About the author: Priyal Sepaha is an LLM graduate from the Geneva Academy of International Humanitarian Law and Human Rights (2021-22).
Image by Maureen available here.
In December 2003, the United Nations General Assembly by Resolution ES-10/14 requested the International Court of Justice (the “ICJ” or the “Court”) for an advisory opinion on the legal consequences of the wall built by Israel the Occupied Palestinian Territory (OPT) in the light of international law principles. This blog discusses the right to self-defense as justification of International Humanitarian Law (“IHL”) and International Human Rights Law (“IHRL”) violations. In light of the International Court of Justice’s Wall Opinion, we discuss (1) whether self-defense is a justification for violations of IHL (2) whether self-defense is a justification for IHRL violations, (3) the ICJ opinion, and (4) the author’s opinion with concluding remarks.
Before delving deeper into the question, it is crucial to address how the ICJ classified the conflict and applied the law in the Wall Opinion. The conflict in question was an international armed conflict between Israel and the Arab States, which consisted of Egypt and Jordan.
Article 51 of the UN Charter provides the right to self-defense as an exception to Article 2(4) refraining “threat or use of force against the territorial integrity,” also called “jus contra bellum.” The provision‘s text suggests that states have an inherent right to self-defense against armed attacks. Additionally, the UN Security Council (“UNSC”) Resolutions 1368 and 1373 (2001), passed following the 9/11 attacks, also discuss the right to self-defense in terrorist attacks and combat all forms of terrorism.
However, when a state exercises its right to self-defense in an armed conflict, customary international law, as reflected in state practice, shows that the rules of IHL and minimum human rights standards must be respected.
Self-Defense and IHL
The applicable legal regimes before and during armed conflicts are different. Jus ad bellum consists of principles applicable when states “may engage” in an armed conflict or resort to the use of armed force. On the other hand, jus in bello refers to the situation where the applicable law regulates the conduct of parties ‘engaging’ in an armed conflict (also known as IHL). Self-defense falls under the jus ad bellum regime. IHL governs rules pertaining to jus in bello. The two regimes should not be merged, especially concerning the purpose of self-defense because “IHL cannot be developed or interpreted in a way that makes it impossible to achieve those purposes.” This divide implies that no jus ad bellum arguments may be used to interpret IHL, and that the rules of IHL will not be made to render jus ad bellum impossible to implement.
Apparently, “self-defense does not preclude the wrongfulness of conduct in all cases or with respect to all obligations.” This means that the Geneva Conventions of 1949 and customary international humanitarian law still hold their value when a state acts in self-defense in an armed conflict. In conclusion, an act of self-defense (jus ad bellum) must be consistent with applicable legal instruments. It must not be used to justify IHL violations (jus in bello) owing to the divide between the two regimes.
Self-Defense and IHRL
It is undisputed that self-defense is an exception to the prohibition of the use of force in jus ad bellum. However, when exercising this inherent right, states must pass the Caroline test, a customary law principle that lays conditions of “necessity of self-defense, instant overwhelming, leaving no choice of means, and no movement for deliberation.” Since self-defense must be “that military action necessary and appropriate to repel an attack,” a state exercising this right must comply with the principles of necessity and proportionality. This requirement is also held by the ICJ in Nicaragua and Nuclear Weapons and it has now been accepted as customary law. Additionally, states exercising the right of self-defense must consider the derogation measures and non-derogable rights mentioned in the applicable human rights treaties. They must ensure that actions taken in self-defense “must be the least intrusive instrument amongst those which might achieve the desired result.” Thus, self-defense cannot justify IHRL violations since it cannot preclude the wrongfulness of conduct.
Opinion of the ICJ
The ICJ, relying on the Nicaragua judgement, opined that the right to self-defense must be exercised only against an armed attack by another state. Since Israel did not claim that “the attacks against it are imputable to a foreign State,” Article 51 was held to be irrelevant. Additionally, the ICJ held that Israel could not evoke the right to self-defense with the support of UNSC resolutions 1368 (2001) and 1373 (2001) because Israel was the occupying power and the wall was “within, and not outside, that [occupied Palestinian] territory.” Regarding the argument on the state of necessity and whether it can preclude the wrongfulness of the wall construction, the ICJ relied on the decision in Gabcíkovo-Nagymaros Project, where it held that this defense “can only be invoked under certain strictly defined conditions…the State concerned is not the sole judge of whether those conditions have been met.” Finally, it rejected Israel’s claim because the route chosen was not the only means to safeguard the interests of Israel and it violated non-derogable rights under the ICCPR (Article 12(3)) and ICESCR (Article 4).
Analysis and Conclusion
In view of the present case, two fundamental comments are worth noting:
A restrictive interpretation of self-defense
Though the ICJ’s conclusion that Israel’s claim of the right to self-defense was incompatible with international law principles, the Court’s interpretation of self-defense was rather restrictive due to heavy reliance on the Nicaragua judgment. The dismissal of Israel’s claim solely relied upon the absence of armed attack by one state against another state. However, the text of Article 51 does not specify that the right to self-defense applies only in cases of an armed attack against other states. Moreover, Israel’s self-defense argument rests upon UNSC resolutions 1373 and 1368, which discuss “threats to international peace and security caused by terrorist acts” without placing a requirement on the threat originating from a state. Even though this assessment would not have changed the Court’s ultimate decision since the resolutions cover “international” threats and Israel does not claim that the same emanate from outside; the Court, here, missed an opportunity to interpret the legality and limits of self-defense according to the UNSC Resolutions which conformed to the relevant emerging trends of conflicts. The separate opinion of Judge Koojimans also expressed that even if the right to self-defense relates to international phenomena, the Court “regrettably by-passed this new element…which marks undeniably a new approach to the concept of self-defense.”
Merging the regimes of jus ad bellum and jus in bello
Since Israel’s arguments were based on UNSC Resolutions, it is worth noting at this point that the “UN Security Council…and its resolutions must be interpreted whenever possible in a manner compatible with IHL….a State exercising its jus ad bellum by using force in self-defense must comply with IHL..” The ICJ, while assessing Israel’s claim of self-defense in light of IHL, merged the regimes of jus ad bellum with jus in bello by determining whether the IHL violations could be justified under self-defense. A more favorable response to this issue could be that, due to jus ad bellum and jus in bello being separate regimes, self-defense (falling under jus ad bellum) cannot justify IHL violations (jus in bello).
In conclusion, even though the Court could have dealt with the argument on the doctrine of self-defense and state of necessity expansively, it is uncontroversial that the notion of self-defense is not a carte blanche for indiscriminate attacks and measures and certainly not justification for violations of IHL and IHRL.