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A Right to Self-Defence Or an Excuse to Use Armed Force? About the Legality of Using Self-Defence Before an Armed Attack Has Occurred

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A Right to Self-Defence Or an Excuse to Use Armed Force? About the Legality of Using Self-Defence Before an Armed Attack Has Occurred A right to self-defence or an excuse to use armed force? About the legality of using self-defence before an armed attack has occurred. Elma Catic Faculty of Law International law thesis 30 HE credits Subject: Public International law Spring semester 2020 Supervisor: Mark Klamberg Swedish title: En rätt till självförsvar eller en ursäkt för att använda väpnat våld? Abstract A states’ right to self-defence within international law is enacted in article 51 of the UN Charter and an exception to the general prohibition to the use of force. Article 51 establishes a right to self-defence after an armed attack has occurred but doesn’t meet the issue regarding the lawfulness of self-defence actions before an armed attack. The fact that pre-existing customary law has established such a right query the matter whether the pre-existing custom has remained valid after the Charter entered into force. While the issue has amounted to great controversies, the state practice demonstrates that claims and actions of averting self-defence has been persistent during the years. This essay examines the lawfulness of self-defence actions before an armed attack has been conducted. States practice clearly demonstrates that different concepts of precluding self- defence have been invoked through time, and the main focus of this essay are anticipatory and preemptive self-defence. Anticipatory acts refer to situations where there is an imminent threat, while preemptive acts refer to a broader concept, where threats do not amount to imminence. The research has included scrutiny of both legal sources, like treaty rules, customary rules and international principles, and state practice and different scholarly interpretations in order to examine the lawfulness of anticipatory and preemptive self-defence actions. The research has found that preemptive self-defence can not be seen as lawful acts, due to a lack of legal basis and sufficient support within the international community. Anticipatory acts, strictly deriving from preexisting customary law, on the other hand, could not be rejected as unlawful due to the broad and persistent support. Furthermore, the essay has clearly demonstrated the problems with the vague and diffuse current regulation of the issue and the need for an established clarification in order for the main purpose of the Charter to be observed. 3 Abbreviations AJIL American Journal of International Law DRC Democratic Republic of the Congo EJIL European Journal of International Law GA General Assembly ICJ International Court of Justice NATO North Atlantic Treaty Organization NSS National Security Study OAS Organization of American States SC Security Council UN United Nations UNYB United Nations Yearbook WMD Weapons of mass destruction YBILC Yearbook of International Law Commission 5 Contents Abstract .......................................................................................................... 3 Abbreviations................................................................................................. 5 1 Background ............................................................................................ 9 Problem ..................................................................................................... 9 Purpose ................................................................................................... 10 Research questions ................................................................................. 10 Limitation ................................................................................................ 11 Method and material .............................................................................. 11 Outline of the essay ............................................................................... 13 2 The general prohibition on the use of force ..................................... 15 The background ..................................................................................... 15 Article 2(4) UN Charter ......................................................................... 15 The scope of the prohibition ........................................................................ 16 What does “use of force” mean? .................................................................. 17 3 The right to self-defence ..................................................................... 19 Exceptions to article 2(4)....................................................................... 19 The right to self-defence under international law ............................... 19 Individual and collective self-defence .......................................................... 21 The role of the Security Council................................................................... 22 Necessity and proportionality as limitations ............................................... 23 Armed attack................................................................................................... 25 4 Anticipatory and Preemptive self-defence ........................................ 27 A right to pro-action? ............................................................................ 27 The terminologi ...................................................................................... 28 Anticipatory self-defence ....................................................................... 29 The origins from the Caroline Incident ....................................................... 29 The International Military Tribunals and State Practice ............................ 31 7 Preemptive self-defence ........................................................................ 34 During the Cold War Era .............................................................................. 34 After the 9/11 attacks .................................................................................... 37 Further developments ............................................................................ 44 A modification of the term “imminence”?.................................................. 45 The US drone strike in 2020 ......................................................................... 46 The position of ICJ ................................................................................ 49 5 Three different views .......................................................................... 52 The never-ending academic debate ...................................................... 52 The restrictive view – Ian Brownlie ..................................................... 52 The “in between” view – Christopher Greenwood ............................ 54 The extensive view – Anthony Clark Arend ....................................... 56 6 Discussions and conclusions .............................................................. 58 Discussions regarding the different interpretations ............................ 58 The interplay between customary and treaty law through state practice . 59 Is it needed or desirable to change current regulation? ...................... 64 Finishing conclusions............................................................................. 67 Bibliography ................................................................................................. 68 1 Background Problem On January 3rd (January 2nd US time) 2020, the US President, Donald Trump, ordered a drone strike that killed Iranian Major General, Qassem Soleimani, widely seen as the second most powerful man in Iran. The strike hit two vehicles leaving Baghdad International Airport and killed other Iranian and Iraqi military figures as well, among them the Iraqi militia leader, Abu Mahdi al-Muhandis.1 The day after the strike, President Trump stated following: Last night, at my direction, the United States military successfully executed a flawless precision strike that killed the number-one terrorist anywhere in the world, Qasem Soleimani. Soleimani was plotting imminent and sinister attacks on American diplomats and military personnel, but we caught him in the act and terminated him. Under my leadership, America’s policy is unambiguous: To terrorists who harm or intend to harm any American, we will find you; we will eliminate you. We will always protect our diplomats, service members, all Americans, and our allies.2 As the statement of President Trump, The Department of Defence, justified the attack by claiming that General Soleimani was “actively developing plans to attack American Diplomats and service members in Iraq” and that the “strike was aimed at deterring future Iranian attack plans.”3 In other words, the US claimed that the attack was an act of anticipatory self-defence and therefor, a lawful act within international law. The reaction globally did, however, not show much support. In fact, the attack and killing of General Soleimani resulted in heated debates internationally and prompted the questions about anticipatory and preemptive self-defence once again. Is it really lawful under international law, to act in self-defence 1Aljazeera, Iran’s Qassem Soleimani killed in US air raid at Baghdad airport, 3 January 2020: <https://www.aljazeera.com/news/2020/01/iraq-3-katyusha-rockets-fired-baghdad-airport- 200102232817666.html>; CNN, Iran’s top general Soleimani killed in US air strike, 4 January 2020: <https://edition.cnn.com/middleeast/live-news/baghdad-airport-strike-live-intl- hnk/h_f4d89b41ef9e19a716edc8047bf923df>. 2 Donald Trump, White House Government, Remarks by President Trump on the Killing of Qasem Soleimani, 3 January
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