Controversies and Legal Perspectives

Pre-emptive Self Defence under the UN Charter

Historically, European philosophers and writers have accepted the justness of self-defence under a ‘just war’ doctrine, and the contemporary international law has also accepted the right of the states to self-defence. However, specific provisions of the UN Charter prohibit use of force, particularly, Articles 2(4) and (7). Therefore, there have been important questions raised as to when states are justified in taking recourse to use of force on the ground of self-defence. More importantly, as pre-emptive self-defence is by very definition pre-emptive and taken before another state has used force, this is an area that has remained prone to different viewpoints in literature. With regard to pre-emptive self-defence there is more controversy because it relates to actions carried out against a perceived threat that is temporarily remote. As the threat is based on the subjective perception of the state perceiving such threat and not any objective criteria, such actions can be controversial. Indeed, some jurists have argued that there is no right to pre-emptive self-defence under the UN Charter. On the other hand, it is also argued that the UN Charter does not provide a clear explanation of the extent of right to self-defence and whether it can be justified as a pre-emptive measure.

The starting point of the right to self-defence can be taken from the prohibition of use of force in international law. Use of force is not legal and in response to use of force, a state has the right to individual and collective self-defence. The UN Charter invokes an important principle of non-use of force in Article 2(4), which makes it a duty of states to refrain from threat or use of force against any other state. The 1970 Declaration of Principles of the International Law explains the term ‘use of force’ in Article 2(4) as including wars of aggression, crimes against peace, reprisals, and organising, instigating assisting or participating in a civil war. The UNGA Resolution 3314 (1974) defines aggression as “the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state or in any manner inconsistent with the Charter of the United Nations, as set out in this definition.” However, even aggression is permissible for individual or collective self-defence for the states under Article 51 of the UN Charter. Therefore, a very clear relationship is made out between the prohibition of use of force and the right of self-defence. Essentially, the right of self-defence would involve use of force, but it may be justified under certain circumstances.

The UN Security Council has recognised the right to self-defence in SC Resolution 1373 (2001) as an ‘inherent right of individual or collective self-defence as recognised by the

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1. MP Scharf, ‘Responding to Chemical Weapons Use in Syria’ (2019) 51 Case W. Res. J. Int'l L. 189.
2. CG Fernandez DP. and Fernandez, ‘The adoption of the Declaration on the Right to Peace by the United Nations: a human rights landmark’ (2017) 1 (2) Peace Human Rights Governance 1.
3. JP Trachtman, ‘Integrating lawfare and warfare’ (2016) 39 BC Int'l & Comp. L. Rev. 267.
4. WA Schabas, ‘Origins of the Criminalization of Aggression: how crimes against peace became the “supreme international crime’ in The International Criminal Court and the Crime of Aggression (Routledge 2017).
5. General Assembly(Resolution 26/25 (XXV)) 1970 Declaration of Principles in International Law (24 October 1970).
6. James Crawford (ed), Brownlie’s Principles of Public International Law (8th ed., Oxford University Press, 2012) 761.
7. Article 51 of the UN Charter.
8. Francesco Francioni and Christine Bakker, ‘Responsibility to protect, Humanitarian intervention and Human rights: Responsibility to protect, Humanitarian intervention and Human rights: Lessons from Libya to Mali’ (Transworld April 2013).

Charter of the United Nations’. Self-defence is permitted within the scope of Article 51 which provides states the “inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” However, Article 51 has certain aspects like reporting the measures taken in self-defence to the Security Council and the Security Council’s powers to maintain or restore international peace and security. Therefore, the right to self-defence has to be established and justified before the Security Council.

The rights of self-defence to states against acts threatening the sovereignty or integrity of the states are not new rights; such rights were recognised in earlier European thought as well. War in self-defence has been recognised as a legitimate action of the state; for instance, St. Augustine justified war if it was necessary to peace, or was done if something that was wrongly taken. In other words, use of force was justified under certain circumstance, defence of the state being one of them. More recently, it was in the Caroline case that such use of force was justified by the British; British forces in Canada used force against a merchant vessel Caroline, in control of Canadian rebels in attacks against Canada. At the time when the Caroline was attacked by the British forces, it was on American territory and the attack by the British forces was pre-emptive in nature. The British justified their action under self-defence, which was accepted by the Americans. The American Secretary of State, Daniel Webster recognised that right of pre-emptive self-defence if it was taken in response to threatened armed attack, it was necessary to take such action, and there was no choice of means and no moment for deliberation before such action could be taken.

In the event that the state uses force against another and such force is not justified, then the issue of state responsibility for unlawful acts against other states arises. In such situations, the 2001 International Law Commission (ILC) Articles on State Responsibility, Article 21 allows the justification of self-defence. The state is not responsible if its actions in violating international law are the consequence of the state’s exercise of the right to self-defence or if the actions were necessitated.

Contrary to the earlier position on self-defence being available only against state actors, recent international events and state practice demonstrates that self-defence can be taken recourse to even as against non-state actors. The case of American action against ISIS in Syrian and Iraqi territories is relevant here. In Syria, this action was taken despite the Syrian government refusing permission to bomb ISIS held positions. With relation to this, Shwarf has argued that there is now a paradigm shift with relation to right to use force against non-state actors and how pre-emptive self-defence itself is used by the states. Traditionally, use of force in self-defence was unlawful against non-state actors in a third state unless it could be established that the non-state actors were in effective control of the third state. Greenwood supports the use of pre-emptive force against non-state actors on the ground that the refusal to accept the right of the state to take military action against actors that

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9. S/RES/1373 (2001).
10. John Mark Mattox, St. Augustine and the Theory of Just War (A&C Black, 2006).
11. R Y Jennings, ‘The Caroline and McLeod Cases’ (1938) 32 American Journal of International Law 82.
12. Ibid.
13. Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, [22]; The Trail Smelter Arbitration Case( United States Vs Canada) 1941, U.N. Rep. Int’L Arb. 1905 (1949).
14. Michael P. Scharf, ‘How the War Against ISIS Changed International Law’ (2016) 48 Case W. Res. J. Int'l L. 16.
15. Ibid.

threaten the state would amount to a “strange formalism.” This viewpoint is also substantiated by the UN Security Council resolutions related to terrorism. SC Resolution 2249 (2015) provides that states have the right to use force against ISIL by exercising their right to self-defence; it urges states hosting ISIL to give their consent to armed operations on their territory. Furthermore, UN Security Council Resolutions 1368 (2001) and 1373 (2001) allow states the right to self-defence in the face of terrorist acts against itself. These resolutions of the Security Council are in response to the growing threat of terrorism that many states face in the world today.

The right of pre-emptive self-defence therefore appears to be gaining support both in academic literature as well as UN resolutions. The conditions under which this right can be exercised are still linked back to the Caroline case by Luard who writes that the idea of pre-emption or right of anticipatory self-defence can be justified if it matches the criteria noted by Webster, that is, action necessitated by self-defence, where the perception of threat is overwhelming and instant, and leaves no scope for other means, and gives no instance for deliberation. It is argued that in the growing threat of global terrorism, where terror threats often emanate from other countries and are perpetrated by non-state actors, it would be pragmatic to accept pre-emptive self-defence even though the exercise of such action is under a subjective determination of the state. The premise for this argument is that it is more suitable to the contemporary conditions where states are facing serious threats related to global terrorism and even weapons of mass destruction. States in an earlier period did not face such threats to this extent, therefore, there is a need to reassess the right to pre-emptive self-defence in the light of these new developments. To be certain, the Security Council resolutions mentioned earlier and state practice, such as, American actions against ISIS on Syrian territory point to the shifting paradigms of pre-emptive self-defence. Schabas argues that it is more appropriate to recognise the right to pre-emptive self-defence rather than denying that such as right exists.



To conclude, literature demonstrates that the right of self-defence has historically been a part of the just war doctrine and that in the contemporary period it has been included in the exceptions to use of force and aggression in the UN Charter. However, the right to pre-emptive self-defence has received complex responses with some jurists denying the existence of such right, while state practice and some academic opinion indicates that states do take action in pre-emptive self-defence. More importantly, a case is also made out by some scholars that in the face of the growing threat of global terrorism and weapons of mass destruction, the right to pre-emptive self-defence should be recognised more clearly.

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16. Christopher Greenwood, ‘International law and the pre-emptive use of force: Afghanistan, Al-Qaida, and Iraq’ (2003) 4 San Diego Int'l LJ 7, p.17.
17. S/RES/2249 (2015).
18. E Luard, A History of the United Nations: Volume 2: The Age of Decolonization, 1955–1965 (Springer 2016).
19. T Mikanagi, ‘Establishing A Military Presence In A Disputed Territory: Interpretation Of Article 2 (3) And (4) Of The Un Charter’ (2018) 67(4) International & Comparative Law Quarterly 1021.
20. Ibid.
21. Schabas, ‘Origins of the Criminalization of Aggression: how crimes against peace became the “supreme international crime’, supra n 4.

Books

Crawford J (ed), Brownlie’s Principles of Public International Law (8th ed., Oxford University Press, 2012).

Francioni F and Christine Bakker, ‘Responsibility to protect, Humanitarian intervention and Human rights: Responsibility to protect, Humanitarian intervention and Human rights: Lessons from Libya to Mali’ (Transworld April 2013).

Luard E, A History of the United Nations: Volume 2: The Age of Decolonization, 1955–1965 (Springer 2016).

Mattox JM, St. Augustine and the Theory of Just War (A&C Black, 2006).

Schabas WA, ‘Origins of the Criminalization of Aggression: how crimes against peace became the “supreme international crime’ in The International Criminal Court and the Crime of Aggression (Routledge 2017).

Journals

Fernandez CG and DP Fernandez, ‘The adoption of the Declaration on the Right to Peace by the United Nations: a human rights landmark’ (2017) 1 (2) Peace Human Rights Governance 1.

Greenwood C, ‘International law and the pre-emptive use of force: Afghanistan, Al-Qaida, and Iraq’ (2003) 4 San Diego Int'l LJ 7, p.17.

Jennings RY, ‘The Caroline and McLeod Cases’ (1938) 32 American Journal of International Law 82.

Mikanagi T, ‘Establishing A Military Presence In A Disputed Territory: Interpretation Of Article 2 (3) And (4) Of The Un Charter’ (2018) 67(4) International & Comparative Law Quarterly 1021.

Scharf MP, ‘How the War Against ISIS Changed International Law’ (2016) 48 Case W. Res. J. Int'l L. 16.

Scharf MP, ‘Responding to Chemical Weapons Use in Syria’ (2019) 51 Case W. Res. J. Int'l L. 189.

Trachtman JP, ‘Integrating lawfare and warfare’ (2016) 39 BC Int'l & Comp. L. Rev. 267.