User:Craddocktm/self defense

Customary international law
The traditional customary rules on self-defence is reflected in an early diplomatic incident between the United States and the United Kingdom over the killing on some US citizens engaged in an attack on Canada, then a British colony. The so-called Caroline case established that there had to exist "a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment of deliberation,' and furthermore that any action taken must be proportional, "since the act justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it." These statements by the US Secretary of State to the British authorities are accepted as an accurate description of the customary right of self-defence.

United Nations Charter
''Article 51: Nothing in the present Charter shall impair the inherent right of collective or individual self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by members in 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.''

International law recognizes a right of self-defence, as the International Court of Justice (ICJ) affirmed in the Nicaragua Case on the use of force.

Necessity
The criterion of necessity denotes that the response is required in light of the facts known about the armed attack suffered, or, if one subscribes to anticipatory self defence, the facts that point to an imminent attack. To be necessary there must be no time to pursue no forcible measures with a reasonable chance of stopping the attack.

Proportionality
Proportionality requires consideration of the weapon to be used for self defence. However, the ICJ has held that proportionality may not exclude the use of nuclear weapons in self defence in all circumstances.

By whom
One of the issues is armed attack by whom. While there is no doubt that the phase covers attack by states, less settled is the question as to whether attack by non-state actors are also covered by the phrase.

Attack by states undoubtedly covers attack by the regular armed forces of states, and cases such as Nicaragua has further confirmed that it also encompasses the sending by or on behalf of a state of armed bands, albeit short of regular forces, which carry out acts of sufficient gravity as to amount to an actual armed attack conducted by regular forces. As to what is sufficient gravity, Ian Brownlie opined that sporadic operations by armed bands would not constitute armed attack, while a co-ordinated and general campaign by powerful armed bands acting in complicity of a state may.

As to non-state actors, traditionally there is no right of self defence against the attack of such entities. In Nicaragua, ICJ did not accept that the right of self defence extended to situations where a third state (in that case, the United States) had provided assistance to rebels, although the assistance could constitute a threat or use of force and intervention in the internal affairs of the state. In the Construction of a Wall case, the court held that article 51 only applies in armed attack by one state against another state; hence the article did not apply to Israel's actions since the attacks came from the occupied territories and not another state.

However, it has been argued that, in light of evolving state practices with regard to international terrorism, the better view is that armed attacks include attack by non-state actors.

Temporal
While it is settled that self defence can be carried out after coming after armed attack, an issue is whether anticipatory self defence is permitted. On one hand, the development of modern weaponry that can hit its target within a short while means that there may be a need for anticipatory self defence. On the other hand, it involves fine calculations of the moves of the other party - if an anticipatory self defence carried out too early may constitute aggression. State practice after 1945 has been generally opposed to anticipatory self defence, although Israel in 1967 attacked its Arab neighbours following the blocking of Eilat and the conclusion of a military pact between Jordan and Egypt, for which there was no condemnation from UN. However, the Israeli attack on an Iraqi nuclear reaction in 1981 was strongly condemned. Brownlie took the view that the wording "armed attack" in the UN Charter obviously ruled out anticipatory self defence. Some like Yoram Dinstein proposes that it is possible to distinguish between anticipatory self defence, where an armed attac is foreseeable, and interceptive self defence, where an attack is imminent and unavoidable. Under this model, the latter is justifiable under both customary international law (under Caroline) and Article 51 of the UN Charter.

Anticipatory self defence refers to the case when armed attack is foreseeable - however the Bush doctrine went a step further and introduced preventive self defence which is applicable even though there is no proof of an imminent attack. There is a consensus that preventive war "goes beyond what is acceptable in international law" and lacked legal basis. While the UN High Level Panel on Threats, Challenges and Change stopped short of rejecting the concept outright, it suggested that there is no right to preventive war - if there are good grounds for initiating preventive war, the matter should be put to the Security Council, which can authorize such action if it chooses to.

Grave use of force
The court in both the Nicaragua and Oil Platforms cases held that an attack must be sufficient serious to constitute armed attack and justify a response of self defence.

Intentional
An attack, to justify a response of self defence, must be intentionally carried out. However, it is unclear as to whether the attack must be aimed specifically at the target state

Interaction between United Nations Charter and customary international law
This is debate over the interaction of the Article 51 of the United Nation Charter and the customary international law on self defence. Some writers such as Brownlie argue that Article 51 in conjunction with Article 2(4) is exhaustive: the effect of Article 51 is to preserve the right to self defense when an armed attack occurs, and that other acts of self-defence are banned by article 2(4). The more widely held opinion is that the reference in article 51 to an "inherent right" acknowledges that the right to self defence exists in customary international law which exists alongside the UN Charter. Under the latter interpretation, there can be recourse to the Caroline case to provide a legal basis for anticipatory self defence.