, the trigger point for the use of lethal force should also be contra balanced with what is necessary to dismiss such threat.91
The origin of individual and unit self-defence is the reason for such border interpretation by the U.S. As mentioned before, the U.S. individual and unit self-defence flows from sovereign self-defence, ius ad bellum self-defence is incorporated into the conception of in bello individual self-defence.92 While most States see ius ad bellum imminence as permitting some degree of preemptive and anticipatory attacks (preemptive self-defence), the U.S allows for attacks against threats that are not immediately or instantaneous (preventive self-defence).93 Since ius ad bellum self-defence is the basis for unit and individual self-defence the same principles of flexibility and temporally are then imported from the former to the latter.94 This standard is temporally broader than the European States criminal law definitions of imminence but is also more extended than the standards
88 French Interarmy Directive DIA 5.2, above n. 62, p. 14; French Ministry of Defense Interarmy
Publication PIA-5.2., above n. 30, p. 35
89 SROE, above n. 38, A-2, 3 (g) 90 Gaston, above n. 2 p. 311
91 Mark Garlasco, “‘Troops in Contact’ Airstrikes and Civilian Deaths in Afghanistan” (HUMAN RIGHTS
WATCH 2008) https://www.hrw.org/sites/default/files/reports/afghanistan0908web_0.pdf accessed July 8, 2020.
92 SROE, above n. 38, A-3
93 Ashley Deeks, Taming the Doctrine of Pre-Emption (Marc Weller ed, Oxford University Press 2016)
https://www.oxfordhandbooks.com/view/10.1093/law/9780199673049.001.0001/oxfordhb-9780199673049-e-30 accessed July 8, 2020.
94 Maj. Eric Montalvo, “When Did Imminent Stop Meaning Immediate? Jus in Bello Hostile Intent,
Imminence, and Self-Defense in Counterinsurgency” [2013] THE ARMY LAWYER 24 https://www.loc.gov/rr/frd/Military_Law/pdf/08-2013.pdf accessed July 8, 2020.
Mariana Galante Afonso 23 of imminence under jus ad bellum of such States. Thus, even if Germany and France relied on the jus ad bellum perspective as the basis of soldiers’ self-defence, it would still be narrower than the U.S. standards, given the fact that the European States only proclaim the existence of preemptive self-defence and not preventive. 95
Ultimately, it seems that the French and German soldiers would not use force on the same situations as the US forces, especially in the scenarios presented given the fact that the threats presented were not immediate, the self-defence right would be impossible to rely on. The response could only be given if authorized under the concepts of hostile act and hostile intent.
Another requirement that allows US soldiers to use their right to self-defence in a border scale is also related to the requirement of necessity. Even though, it is suggested this is not as a bigger factor as imminence. The argument behind such affirmation follows the same line of thought as the one for imminence – the requirement of necessity of US soldiers’ self-defence is imported with the same standards from the sovereign right of self-defence.96 The SROE, instead of the taking the last resort approach – the use of force is only necessary as last resort, defines necessity as the simple presence of a hostile act or intent, meaning that the presence of a threat is enough.97
On the other hand, the European Criminal Law standards seem to give a narrower definition of necessity- self-defence can only be used as a last resort. This is due to the fact that the human rights framework on the use of force, that emphasizes the need of seeking alternatives before using lethal force, is often incorporated to the criminal law standards of self-defence.98 For instance, German criminal law establishes that the level and amount of force used must be the least possible, and fire weapons should be used as a last resort.99 Thus, given the fact that such principles were incorporated into German tactical guidance, if there are multiple means of defence available, the soldier should use the least dangerous option and only at the last resort. In its turn, the French Interarmy
95 Christine D Gray, International Law and the Use of Force (Oxford University Press 2018). p. 160-65 96 Lee, above n. 38 p. 84
97 SROE, above n. 38, A-3, 4 (a) 2
98 Michael A Newton and Larry May, Proportionality in International Law (Oxford University Press 2014)
https://web.b.ebscohost.com/ehost/ebookviewer/ebook/ZTAwMHR3d19fNzQ2MzQzX19BTg2?sid=810 585da-5b60-4f61-9ef6-a12ec802a5f3@sessionmgr101&vid=0&format=EB&rid=1 accessed July 9, 2020. p. 121-128; 140-147.
Mariana Galante Afonso 24 military guidance document outlines that necessity means the “only defence possible”, meaning that for the attack to be necessary it has to be the only course of action to address the threat.100
Comparing the concepts of necessity under a criminal law framework and necessity under a sovereign self-defence situation is comparing different normative concepts applied to the same practical situation. Even though they are used as standards to act in the same situation, the degree for which “necessity” is very different.
Overall, such unreliable and vague doctrines evidence how these concepts are being applied with a large ambiguity and lack of guidance. These sovereign self-defence or criminal law standards are not translated properly into the concept of individual and unit self-defence, which makes it difficult to properly evaluate the imminence and necessity requirements in individual or unit self-defence.101 The solution, at least to this problem, would be to better underline the scope and legal basis of these concepts.
b. Broad (U.S.) Jus ad bellum Standards and Civilian Protection Rights
The most appointed concern when it comes to a boarder application of the concept of unit or individual’s self-defence is the greater risk of collateral damage. The risk arises from mistaken determinations of an imminent threat or hostile intent that lead to civilian casualties. For instance, according with the U.S. Defence Department, the misidentification of civilians as combatants was the leading cause of civilian casualties in Afghanistan.102Additionality, the U.S. Center for Army Lessons Learned, found that the majority of civilian casualties happened during confrontations based on self-defence.103
The pattern of unintentional killing of civilians, as Maj. Montalvo describes, is due to the creation of a status-based targeting model.104 Accordingly, a broad self-defence interpretation can lead to a targeting model based on physical characteristics and patterns
100 French Interarmy Directive DIA 5.2, above n.60, p. 14. 101 Gaston, above n. 2 p. 315
102 Joint and Coalition Operational Analysis (JCOA), Reducing and Mitigating Civilian Casualties:
Enduring Lessons 10 (Apr. 2013), p. 10
103 Center for Army Lessons Learned (CALL), “Handling Instructions for CALL Electronic Media and
Paper Products” (2012) https://info.publicintelligence.net/CALL-AfghanCIVCAS.pdf accessed July 2, 2020.
Mariana Galante Afonso 25 of threat and not on the individuals’ conduct. For instance, the Center for Army Lessons Learned, recalled an incident in Afghanistan where a strike was called by a military unit. The strike was taken against what was ultimately revealed to be four women gathering some grass. The unit decided to take such measurement because they had been attacked every day in the week before, and the women were standing in the same place where many of the attacks came from. Since it seemed they were digging something, the soldiers attacked relying on the concept of imminent threat, to which they responded in self-defence.105
Another concern mentioned regarded the excessive use of force used in self-defence, resulting in disproportionate civilian harm. A more permissive proportionality standard to unit or individual self-defence is something that it is shown on the U.S. standards.106 The Haditha case is an expression of such concern. Haditha is a town in Iraq where a unit of U.S. soldiers was attacked by an IED’ explosion. As a responce to such attack, the soldiers dragged several men out of their car and shoot them, and after proceed to pillage the nearby houses. In conclusion, twenty-four people were killed.107
Some scholars noted that the regulation of concepts such as necessity and proportionality under ius ad bellum tends to be less protective of civilians than in bello IHL standards. This is due to the fact that IHL tries to balance between the military result that troops try to attain, with the anticipation of civilian harm, whereas, ius ad bellum de-prioritizes the latter.108
This shows that U.S. soldiers may frequently not be held accountable for otherwise unlawful acts. They seem to be protected from such unlawfulness by the inalienable character of the right to self-defence, and by the ambiguity of its standards.
c. Restrictive Criminal Law Standards and Soldiers’ Liability
105 CALL, above n.103 p.22 106 Gaston, above n. 2 p. 324
107 Tony Perry, “Marine Gets No Jail Time in Killing of 24 Iraqi Civilians” (Los Angeles Times, January
25, 2012) https://www.latimes.com/archives/la-xpm-2012-jan-25-la-me-haditha-20120125-story.html
accessed July 20, 2020.
108 Enzo Cannizzaro, “Contextualizing Proportionality: Jus Ad Bellum and Jus in Bello in the Lebanese
Mariana Galante Afonso 26 The application of domestic criminal law to soldiers deployed in a NIAC would be the perfect solution for accountability problems. Such application would allow the soldiers to know at all times what they could count on, and it would provide the State the possibility of prosecuting someone on the counts of unlawful use of force. Unfortunately, as Hosang noted, the reliance on the criminal law self-defence in military operations is difficult, because the conceptual legal framework for military operations is incompatible with the framework for personal self-defence under domestic criminal law.109
The interpretation of self-defence by domestic law is extremely narrow. The concept of self-defence focus on exercising an individual right at a day to day basis. It is supposed to be used as mean of last resort, as an exception. Hence, it is not prepared to be applied in a military scenario.110 Soldiers sent into a conflict are expected to use force on a regular basis considering the fact that they are attacked regularly. So, if such a narrow interpretation rules it will limit soldiers when defending themselves in the type of situations where they face armed attacks.111
As Col. Gilles Castel112 illustrates it is extremely difficult for French forces to complete their missions when deployed in military operations. Col. Castel gives some examples of such difficulties. When French forces were deployed in Kosovo,113 they were target to many violent protests where lethal weapons were used to threaten or at times even injure the soldiers. According to French criminal law, soldiers could not respond to attacks without clearly identifying the attacker.114 During a mass protest is difficult to identify the attacker, which made exercising self-defence very hard, and resulted in various French soldiers being wounded and unable to lawfully defend themselves from the protestors' attacks.
Another example happened during the Operation Licorne in the Ivory Coast. French forces would often find themselves in roads blocked by armed rebel forces. Such forces would threaten soldiers with their weapons. However, threaten someone with a weapon does not meet the threshold of an attack under the French criminal law115. Thus, even
109 Gill and Fleck, above n. 8 p. 499 110 Ibid
111 Gaston, above n. 2 p. 319 112 Col. Gilles Castel, above n. 66
113 S. C. Res. 1244, UN Doc S/RES/1244, (10 Jun. 1999) 114 Code pénal, above n. X art. 122–5
Mariana Galante Afonso 27 though, the threats of the rebels severely restrain the soldiers' mission because they had to leave the route they were supposed to follow, the soldiers had to peacefully retreat. The last situation happened again in Kosovo. A Kosovar vehicle forced its way into a French blockade, in response a French soldier shot the driver of the vehicle. The driver did not use any force against the soldier, so the shot fired by the soldier did not fall under the scope of self-defence. When the incident was reported, the French commanding officer, overseeing this incident, sympathised with the soldier's situation and stated that the soldier fired in self-defence because the driver had previously shoot upon the soldier. But the truth was discovered when a Military Police Investigator took over the case, and it was ruled that the use of force was unjustified which was a crime in the French domestic system.116 This shows how conflicted soldiers are when they are trying to respond to an ambiguous threat.
Besides, the protection of civilians can be included in the troops’ mission - limiting the troops’ ability to respond to threats is limiting the level of protection that can be given to civilians.117 The genocidal acts in Rwanda, 1994 and in Srebrenica, 1995 showed that peacekeeping forces should be empowered to use sufficient force to defence themselves but also to defend the civilians under their protection.118 Accordingly, the generic ROEs for UN peacekeeping missions now authorize for the use of force in self-defence or to protect civilians under imminent threat of physical violence.119 It seems that it become necessary to allow for the use of force beyond the limited self-defence conception to carry out basic peacekeeping duties.
Even when hostile act or intent ROEs were available, European soldiers’ experience in Afghanistan has shown that these ROEs are often restricted. Furthermore, soldiers often merge them with self-defence, which results in the application of the self-defence limitations into hostile intent situations.120 Such concern is illustrated on the examples given by Col. Castel – French soldiers self-limited their actions even though other ROEs were available. This is due to the fact that it was not clear for them if they would be
116 Col. Gilles Castel, above n. 66 p.136 117 Gaston, above n. 2 p. 320
118 Gill and Fleck, above n. X p. 174 119 Ibid, p. 175
