2.5 The telos of self-defence
2.5.1 The mechanics of prohibition and exception
Yet the differences over what self-defence ‘is all about’ add to the uncertainty surrounding this vital norm of international law; therefore, it will be beneficial to
214 Nicaragua (1986) supra note 5, Separate Opinion Ruda at 176 (para 13).
215 Dinstein (2005) supra note 9 at 244–247.
216 It seems settled opinion that Article 51 was added merely to ensure that action taken under the Act of Chapultepec (and similar arrangements) would be considered legal by the new organisa- tion. Cf. Goodrich, Hambo and Simmonds (1969) supra note 8 at 342–344.
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discuss some of the issues, arguments and differences that have arisen. Two issues have already been mentioned above: the nature of the ‘right’ or ‘exception’
of self-defence217 and the question of whether self-defence presupposes illegal conduct on the part of the attacker (Section 2.4.1).
The crux of both issues lies in the difference between two underlying theor- etical models. The difference may seem slight, but it is one of kind, rather than degree. On the one hand, one can perceive of an exception as a mere ‘gap’ within a prescriptive norm, as some scholars tend to do. Thus, conduct that falls under the exception is excepted from the purview of the prohibition or prescription altogether. For example, the International Law Commission’s commentary on its Draft Articles on State Reponsibility 2001 states that ‘a State exercising its inherent right of self-defence as referred to in Article 51 of the Charter is not, even potentially, in breach of Article 2, paragraph (4).’218 The idea seems to be that a threat or use of force justified as self-defence is not even a threat or use of force in the sense employed by Article 2(4). However, if the state is not in at least prima facie breach of Article 2(4), then it need not justify its acts as self-defence, so why would one need a norm (Article 51) to justify self-defence in the first place?
On the other hand, one can argue that a justification is a norm which makes a prima facie breach lawful, i.e. which justifies breaches. An act which is justified differs from an act which is not even prohibited. Drawing an analogy from the model employed in Austrian criminal law doctrine, if an act has fulfilled the preconditions of a criminal offence (Tatbestand), e.g. ‘wilful killing’ in the case of murder, it is presumed to be prima facie illegal (rechtswidrig) unless it is justified by a permissive norm (Rechtfertigungsgrund). A prima facie illegal act justified as self-defence is in the end result just as legal as a perfectly legal act219 – in effect, sharpening a pencil is as legal as killing someone in self-defence. However, in order to be justifiable as self- defence, the defender’s actions do have to be prima facie illegal, whereas the person sharpening the pencil does so without committing an illegal act at all.
The difference is between a ‘hole’ in the prohibition and a multi-layered sys- tem, in which the prescriptive or prohibitory norm forms the first layer (‘prima facie breach’) and a second layer determines whether the act is exceptionally justified.
One may ask: Cui bono? Why discuss these fine distinctions? First, because it is the expression of a struggle over which legal culture is applied to international law.
Second, because some scholars have used the former position to support the
‘black hole’ theory (Section 2.1).220
217 Section 2.1 at note 18–19.
218 DARS 2001, Commentary Art 21 para 1, supra note 178 at 177 (emphasis added); Bowett (1958) supra note 11 at 185–186.
219 Helmut Fuchs, ệsterreichisches Strafrecht. Allgemeiner Teil I. Grundlagen und Lehre von der Straftat (7th ed. 2008) 133. In comparison, the way in which the common law tradition approaches this issue is illustrated by: Vaughan Lowe, Precluding wrongfulness or responsibility:
A plea for excuses, 10 European Journal of International Law (1999) 405–411.
220 The difference discussed above may be caused by a ‘legal cultural bias’. Perceiving the mechanics is merely a question of different socialisation rather than conscious intellectual choice. This ‘bias’ is behind more than just this cause of uncertainty.
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Regarding illegal conduct as precondition, there are some observations one could add to Section 2.4.1. First, it seems to be settled opinion that the legal system must prohibit the use of force for self-defence to make sense:
The absolutely indispensable premise of the idea of self-defence, with its intrinsic meaning, into a particular system of law is that the system must have contemplated, as a general rule, the prohibition of the indiscriminate use of force by private subjects, and hence admits the use of force only in cases where it would have purely and strictly defensive objectives, in other words, in cases where the use of force would take the form of resistance to a violent attack by another.221
Second, most scholars would agree that one can call an exception ‘self-defence’
only if some other state has committed an act which is a breach of some inter- national obligation, illegal and unjustified. Even Derek Bowett – in other respects diverging from the majority view – agrees: ‘The essence of self-defence is a wrong done, a breach of a legal duty owed to the state acting in self-defence. . . . It is this precondition of delictual conduct which distinguishes self-defence from the
“right” of self-preservation and the “right” of necessity.’222 One must not confuse this argument with an assertion that the concept of self-defence demands that the infraction be a breach of Article 2(4). One must also not confuse it with the discussion about the role of non-state actors in self-defence law and the responsi- bility of those states which are connected to private entities and which endure forcible measures which are justified as self-defence. These are two different claims which are discussed in Section 2.4.1. Some scholars would not see an unlawful act as the trigger of self-defence,223 for neither were Webster and Ashburton in the exchange of letters following the Caroline and McLeod affairs224 conscious that self-defence demanded an infraction nor would the simple reading of Article 51’s terms as discussed in Section 2.4.1 be conducive to the inclusion of such an element.
2.5.2 Telos
The telos of a norm is a relatively ephemeral or metaphysical thing, even if that norm happens to be written down in some document. This is not the place to speculate about the existence or importance of such a concept, merely to note that differences over what may be considered self-defence’s ‘aim’, ‘goal’ or ‘object
221 Ago (1982) supra note 9 at 52 (para 83); Combacau (1986) supra note 16 at 9; Kunz (1947) supra note 19 at 876.
222 Bowett (1958) supra note 11 at 9; Dinstein (2005) supra note 9 at 178: ‘The thesis of self-defence . . . is inextricably linked to the antithesis of employment of unlawful force by [the attacker]’
(Dinstein seems not to note the incompatibility of this statement with theories developed later in connection with the actions of non-state actors); Kunz (1947) supra note 19 at 876–877.
223 Tucker (1972) supra note 146 at 588; Kreò (1995) supra note 41 at 208 (note 885); Waldock (1953) supra note 12 at 464 (requires only threat of infraction).
224 Jennings (1938) supra note 190.
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and purpose’ may be behind the more ‘technical’ scholarly differences described above. Differences over ‘technicalities’ usually point to higher-order problems.225 Using the ‘zoom’ of self-defence (Section 2.3.2) as an example, if one believes that self-defence ought to guarantee the effective protection of a state’s national secur- ity and interests, one would tend to argue that an armed attack is comprised of the whole relationship between the attacker and defender. If, on the other hand, one only allows the repulsion of an acute infraction, then one would see armed attacks as constituted only by concrete actions (the General Belgrano incident). To make a better distinction between the differing dimensions of telos, this topic will be approached from two angles: one, from the meaning of ‘self-defence’ within the Charter system and two, from the ‘aim’ of self-defence itself.
(a) Self-defence is a right within the United Nations Charter and as such it is bound up with it.226 The right as regulated in Article 51 of this Charter is part of the greater construct. It shares one telos, for the Drafters intended (we might presume) to create a sensible, internally coherent body of norms, not a patchwork of disparate single norms. There was a guiding idea behind the Charter and we will have to let it influence our views on the law of self-defence found within it.227 This warrants a short look at the differing perceptions of this ‘normative neigh- bourhood’ within which the right of self-defence in Article 51 UN Charter is embedded.
There is no debate about the United Nations’ basic orientation. Because of the horrors of the two world wars, absolute priority was placed on the absence of inter-state force which still remains the most destructive form of human conflict.
All other values were clearly subordinated to peace (in the negative sense), includ- ing protection of a state and its interests as well as justice. Not by accident, the text of the Charter commences with the following words: ‘We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankin’.228 ‘What- ever the benefits of acting against non-state actors,’ the Drafters might have
225 This trend was identified in some of the present author’s other publications: Jửrg Kammerhofer, The binding nature of provisional measures of the International Court of Justice: The ‘settle- ment’ of the issue in the LaGrand case, 16 Leiden Journal of International Law (2003) 67–83 at 83; Jửrg Kammerhofer, Uncertainty in the formal sources of international law: Customary international law and some of its problems, 15 European Journal of International Law (2004) 523–553 at 551–553.
226 It is not, as Waldock argues, a ‘necessary exception to Article 2 (4)’ (Waldock (1953) supra note 12 at 495), that is, a regulation which any prohibition of force would have to incorporate. It is not logically impossible to have a system of norms that would prohibit the threat or use of force without either a provision for a collective monopoly on force or a possibility of self-defence for the individual subject. To perceive such a system is to superimpose another normative level upon positive human regulation, a meta-level which would not be willed as a positive norm. For the difference between positive and fictional norms see Section 6.2.2.2.
227 Also because ‘systematic’ and ‘teleological’ methods of interpretation are considered important elements of the canon of interpretation; see Section 4.1.3.
228 UN Charter, Preamble (para 1). The word ‘war’ is not used in the technical sense here.
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thought, ‘using force against another state necessarily houses an infinitely greater risk of major war.’ The Charter’s primary telos is the greatest possible restriction of inter-state armed force.
However, there is debate about the ‘rigidity’ of this basic orientation; some believe that the Charter never intended to restrict a basic freedom of states to utilise force. They are adamant that this ‘old’ freedom must be utilised for the right reasons nowadays (cf. Section 2.1), but that does not cover up the difference in kind. Such a position seems incompatible with the view of the basic orientation of the Charter given above:
Nor can it be said that the protection of those same substantive rights by the exercise of self-defence is ‘in any other manner inconsistent with the Purposes of the United Nations’; those purposes hinge primarily on the maintenance of international peace and security, and it would be a strange conclusion if a state’s protection of its own legitimate interests were inconsistent with that end. Indeed it is in the interests of its own security that the state exercises the right of self-defence and there can be no inconsistency between the secur- ity of a state’s legitimate interests and the general security.229
This view expressed by Derek Bowett can be countered by two arguments. First, Bowett identifies individual interests with the purposes of the United Nations. The interests of a particular state, whether ‘legitimate’ or not, are not a value that the Purposes intend to uphold. Article 1 contains many references to community-type interests (‘international peace and security’; ‘to take collective action’; ‘international co-operation’; ‘centre for harmonizing the actions of nations’),230 but no such references to the interests of individual member states. This sounds as if there would be some way of determining in advance who the aggressors and defenders are. On that view, the law only needs to specify ‘reasonableness’231 as a criterion of how force ought to be used. Such arguments find further expression in Austen Chamberlain’s famous quote that a definition of aggression would be a ‘trap for the innocent and a signpost for the guilty’.232 If a state (or group of states) is a priori accorded the status of ‘innocent’ and others are always ‘guilty’, then an abstract definition of aggression is certainly not desirable, just as it is desirable for a state to have its interests identified as community interest. The test for a special plea is whether one would have another state accorded the same privilege as one would give to one’s own state or a friendly state. If the United States, France or Australia have a ‘reasonable interest’ in defending themselves, then surely Iran or the Democratic People’s Republic of Korea have the same ‘reasonable interest’?
Second, does it not follow from the community-orientation of the Charter that
229 Bowett (1958) supra note 11 at 186 (emphasis added).
230 All citations: UN Charter, Article 1.
231 Beth Polebaum wishes to found self-defence on a ‘reasonable nation’ standard. Polebaum (1984) supra note 129 at 208.
232 Sir Austen Chamberlain to the House of Commons on 24 November 1927, cited in: Schwebel (1973) supra note 3 at 424.
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vigilante actions are prohibited? Self-defence is not generally thought of as a form of sanction;233 self-defence and sanctions are different in logic.
(b) Quite apart from the systematic position of self-defence in the Charter structure, the abstract concept of self-defence as such is also being perceived differently by different people. This is the second dimension of telos: what is the legal aim self-defence is supposed to fulfil? This question is quite abstract and quite specific at the same time. The aims are to be found independently of the Charter, but the aims are that of a specific provision of the Charter, not of some eternal right as a Platonic Idea. Here, as elsewhere, there is a distinct divergence in views as to what self-defence is meant to accomplish. Here, as elsewhere, this
‘fault line’ may be traced between the Common and Continental legal cultures.
It does not seem so simple if one merely glances at the formulations of what international lawyers hold to be the valid aims of self-defence. There seems not to exist much of a difference between Ago’s definition of self-defence as
‘action taken by a State in order to defend its territorial integrity or its independ- ence against violent attack . . . with the object of preventing another’s wrongful action from proceeding, succeeding and achieving its purpose’234 and Bowett’s formulation:
[A] ‘privilege’ or ‘liberty’ which justifies conduct otherwise illegal which is necessary for the protection of certain rights strictu sensu. . . . In essence the right of self-defence operates to protect essential rights from irreparable harm . . . its function is to preserve and restore the legal status quo. . .235
Bowett is textually removed from, but spiritually close to D’Amato and Hargrove, who see self-defence as that which is necessary to defend certain values236 or ‘the means and to the extent reasonably necessary to protect itself’.237 The ‘Anglo-Saxon’
view is reasonable enough, but it is precisely the ‘reasonableness’ of the concepts presented by representatives of common law-schooled international lawyers that gives rise to the obscure irritations.
‘Reasonableness’ is the key notion here; it is the verbal manifestation of the essential difference between the two legal cultures. Reason has a place in the operation of any legal system. However, to ascribe to it a specific function as a panacea or gap-filler in law is unscientific. If a legal system specifies certain very vague criteria, such as ‘reasonableness’ or ‘bona fides’, it may of course do so. But why should one import such a criterion into international law without positive regulation? Even if one were to attempt such a feat238 – to import into
233 Ago (1982) supra note 9 at 15 (para 4), 54 (para 90); Kunz (1947) supra note 19 at 875–876; contra:
D’Amato (1987) supra note 18 at 28–29; Waldock (1953) supra note 12 at 464.
234 Ago (1982) supra note 9 at 54 (para 90).
235 Bowett (1958) supra note 11 at 8–11.
236 D’Amato (1987) supra note 18, passim.
237 Hargrove (1987) supra note 82 at 139 (emphasis added).
238 Polebaum (1984) supra note 129 at 208.
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international law notions of a diiferent legal culture – international law still is not a common law and does not have a system of courts whose jurisprudence could define such a vague criterion. To measure the exercise of the right of self-defence on the criteria of ‘reasonableness’ or ‘necessity’, rather than on the criteria of Article 51, means to ignore the Charter and to establish a criterion above and beyond positive law to evaluate the content of that positive law. This is analogous to Chamberlain’s pre-positive allocation of the roles of ‘guilty’ and ‘innocent’ in the case of aggression239 and to natural law making the personal value-preference of the writer become ‘law’.240
Another crucial difference is a certain de-linking of ‘means’ and ‘ends’ within the debate on the aims of self-defence, the Continental side focusing on ‘means’, whereas Anglo-Saxon scholars tend to prioritise ‘ends’. For example, it could be argued that a state incurs international responsibility for harbouring terrorists – and the previous government of Afghanistan certainly did. However, there are voices241 which seem to suggest that the end (the combating of terrorism) alone justifies the means (the threat or use of force). This is a most disconcerting trend, for the prohibition of force becomes a mere guideline, only one further factor in the calculation of the proportionality of forcible action.242 In effect, what is meant to be an absolute becomes relative. This is in stark contrast to the purpose of the Charter. The Charter prohibits the use by its member states of a means of acting – the threat or use of force – and therefore independently of the ends states wish to achieve. Generally speaking, even if A had a reflexive right resulting from B’s obligation, such a right does not allow A to enforce B’s obliga- tion, but is merely a right to have B behave according to the obligation. For example, citizens may have a reflexive right to good roads. However, one private citizen may not force workers to improve roads at gunpoint, partially because the right to good roads does not give that citizen a concrete legal claim and partially because the means chosen (coercion at gunpoint) is prohibited. Not every end may be pursued by forceful means; not every breach of obligation may be responded to by force.
But the most important difference is that between the ideas of ‘protection’ and
‘repulsion’. Anglo-Saxon lawyers may conceive of self-defence as oriented toward the protection of the defender or of the victim’s rights. Bowett sees self-defence as a means of enforcing rights violated;243 the means to redress the right are restricted by ‘reasonableness’ and ‘necessity’ and therefore these means are on a continuum rather than there being an essential difference between the peaceful and forcible enforcement of international law. Roberto Ago has described the difference thus:
239 See supra note 232.
240 Kammerhofer (2004b) supra note 225 at 542–543.
241 Franck (2001) supra note 79 at 841.
242 Cf. Bowett (1958) supra note 11 at 54 et seq.
243 Bowett (1958) supra note 11 at 8–11.
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