“It Means What We Say It Means”: The Quiet Death of Limitations on the Self-Defence Excuse in International Law

 

William S. Geimer

Because so many of us are committed to nonviolence, in our own lives and in international affairs, we sometimes do not pay sufficient attention to the reality that self-defence is the only recognized exception to the use of lethal force in both contexts. That inattention is  unfortunate because, as we focus elsewhere, internationally recognized limitations on claims of self-defence are disappearing.  If those limitations survive and are honoured, wars will not end immediately but the world will be a far less violent place.

 The over-memorialized 9/11 attacks killed approximately 3,000 civilians. In the course of exacting its revenge, the United States has killed tens of thousands of civilians and the total continues to rise. Not enough notice is taken of that.  Even less attention is being paid to how 9/11 has led to the erosion of centuries of limitations on the excuse of self-defence in international law, thus enabling the killing of even more civilians.  If those limitations are not dead, they are certainly at the hospice stage. On self-defence limitations, the position of rulers everywhere, and particularly in the U.S. is: It means what we say it means.That is to say, nothing.

 

Unless the rules of self defense limitations are preserved, thousands more civilian lives will be  forfeit.  It is concern for fathers, mothers, and children that prompts me to issue this alarm. If it were only that nations and non state actors were abusing self-defence by just throwing their armed forces against one another, that would be bad enough. But the indiscriminate killing of civilians is a norm of warfare today and a major propaganda cloak for these killings includes specious claims of self-defence. If we do not remove this cloak, limitations on lethal force that have carefully evolved over eight centuries will be lost.

A Gift from the West to the International Community

 It is ironic that western nations led by the U.S. should be the ones  destroying  limitations on the use of lethal force. Those limitations are a gift to the world community. The rules of self-defense began to develop at least as early as  12thCentury England as an important part of the law of homicide.  Scholars today recognize that these basic constraints on person to person violence have essentially been adopted as rules about violence carried out by nation states. Since western nations dominate the world order at the moment, it is particularly important to preserve the body of law that they themselves have developed.

Self-defence became critically important when English King Henry II instituted legal reforms requiring that virtually every killer be executed. The public resisted.  The system Henry purported to replace was one where almost every homicide was emendable, resolved with payment to the victim’s family by the slayer and his family. There were only two narrow exceptions in Henry’s reforms and the most important one was slayings in self-defence. My own empirical research confirms that self-defence evidence remains the most effective response to a charge of murder.

While the public has always insisted on self-defence, it has been equally firm in circumscribing the excuse to prevent it from becoming an unfettered license to kill. Initially, it was the self-informing jury that fashioned rules. Exactly the opposite of today’s procedure, early juries were expected to know all about the case.  Their verdicts were based on facts that they determined, independent of other court actors. They fashioned the facts they found to fit their concept of self-defence. The body of their work  influenced the subsequent work of legislative bodies.

Part of this legacy is that self-defence has historically been an excuse, not a justification. That distinction is important because it reflects a respect for all lives, including lives that have been taken in self-defence. Early  English defendants who successfully claimed self-defense still had to go through a formal pardoning process and forfeit property. The point is that this respect for life understandably made necessity the foundation of the excuse. The limitation rules are all about giving necessity an operational meaning in discrete situations.

What is Being Lost

 Here is a brief outline of the limitations on self-defence that are currently being ignored or undermined by nations and non state actors.

  1. Perception In instances of personal violence, the rules require that one using lethal force must actually and reasonably believeat the time he actsthat lethal force is necessary to save himself from death or life-threatening injury. Applying this limitation to international actors means challenging the notion that a person or group driving a vehicle into a crowd, or even flying an airplane into a building could evoke the kind of actual and reasonable security fear in a nation of harm comparable to the rule about person to person violence. Unfortunately however, we see that such conduct is being recognized, not as  a criminal matter, but as an “armed attack” on a country.

2 ImminenceA natural outgrowth of the necessity formula is that the perception must be that an attack is imminent. “Imminent” does not mean “Immediate”. It is a term subject to reasonably flexible interpretation.  But if any of the limitations are to be meaningful, it surely means that the apprehended harm will come very soon. Today, however, not only is the imminence requirement being undermined by states like the U.S. who ignore the limitations completely, there are proposals to relax it even by those who are trying to save some vestiges of a workable doctrine of self-defence.

3 Last Resort.Necessity and respect for life in the original self-defence rules produced a requirement that the excuse was available only to those who had first made the fullest possible attempt to retreat. Before analogous terms appeared in international law, this limitation had been relaxed to require use of reasonable opportunityto retreat. In U.S. states like Florida, of course, it has been entirely abrogated by “stand your ground” laws. Even though “last resort” wording appears in international law, most actors ignore the limitation.

4 Proportionality This common sense requirement developed as part of the law of manslaughter under a concept known as “imperfect self defense”. It provides that one who is assaulted with fists may not blow away one’s assailant with an AK-47. It carries little weight today among state actors like Israel, which persists in bombing Palestinian villages and cities in response to stones, burning tires, and crude missiles launched into unoccupied fields near its cities.

5 Not initial aggressor.This limitation is also part of the concept of “imperfect self defense”. It provides that even if a slayer found himself at some point in a position that met the requirements of self defense, the excuse was not available if he had been the initial aggressor.

6 Standing in the Shoes of Another.The excuse of self-defence could also excuse lethal force in defence of another, in circumstances where the party being aided met all the self- defence requirements, but could not act for himself.Internationally, this is often the basis for what are termed “humanitarian interventions”, sometimes embodied in the doctrine of Responsibility to Protect. Indeed, innocent civilians today often find themselves in legitimate self-defence situations but unable to act for themselves.  The problem is that the fundamental requirement for the intervention isdefenseof another— not regime change in Libya, not aiding one side in a civil war in Yemen or Mali.  The U.S. and its foreign military arm NATO are currently the principal actors employing this distorted version of self-defence.

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An event called the “Caroline Affair” in 1837 is often referred to as marking the time when  international rules began to incorporate the personal rules outlined above.  An American steamer, the Caroline, docked in the U.S., was being used to assist a group of rebels fighting the British colony of Canada. A raiding party from Canada destroyed it. In the diplomatic back and forth that followed, the British claimed self-defence against a national security threat that the U.S. was unwilling or unable to deal with. British and American diplomats were never able to agree on what actually happened, but they did agree on a stunning statement about self-defence: A state must show  a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no momentfor deliberation.

The “Caroline” statement is a strongly worded incorporation of the imminence, proportionality  and last resort requirements. Nevertheless, necessity did not and does not mean that individuals were required to wait until their assailant had pointed the pistol to their heads and drawn back the hammer. And it does not now mean that nations must wait until tanks roll across their borders or bombs drop on their cities as part of an invasion. But it is the underlying principle of necessity that produces the fundamental limitations on the excuse of self-defense— limitations that are virtually lifeless today.

Disregarding restraints imposed by the rules of self-defence is an important part of a global struggle for power over other people’s lives, and access to resources. States and non state actor claims to be respecting the “rule of law” are part of a propaganda campaign to conceal the reality of the human costs of the struggle. The campaign, under cover of 9/11, particularly targets the imminence requirement and its logical implications.

The Hamstrung United Nations

 The only international body with any potential to preserve historic limitations on the use of lethal force is the United Nations (UN) . Unfortunately, its current organizational structure prevents it from doing so, in large measure because of the anachronism known as the Security Council.

There is no reason for the excessive allocation of authority for military interventions to the five WWII victors, seventy plus years after the end of the war, but the UN Charter contains no procedure to reform or replace it.  Security Council members can authorize the kind of military interventions that are currently killing thousands of civilians.  The five permanent members, part of the global struggle are in control. They acquiesce or block military actions as their interests dictate, not based on considerations of peace, or protection of civilians, and certainly not on principles of self-defence.

A second problem is that the provisions of the UN Charter on the subject of force envision restoring order in nation to nation conflicts. Conflicts today often involve non state actors. Powers seeking to undermine the self-defence limitations have seized upon this post-war development to claim that the old rules can no longer apply.

Article 51 of the UN Charter provides:  Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. (Emphasis added.)

 Article 51 frames nicely several questions before the world that are very important to civilian non combatants. What does “inherent” mean? The right of self-defence as the law has shaped it over centuries? Whatever the member says it means? What is an “armed attack” on a nation? The invasion of Poland and the bombing of Pearl Harbor would seem to qualify, as would the invasion of Iraq and Afghanistan.  What about a group of individuals bombing a subway, or driving a vehicle into a crowd?  What about hundreds of confined civilians, some armed with burning tires or Molotov cocktails, storming an illegal wall? What about 19 people successfully flying airplanes into buildings?

And, of course, what happens when a member state does not bother to call on the Security Council before acting, or exceeds the authority granted by the Security Council? The answer to these two questions is easier. Nothing. The UN is powerless. The U.S, the dominant post-war power, has given the world examples of both such violations of the terms of its UN membership.

The first was Korea. The U.S army of occupation drew an arbitrary line across the peninsula at the 38thparallel, creating two nations and resisted subsequent attempts at reunification. This soon resulted in rule by dictators in both North and South Korea.  When the regime in the north attempted reunification by force and invaded the south, the U.S. obtained Security Council authority to act. ( The Soviet Union was boycotting the council over its refusal to recognize the actual government of China.)

The measures authorized by the Security Council were contained in a mandate that authorized member states to render such assistance to the Republic of Korea as may be necessary to repelthe armed attack and restore peace and security to the area. Near the end of 1950, U.S. led forces had driven North Korean forces back north of the artificial border.  The invasion had failed. The situation was the same as before the armed attack.  If “repel” and “restore” have any rational meaning, the UN mandate had been fulfilled.

But the intervention had always been a U.S. venture.  The UN authorization was a fig leaf for the Americans in their Cold War struggle. That was apparent when U.S. general Douglas MacArthur decided that the artificial border, the one he had created, was meaningless. He invaded North Korea. Not only did he provoke China into entering the war, he brought the world very close to a nuclear holocaust. As it was, two million Koreans who had no stake in the Cold War were killed. Tens of thousands were orphaned. No structure above one story was left in North Korea. So much for the first UN exercise of collective self-defence. As they do today, the Americans acted beyond what the UN authorized.

More recently, the U.S. did not bother to seek direct UN authority before launching an armed attack on Afghanistan. Had it done so, there might have been quite a lively discussion about the concept of self-defence. Instead, after 9/11 the U.S. obtained and relied upon two broadly worded Security Council resolutions, 1368 and 1373. The first called on States to work together to bring terrorists to justice, including organizers, sponsors, and aiders of terrorist acts.   The preamble language of the second resolution simply “reaffirmed” Article 51. The remainder of 1373 was a much more detailed call to action. Ironically, its tone and much of its substance treated terrorism as a criminal matter—which, of course, it is.

The U.S. invasion of Afghanistan and its aftermath reveal numerous aspects of the U.S. attitude toward international law in general and self-defence in particular.  After the 9/11 attacks, the U.S. demanded that the Taliban government in Afghanistan (whose leaders it once supported) surrender the suspected mastermind of the event, Osama Bin Laden, a Saudi. Consistent with a long Afghan tradition of negotiating, the Taliban asked for evidence of Bin Laden’s guilt. The U.S. responded that its demands were not negotiable and issued an ultimatum. Afghanistan dropped its demand for evidence of Bin Laden’s guilt and suggested negotiating about a trial for Bin Laden in a country other than the U.S., perhaps even one that might extradite him to the U.S., like his native Saudi Arabia. Whether the negotiation would have gone anywhere became moot on Oct 7, 2001 when the U.S. began bombing a country that had not attacked it, bringing the first civilian deaths in a campaign that would kill tens of thousands. The killing continues today.

Afghanistan reveals another critical weakness in the UN as an institution for preserving the limitations on self-defense.  In this area, it is functionally subordinate to the North Atlantic Treaty Organization.

Building on the fiction that it was Afghanistan that had launched an armed attack on the U.S., the Americans invoked for the first time, Article 5 of the NATO Charter. The “one for all, all for one” section provides that an attack on one state is an attack on all and members have an obligation to come to the aid of the victim. NATO countries, particularly the U.K. and Canada joined the U.S.  in what became a NATO operation.  The UN eventually approved, but that approval was irrelevant. Regardless of whether NATO members decided to “stay the course”, the U.S. maintained its own force independent of the two bodies, and quaintly named it “Operation Enduring Freedom”. The “enduring” part of that  moniker is surely appropriate. Forces of the other nations are gone, but the U.S. war on Afghanistan continues. Babies born in 2001 when it started, are now eligible to fight and die in it.

The practice of the UN providing fig leaves for non-defensive military campaigns over which it has little or no control, from Korea to Afghanistan, Libya and beyond, is not entirely explained by the dominance of great powers on the Security Council and the current general acquiescence of Russia and China to U.S. campaigns. That acquiescence is understandable. The western adventures  so far have not impinged on basic Russian operations in Crimea, Ukraine and Syria. Moreover, China has taken a more intelligent, non-military approach to gaining influence and control in other countries.  For example, the Chinese have invested billions in African infrastructure projects. Conversely, when it come to interventions, the U.S. and Russia appear to have a “bomb and let bomb” understanding.

But when the West does call on the Security Council to respond to threats to international peace and security, a second weakness of the UN is revealed.  The idea of a permanent UN force has been floating around for years, without success. Consequently, any force for what is called peacekeeping, or self-defence, or humanitarian intervention consists of forces drawn from countries who have volunteered to act under UN auspices.  The most heavily armed, trained, and equipped of those countries are the former colonial powers and their supporters, like Canada. NATO is more than eager to play this role, a situation aggravated by the fact interventions are in the very countries the colonial powers oppressed for decades.  Once the intervention is underway, its conduct falls to the big powers involved, not the poorer countries who sometimes also commit forces. The UN has no real authority at all.

In sum, at the moment, the UN is the principal institution to which the world may turn to save  historically accepted  limitations on self-defence, but it is structurally incapable of doing that.

Scholars Cannot Save Self-Defence Limitations

 The international law of self-defence may be informed by, but will not be shaped by scholarly exchange. That is the principal reason this article is not footnoted.   The last thing I want is for this alarm call to bee seen as too “scholarly”. That is not at all to denigrate the work of scholars.  In this area, their hard work in presenting and discussing the truth of what is happening is under- appreciated.  But the existing law of self-defence, with its life-respecting limitations can only be saved by ordinary people like the self-informing jurors of 13thand 14thCentury England. Faced with an assertion of raw power with which they disagreed, they took away some of that power by insisting on rules that more closely reflected the position of their communities.

The inability of scholars to meet the threat is illustrated particularly by the work of some who are trying to be helpful but take the position that the “imminence” requirement must be re-thought in the “post-9/11 world”.  Their idea is that the law will not be credible  if it does not effectively address the realities of contemporary threats, so we must now consider interpreting imminence in a way that can somehow be harmonized with the idea of “pre-emptive” or “anticipatory” self-defence.  Examination of the re-examination, however, shows ignorance of the reality that the requirements they recommend keeping, like last resort, proportionality, and a real and credible threat, are ignored now and will continue to be ignored.  So what is the point, even in scholarly discourse,  of unilaterally conceding ground on the imminence limitation, especially since the same writers have already acquiesced to  a very dodgy interpretation of “armed attack”? These writers purport to insist on many of the basic limitations, but apparently give no weight to the reality that the limitations are being ignored. A process of unilateral serial concessions is hardly a blueprint for reform.

Raw power, exerted by the U.S. dominated western forces and their adversaries may well destroy the law of self-defence or at least bury it for a very long time.  Softening the imminence requirement to any degree to address some allegedly new form of threat will not preserve the remaining limitations on self-defence. To the contrary, any accommodation of “pre-emptive” or “anticipatory” self-defence will complete the process of rendering the limitations utterly meaningless. The response of the people of the world should instead be to cut through the propaganda fog. It should be to hold accountable every nation in the senseless global power struggle that ignores the law.  It should be to demand that a carefully circumscribed  excuse of self-defence be the only acceptable exception to a global commitment to non-violent conflict resolution.  The fate of thousands of  ordinary families, like yours and mine, depends on it.

 

 

 

 

 

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