Self-Defense under the International Law
Nations acts of self defense are controlled and regulated by the customary international law and the treaty law. The customary international law includes aspects of the international law which are derived from habitual practice. This habitual practice is known as custom. Custom, the general principles of law, and treaties are consider as the main sources of the international law by the jurists, International Court of Justice, The UN agencies and member states. For example, even before the laws of war had been organized in Geneva Conventions, the 1899 and 1907 Hague Conventions, and other international treaties; they had for long been matters of customary law.
Although many governments in the world differ in opinions regarding the rules contained in the customary laws, they accept their existence. Furthermore, the Statute of the International Court of Justice recognizes the existence of the customary law in its Article which was integrated into the UN Charter through the Article 92. The International Customary Law is composed of the rules of law that has been derived from the consistent behavior of States. Nations act in this manner with the conviction that they are required by the law and justice to act that way. Therefore, customary international law is not challenging to enforce as it might be a duplication of conduct that a state takes as lawful. Some International Customary Laws have been adopted following the measures taken by a nation as it seeks justice for its citizens, or the citizens of other nations who may be in danger. After they have been proved useful, they are adopted with the aim of encouraging their future application in similar situations. Customary laws are regarded as the logical means of seeking justice which does not have to be in writing to prove their existence.
Generally, acts occur when the states develop a sense of obligation. They must be adopted by a substantial number of the nations to be effective. For example, the community of nations may be compelled to assume the obligation of protecting the civilian of a sovereign state from the acts of a brutal regime (Fleur 2011, p.55). Since this obligation does not amount to self defense of any of the intervening nation, it is required to be endorsed by a large majority of nations to be effective. International customary laws are endorsed through consensus among the member states, and it is exhibited by the discernible sense of obligation and by widespread conduct. A peremptory norm serves as an essential component of the international law as it is recognized by the states as the norm from which derogation is not permitted (Julius 2006, p.74). Examples of peremptory norms include several international crimes; any nation permits or engages in genocide, torture, crime against humanity, or war of aggression is always in violation of the International Customary Law, and the international community maybe compelled to take measures to arrest the situation in order to alleviate suffering. Other scenarios that are claimed to fall under the international customary law include granting immunity to visiting heads of other states, and the right of the international community to intervene on humanitarian grounds. For example, when the community of nations gets convinced that citizens of a nation are in danger of a catastrophe, whether natural of artificial, they have a right to intervene through any means in order to save humanity. The regime in the jurisdiction is expected to facilitate such an intervention and not to abstract it in any way An example is the ongoing drought situation in Somalia, where the international community has demanded the authorities in that country to allow intervention.
The treaty and international customary laws require all sovereign states to refrain from threatening or using force in a manner that undermines the political independence and territorial integrity of any other state. States are also restrained from actions that are inconsistent with the United Nations Purposes. This rule was adopted in a 1945 United Nation Charter with the aim of restricting states from unjustifiably using force against other states.
On the other hand, the United Nation Charter article 51safeguards the right any country to act in a manner aimed to defend itself, either solely or with the assistance of other nations, when attacked by an external aggressor. A United Nations' state member is allowed to defend itself as it waits for the Security Council to take measures aimed at maintaining the international harmony and security. However, the member exercising her right of defense is required to report such measures to the Security Council Immediately. The Security Council is expected to exercise its authority and power and take the responsibility of ensuring that the international peace, harmony, and security are maintained.
Article 51 of the United Nation Charter has been cited by several states as they try to justify hostilities. The United States of America cited it to justify the legality of their involvement in the Vietnam War. This involvement generated a lot of controversy, and it complicated the Vietnamese civil war. The Americans argued that, although South Vietnam was not an independent nation or a member of the UN, it had the right to self-defend itself. The territory of South Vietnam was allowed to defend itself either solely, or with the help of friendly nations. This is because collective defense was not only legal but also ethical. However, Article 51 and other Articles of the UN Charter are difficult to apply with certainty in a real-life situation. Opinions regarding their meaning and implications are also varied. For example, which some people argue that Article only bans aggression towards the political independence and territorial integrity of a state, others believe that these simply intensives. Their opinion is that the article was composed to impose a general prohibition, and the only exceptions are those articulated in the Charter on self defense and Chapter VII that expounds on the actions reserved for the Security Council as it seeks to restore peace. Considering the case of Vietnam, the international law lacked clear guidelines that ought to have been followed by the coalition of friendly nations who aimed at rescuing South Vietnam Charter 51 was adopted to help avoid another major war which would bring untold suffering to the world community. It evolved following the consequences of the First and the Second World War, and the United Nation wanted to minimize the probability of another war outbreak.
Article 51 has become the main aspiration of the United Nation, and it is widely considered as a part of the International Customary Law. The article bans any state from involving itself in an armed engagement except for the two situations that are authorized through the United Nation Charter. Firstly, citing the provisions in Chapter VII, and articles 24 and 25 of the United Charter, the United Nation Security Council may a collective action against the attacking state in order to enforce and maintain international peace and security. Secondly, Article 51 safeguards the right of a nation to self defense. However, some states make controversial claims aiming to justify their right to humanitarian intervention, protection of their national in foreign nations, and reprisals.
The Collective Action
The United Nation authorizes its Security Council to determine if a threat to international peace and harmony exists. It empowers the Council to take actions aimed at addressing the threat. However, this power has not been used fairly because the permanent members in the United Nations Security Council usually have vented interest in a particular situation. Usually, the Security Council takes lesser measures such as the imposition of sanctions before engaging in an armed conflict. The Security Council first authorized armed engagement in 1950 with the aim of securing South Korea from the invasion by the North. Although the intervening forces were supposed to be under the full command of the United Nation, they fell under the American command. America’s main objective was to arrest the spread of communism. Had the case been the opposite, the United States of America would probably have endorsed the invasion. Another weakness of the Security Council with regard to the Korean conflict was the lack of unanimous support. The vote passed because of the Soviet boycott, and due to the fact that a Nationalist Chinese from the territory of Taiwan represented the people’s republic of China.
Some nation states take advantage of the vagueness in some United Nation Security Council’s resolutions to advance their interest. A notable case is that of the Gulf War II. In 1990, the Security Council had passed the Resolution 678 that demanded the Iraqi withdrawal from Kuwait. The state member nations were authorized to use force and provide any other necessary support to ensure that the Iraqi forces withdrew from Kuwait. However, the resolution was never revoked. In 2003, the United Nation Security Council passed and adopted the Resolution 1441, recognizing Iraqi non compliance with the other resolutions regarding weapons of mass murder and destruction threatened the international peace and security, and the international community could not sit back and watch. The Council echoed that resolution 678 which had not been revoked authorized a forceful restoration of peace and security. Thus, the United States and Allied nations argued that resolution 1441 in effect implied that the application of force was legal. The United Nation has authorized the forceful restoration of peace and security in other nations such as Somalia, Sierra Leone, and Somalia. In some cases like that of Somalia, restoration of peace has not always been successful. In that country, the United Nation mandated military offensive was forced to abandon its work following the barbaric murder of the military personnel.
Another example of collective action was the first Persian Gulf War. The Kuwaiti-Iraqi border had generated a lot of tension in the past. The tension began when the British granted independence to Kuwait in 1961 causing the Iraqi government to revive an old claim of the Kuwaiti territory. Iraq was, however, forced by the international community to recognize Kuwait as an independent state in 1963. However, occasional border clashes between the Iraqi and Kuwait forces persisted. The relationship between the two nations improved during the long military confrontation between Iraq and Iran because Kuwait supported the Iraqis both diplomatically and financially. After the war, the Iraqis found that the reconstruction cost was unmanageable, and demanded that the small neighbor forgive her share of the liability. Saddam also demanded that Kuwait offer more financial assistance, and pay for the oil it pumped from their border region. He claimed that Kuwait was exceeding her fair share of the oil quotas, and this made oil to fall in prices. The complaints continued, and despite the efforts of the international community, Iraq attacked Kuwait. The Iraqis cited matters of national interest. The Arab League and the UN Security Council condemned the Iraqi regime. When Saddam did not reconsider his actions, the Security Council imposed a trade embargo on Iraq. Stubbornly, Iraq annexed Kuwait prompting military intervention by a huge coalition of nations lead by the United States.
The war had varied consequences. Iraqi military sustained a huge casualty figure, and their infrastructure was further destroyed by the coalition attacks. When the Kuwaiti government was restored, about 400,000 innocent Palestinians were either expelled or denied re-entry for supporting Saddam (Julius 2006, p.75). The constituencies of this war demonstrated that the use of force does not necessarily result to the desirable result. Some unforeseen circumstances like the fate of the Palestinians usually complicate the international resolutions to use force, and this is why some people favor other measures.
The right to self defense still exists under the customary international law. This following was declared during the Nicaragua case by the International Court of Justice, where part of the ruling was that the application of force in self defense was permissible following an external aggression. Some observers argue that Article 51 was only meant to preserve the right to self defense when an armed aggression occurred. They consider other acts of self defense as banned through article. The opinion of other observers is that besides granting the general right to self defense, article 51 also states the procedures to be taken whenever such armed aggression occurs. This second opinion also holds that self defense can still be legitimate even in situations where an armed aggression has not occurred. The United Nations elaborates that not all acts of violence constitute armed attacks. During the Nicaragua case, the International Court of Justice sought to clarify the level of force that qualified to be termed as an armed attack. On its June 27 ruling, the International Court of Justice ordered the American government to cease its training and arming of the rebels. The Americans were also ordered to pay reparations to the state of Nicaragua. However, the United States of America did not recognize this ruling. Because the International Court of Justice lacks independent powers to enforce its decisions, this ruling remained symbolic. One of its implications is that it made the Americans became more cautious while adopting international statutes and treaties. For example, they declined to ratify and adopt the Rome statute that lead to the establishment of the International Criminal Court.
The traditionally, customary rules on self defense are derived from a diplomatic incident that resulted when some American citizens were killed by the British forces following their attack on Canada. Canada was by then a British colony, and the British authorities cited self defense to justify their actions. The scenario is what came to be referred to as The Caroline affair or the Caroline case. It constituted a series of events which began in 1837, and resulted in straining the relationship between United Kingdom and the United States of America. The case found that there was the necessity to exercise self defense. The necessity was overwhelming and instant. The choice of means or the moment of deliberation did not exist. The British argued that the actions they took were proportional to the danger they faced. The United States Secretary of State at the time indicated to the British authorities that because the act was justified by the need of self-defense, it ought to have been limited to that need, and kept strictly within it. These words were taken as the accurate definition of the customary right to self defense.
The Pre-emptive Force
Customary law provides a limited right to preemptive self defense. The continued permissibility of this right has been secured and elaborated in the Article 51. The right to preemptive self defense means that a state doesn't have to hold back until the eminent armed attack has occurred. It may act in such a manner that deters the possibility of being attacked. The argument is that the preemptive self defense saves the victim country of destruction and the loss of life. This argument was cited by the East African Nation of Ethiopia following its attack on Somalia in 2006. Ethiopia justified her actions saying that the Union of Islamic Courts that ruled Somalia at the time threatened her national security. Although the Union of Islamic Courts could not match the Ethiopian Military in fire power, they had made threats to their neighbor; and sworn to disturb the peace and security.
There are some observers who argue that a nation must wait for an armed attack to begin before seeking reiteration. However, these observers are on the minority. Usually a distinction is drawn between the preventive-self defense and anticipatory self defense. Preventive-self defense takes place when an attack simply foreseeable or possible, while the anticipatory self defense is when an armed aggression is inevitable and imminent. The ICJ has not ruled out a nation’s right to use the anticipatory self defense when faced with an imminent armed attack. Even so, some states suggest that preventive-self defense is not allowed under the international customary law. They argue that a certain nation may attack another with other interests, which are not necessarily aimed at maintaining peace.
Protection of Nationals
Some nations have laid the controversial claims to the right of using force with the intention of protecting their nations who live in foreign lands. This is usually an idle claim meant to cover other intentions that the attacking nation has. Some of the intentions have been to secure natural resources, passage along a water channel, and exercise political influence over a strategically located jurisdiction. Examples of the controversial interventions include the United Kingdom attack on Suez in 1956; the Israeli attack on Entebbe in 1976; and the American intervention in Grenada in 1983, Panama in 1989, and the Dominican Republic in 1965. Majority of the state members of the United Nation expressed doubts that such a right exists. Those that apply it often claim it alongside some other reasons and rights for the application of force. For example, the American intervention in the West Indies state of Grenada was generally considered to have been intended to overthrow a socialist government that had just come to power. Many people did not recognize the danger that a socialist regime in Grenada would have posed to the United States nationals. The intervention was unanimously condemned in the General Assembly a scenario that demonstrated widespread dissatisfaction. Apart from incidences like the Entebbe intervention, the right of a nation to protect nationals in foreign lands is often stated as a self-justification when a powerful nation intervenes for other political goals.
Over the years, many nations have argued that there exists a right that allows a foreign nation to intervene in another country citing humanitarian crisis. They say that this right does not necessitate authorization by the Security Council. Following the Kosovo crisis of 1999, the United Kingdom Foreign Secretary argued that, in the international law, exceptional circumstances demand certain measures meant to deter a humanitarian catastrophe. He defended the military action saying that it had a legal basis since the international community could not have abandoned the innocent civilians in Kosovo. Reconciling this statement with the United Nation Charter is challenging. This is because such an intervention is not as a result of any kind of self defense. Another notable exception is the NATO’s military intervention in the Yugoslav state without the Security Council authorization. The NATO intervention was not condemned because the veto powers held extreme positions on either side of confrontation, and they failed to reconcile their positions.
Many countries argue that such unauthorized interventions on humanitarian grounds are illegal and should be discouraged. Their argument is that the right will always be used against the weaker nations by the stronger ones. In the G-77 Ministerial Declaration following the attack on the Yugoslav state, 134 states expressed strong disapproval for such an intervention. The proponents of the intervention argued that such a right has evolved to form a part of the present day customary law.
The use of Non-Military Force
Widespread debate targeted on the significance of using the term “force” during the phrasing of article has been ongoing. There have been varied opinions regarding the phrase. Many observers argue that the term “force” used in article has a wider implication that the phrase “armed attack” referred to in article 51. They say that “force” encompasses other methods that do not involve military coercion, such as the economic force. Moreover, the implication of this article also covers a forceful threat, which is not permitted in scenarios where the application of the actual armed intervention would not be.
When a nation fails to abide with the international standards, the international community takes one or more measures, which might not necessarily be military. An aggressor may be suspended from various international associations, which reduces its diplomatic voice to the world. For example, several nations including Nigeria, Zimbabwe and Pakistan have had been suspended from the British Commonwealth. Some of the reasons of suspension include unlawful takeover of the government, government brutality towards the citizens, and crimes against humanity. Some critics of the suspension method argue that it’s the weaker and non influential nations that are suspended while the strong and influential go unpunished. While the British government has had several instances of military involvement in the Northern Ireland, no organisation in the world ever suspended it.
Another nonmilitary intervention is the imposition of sanctions. Sanctions are meant to exert economic strain on a regime with the aim of forcing it to abide with some conditions. Sanctioning is the most common intervention method, and it is applied either prior or after other measures have been taken. The duration that a country remains under the sanctions is determined by the imposing authority. For the international community to impose economic sanctions against a nation, there need to be some justification that such a measure is necessary. In most cases, it is the United Nation Security Council that impose economic sanctions that the entire world is expected to enforce. In some instances, regional organisations such as the European Union also impose economic sanction against a country they regard as not meeting the international expectations. Imposition of sanctions is criticized because it is a form of punishment that is not widely used against the economically powerful nations. For example, during the 18th Century, the United State’s Secretary of State had proposed that economic sanctions be imposed on Britain. The Treasury Secretary, Alexander Hamilton, objected this idea arguing that such an action would hurt America economically. Again, the act of imposing sanctions is sometimes aimed to blackmail a nation in order to force it abide with some terms imposed by the powerful countries.
The process of maintaining peace and security is a complex one. Such a process is usually not endorsed unanimously by the international community. Moreover, actions taken to enforce peace end up having long-term consequences to all parties involved in the confrontation. The measures employed may be destructive to property and infrastructure; and may also result in the death, maiming, and suffering of the innocent citizens. A country that suffers destruction may be forced to incur huge debts, as well as engage a lot of time and resources to the reconstruction process. The nationals of the defeated party may resent the measures taken against them, and probably vow to revenge if they ever have an opportunity. This is thought to be the motivating reason why the Nazi regime decided to attack France and other nations at the start of the Second World War.