Does International Law Adequately Address the Right of Self-Defense - Essay Example

Running Header: Essay (Law) Student’s Name: Instructor’s Name: Course Code: Date of Submission: Does international law adequately address the right of self-defense? A critical analysis of use right of self-defense in international law. Introduction This essay discusses the doctrine of self-defense from two sources of law, the UN Charter and customary international law. The scope of the essay is the UN Charter and customary international law. This paper will discuss the doctrine of self-defense from two sources, the UN Charter and the customary international law. Among the major scholars that this paper has referred to include Michael Byers and Michael Reisman. The UN Charter envisioned a clear strategy aimed at addressing the emerging threat of preemptive war. Traditionally, the legal standards proposed by international law have always restricted the use of force so that the respect for the sovereignty of states can be maintained. The right of various states to exercise self-defense has been a thorny issue for quite some time now. There are some states that support the use of drone warfare under certain circumstances such as self-defense. Other states have been vehemently against this claiming that war should not be promoted under whatever circumstance1. The UN Charter has defined an international armed conflict as the hostilities between any two states. Such attacks and hostilities that excessively produced collateral damage such as casualties among civilians have been the bone of contention among different nations for years now2. The UN Charter and the customary international law are related to a great extent. These two sources of law are related in the issues that they address. Both sources make provisions for the use of force and issues related to self-defense. They seem to be in agreement with the way they address issues related to self-defense and the use of force. The principles of proportionality and distinction between justified and unjustified war has been under scrutiny for many years. Some parties claim that the UN charter does not adequately address these issues in regard to self-defense. Hugo Grotius, who is considered the father of public international law, stated that many men tend to justify the causes of war as self-defense, punishment and recovering what one has lost3. Since then, the debate over the control of using force by international law has been raging, especially after the September 11 events in the United States and its subsequent military responses. An example of the doctrines of self defense according to the UN Charter is brought out by analyzing the Nicaragua versus United States of America case of 1984 at the International Court of Justice (ICJ). In the case, the International criminal court ruled against the United States and in favor of Nicaragua. Reparations were awarded to Nicaragua after the ICJ found that the USA had violated international law when it supported Contras as they rebelled against Nicaragua. The US had also violated international law by mining at the harbors that belonged to Nicaragua. The court found out that the United States was in total breach of its obligations as stipulated in customary international law. These laws required that no country should use force against any other state. The laws also made provisions that no country should interfere or intervene in the affairs of another or violate the sovereignty of another state. No country was allowed to interrupt peaceful maritime commerce or the treaty of friendship as provided for by the customary international law. The court therefore found the US guilty of encouraging the violation of human rights. However, such acts were not made attributable to the US. This therefore makes the laws inadequate in addressing issues of the use of force and self-defense. There has been the common misconception that the United Nations (UN) concluded in two of its resolutions (1368 and 1373) that the attacks launched by the United States was legal self-defense and the United Nations Security Council allowed the United States of America to choose whatever action it deems fit in response to the attacks that had been made against it4. Critics however reveal that this is not true and that all those who believe this are mistaken. The language of resolution used by the United Nations Security Council resolution 1368 is the cause of this belief5. It stated that the United Nations Security Council was totally committed to using any means to combat threats to international security and peace that are caused by terrorists. The resolution noted that the UN Security Council was ready to take any steps that were necessary in responding to September 11th 2001 terrorist attacks. This was meant to be a step in combating all the forms of terrorism as stipulated by the United Nations Charter, being one of the responsibilities of the United Nations Security Council6. This therefore begs the question as to whether the right of self-defense is adequately addressed by international law. According to Article 51 of the United States Charter, nothing in the charter is supposed to impair the right of states to collectively or individually take actions towards self-defense. The article supports self-defense actions taken by United Nations member states especially when armed attacks occur against them. The article states that the United Nations Security Council is committed to maintaining international security and peace. This means that the right of self-defense is recognized by international law. There are critics who claim that article 51 was only meant to give the right of self-defense only when armed attacks have occurred7. Other acts of self-defense have been banned by the charter in article 2, section 4. These critics are of the opinion that article 51 acknowledges the general right of self-defense but under specific circumstances. Procedures to be followed during these specific situations have been laid down to cover the actions that should be taken only when an armed attack occurs8. Customary international laws also address the doctrine of self-defense. An early diplomatic incident between US and the UK was responsible for deriving traditional customary rules on self-defense. In the incident, some US citizens who were engaged in armed attacks in Canada were killed. That particular case established that the necessity for self-defense had to exist. The self-defense had to be overwhelming and instant such that it left no moment to deliberate or choice of means. Any action taken was also supposed to be proportional. Any act of attack justifies the necessity of self-defense. The acts taken in self-defense must therefore be limited by that necessity and kept within it clearly. The US Secretary of State for the British made these statements and they were largely accepted as accurate descriptions of customary international laws that give states the right of self-defense. There have been several arguments about the interpretation and application of the doctrine. These arguments have arisen from the debate of whether the use of armed attacks can be justified or not. Armed attacks can be defined as attacks launched by an individual state or a collection of states which involve the use of force, weapons and military aid to such an extent that it harms the other party. In self-defense, armed attack is not mandatory unless under special circumstances such as when a country is also faced by armed attacks9. Different countries have misinterpreted the use of armed attacks in the various international laws. The language used is sometimes ambiguous and it leads to the misinterpretation of the laws. Since different countries interpret these laws differently, the interpretations of this law have caused controversies because different parties have applied their own interpretations. These parties justify their actions basing their claims on the United States Charter. The right of self-defense has been misapplied for a long time now. Some states have been launching attacks against other states and claiming that their actions were all in self-defense. The confusion is brought by article 51 and article 2 (4). Article 2 (4) of the United Nations Charter states in part that all member states are required to refrain from using force or threats against the political independence or territorial integrity of any given state. It requires all the member states not to engage in using force outside the purposes and intentions of the United Nations. Article 51 on the other hand gives the member states the right to defend themselves individually or collectively when they are attacked. This is seen as an inadequacy of the laws in addressing issues of self-defense. Most critics believe that the two articles contradict each other10. In my opinion, international law does not adequately address the right of self-defense. The terrorist attacks committed in Nicaragua were not addressed fully. This is due to the fact that even after the US was found guilty, such attributable acts were not made to the United States. This begs the questions, were the subsequent attacks launched by the United States against Nicaragua justified? Can the attacks be considered legal self-defense? Was the United States right to take the lives of innocent people and destroy their property all in the name of self-defense? These were definitely not the initial intentions of the customary law and the UN charter. They were not meant to support warfare when they supported self-defense. They were only supposed to promote sovereignty among states. These laws have greatly been misinterpreted by many states who try to justify their wrong actions. International law in the United States Charter, article 51, gives states the right to individually and collectively defend themselves in case armed attacks are carried out against them. This rule in article 51 is vague because it does not specify when a country should carry out attacks as self-defense. The law does not define what types of actions are considered self-defense. It is not clear on when a particular state is right to attack another on and the extent to which it should attack another state. The law does not specify who should be attacked when a country is defending itself. The United States attacked innocent Afghanistan citizens despite the fact that they were not the ones who had attacked them initially. It is a fact the innocent American citizens were killed too in the initial attacks. It is true that America lost billions of dollars in terms of the property that was destroyed during the attacks. However, the United States should have only defended itself by attacking only the people that were responsible for attacking them. Innocent citizens from Nicaragua did not have to die just because a few people from their country attacked the United States. This is not right and international law according to the United Nations Charter does not adequately address the issue of self-defense. That is why the United States supported its attacks against by claiming that a particular member state of the United Nations had the right of self-defense when it was innocently attacked by another state or group. If the United Nations law contained in the Charter was adequate, it should have addressed the issue of who should e attacked during self-defense in such a case11. International law does not adequately address self-defense because if it did, the United States of America would not have any justification for killing innocent Nicaraguan citizens. If the international law was adequate, it would be clear that the United States of America was wrong to attack the whole of Nicaragua and kill innocent citizens. The international law as contained in the United Nations Charter should address the issue of who exactly should be attacked in self-defense. The laws should not allow the deaths of innocent citizens or the destruction of property in the name of self-defense. If the United States felt the need to defend itself, then it should have only attacked the members of the terror group that attacked it initially. It should have looked for the terrorists themselves and taken action against them and not kill innocent people who were not part of attacking them12. The United Nations Charter, article 51 has given states the right to attack other states and claim that it is self-defense. Of course this was not the intention of the United Nations Security Charter. In fact, the Charter only wanted to give states the right to protect and safeguard their sovereignty when they were unduly or unfairly attacked. The law was aimed at giving United Nations member states the right to defend themselves when they attacked unfairly. But what the law fails to address is what qualifies to be an unfair attack. And after the attack, who should be attacked during the self-defense. It does not address whether innocent citizens be killed or harmed during self-defense attacks. It therefore gives countries to decide when, who and where to attack. The United States for example totally overlooked the fact that not all the Nicaraguans were involved in attacking it. The United States did not care that the people it is killing were not the people who had attacked it13. Most states have therefore been using this law as a justification for attacking other nations14. The underlying issue is whether United States was on a self-defense mission or on a revenge mission. The attacks were seen by many critics as revenge against the attackers of the United States. Many have been quoted saying that the only reason the United States attacked Nicaragua was because it felt aggrieved. The United States of America went into killing innocent people so that it can revenge against its innocent citizens that had been initially killed. Being a super power, many critics claim that the Unites States could not take such attacks lightly. In fact, it considered such attacks an insult to them and the biggest form of disrespect to its sovereignty. That is why the United States got to attacking innocent Nicaraguans15. The United States is believed to have wanted to stamp its authority as a super power by showing the attackers and the rest of the world that it is also capable of lethal attacks. It did not want to be taken for granted. If the international law had adequately addressed the issue of self-defense, then regions such as the United States could not justify their actions. The international law should be clear and specific on the scope of self-defense. It should define the extent to which a country is entitled to attack another one as a form of self-defense. According to Byers, there were at least four legal justifications that could be made in support of the use of force in Afghanistan by the United States. These justifications include chapter VII of the UN Charter, humanitarian intervention, self-defense and intervention by invitation. In the attacks against Afghanistan, the United States justified its actions as self-defense16. These justifications were based on international law and international politics. International law is even believed to have been in support of the attacks. This is so because of a number of reasons. First, the United States of America deliberately engaged many international organizations who moved to form a coalition that supported the use of force such as military action during self-defense17. The member of this coalition all justified their actions on the fact that international law had given states the right of self-defense when they were attacked undeservingly. That is why the United States justified that its actions were within the boundaries of international law. Secondly, the September 12, 2001 United Nations Security Council Resolution 1368 was totally against the attacks against the United States and it strongly condemned them18. However, the resolution fell short of legally allowing the use of force. This is evident when the UN Security Council expressed that it was very ready to take up any type of action that was necessary to promote security and peace. This encouraged the US to seek authorization of the planned attacks once it had completed its military plans. The US made the choice not to return to the UN Security Council and went ahead with its plans. For this reason, the international law seemed like it was in support of the use of force against other nations19. In conclusion, international law tries to a great extent to address the issue of self-defense. The UN Charter for example gives states the right of self-defense and allows them to take necessary actions to defend their sovereignty. The laws however are not clear on the use of force. The language used in the Charter can be mistaken to mean that the United Nations Security Council supports the use of force against other states. My final position in regard to this issue is that international law does not adequately address the issue of self-defense. The subsequent actions taken by the United States and its supporters prove that international law is not adequate in addressing self-defense. If the laws were adequate in addressing the issue of self defense, then countries would not have justifications for their use of force. Bibliography ANNE, PENKETH, (2001) ‘Annan: UN Must Have Role in Fight Against Terrorism’, The Independent, 25 Sept. 2001, 5. BARZILAI, GAD and EFRAIM INBAR., “The Use of Force: Israeli Public Opinion on Military Options.” Armed Forces & Society, 23 (1996), 49–80 , accessed 14 August 2011. BOWETT, D.W., Self-defense in International Law. (New York: The Lawbook Exchange, 2009), 294-300. CAROLA, HOYOS, ‘UK to Chair UN Sanctions Committee’, Financial Times (US edition), 4 Oct. 2001, 2. CHRISTINE, GRAY, International Law and the Use of Force (Oxford: Oxford University Press, 2000). 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