Self-defence?

Posted by Dr. Tarcisio Gazzini on October 28, 2001 at 07:06:45:

SELF DEFENCE?
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The debate on the legal grounds of the military operations currently under way in Afghanistan focuses on the notion of self-defence.
Self-defence has been described by Kelsen as "an exceptional and provisional interlude between an act of illegal use of force, an act of aggression, and the collective enforcement action which the community, through its central organ, is to take as a sanction against the illegal use of force".
It presupposes a general ban on the use of force AND an effective mechanism of collective security.
During the Cold war this hardly corresponded to reality.
After the fall of the Berlin wall, we had the illusion that the Security Council would eventually meet its primary responsibility in maintaining international peace and security.
The so-called authorisation practice stretched beyond any limit the relevant Charter provisions, but was generally accepted as the highest degree of control over the use of force that the United Nations could, under the circumstances, exercise.
Brownlie reminds us that "the whole object of the Charter was to render unilateral use of force, even in self-defence, subject to the control of the Organisation".
Far from leading to any real collective security system, the authorisation essentially amounted to a mere procedural guarantee as States decided when, how and until when intervene (the only possibile exception being the coercive military activities carried out in Bosnia up to August 1995 in support to the peacekeeping operation).
Even this small improvement, which had already shown its limits during the Somalian and Bosnian conflicts, was deliberately despised in 1999 when NATO members forces intervened in Kosovo without any authorisation by the Security Council.
In the current crisis, the Security Council renounced from the very beginning to play any significant role with regard to military enforcement measures.
The virtually universal support the United States received immediately after the terrorist attacks could have paved the way to a substantial involvement of the Security Council in the decision-making process and the political control over the military operations.
Yet, the United States decided to react in the most unilateral possible way.
It unilaterally decided who was to be held responsible for the attacks, what kind of measures needed to be taken, what objectives pursued. Equally unilaterally, it will decide when these objectives have been attained, which conditions the Taliban government has to accept, when to suspend or terminate the operations.
The discussion whether Resolution 1373 authorised the use of force - which in any case appears doubtful since it would allow the United States to take, upon its own judgement, any military measures against any State or entities other than States - largely misses the main point.
The message sent by Washington, apparently accepted or acquiesced to by all other States, is quite clear: a State victim of an attack may resort to self-help, if necessary by military measures, without any obligation to seek a centralised reaction.
We can certainly continue to treat unilateral, non-temporary and uncontrolled use of force as self-defence. We must however be aware that this has nothing to do with the notion of self-defence embodied in Article 51 of the UN Charter.
It will rather bring us back to the notion of self-defence as referred to in the Caroline case. At the time, no general prohibition of the use of force existed, and self-defence, self-help and self-preservation meant basically the same thing.
Subsequent attempts to regulate the use of force must be fully appreciated. The Kellogg-Brian Pact, in particular, was
interpreted as leaving intact States' freedom to decide whether circumstances required recourse to war in self-defence.
Since the creation of the United Nations, investigation and adjudication on self-defence claims - which the Nuremberg
Tribunal considered essential if international law was ever to be enforced - were far from satisfactory.
More importantly, it may be argued that since 1945 self-defence has been - and apparently still is - the rule rather than the exception envisaged in Art. 51 of the Charter.
Time has come to rethink the whole legal regulation of the use of force.
What we should do is to avoid to profess blindly our faith in the UN Charter provisions, which were stillborn and never truly revived since, and to work on the definition of limitations on the unilateral use of force through the analysis of State practice.

25 October 2001

Dr. Tarcisio Gazzini
Dept. International Studies
University of Padova

Gazzini@dsi.unipd.it

Responses:

1. Re: Self-defence? Lewis B. Sckolnick 08/20/02 (0)

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