Self-Defence in International Law and Its Impact on Human Rights in the Aftermath of Armed Response

Abstract: The inherent right of self-defence in international law is part of international customary law and reiterated in Article 51 of the United Nations Charter. The concept of self-defence has changed dramatically throughout legal history. Today's interpretation of what constitutes self-defence can be traced back to the Caroline case setting the basis for the understanding and limitations of the right of self-defence in the League of Nations and the subsequent Kellogg-Briand Pact, which formed the basis for jurisdiction for the crime of aggression in the Nuremberg Tribunal. The prevailing definition of the right of self-defence was included in the UN Charter and based on state practice and opinio juris. The contemporary debate essentially relates to the interpretation of the elements that jointly constitute the understanding of the right of self-defence. It is imperative to have a unilaterally acknowledged interpretation of the law pertaining to self-defence, given that it is one of two exceptions to the use of force in international law, armed action authorised by the Security Council under Chapter VII of the UN Charter being the other. With terrorism, and particularly in the aftermath of September 11 2001, a need arose to re-evaluate the current interpretation of the right of self-defence, given the complex situation of invoking the right of self-defence against non-state actors. The Articles on state responsibility stipulate that an armed attack by non-state actors can be made attributable to a state if certain prerequisites are met. A lengthier analysis is dedicated to the definition of what constitutes an armed attack within the framework of Article 51 and in the light of the judgement by the International Court of Justice in the Nicaragua case. Examples of the prevailing definition of the right of self-defence being challenged are illustrated by frequent attempts by certain states, notably the USA and Israel as a result of numerous terrorist attacks, to justify use of force against other states with in the ambit of pre-emptive self-defence, which is unlawful under international law due to its non-conformity with Article 51 of the UN Charter. The failure of the doctrine of the right of self-defence to provide a unilateral interpretation of what actions may trigger a right of self-defence is a flaw in the current international legal system in that if fails to define what constitutes self-defence, its scope and the failure of the UN, particularly, the SC to efficiently perform its mandated functions within the ambit of Article 51 and Chapter VII. In the aftermath of the September 11 attacks and undertaken armed response in self-defence, human rights were not a top priority. The Guantánamo Bay detainees were and still are deprived many of their human rights. Despite the possibility of derogation as stipulated in the ICCPR, the HRC has firmly established that such derogations may only be undertaken if strictly required by the exigencies of the situation. Self-defence will always impact human rights, regardless of whether it is exercised within the ambit of Article 51 or legally disputed doctrines of self-defence, such as pre-emptive self-defence, that arguably may be part of customary law. Nonetheless, non-derogable human rights are applicable at all times to armed conflict. The HRC has moreover established that provisions in the ICCPR that are not recognised as non-derogable, still cannot be derogated from by states at will. Derogations are allowed to the extent strictly required by the exigencies of the situation. Furthermore, the principles of necessity and proportionality, as established by the ICJ in the Nicaragua case and considered part of international customary law, clearly act as limitations on the exercise of the right of self-defence. Finally, the Martens Clause reiterates the obligation of states to conform to certain fundamental human rights principles such as the principles of humanity and dictates of public conscience.