i

ANTICIPATORY SELF-DEFENSE: PERPLEXING ISSUES CONCERNING THE ICC

JURISDICTION IN REGARD TO THE CRIME OF AGGRESSION

A thesis submitted to the Amsterdam Graduate Law School at the

University of Amsterdam (UvA) in partial fulfilment of academic

requirements for the award of a Master Degree in International

and European Law with the Title of Master of Laws (LLM)

Supervisor: Prof H.G. van der Wilt

Amsterdam, …. June 2016

ii

DEDICATION

To my beloved daughters and sons;

To my lovely late wife Claudine;

To my sisters and brothers;

To all the creative thinkers and researchers;

I dedicate this work

iii

ACKNOWLEDGEMENT

This Thesis is a stage of achievement that leaves me highly grateful to the Netherlands Defence

Forces in co-operation with the Rwanda Defence ministry for the financial and moral support to

the realization of my dreams. To them, I salute!

Sincere gratitude goes to Prof H.G. van der Wilt who committed his time with good humour to

guide me through this demanding work. He is a mentor and a cheerleader.

Much appreciation is owed to the entire administration of the University of Amsterdam (UvA)

for the contribution for the ample knowledge obtained.

Much appreciation goes to Mrs. Heather Kurzbauer who sacrificed much of her time to attend to

my grammar issues.

Particular and sincere thanks go to Mrs Irith Kist and Ms Wieteke de Jong for their constant

accessibility whenever the situation called for. Thank you indeed for being at my disposal!

Last but not least, to all my learned friends in the International and European Law Master

program 2015/2016, who inspired me for their constructive discussion points.

I proclaim progress to each of you who have contributed to my breakthrough!

iv

LIST OF ACRONYMS AND ABREVIATIONS

DRC. Democratic Republic of Congo

Et al. and others

Erga omnes. A Latin word meaning “towards all”

Ex ante. Based on forecasts rather than actual facts

Ex post. Based on actual results rather than forecasts

G A. General Assembly

Ibid in the same cited work

ICC. International Criminal Court

ICJ. International Court of Justice

Jus ad bellum. Latin for “right to War”

Jus in bello. Latin for “Law in War”

Mens rea. The intention or knowledge of wrongdoing

NATO. North Atlantic Treaty Organization

SC. Security Council

UK. United Kingdom

UN. United Nations

UNEF. United Nations Emergency Force

US. United States

WMD. Weapons of Mass Destruction

v

Table of International instruments

26 October 1945. Charter of the United Nations, 26 October 1945, 1 UNTS XVI

17 July 1998. Rome Statute of the International Criminal Court as amended by the

Resolutions adopted by the Review Conference in June 2010

concerning article 8 (Res 5) and the crime of aggression (Res 6) (2187

UNTS 3)

18 October 1907. The Hague Convention (IV) respecting the Laws and Customs of War

on Land and its annex: Regulations concerning the Laws and Customs

of War on Land.

16, October 1925. Treaty of Mutual Guarantee between Germany, Belgium, France, Great

Britain and Italy;( (The Locarno Pact),

27, August 1928. Treaty Providing for the Renunciation of War as an Instrument of National

Policy (Kellogg-Briand Pact), Signed in Paris, entered into force 24 July

1929 Stat.46, 2343, TS No. 796, 94 LNTS 57

15, June 1215. Magna Carta Text of 1215, (signed by King John on, Runnymede, England)

vi

Table of Judgements

a. International Court of Justice

ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA),

Judgment, 27 June 1986, Merits, ICJ Reports 1986.

ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.

Uganda), Judgment, (I.C.J. Reports 2005

ICJ, Gabcikovo – Nagymaros project case, (Hungry V Slovakia), ICJ Reports 1997

ICJ, Legality of the threat or use of nuclear weapons, Advisory opinion, ICJ Reports 1996,

b. The International Arbitration Tribunal

Naulilaa Case (Portugal v. Germany), 2 UN Reports of

International Arbitral Awards 1012 (Portuguese German Mixed Arbitral Tribunal, 1928)

vii

ABSTRACT

The concept of self-defence is a legally recognized right in both International and domestic legal

orders. Moreover, the proper application of the concept in question leads to exclusion from

criminal responsibility as a result of justification. Particularly, the right of self-defence under

international is enshrined in the codifications of the Charter of the United Nations, and accepted

as one of the customary international rules. Moreover, the provisions article 51 of the UN Charter

textually limits the use of armed force in self-defence only “if an armed attack occurs”.

However, state practice has developed the concept as being inherent in nature, to include self-

defence even when no armed attack has occurred, or after the actual attack have ceased. The

vindication of this right before an armed attack occurs is famously known as “anticipatory self-

defence”.

Nevertheless, the applicability of anticipatory self-defence is flawed by the lack of clear-cut

limits; hence aggressive behavior by individual states under the guise or claim of the inherent

right of self-defense. Given the fact that anticipatory self-defense remains a legitimate right, this

thesis is geared to examine the level at which anticipatory self-defense could spill over to

aggression as a crime under the jurisdiction of the ICC.

viii

Table of Contents

DECLARATION ........................................................................................... Error! Bookmark not defined.

DEDICATION .............................................................................................................................................. ii

ACKNOWLEDGEMENT .......................................................................................................................... iii

LIST OF ACRONYMS AND ABREVIATIONS ..................................................................................... iv

Table of International instruments ............................................................................................................. v

Table of Judgements ................................................................................................................................... vi

ABSTRACT ................................................................................................................................................ vii

Table of Contents....................................................................................................................................... viii

1. GENERAL INTRODUCTION .......................................................................................................... 1

I. PROBLEM SATEMENT ............................................................................................................... 4

II. RESEARCH QUESTIONS............................................................................................................. 5

III. The connection between the problem statement and the research sub-questions .................... 5

IV. RESEARCH OBJECTIVES ........................................................................................................... 6

V. METHODOLOGY ............................................................................................................................ 6

VI. THE SCOPE OF THE RESEARCH STUDY ................................................................................ 6

VII. PROVISIONAL OUTLINE ......................................................................................................... 7

CHAPTER ONE: THE NOTION OF ANTICIPATORY SELF-DEFENSE IN GENERAL

INTERNATIONAL LAW .......................................................................................................................... 8

1.1. Introduction ................................................................................................................................. 8

1.2. Proportionality requirement ...................................................................................................... 10

1.3. Necessity requirement ................................................................................................................... 15

1.4. Immediacy requirement ............................................................................................................. 19

1.5. Conclusion ....................................................................................................................................... 22

ix

CHAPTER II: ELEMENTS OF SELF-DEFENSE AS PERCEIVED UNDER CRIMINAL LAW

2.1. General ............................................................................................................................................ 24

2.2. Qualifying self-defense as a legitimate action in criminal law .................................................... 25

2.2.1. The attack must be overt .......................................................................................................... 26

2.2.2. The attack must be Unlawful..................................................................................................... 27

2.2.3. The defense must be an intentional or knowing response ....................................................... 28

2.3. The justified cause v the excusable cause ..................................................................................... 28

2.4. Conclusion ...................................................................................................................................... 31

CHAPTER THREE: THE CHARACTERIZATION OF ANTICIPATORY SELF-DEFENSE AS

TANTAMOUNT TO AGGRESSION ..................................................................................................... 32

3.1. General .......................................................................................................................................... 32

3.2. The rights forfeiture theory of punishment ............................................................................ 35

3.3. Conclusion .................................................................................................................................. 36

4. General conclusion ........................................................................................................................... 36

5. BIBLIOGRAPHY ............................................................................................................................... 40

I. Books ........................................................................................................................................... 40

II. Resolutions ................................................................................................................................. 41

III. Journals ...................................................................................................................................... 42

IV. Other sources ................................................................................................................................ 43

1

1. GENERAL INTRODUCTION

The concept of self-defence is related to the just war theory1that authorized the resort to war for

self-help. The relative nature for both concepts lies in their conditions whereby just war

requirements included competent authority, a just cause and right intentions2 while for self-

defence the requirement is that of reacting to an already existing armed attack.3 However, the

precondition to repel an already existing attack which could have already inflicted devastations

on the victim State created much debate which led to the broader concept to include the

customary right to use force pro-actively by a State before suffering the attack.4

Nevertheless the use of violence under any circumstances is restricted according to the provisions

of Article 2 of the UN Charter in its fourth paragraph stating that “ All members shall refrain in

their international relations from the threat or use of force against the territorial integrity or

political independence of any state, or any other manner inconsistent with the purpose of the

United Nations” The foregoing provision implies that in certain instances the use of force could

be considered as being consistent with the Charter if the situation falls within the ambit of Article

51 of the Charter which necessitates the presence of ‘an armed attack’. However, the preceding

assumption is circumvented by the conditions that developed from the 19th century Caroline Case

later invoked by states as a justification for anticipatory self-defence.5

The notion of anticipatory self-defence has been contested by several legal scholars where for

instance Bradr opined that the scope and content of the right of self-defence is clearly delineated

by Article 51 of the UN Charter, thus any other quasi-judicial arguments based on strategic

1 L. Van de hole. "Anticipatory Self-Defense Under International Law." American University International Law

Review 19, no. 1 (2003): 69-106 at 70.

2 H Wehberg, L 'interdiction du Recours a la Force. Le Principe et les Problmes qui se posent, 1951-I RECUEILS

DES COURS 1, 11-20 (1951) (cited in L. van de hole).

3 art.51, UN Charter (1945).

4 L. Van de hole (no 1), 72

5 L. Philippe Rouillard, The Caroline Case: Anticipatory Self-defense in contemporary international Law,Miskolc

Journal of International Law, Vol1 (2004), N0 2) pp. 104- 120 at 6.

2

considerations could not justify the use of anticipatory self-defence.6 Others have argued that the

negotiators of Article 51 outlawed resorting to anticipatory self-defence by the fact of

emphasizing that “an armed attack” must have occurred in order to trigger any action of self-

defence.7 Conversely, McCormack argued that a target state need not wait to suffer the first blow

before responding, thus the right of self-defence under Article 51 of the Charter includes the right

of anticipatory self-defence.8 Taking a great number of dissenting arguments from different

commentators into consideration, McCormack opines that both the Israeli raid on an Iran nuclear

plant, and the 1986 US bombing on Libya were instances of anticipatory self-defence.9

Subsequently, others have interpreted self-defence in line with the conditions laid down by the

Caroline Case (1837) that holds: a state may act in anticipatory self-defence whenever the threat

is deemed instant and overwhelming with no more room for deliberations.10 The International

Court of Justice (ICJ) upheld the pre-existence of the right to self -defence in the Military and

Paramilitary Activities case, Nicaragua v. United States of America judgement, but emphasized

that justification would depend on the proper application of the criteria of necessity and

proportionality requirements.11 Mulcahy and Mahony in their scholarly work argued that article

51 of the Charter is exhaustive thus; any contrary could be equated to defeating the Charter’s

object and purpose.12 Subsequently, Mulcahy and Mahony have argued to refute the legality of

anticipatory self-defence maintaining that it runs short of the criterion of ‘consistent and

6 G M Badr, ‘The exculpatory effect of self-defense in state responsibility’ Vol.10, (Georgia Journal of

International and Company Law, 1980, 1-28) at 28.

7 K S Tibori, Anticipatory action in self-defense: The law of self-defense – past, present and future, Amsterdam

center for International law, (2010) p.15.

8 T LH McCormack, “Self-defense in international law: The Israel Raid on the Iraqi Nuclear Reactor (Book

Review), American journal of international law, vol. 91(4), (American society of international law, 1997) p. 758.

9 idem. 10 M Franklin lohr, Legal analysis of the U.S. military responses to state-sponsored international terrorism (Naval

law Review,1985, Vol 34,1) p 1-48 at16.

11 ICJ, Military and Paramilitary Activities in and against Nicaragua, (Nicaragua v. United States of America),

June1986, operative part of the judgement, part X, par.3.

12 J Mulcahy & C O Mahony, ‘Anticipatory Self-defense’: A discussion of International Law, (Hanse Law Review,

2006, Vol.2, n0.2) pp. 231-248 at 241.

3

widespread’ state practice as prerequisite for a norm to be accepted as a rule of customary

international law.13

Despite the divergent arguments surrounding the applicability of anticipatory self-defence, the

bottom line is that it remains legitimate and has been relied upon regularly.14 Moreover, none of

the major international treaties beyond the boundaries of customary law has ever stipulated in its

explicit words the criteria of anticipatory self-defence. This holds that states have continued to act

within the ambit of the customary nature whereby some have mistakenly invoked it in either,

preventive or pre-emptive armed attacks with no legal justification.15 Apparently, the concept of

anticipatory self-defense is further rendered perplexing by the lack of a clear-cut approach to

applicability whereby in certain instances such acts could spill over to aggression leading to the

crime thereof. Fair is fair, the aforementioned acts and their related crimes are eventually

punishable before the International Criminal Court (ICC)16 despite some lacunae,17 thanks to the

international community.18

However, the perplexity that lies within the concept of anticipatory self-defense seems to be a

potential hurdle to ICC jurisdiction over such acts, as envisaged by Sandoz who once wrote that

13 ibid. p. 242.

14 R. Ago, Addendum to the 8th Report on State Responsibility, [1980] 2 Y.B. Int'l L. Communication 52, para. 70,

U.N. Doc. A/CN.4/318/ADD. 52.

15 . P. Andreas, ‘Second Thoughts on the Crime of Aggression’, The European Journal of International Law Vol. 20

no.4 (2009) 117 – 1128 at 1122. “The Definition and Controversial Uses of Force That leads us to the context of the

past 10 years since the drafting of the Rome Statute. After Kosovo, Afghanistan, Iraq, and recently Georgia, the task

of drafting a definition of aggression has become more and more problematic.”

16 Art. 8 bis, Rome Statute of the ICC (Rome Statute), (Rome on 17 July 1998, in force on 1 July 2002), United

Nations’ TS, vol. 2187, No. 38544.

17 D M Ferenz, the crime of aggression: “Who is fooling whom”? (ASSER Institute, The Hague9 Oct 2013, lecture).

Available at; http://www.internationalcrimesdatabase.org/Commentary/VideoAndAudio201213 accessed on

6/4/2016.

18 T. B Anouk, ‘The definition of the crime of aggression and its relevance for contemporary armed conflict’, (ICD

brief 1, June 2013) p.1. available at; http://www.internationalcrimesdatabase.org/Commentary/IcdBriefs2013

accessed on 6/4/2016.

4

‘It has often been said that one of the most pressing tasks for international criminal law is to set

out clearly what violations are punishable under that law and to define them in specific terms’.19

On one hand, the preceding assertion is outdated since aggression has been integrated into the

ICC’s jurisdiction as a punishable violation. On the other hand, the assertion could be credible by

the fact that the ICC statute does not clearly define in specific terms whether or not anticipatory

self-defense could be invoked as a justification leading to exclusion from responsibility for

aggressive acts.

This research paper aims to investigate if, in view of its imprecise scope, anticipatory self-

defense could crossover to aggression. The paper argues that without clear-cut criteria,

anticipatory self-defense remains perplexing within the ambit of ICC jurisdiction in regard to the

acts of aggression and their related crimes.

I. PROBLEM SATEMENT

The diverse approach to the normally lawful right of self-defense according to the provisions of

the UN charter20 have caused controversies as to what should be the scope of a legitimate action

in self-defense. At first blush, the pre-condition “when an armed attack occurs” could suffice to

justify the legitimacy of acting in response to an overt attack.21 However, the co-existence of both

the Charter provisions and the pre-existing customary rules on the use of force have resulted into

the broader interpretation of the scope of self-defense, embracing situations whereby self-defense

could be justifiable even in the absence of an actual armed attack.22

19Y Sandoz, ‘Penal Aspects of International Humanitarian Law’, in M.C Bassiouni, International Criminal Law (2nd

edn 1998), p. 406.

20 Art. 51, Charter of the United Nations (Charter), (1945).

21 G.P Fletcher& J.D Ohlin, “Defending humanity”: When force is justified and why, (2008), oxford university press,

chp.4, p.87.

22 T Ruys, “Armed attack and Article 51 of the UN Charter”: Evolution in Customary Law, Cambridge University

Press, New York, (2010), p. 7.

5

Consequently, the broad interpretation short of precision has led to aggressive behavior by

individual states claiming to act within the legitimate scope of self-defense advancing imminence

and necessity as a justification.23

Moreover, on several occasions states have engaged in actions of armed attack against others

while invoking anticipatory self-defense basing on a unilaterally perceived cause, without an

independent authoritative judicial organ to investigate whether or not a particular conduct could

be justifiable and hence, exclusion from responsibility. However, given the elements of legitimate

self-defense as discussed by Fletcher24 that intersects between general international law and

criminal law, it is crystal clear that the current practice is foggy and therefore not self-justifiable.

Therefore, the present research paper investigates if the actions of anticipatory self-defense could

in certain instances spillover to aggression according to the criteria of self-defense in both general

international law and criminal law.

II. RESEARCH QUESTIONS

After I have consulted different scholarly works and doctrines, the following questions will be

answered:

a). Could the criteria of self-defense in general international law and the rules of customary law

match with those of self-defense in criminal law to justify anticipatory self-defense?

b). What could be the dividing line between the lawful anticipatory self-defense and the unlawful

one leading to aggression?

III. The connection between the problem statement and the research sub-questions

In today’s state of affairs, the concept of self-defense has evolved drastically involving situations

where individual states resort to the use of force on the pretext of the prerogative in question.

23 G.P Fletcher& J.D Ohlin, (n0.21). p. 90- 91.

24 Ibid. p.86- 106.

6

However, it is pertinent to mention that exercising such rights may as well result into violations

calling for accountability. Since self-defense is permissible in both criminal and general

international law, the sub questions serve to elaborate on the connecting factors between the two

legal orders.

IV. RESEARCH OBJECTIVES

The present research aims to enlighten the academic arena on the perplexity that lies within the

concept of anticipatory self- defense in regard to the ICC approach to aggression as a crime under

its jurisdiction. Consequently, the research is geared to illuminate the fact that any unlawful self-

defense would be tantamount to aggression.

Finally, the research paper intends to come to a conclusion that anticipatory self-defense should

be regulated and guided by practical criteria. Any flouting of these criteria, so I will argue, would

qualify as an act of aggression leading to the crime thereof.

V. METHODOLOGY

The research methodology adopted includes a comparative approach to investigate the concept

of anticipatory self-defense from both a general international law and criminal law perspective. In

the process, a documentary technique will be utilized to attain a doctrinal contribution to the

problem in argument. Different sources of literature will be reviewed ranging from books,

jurisprudence, relevant international legal instruments and other viable materials relating to the

concept of anticipatory self-defense. Substantially, the comparative approach will explore

determinants and characteristics of anticipatory self - defense in both legal orders with a view to

draw a conclusion whether and in which cases anticipatory self-defense would spillover to

aggression.

VI. THE SCOPE OF THE RESEARCH STUDY

Since this research falls within the field of public international law, particularly a combination of

general public international law and international criminal law, it will be limited to the confines

of those branches of law. Indeed, the concept of anticipatory self-defense is permissive in both

criminal and general international law.

7

Therefore, the research paper limits the investigations to the scope of application of self- defense

in both legal orders while examining the characteristics in a comparative approach. In doing so,

the research examines the criteria for self-defense as perceived in international law in comparison

with the criminal law approach to the concept.

VII. OUTLINE OF THE PAPER

Apart from the general introduction, the present research paper comprises three chapters. Mindful

that anticipatory self-defense shares the common criteria with other modes of self-defense, the

first chapter embarks on the benchmarks of self-defense in general international law. The guiding

criteria for self-defense are examined taking into account their relevancy for the notion of

anticipatory self-defense. The second chapter dwells much on the assessment of the elements that

qualify self-defense in a criminal law approach.

The criteria for self-defense in criminal law hinge on corresponding criteria in international law

to engender interlocking criteria. The last chapter endeavors to link up the findings in both legal

orders aiming at a delineation of the scope of anticipatory self-defense. The chapter also sheds

light on the contextual and the threshold requirements for the crime of aggression purposely to

probe on the conjunction with the practice of anticipatory self-defense within the international

realm. Finally, the general conclusion integrates the findings from the preceding chapters to

close with harmonized views.

8

CHAPTER ONE: THE NOTION OF ANTICIPATORY SELF-DEFENSE IN GENERAL

INTERNATIONAL LAW

1.1. Introduction

Historically, according to General Clausewitz, wars were waged by states against others mainly

as viable instruments to achieve a political objective.25 However, as time evolved state practice of

war evolved that in fact departed from the notion of “war” and resorted to the concept of

“measures short of war” which included small-scale clashes justified on the basis of self-

preservation as a principle.26 Since the declaration of war could be indicated thorough

preparations in terms of both human and financial resources, states opted to take on such small-

scale coercive measures, which seemed to be cost effective while serving the same purpose as a

state of declared war.27

Consequently, self-defense was identified within the aforementioned category as a primary and

natural law right of nations that could be exerted on any serious and immediate dangers.28 This

‘measure short of war’, which existed as far back as the seventeenth and eighteenth centuries,

depicts the present notion of anticipatory self-defense, which involves acting in reaction to

eminent threat.29 It is so contentious that some commentators have advanced further to refute the

term ‘anticipatory self-defence’ hence embracing rather ‘anticipatory action’ in self-defence as a

mere measure of precaution for the future.30

Though this contention is not the question of concern in as far as this paper is concerned, one

may leave a comment behind to encourage the reader to scrutinize as to how the two terms do

differ. In the author’s opinion, anticipatory actions may pave the way to the practical exercise of

25 C Von Clausewitz, “On War”, (Princeton, Princeton University Press, 1976) Bk.1, chp.1, p.75.

26 K S Tibori (no.7) p.76.

27 Idem.

28 Idem.

29 ibid. p.79.

30 K S Tibori (no.7) p. 81.

9

self-defence in the coming future which would mean that anticipatory actions could be prior to

the actual armed action in self-defence of the nature.

If China for instance embarks on the construction of military facilities and deployment of missile

defence systems in the disputed body of water, the South China Sea, it could be among the

actions of defence in anticipation of any threat of armed attack that is not yet imminent. Other

scholars have argued that interceptive strike in self-defence is more legitimate than anticipatory

self-defence since the former counters a manifestly irrevocable armed attack.31 Egypt claimed

that its mobilization of troops in the Sinai, which sparked the Six-Day War in 1967, was in

anticipation of an armed attack due to tensions that prevailed between Israel and Egypt and other

Arab states. Indeed, even if these claims were true the question remains as to what could have

been the next step after mobilization? Thus, Israel anticipated the imminence of an attack and

hence, reacting pre-emptively. Ultimately if anticipation entails foresight of a probable threat,

actions in self-defence would include mobilization of military capabilities prior to the actual

armed attack rather than launching an attack on presumptions.

Further, the notion of self-defense was viewed as a natural prerogative for both the sovereign and

individual who could wage wars that could not necessitate the permission from public authority

to defend themselves and their property since it was considered as natural rights.32 Nevertheless,

the right in question could only be invoked purposely to ward off any likely injuries but not to act

excessively. The fact that anticipatory self-defense is a legitimate concept, its assessment relies

on the criteria common to the concept of self-defense in general which includes; Necessity, the

immediate need to act, and the requirement that measures applied be proportionate.33

Nevertheless, the criterion of imminence remains crucial to the assessment of the legality of

anticipatory self-defense is it comes into play before an actual armed attack occurs.

31 D Delibasis, “The right to National Self-defense: In information Warfare Operations”, (Arena Books,2007), p.211.

32ibid, p.120.

33L. Van de hole (no 1), P.97

10

1.2. Proportionality requirement

Proportionality is a legal principle that can be traced far back from the Code of Hammurabi of

1722BC which included the “an eye for an eye and “a tooth for a tooth” provisions.34 Though

language used in the code is very direct because you cannot imagine such a tooth extraction if the

so-called perpetrator hit the victim and the tooth fell out: the rationale in the present case could be

that a state invoking self-defense needs to apply the amount of force that is equivalent to the

attacking force. Apparently, this provision seems inapplicable to the concept of anticipatory self-

defense since the amount of the attacking force is not overt but merely conceived. Further,

proportionality is said to have been applied in a court of law as early as 1882 when the Prussian

Administrative Court examined whether the measures taken by the police exceeded the necessary

require to achieving the intended objective.35

Apparently not much attention has been paid in legal scholarship to define proportionality, but at

least a dictum by Lord Diplock shades light to the meaning in plain English: “You must not use a

steam hammer to crack a nut, if a nutcracker would do”.36 Consequently, the applicability of

proportionality in Jus ad bellum goes hand in hand with the temporal dimension when it comes to

self-defense during, before, or after an armed attack.37 Moreover, in certain instances

proportionality in self-defense should be determined by the purpose of using force as Roberto

Ago put it in his report on state responsibility: ‘The requirement of the proportionality of the

action taken in self-defense, as we have said, concerns the relationship between that action and

its purpose, namely – and this can never be repeated too often – that of halting and repelling the

34 Arts. 196 & 200, The Code of Hammurabi, (translated by L W King), The Avalon Project documents in Law,

History and diplomacy, (Lillian Goldman Law Library, 2008), Available at;

http://avalon.law.yale.edu/subject_menus/hammenu.asp , accessed on 11/4/2016.

35 Y Arai-Takahashi, ‘Proportionality – a Germany approach’, (Amicus Curiae, issue 19, July, 1999) PP. 13 at 11.

Available at; http://sas-space.sas.ac.uk/3907/1/1458-1702-1-SM.pdf accessed on 11/4/2016.

36 Arden Dbe (Rt Hon. Lady justice), Proportionality: the way ahead? Annual Address of the United Kingdom

Association for European Law (UKAEL), Kings London, Nov. 12 2012, Speech. Available at;

https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Speeches/lj-arden-speech-ukael-proportionality-

12112012.pdf accessed on 11/4/2016.

37 K S Tibori (n0.6), p.253.

11

attack or even, in so far as preventive self-defense is recognized, of preventing it from

occurring’.38 Ago seems to have used the term preventive to denote either pre-emptive,

preventive or anticipatory self-defense since these terms have been used inconsistently in

literature to mean the act that prevents an attack from the aggressor prior to the launch.39

The practice by states may hold otherwise, but unlike pre-emptive self-defense that is also

debatable, preventive self-defense seems entirely unacceptable having been termed as the use of

military force in response to the threat that is not imminent.40 Therefore, if the latter is confirmed

unacceptable, then in the present author’s view any act of that nature is straight forward an act of

aggression that may constitute crimes thereof without the need to assess proportionality.

Arguably, the practicability of proportionality was critiqued by the committee reviewing the

NATO bombing campaign against the Federal Republic of Yugoslavia in its report that;

‘The main problem with the principle of proportionality is not whether or not it

exists but what it means and how it is to be applied. (….) Unfortunately, most

applications of the principle of proportionality are not quite so clear-cut. It is

much easier to formulate the principle of proportionality in general terms than it

is to apply it to a particular set of circumstances because the comparison is often

between unlike quantities and values. One cannot easily assess the value of

innocent human lives as opposed to capturing a particular military objective’.41

Indeed, the applicability of proportionality is flawed due to lack of clarity as to the approach to be

taken for better testing of the principle.

38 R Ago, Special Rapporteur to the International Law Commission, Eighth Report on State Responsibility, (ILC, Yr.

bk,1980, ii, I, 13, at para. 121, UN Doc A/CN.4/318/ADD.5–7.

39 D A Sadoff, ‘A question of determinacy: the legal status of anticipatory self-defense’, (Georgetown journal of Int’l

Law, wntr 2009, Vol. 40(2),) p. 523 at 530.

40 T Ruys, ‘Armed Attack’ and Article 51 of the UN Charter”: Evolutions in customary Law and practice,

(Cambridge University press, Nov 2010) p.53-60.

41Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the

Federal Republic of Yugoslavia, (par. 48) available at http://www.icty.org/x/file/Press/nato061300.pdf , accessed on

10/4/2016.

12

In his view, Badr opined that there is no mathematical formula for measuring the relative

magnitude of the means used by one side or the other, thus it is not the exact equivalence of

forcible means used on both sides but as a general rule, disproportion could be assessed through

the manifest intention to inflict injury beyond what is required to repulse the attack.42 Both

Badr’s view and the committee on NATO share a common factor that, quantifying and valuing

the amount of proportionality in self-defense is a conundrum. Moreover, these experts did not

specify what could be the fate of proportionality in case of anticipatory self-defense whereby no

attack to repulse, and hence no tangible damage incurred by the respondent state.

Trying to puzzle through the issue further, Akande adopted three conceptions that also bear

different implications.43 First, proportionality may be used to describe the requirement that the

defending state use no more force than is necessary. Second, the defensive action be

quantitatively corresponding to either the attack to which it is responding or to the threatened

attack. Lastly, proportionality may require that the damage inflicted in self-defense not be

disproportionate in comparison to the pursued objective. Ultimately the preceding conceptions

tend to address the proportionality requirement from different perspective. However, it seems

somewhat difficult to ascertain some of the conceptions on anticipatory self-defense since in the

latter situation both the damage and the quantity of the attacking force are uncertain.

Further, the proportionality requirement was stressed by Sir Daniel Bethlehem, the former

principle legal advisor at the UK Foreign and Commonwealth Office. While elaborating on the

indicative principles relevant to the state’s right to self-defense against an imminent or actual

armed attack by non-state actors, Bethlehem asserted:

“Armed action in self-defense must be limited to what is necessary to address an imminent or

actual armed attack and must be proportionate to the threat that is faced.”44

42 G M Badr (n0.6), p.27. 43 D Akande & T Lieflander, ‘Clarifying Necessity, Imminence, and Proportionality in the Law of Self-defense’,

(The American journal of Int’l Law, Vol. 107, n0.3, 2013) pp. 563-570 at 566.

44 art. 3, Principles relevant to the scope of a state’s right of self-defense against an imminent or actual attack by

Non-state actors, notes and comments by D Bethlehem, (The American journal of Int’l Law, Vol. 106:00, 2012).

13

Evidently it would be problematic to ascertain the degree of the anticipated threat and to calculate

the amount of damage in advance, thus with anticipatory self-defense the probability to meet the

proportionality requirement remains uncertain.

Both Akande’s conceptions and Bethlehem’s principles rotate on the requirement to ‘use no more

force than necessary’ to address an imminent threat which implies that, the results should also be

commensurate to the prevented damage. Additionally, if force applied is commensurate to the

necessary amount of force, obviously the damage to be inflicted on the attacker is likely

proportional to the damage inflicted on the victim.

This would suppose a situation whereby state A proactively directs a long-range artillery fire into

state B’s territory destroying various infrastructure as a result of a merely presumed attack having

observed the massing of troops by state B near the common borders. The foregoing scenario can

be complemented with reference to the US invasion of Iraq on 19 Match 2003 in which the US

acted on presumptions that Iraq had the ability to deploy Weapons of Mass Destruction (WMD),

thus the invasion sparked hot debates in the academic world. Moreover, the US had secured

legitimacy from the international order as it convinced the UN Security Council that Iraq

possessed WMDs. However, the conduct by the US led coalition resulted into what Fletcher

asserted as ‘conducting a just war unjustly’.45

Obviously, the lawfulness of self-defense is preceded by an assessment of the proportionality

requirement. This was emphasized by the International Court of Justice (ICJ) in the Armed

Activities in the DRC v. Uganda case, where, the Court handed down the following obiter dictum

after rejecting Uganda’s claim for self-defense:

(……The Court cannot fail to observe, however, that the taking of airports and

towns many hundreds of kilometers from Uganda’s border would not seem

Available at; http://www.un.org/law/counsel/Bethlehem%20-%20Self-Defense%20Article.pdf accessed on

12/4/2016.

45 G.P Fletcher& J.D Ohlin, (n0, 21) p.11

14

proportionate to the series of trans border attacks it claimed had given rise to

the right of self-defense, nor to be necessary to that end”.46

However, the Court neglected the ruling to recognize this as aggression while it was obvious as

highlighted by Judge Bruno Simma in his separate opinion:

‘One deliberate omission characterizing the Judgment will strike any

politically alert reader: it is the way in which the Court has avoided dealing

with the explicit request of the DRC to find that Uganda, by its massive use of

force against the Applicant has committed an act of aggression. (…..)

Judge Simma further criticized the court for overlooking its reasoning where it had stated in the

judgement:

“[t]he unlawful military intervention by Uganda was of such a magnitude and

duration that the Court considers it to be a grave violation of the prohibition of

the use of force expressed in Article 2, paragraph 4, of the Charter. So, why not

call a spade a spade”?47

Apparently, the magnitude and duration according to Simma should have been considered to

qualify Uganda’s responsibility for aggressive acts to DRC only if self-defense was confirmed

lawful. Otherwise it is a clear violation of Article 2(4) with no protection from Article 51. Now,

suppose that Uganda acted in anticipation of a threat from the DRC, what would the Court have

ruled?

Judge Simma further criticized the Court for the failure to exercise its duty as a principle judicial

organ of the UN whose raison d’ệtre is to arrive at a decision based on law rather than a decision

46Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, (I.C.J.

Reports 2005, p. 168) par. 147.

47Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, (I.C.J.

Reports 2005, p. 168), (separate opinion by Judge Simma) par. 2

15

based on other sources.48 Though the claim in preceding case did not concern anticipatory self-

defense, its significance is hinged on the need to highlight the difficult conundrum for qualifying

the requirement of proportionality in any mode of self-defense.

The discussions in this section observed that proportionality is an important principle to test the

lawfulness of acts in jus ad bellum. It is evident that the applicability of the principle in acts of

self-defense lacks consistency to the extent that if no clear designated criteria to test it on case -

to-case basis, aggressors may go unpunished. The situation becomes more complicated in case of

anticipatory self-defense since determining the gravity of the anticipated damage is almost

impossible. Perhaps whilst defining the parameters anticipatory self-defense, the principle of

proportionality could be successfully tested in synchronicity with the criteria of immediacy and

necessity. The following section examines the criterion of necessity in view to establish the

lawfulness of a legitimate anticipatory self-defense.

1.3. Necessity requirement

According to Fletcher, the word ‘necessity’ in a legal sense does not take the same meaning as

the normal grammatical understanding thereof.49 Fletcher opined that necessity in legal terms

more particularly in a self-defense perspective is determined by the possibility of using less

costly means of defense to repel the attack.50 Fletcher seemed to intertwine necessity and

proportionality in the following police incident in Los Angeles in 1991 when twenty police

officers assaulted the unarmed Rodney King in an attempt to arrest him.51 Though the action of

arresting the suspect was necessary, the proportion of twenty policemen to one unarmed man is

disproportionate and at the same time unnecessary. Therefore, necessity plays a pivotal role in

determining both proportionality and immediacy.

48 idem. Par. 3.

49 G.P Fletcher& J.D Ohlin, (n0, 21) p.91.

50 ibid. p.92.

51 idem.

16

In the US and Vietnam cases, some members of the Security Council contended that the US

response exceeded the limits of self-defense and hence, were disproportionately unnecessary.52

Conversely, the Israel strike on the Egyptian war planes that sparked the Six-Day War in 1967

was considered to be necessary as it took place following a series of events launched by Egypt

which included: the expulsion of the UN Emergency Force (UNEF) which had been initiated by

the UN to supervise the cessation of hostility between the two states, the closure of the Straits of

Tiran, the extensive mobilization of troops on the Israeli border and the repeated threats from

Egyptian authority.53 It has been concluded that the Israeli actions of self-defense were generally

accepted to have met the requirements of necessity based on the information available at the time

and in the face of the escalating events engendered by Egypt’s actions.54

However, necessity lost credibility with regards to the Israeli’s annexation of several territories,

which was considered to have surpassed the limits of legitimate self-defense. If the sequence of

events in this case would be adapted to the Webster criteria in the Caroline Case, Israel should be

considered as to have exhausted all the criteria and hence there was no more room for

deliberations.55 Accordingly, the Israel’s immediate actions are said to have been necessary to

halt the prevailing threat despite the continued occupation of the Arab territories by Israel who

turned down the lawfulness thereof. This is more or less conducting the just war unjustly

according to Fletcher’s argument as discussed in the preceding section.56 Necessity can further be

tested in reference to the behavior of both Israel and Egypt in the Yom Kippur War (The holiest

day in the Jewish calendar) in which Egypt and Syria launched a coordinated surprise attack

against Israel on October 6, 1973.57

52 K S Tibori (n0.6), p. 150.

53 K S Tibori (n0.6), p. 153.

54 Idem.

55 L. Philippe Rouillard, (n0.5).

56 G.P Fletcher& J.D Ohlin, (n0, 21) p.11, (at footnote 49 in this paper)

57 X, The Yom Kippur War: Background & overview, 1973, (Jewish virtual Library) par.12. available at;

http://www.jewishvirtuallibrary.org/jsource/History/73_War.html accessed on 14/4/2016.

17

Failure by Israel’s leadership to process all the information supplied from different sources led to

a loss of intelligence and hence discrediting the imminence of the threat.58 At this stage Israel

could be said to have met the necessity requirement by considering that no imminent threat was

envisaged, thus no right to exercise self-defense whatsoever.59 On the other hand, Egypt’s armed

attack could not pass the necessity test since there was no imminent threat from Israel and hence

no need for anticipatory armed attack except for President Sadat’s ambitions to weaken Israel by

launching the War of Attrition.60 Further, the wrong invocation of the necessity requirement can

be viewed with reference to the Iraq and Iran wars (1980-1988) that are critiqued with regard to

two aspects.61 First, it was not necessary for Iraq to carry out armed actions in claim of

preventive self-defense since there were more options for deliberations rather than armed actions.

Second, the alleged cross-border shelling by Iran never reached the threshold of an armed attack,

thus it was not necessary to occupy larger areas in Iran territory. The necessity requirement can

also be tested through the notion of ‘temporal dimension’ as opined by TD Gill:

‘The important point is that self-defense is exercised within a reasonable time

frame in response to an ongoing attack or, a clear threat of attack in the

proximate future. It is not a punitive measure to be undertaken long after the

attack has been carried out.’62

In response to an armed attack by Argentina on the Falkland Islands, which sparked off

the Falklands War (1982), the UK took four weeks to take any action in self-defense.

58 ibid. par. 11.

59 T D. Gill & P A L. Ducheine, ‘Anticipatory Self-Defense in the Cyber Context’, (International Law Studies, U.S Naval War College, 2013, Vol. 89, 438- 471) at P.449. available at; https://www.google.nl/#q=what+is+meaning+of+the+temporal+dimension+in+self-defense%2Fpdf accessed on 5/6/2016. 60 K S Tibori (n0.6), p. 154.

61 ibid.p.156.

62 T D. Gill & P A L. Ducheine, (n0.59), p.451.

18

Critics of the action by the UK argue that the time taken to react went out of the

temporal scope of self-defense, thus retaliation by armed attack was no longer necessary

since there was no more overwhelming situation.63

Nevertheless, there is a problem as to what should be the ‘reasonable’ time frame to

react or act and hence, the door opens for any defending state to consider reasonable

time in relation to time taken for the preparations to respond to the attack. Furthermore,

necessity could be assessed through the US bombing on Libya’s air fields and military

facilities in 1986 claiming pre-emptive self-defense following provocative statements by

the then Libya President Gadhafi preceded by the bombing of a discotheque in West

Berlin which was attributed to Libya.

The actions that were suspected to have been backed by Libya due to the President’s

statements could not have necessitated the bombing of air fields and military facilities

unless the US could produce more evidence to justify imminence. Finally, the US

airstrikes against Iraq in 1993 are another example of a state-to-state clash where

necessity was invoked while the US claimed preventive self-defense based on the

information that Saddam Hussein the Iraqi President at the time planned to assassinate

former US President George Bush.64 Necessity in this case could be justified only upon

credibility of the information that triggered the bombing. Otherwise, there were more

possibilities for deliberations.

In a nutshell, the requirement of necessity can be viewed as an intermediary tool between

proportionality and immediacy requirements. Meaning where the situation necessitates action,

there is a need to act proportionally, and where imminence is envisaged, there is a necessity to act

immediately. However, establishing the credibility of necessity invoked in anticipatory self-

63 K S Tibori. (n0.6), p. 154-160. 64 ibid p. 164.

19

defense where the temporal factor is questionable poses a difficult conundrum since there is no

recognized standard time for a state to react to an imminent situation.65

Finally, this section holds in affirmative that the necessity requirement applies ipso facto to all

three temporal dimensions of self-defense which imply that: though the action in self-defense

could not be instantaneous, it must be taken within a reasonable time either ‘before’ or ‘after’ an

armed attack and moreover in conditions were no other possible means to carter for the threat.66

The next section will explore the applicability of immediacy as a requirement to justify legitimate

self-defense.

1.4. Immediacy requirement

The application of the immediacy requirement as one of the criteria for the exercise of self-

defense is conditioned by two factors.67 First, the defender must put into consideration all the

relevant circumstances before any action. Second, once an action is to be taken, it must be unduly

delayed. If the aforementioned conditions are elaborated with regards to anticipatory self-defense,

it could be viewed that the defender must prove that there is an imminent threat, and the situation

is overwhelming to the extent that there is no other choice of means other than armed action. The

requirement to act in due time is intended to distinguish the overall objective of self-defense as a

recognized legal concept from other punitive actions such as armed reprisal which is considered

unlawful under contemporary international law.68 Moreover, the requirement of immediacy plays

a significant role in both general international law and criminal Law as a justification for the use

of force in self-defense.69 The condition to act without delay in criminal matters can be viewed

from the wording of the Model Penal Code where it is written in relevant part:

65 ibid. p. 248

66K S Tibori. (n0.6), p 222.

67 T D. Gill & P A L. Ducheine, (n0.59), p.451 68 D W Bowett, “Self-Defense in international Law” (The Law book Exchange, Ltd, Clark, New Jersey, 2009) p.20 69 B Sangero, “Self-Defense in Criminal Law” (Hart Publishing, Oxford and Portland, Oregon, 2006) P.151.

20

(…… the use of force upon or towards another person is justifiable when the actor believes that

such force is immediately necessary for the purpose of protecting himself against the use of

unlawful force by such other person on the present occasion.70

Despite their possible grammatical difference, the term ‘immediacy’ in international law seems to

apply synonymously with ‘Imminent’. The interchangeability of the two terms was addressed by

the ICJ in the Gabcikova-Nagymaros project case of 1997 where the court held that; ‘Imminent is

synonymous with ‘immediacy’ or ‘proximity’ and goes far beyond the concept of ‘possibility’.71

Conversely, the present author’s opinion is that the two terms may apply simultaneously at closer

moments but with different meanings since an imminent threat of attack triggers the immediate

action to counter the attack.

In other words, there is no immediacy without imminent threat. Before the Six Day War, Israel

assessed the information available at the time and the escalating events such that an armed attack

was imminent and therefore assessed that it was necessary to take immediate actions.72

Ultimately, it would serve much better to apply the term ‘immediacy’ since it covers the three

situations of self-defense namely; where the attack is in progress, where the attack is imminent or

where it has been completed.73 Fletcher seemed to criticize the action of anticipatory self-defense

where he opined that a pre-emptive strike against a suspected aggressor is illegal since that could

imply that force is used too soon.74

70 Art.3, § 3.04. Model Penal Code, (adopted at the 1962 Annual meeting of The American Law Institute,

Washington, DC) p.44, available at; http://use-of-force.info/images/un/use-of-force/western-europe-

others/UnitedStatesofAmerica/Model%20Penal%20Code%20United%20States%20of%20America%201962.pdf ,

accessed on 18/4/2016.

71Case concerning the Gabcikovo – Nagymaros project (Hungry V Slovakia), 1997, ICJ Rep,7,42. (as cited in Y

Dinstein, “War, Aggression and Self-Defense” (Cambridge University Press, 2011) p.205.

72 K S Tibori (n0.6), p. 153.

73 G.P Fletcher& J.D Ohlin, (n0. 21)p.90.

74 Idem.

21

If the foregoing conditions are applied to the three temporal dimensions of interstate self-defense,

it is likely that acting too early before a threat is imminent could result into other punitive

actions.75 Moreover, the purpose of self-defense is clearly known to be neither a means of

punishment nor an act of law enforcement but as postulated by Kremnitzer, ‘it is rather an act of

emergency that is temporally and materially confined to the narrow purpose of warding off the

pending threat, not to re-establish the disturbed public order or to penalize the

aggressor.’76However, state practice indicates that the observance of both the ‘too soon’ and the

‘too late ’phenomena may sometimes be prejudicial to individual states. In the Yom Kippur War,

Israel seemed to refrain from acting too soon to avoid becoming the aggressor instead, but Egypt

exploited that reluctance and successfully inflicted a fast blow on Israel.

More so, it is feared that with the expansion and development of weaponry systems if a state

observes the condition not to act too soon it may end up in great danger. The ICJ underlined this

point in its advisory opinion on the legality of recourse to nuclear weapons where the court

impliedly admitted the use of nuclear weapons in extreme circumstances of self-defense.77 Be

that as it may, a state that commits itself to action of anticipatory self-defense must account for

the immediacy requirement as a tool for justification to avoid responsibility for aggression.

Conversely, the US invasion of Iraq in 2003 could serve a practical example of acting too soon

and without restricting to the narrow purpose of warding off the threat but occupying the territory

on pretext to restore order which ended up in naked aggression. Apparently, the applicability of

immediacy requirement is based on individual state assessment whereby the probability to act

either too late or too soon is dependent to individual state deductions. To this extent, the

consequences are likely to affect either sides as result of hindsight.

75 Idem.

76 M Kremnitzer & Ghanyim, “Proportionality and the aggressor’s culpability in Self-defense”,

(2004), as cited in O Bakircioglu, “International and Criminal Law”: The doctrine of Imminence,

Routledge, London, (2011), and p .209.

77Legality of the threat or use of nuclear weapons, Advisory opinion, ICJ, reports 1996, p.226,

par.105 (2) e. available at; http://www.icj-cij.org/docket/files/95/7495.pdf accessed on

18/4/2016.

22

Further, though immediacy may be applied synonymously with imminence, they seem to diverge

in a way that, immediacy covers all forms of self-defense while imminence applies to

anticipatory action in self-defense. Finally, the present section has established that the imprudent

application of the imminence requirement before an action in anticipatory-self-defense may affect

the immediacy requirement and hence, other punitive actions hence, aggression.

1.5. Conclusion

In a nutshell, the present chapter revealed that self-defense as a measure short of war can only be

lawful if the defending state legally applies proportionality, necessity requirement and at the

same time observes the immediacy factor in terms of time lag. It has been observed that the

applicability of proportionality requirement in case of anticipatory self-defense is controversial

since there is no tangible force from the perceived attacker to gauge. The applicability of the

necessity requirement also lacks coherence since some actors tend to interpret the requirement in

line with the quantity of force to employ, while others refer to the degree of assessment as to

whether self-defense actions are necessary at a given time.

It is here argued that necessity must be evaluated upon an analysis of the available information

pertaining to the threat at hand and the degree of imminence, and hence acting immediately. It is

further argued that the immediacy requirement is an important factor in any state of emergency

since the immediate action in self-defense would not only save the life of defender but also acts

as a sound ground for justification. Moreover, it was opined that legitimate self-defense must not

be either too soon or too late since any of the two situations could lead to aggression.

Undisputedly, self-defense is a natural prerogative for both states and individuals as a mode of

justification. However, it is argued that the applicability of that concept to both inter-state self-

defense and individual self-defense under criminal law is divergent to the extent that a state may

go unpunished. Indeed, the applicability may differ but the overall aim of self-defense should be

restricted with in the scrutiny of proportionality, necessity and immediacy in order to maintain its

legitimacy. Undisputedly, anticipatory self-defense remains a legally recognized concept in both

international customary law and impliedly in treaty law.

23

This being said, it is very evident that the state’s conduct while exercising anticipatory self-

defense may spillover to aggression as defined in article 8bis of the ICC statute. The next chapter

will embark on examining the elements of self-defense as perceived under criminal law. The

investigation aims at establishing the justification of the legitimate anticipatory self-defense in

relation to the proportionality, necessity and immediacy in comparison with their applicability in

criminal law.

24

CHAPTER II: ELEMENTS OF SELF-DEFENSE AS PERCEIVED UNDER CRIMINAL

LAW

2.1. General

Analyzing the elements of self-defense in both public international law and criminal law is

neither newly invented nor devoid of a theoretical basis. Though the rules for self-defense in

international law are regulated by Art. 51 of the UN Charter and customary international law, the

concepts of self-defense in public international law and self-defense in criminal law are

conceptually linked in so far as the structure that regulates the concept of defensive force applies

to both.78

Additionally, Hans Kelsen argued in favor of the complementarity of both legal orders where he

asserted that; ‘norms of international law character may possess national law qualities and vice

versa’ and hence, he rejected any borderline thereof.79 However, Kelsen’s emphasis of not having

any borderline between the two legal orders is flawed by the fact that, in international law, self-

defense is doctrinally considered a justification for total exclusion from criminal responsibility

basing on the fact that a state cannot advance duress or insanity as an excuse,80 while in criminal

law one may claim ‘excuse’ as a ground for mitigation of criminal responsibility due to either of

the above mentioned grounds.81 Nevertheless, the concept of self-defense is said to be a natural

phenomenon in both legal orders as de Vattel deduced, ‘every nation as well as every man has a

right to preserve himself from all injuries’.82

78 A Cassese (end), The Oxford Companion to International Criminal Justice’, (Oxford University Press, 2009, New

York), P. 507.

79 H Kelsen, A General Theory of Law and State 325 (Anders Walberg trans., The Law book Exchange 1999)

(1945). (Cited in, O Bakircioglu, Right to self-defense in National and International Law: the role of

the imminence requirement, (Ind, Int’l & Comp. Law Review, Vol. 19.1, 2009) p. 3.

80 A Cassese (ed), (n0. 78) idem.

81 G.P Fletcher& J.D Ohlin, (n0. 22) p.58.

82 De Vattel, The Law of Nations, (Philadelphia: T. & J. W. Johnson & Co., 1883), at bk. Il/IV/XLIX. (cited in, O

Bakircioglu, (n0.79) p.6.

25

De Vattel’s assertion seems to reinforce the arguments by proponents of the inherent right of self-

defense who opined that it is a natural right that pre-existed before the law of treaties.83 Though,

it is not the aim of this paper to examine the controversies in international and national legal

systems, but the domestic analogy is here imported due to its insights and intuitions as a practical

tool to analyze the criteria of self-defense.84 The comprehensive nature for the criteria of self-

defense in criminal law can be viewed from their broad interpretation as addressed by Fletcher

whereby self-defense can be invoked as either a justification or an excuse for mitigation due to

either irresistible duress or insanity defense85 as will be discussed in this chapter.

2.2. Qualifying self-defense as a legitimate action in criminal law

Whereas the permissible use of defensive force in public international law is guided by the

criteria of proportionality, necessity and immediacy common to both legal orders, criminal law

subscribes to more criteria as a way of assessing its lawfulness. Fletcher discussed six elements

that qualify legitimate self-defense in criminal law that according to him should apply parallel to

international law as well.86 Since three of them, proportionality, necessity and imminence,

requirements have been discussed in the previous chapter. This sub section therefore explores the

additional requirements that; the attack be overt, unlawful, and that the defender act intentional in

response to the attack.87

83 D B Koppel, ‘The Natural Right of Self-defense: Heller’s lesson for the World’ (Syracuse Law Review, Vol. 59:

XXX, 2008) pp.999-1013 at 1000. Available at; http://www.davekopel.org/2A/LawRev/Natural-right-self-

defense.pdf accessed on 23/4/2016.

84 O Bakircioglu (n0.79).

85 G.P Fletcher& J.D Ohlin, (n0. 21) p.57 -58.

86 Ibid. p. 86

87 Idem.

26

2.2.1. The attack must be overt

The requisite that the attack must be overt implies that something must be happening obviously in

the eyes of the real world, not just in the minds of those who fear an attack.88 If it is put in the

context of international law, the drafters of the UN Charter seem to have observed this pre-

requisite by inserting in Article 51 the term “if an armed attack occurs”. Practically, there must be

an evident manifestation of the intention to carry out an attack from the suspected aggressor.89

The expulsion of UNEF, closing the Straits of Tiran and mobilization of troops by Egypt on its

common borders with Israel could be qualified as overt actions rendering reasonable grounds for

reaction on the part of Israel.

However, it is argued that such actions are merely preliminary to an actual attack while the

precise action could be determined once the values set out in Article 2(4) of the Charter, that is to

say “the territorial integrity” and “political independence” have been jeopardized.90 Though such

a situation could be undoubtedly overt, it is difficult in practice for a state to keep monitoring the

preliminaries until the initial blow. This triggers a debate between those who think that self-

defense should be evaluated only against real events and those who believe that the defender’s

belief should be evaluated too.91 Be that as it may, bottom line is that the defender must act upon

acquiring sufficient tangible evidences obvious to the World community rather than mere

political sentiments as asserted by Fletcher,

(…...) When the requirement is not met, when individuals engage in pre-

emptive attacks against suspected future aggressors, (…...) they exceed their

authority as citizens; they take the “law into their hands” (….) the

requirement must be both objective and public.

88 G.P Fletcher& J.D Ohlin, (n0. 21), p.87.

89 idem.

90 idem.

91 ibid. p.88

27

There must be a signal to the community that this is an incident in which the

law ceases to protect, that the individual must secure his or her own safety.92

Whereas this could be self-justifiable with regard self-defense when an armed attack has

occurred, it poses a conundrum to apply this requirement to anticipatory self-defense since the

grounds that lead to such an action are most likely presumed and not overt.

2.2.2. The attack must be Unlawful

Though it may sound queer in real life to talk about lawful and unlawful attacks, but the essence

in this case is that self-defense is a fight of right against wrong.93 The reason behind this

requirement is to permit the defender to act lawfully with justified actions while excluding any

attempt of self-defense against those justified actions.94 This is what is called according to

Fletcher ‘the thesis of incompatible rights’.95

To contextualize Fletcher’s thesis, if troops mandated by the UN Security Council lands on the

territory of a country, they are lawfully acting in a manner that is consistent with Article 2(4) and

therefore no action of self-defense is permitted against them. Conversely, this diminishes the

possibility of an individual state acting in self-defense to benefit from the incompatibility theory

in case of anticipatory self-defense since the presumed aggressor could also retaliate and hence

the result could be something like; “self-defense against self-defense” leading to endless

conflicts. Assuming that Iraq was able to counter the invasion by the coalition forces in 2003, it

would have had the right to do so while invoking self-defense too and hence jeopardizing

Fletcher’s thesis. It follows therefore that, while invoking anticipatory self-defense, the unlawful

intentions of the aggressor must be salient to the world and the defending state is required to

prove the requirements of imminence and necessity.

92 G P. Fletcher, Domination in the Theory of Justification and Excuse, 57 U. Prrr. L. REV. 553, 570 (1996) as cited

in, O Bakircioglu (n0. 97) p.22

93 J Keileret al, ‘Criminal Law’, in J Hage& B Akkermans, (eds), “Introduction to Law”, (Springer International

publishing, Switzerland, 2014) p.140

94 G.P Fletcher& J.D Ohlin, (n0. 21) p. 89.

95 ibid. p.46

28

2.2.3. The defense must be an intentional or knowing response

It would sound strange to ask the defender if they knew anything about the attack when one

analyzes the requirements of proportionality and necessity96 since in such circumstances the

defender should be aware of the threat and decide to respond. However, the point at hand is

intended to assess actions of self-defense beyond the abstract, and questions whether the defender

undoubtedly knew what the facts to a threat that was responded to. To elaborate on this, Fletcher

questioned the US invasion to Iraq by drawing a comparison in which a white passenger is

surrounded by four black men on a subway, no threatening move is made towards the white

passenger but the black men are in possession, albeit secretly, of knives. Based on the

passenger’s suspicious assessment, he pulls a gun and shoots to harm the men. It was later

established that they possessed knives and were presumably about to attack.97 The question in the

forgoing scenario is whether the white man could claim anticipatory self-defense on the grounds

that the four black men possessed knives that were not visibly apparent.

Could the US invasion continue to retain the status of legitimate anticipatory self-defense

whereas no WMDs were found in Iraq? The answer to both scenarios is that defenders acted

within the de facto nature of self-defense, which relied the claim for justification after the action

(ex ante) whereas normally it should be justified on the basis of true facts that were in place

before the action (ex post).98 It follows that if an attack need to be overt, and so the intention or

the targeted response by the defender must be hinged on clear observable facts to the general

public.99

2.3. Justified cause v. excusable cause

Basically the actions of self-defense in criminal matters can be invoked as either a justification

for full exclusion from criminal responsibility, or as claim of excuse, which recognizes the

96 ibid. p.103.

97 idem.

98 ibid. p.105.

99 idem.

29

wrongfulness of the act committed, but seek to save the actor from criminal liability by

advancing lack of self-control at the time of commission of a crime.100

The importance of their distinction lies in the practical consequences in terms of reparation of

damages, since with justification the perpetrator benefits total exclusion from criminal liability

while for excuse the offender may benefit from mitigating causes but still criminally liable.101

Moreover, it is argued that to advance excuse, as a defense is dependent on psychological effects,

while justification rests on the authority or status of person being victimized.102 In this case

therefore, individuals under the state authority who could claim to have acted legitimately in

anticipatory self-defense would benefit exclusion from responsibility by justification since

aggression is a state’s action that cannot invoke duress or insanity defense as mitigating causes103

However, this poses a question as to whether a state cannot benefit on the ‘reasonable mistake’104

phenomenon given the fact that anticipatory self-defense could sometimes hinge on hypothetical

evidence prone to aggression. In this case, if the US led coalition invasion to Iraq happens to be

questioned before the court of law, the former would advance justification basing on ‘reasonable

100 A Botterell, ‘A primer on the Distinction between Justification and Excuse’, (Journal compilation, Blackwell

publishing Ltd 2009)172 -196 at 111. Available at; http://publish.uwo.ca/~abottere/JustificationExcuse.pdf accessed

on 25/4/2016.

101 ibid. p. 176.

102 D L Horowitz, ‘Justification and excuse in the program of the criminal Law’, (Law and

Contemporary problems, Vol.49: no.3,1986), pp.109 126

at.118.available:http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1793&context=facul

ty_scholarship

103 G.P Fletcher& J.D Ohlin, (n0. 21) p.58.

104 K W Simons, Self-Defense: Reasonable beliefs or reasonable self-control? (New Criminal Law Review, Vol. 11,

N0. 1. University of California, 2008, pp 51–90) at 64. “reasonable mistake” is analyzed as an instance of

justification or of excuse, if an actor reasonably believes that the threat is of deadly force, or reasonably believes that

he has no alternative but to use force immediately, yet is mistaken about these issues of proportionality or necessity,

it is widely agreed that he is nevertheless entitled to a full defense’ available at;

http://www.bu.edu/lawlibrary/facultypublications/PDFs/Simons/Selfdefense.pdf accessed on 7/6/2016.

30

mistake’ reasoning that, though no WMD were found in Iraq, the coalition had a belief that the

threat was of deadly force and hence called for immediate use force.

Subsequently, individual leaders in the aforementioned conflict who may happen to answer on

charges of the crime of aggression could invoke Article 31(d) advancing the irresistible duress as

a defense that, by using armed attack in anticipatory self-defense, it was due to an imminent

serious harm, which could inflict a greater harm on other people.105 Though they could fail the

proportionality test, waiting for the release of a WMD would mean admitting the irreparable

harm, thus better to reasonably advance the three conditions for one to invoke duress which

require the defendant to prove that; (1) was confronted with an immediate, serious and irreparable

harm. (2) No other and adequate means to escape the harm, and (3) the harm caused in turn

should not be disproportionate to the imminent harm that was averted.106 Nevertheless, this could

not in any way serve to relieve a state from responsibility for acts of aggression given that

according to the trigger mechanism for prosecuting aggression, it is the initial step before

individuals are indicted for the crime of aggression.

It follows therefore that while taking action in anticipatory self-defense, states should be sure to

justify their actions in order to preserve the credibility of the pursued rights, given the fact that

the function of justification is to preserve social order.107 This section has explored on the

distinction between the two factors that qualify the claim of self-defense whereby the claim of

justification entails total exclusion from responsibility while a claim of excuse may merely

attenuate on liability. It has been argued in this section that whereas a state cannot invoke duress

105 Rome Statute, (n0. 16) art. 31 (d). ‘The conduct which is alleged to constitute a crime within the jurisdiction of

the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious

bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this

threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided’

106 H van Der Wilt, ‘Justifications and excuses in International Criminal Law: An assessment of the case-law of the

ICTY’, Chp. 9, in B Zwart et al, “The legacy of the International Criminal Tribunal for the former Yugoslavia,

(Oxford scholarship online, 2011). Pp. 276 – 295 at 289.

107 D L Horowitz (n0.102) p.116.

31

as a defense for the acts of aggression, individuals may do so as an excuse for the crime of

aggression basing on the provisions of Article 31(d) since it falls within the general part (III) of

the Rome Statute which certainly encompasses all crimes under the ICC jurisdiction.

Conclusively, justification in anticipatory self-defense is perplexed by the fact that the

requirements of proportionality and immediacy are still in immaterial to the extent that any

attempt to assess them materially poses a problem.

2.4. Conclusion

This chapter was geared to establish the relationship between the elements of self-defense in both

public international law and criminal law. Undisputedly, the applicability of the criteria for self-

defense in both legal orders purports to serve the function of either justification or excuse

whereby the former leads to total exclusion from responsibility while the latter is only a means of

mitigation of the consequences faced by the perpetrator. Further, the chapter has discussed the

inter-relationship for both legal orders transcending from the theory of natural rights whereby

both states and individuals enjoy the same rights to defend themselves against any action

threatening their existence.

However, it has been established in this chapter that the criteria of self-defense are much more

elaborated in criminal law than in public international law. For one to justify anticipatory self-

defense, the defendant must prove to have acted with knowledge of the actual threat being

responded to, in addition to the requirement of proportionality, necessity and immediate action to

an overt and unlawful attack. In this regard therefore, the defender is required to prove that the

action was taken against the pre-existing facts to the threat other than hindsight.

It was further established that the distinction between justified and excusable mode of defense

leads to appropriate classification between the grounds leading to total exclusion from the

mitigating facts. Nevertheless, it was argued that state could not advance excuse as a defense

since no state could be expected to be insane. This implies that in case of defense of excuse,

individuals will be held accountable for the wrongful acts that may amount to the crimes of

aggression but a state will have been already proven responsible for the acts of aggression. The

32

next chapter will try to explore possible indicators that could characterize a lawful anticipatory

self-defense whereby the contrary could imply aggression.

CHAPTER THREE: THE CHARACTERIZATION OF ANTICIPATORY SELF-

DEFENSE AS TANTAMOUNT TO AGGRESSION

3.1. General

Undisputedly, the framers of the UN Charter intended to restrict the recourse to force when they

formulated a legal obligation in Article 2(4) to refrain from any use force. However, some

scholars have regrettably argued that the provision has lost authority, hence lacking authenticity

to international law due to the divergent states behavior that have characterized the aftermath of

the UN Charter adoption.108 Michael Glennon lamented the “Charter’s death” referring to states’

consistent violation of the rules restricting the use of force against others;

‘The Charter’s use of force rules has been widely and regularly disregarded.

Since 1945, two-thirds of the members of the United Nations--126 states out of

189--have fought 291 interstate conflicts in which over 22 million people have

been killed. In every one of those conflicts at least one belligerent necessarily

violated the Charter. In most of those conflicts, most of the belligerents claim

to act in self-defense. States’ earlier intent, expressed in words, has been

superseded by their later intent, expressed in deeds’.109

Glennon’s lamentation is backed by Antony Clark Arend who questioned the effectiveness of the

UN Charter and echoes that; ‘for all practical purposes, the UN Charter framework is dead.

108 A C Arend& R J Beck, “International Law and the use of force: Beyond the U.N. Charter Paradigm” (Routledge,

2013, New York), P.182

109 W m Riesman, ‘Assessing Claims to Revise the Law of War’, 97, Am. J. Int’l L. 82 passim (2003), as cited in, S

D Murphy, The Doctrine of Pre-emptive Self-defense’, 50 Vill Law Review,699( 2005) T-11. Available at;

http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=1899&context=faculty_publications accessed on

27/4/2016.

33

If this is indeed the case, Arend emphasized, that the Bush doctrine of pre-emption does not violate

international law because the Charter framework is no longer reflected in state practice.’

Unfortunately, both Glennon and Arend’s criticisms have had no legal consequences since they are

just academic arguments. Moreover, states have been cautious not to invoke anticipatory self-

defense knowingly that they may gain no support from the international community due to the

doubtful means of its justification.110

Despite all the arguments at hand, some state actions in armed attack carry with them an anticipatory

nature due to the fact that they claim imminence as a ground to act earlier. The Israel strike on

Egypt’s air force in 1967 was based on a claim of imminence of an attack by Egypt, the US invasion

of Iraq in 2003 also claimed imminence of a threat from Iraq. Indeed, this confirms the controversies

in the concept of anticipatory self-defense despite its legitimacy of recourse to use force as a result

of a perceived imminent threat of attack.111

Thus, the controversies surrounding the legality of anticipatory self-defense can only be countered

by synchronizing states conduct in relation to the definition of aggression as stipulated in article 8bis

of the ICC statute. Logically, the definition of aggression in the foregoing provision can be divided

into two parts; the act of aggression and the crime of aggression. In this respect, an act of aggression

is perceived as a state conduct while a crime of aggression entails individual criminal responsibility.

It follows logically that individuals would be prosecuted for crimes of aggression only if it is

established that there has been an aggressive act by a state.112

Therefore, it is apparent that before resorting to individual criminal responsibility, the prosecutor’s

primary role would be to prove whether or not a states’ action in anticipatory self-defense

constituted an act of aggression. Principally, the prosecutor will have no other guiding tools towards

establishing responsibility than examining the criteria of proportionality, necessity and immediacy in

110 W m Riesman, (no.109) P.17

111 A C Arend& R J Beck, (no.108), P. 196.

112 Rome Statute, (no.16) Art. 15 bis 5, par. 4.

34

addition to imminence, which seems to be the epicenter as far as anticipatory self-defense is

concerned.

Subsequently, a state also bears a burden to prove the legality of its actions according to the theory

of “affirmative defense” which requires for a preponderance of the evidence that such an action was

a lawful self-defense.113 In doing so, a state is required to firstly elucidate how imminent the threat

was, and secondly it would be required to account for proportionality, necessity and the immediacy

requirements. It follows that a state’s failure to prove that the threat was imminent and the situation

was overwhelming with no more chance for other means would imply culpability for aggression

even without further testing the other requirements. In no way a state who fails to defend the

imminence requirement could justify the legality of its actions in anticipatory self-defense unless the

maxims by Martti Koskenniemi that “international law is what international lawyers do and how

they think”114 and that law is “indeterminate’115 maintains credibility. Then, the debate moves to the

academic sphere.

It follows further that even if the requirement of imminence is proved to be right, the action of

anticipatory self-defense should aim at warding off the immediate threat other than taking a punitive

dimension, considering the fact that punishment is essentially an institutional remedy rather than

individual initiatives.116 Arguably, a state’s unilateral invocation of anticipatory self-defense could

hardly include toppling the aggressor state’s regime and dismantling the whole system of

113 R E Bailey, ‘The burden of proving self-defense in Homicide cases, Journal of Criminal Law and Criminology,

Vol. 39, issue 2, art.7 (1948),189-192, at 191. Available at;

http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=3571&context=jclc accessed on

29/4/2016.

114 M Koskenniemi, “the gentle civilizer of Nations: the rise and fall of international law, 1870-1960, (Cambridge

University press,2001) p.7 as cited in, F Johns, “Non-legality in international Law: Unruly Law, Cambridge

University Press, New York, 2013, P. 13.

115 L Brilmayer, review of, “From Apology to Utopia: The structure of International Legal Argument, (2006) by M

Koskenniemi, (The American Political Science Review, Vol.85, n0 2, 1999) pp.687-688 at 687.

116 G.P Fletcher& J.D Ohlin, (n0. 21)p. 90.

35

government which according to the ‘theory of rights forfeiture117 means that the presumed aggressor

state has lost its sovereign integrity and political independence.

3.2. The rights forfeiture theory of punishment

The concept of rights forfeiture is an idea advanced by the natural law theorists who argue that,

the aggressor loses their right to life, thus allowing the defenders to harm and possibly kill them

in self-defense.118 It implies a permanent forfeiture in a sense that, once somebody acts in a way

that forfeits their rights, they cannot regain rights even when their threatening actions have been

stopped.119 This could suppose a state that after taking an action of anticipatory self-defense

against the suspected aggressor state decides to permanently occupy the territory in order to

perhaps prevent further threats. It is here argued that in the latter scenario the defender’s action is

no longer in conformity with the requirements of proportionality, and immediacy, thus the

situation turns to the defender becoming the aggressor.

It is moreover argued that the concept of rights forfeiture in the context of self-defense is only

applicable on a temporal basis since it results from a right lost just as a consequence of a crime or

fault or breach of obligation.120 However, the problem arises when it comes to evaluating the

degree of rights forfeited since the defending state acted in abstract without tangible violations

from the aggressor state. This holds that, with anticipatory self-defense, the defending state could

hardly justify acting in the scope of rights forfeiture or, occupation and thus may become the

aggressor instead. It follows obviously that, if a defending state is able to justify the legality of its

anticipatory action of self-defense, it is hypothetically acquitted from responsibility for

aggression, and so individuals in regards to the crime of aggression.

117 C H Wellman, “Liberal Rights and Responsibilities: Essays on Citizenship and Sovereignty, (Oxford University

Press, 2013, pp.288), 217.

118 S Wallerstein, ‘Justifying the right to Self-defense: A theory of forced consequences, (Virginia Law Review,

91:999, 2005),999 -1035, at p.1015.

119 ibid. p.1016.

120 ibid. p.1017.

36

3.3. Conclusion

This chapter has explored the scholarly work where it is claimed that Article 2(4) of the Charter

has been regularly over stepped by states while falsely invoking anticipatory self-defense with no

legal consequences.

Moreover, even in their political statements, states whose conduct are condemned seem to refrain

from invoking anticipatory self-defense knowingly that it is flawed by lack of concrete grounds

for justification. It was also observed in this chapter that, the state’s conduct according to the

rights forfeiture theory of punishment could result into aggression where a state unilaterally

engages in the overthrow of another state’s leadership and occupies the territory on the basis of

anticipatory self-defense. Such conduct could be plainly an aggressive act since it was opined that

the duty to adjudge the wrong and right remains an institutional remedy, not mere individual

initiatives.

Further, justification for anticipatory self-defense lies with the defending state to prove the

legality of its conduct with regards to the requirements of imminence as a prerequisite before

resorting to other criteria. Arguably, the proportionality requirement in the situation of

anticipatory self-defense is flawed by the lack of an obvious comparable damage since the

defender will have acted in prophecy. Conclusively, the only possibility for individuals to escape

responsibility for the crime of aggression is when the defending state has been able to justify the

legality of its conduct on the basis of the three requirements as mentioned earlier.

4. General conclusion

The present research paper explored how baffling is the concept of anticipatory self-defence with

regard to the crime of aggression under the ICC jurisdiction. The paper was geared to examine

the applicability of the criteria of self-defense in both international law and criminal law in order

to come up with a possible solution to a fix of anticipatory self-defense. The ill-defined scope of

anticipatory self-defence is viewed from the extensive debates from different legal scholarships

with divergent contentious views on its legality where some contest it as disregarding the Charter

provisions, while others maintain its pre-existence with no effect on the Charter. Nevertheless,

the concept of anticipatory self-defense maintains legitimacy conditioned by the criteria of

37

proportionality, necessity and immediacy as the sterling wheel for the legality thereof. All the

arguments drawn from different sources in the literatures and jurisprudence regarding the

requirement of proportionality seem to dwell much on situations where an armed attack is already

in progress.

Ultimately, this indicates the impediment to assessing proportionality in relation to anticipatory

self-defense give the fact that it conducted in abstract with neither the obvious amount of force to

repel, nor any tangible damages for comparison. Further, the necessity requirement was discussed

in the present paper whereby it is argued that the feasibility of this criterion in anticipatory self-

defense calls for the prior assessment to establish if the situation was overwhelming such that no

other choice of means was possible other than resort to armed action. Additionally, the necessity

requirement could be further reviewed in case the defending state considered the threat as

imminent and thus reacted in anticipation where the next step could entail examining whether or

not the magnitude of the action was actually the necessary to ward off the immediate threat.

In this sense, some publicists tend to intertwine the necessity requirement with proportionality.

Subsequently, the criterion of immediacy has been viewed as being crucial in the assessment of

the legality of an action of anticipatory self-defense. The requirement that a defender has to

initially examine all relevant factors, and then take immediate action in due time is key to

qualifying the lawfulness of anticipatory self-defense. It was noticed that some jurisprudence

affirmed the interchangeability of the term ‘immediacy’ and ‘imminence’ as asserted by the ICJ

in the Gabcikova-Nagymaros Project case (1997) but the present paper argued in contrary noting

that with anticipatory self-defense the two notions could instead apply successively in a sense

that, the proper analysis of imminence calls for an immediate action.

Therefore, the absence of an imminent threat means no immediate action. Otherwise it could be a

naked aggression. Besides, the requirement to act in due time aims at drawing a distinction

between the lawful self-defense from other punitive actions such armed reprisal. It is here argued

therefore that without an imminent threat the requirement of immediacy in anticipatory self-

defense has no place. In view of establishing the interrelationship between the criteria of self-

defense in both international and criminal law, the present paper explored the essential

requirements for justifying self-defense in a criminal law perspective. It was envisaged that the

38

proportionality, necessity and immediacy requirements in criminal law are supplemented by

additional requirements that; the attack must be overt, unlawful, imminent, and that the defender

must have prior knowledge on the exact targeted threat rather than relying on hindsight.

However, the requirement that the attack be overt poses a problem with regard to anticipatory

self-defense since the overtness lies with the unilateral assumptions of the defender’s

observations, which could be false to a third party. To realign this problem, the imminence of a

threat should be obvious and visible in the eyes of the world community such that even a third

party could easily ascertain the cause thereof. The condition that the attack be unlawful is

another hurdle that a defending state has to overcome by proving that by acting in anticipatory

self-defense, the anticipated attack was unlawful.

Indeed, the attack could be unlawful but the fact that the attack was still in the abstract creates a

reasonable doubt as to the credibility of the claimed unlawfulness. This may result into collision

by both the so-called aggressor and the defender and hence, something like, ‘self-defense against

anticipatory self-defense’. It follows therefore that a lawful anticipatory self-defense should be at

least sanctioned by the international community whereby a presumed aggressor feels guilty of the

intended aggressive acts. The contrary remains perplexing to the court in terms of admission of

evidence to prove an unlawful attack in the case that the presumed aggressor did not step on the

defender’s territory.

However, this requires a case-by-case analysis since in some circumstances with the

technological advancement of the weaponry system an aggressor can launch the attack without

being physically on the territory of the victim state. The issue of justification would also pose a

hurdle to the court due to the fact that with anticipatory self-defense the dual nature of

justification is envisaged. First, the defending state should have to produce the evidence to

convince the court that the threat was imminent and that there was no room for other

deliberations. If that test is passed, the second step could be to examine if the proportionality and

immediacy requirements have been met by the defending state.

Having zoomed into the general overview on the legitimacy of the concept of anticipatory self-

defense, after examining the relationship between the criteria of self-defense in both legal orders,

39

it is obvious that the concept of anticipatory self-defense could be hardly examined in regard to

the broader elaboration of the criteria at hand. It therefore follows that perhaps in certain

instances there could be a spillover to aggression that hence would perplex the ICC in terms of

justification.

Finally, the author suggests that this problem should be constantly assessed academically since

the trigger mechanism for the crime of aggression is yet to be precisely defined. Otherwise this

becomes a game in which even a poor gambler could sacrifice all of his money.

40

5. BIBLIOGRAPHY

I. Books

1. Ambos K, “Treatise on International Criminal Law”: Volume II: The Crime and

Sentencing, (Oxford University Press, 2014

2. Bonafe B I, “The relationship between State and individual responsibility for International

Crimes” (MartinusNijhoff Publishers, 2009)

3. Bakircioglu O, “International and Criminal Law”: The doctrine of Imminence, Routledge,

London, (2011).

4. Badar M E, “The concept of Mens Rea in International Law: the case for a unified

approach, (Bloomsbury Publishing, 2013.

5. Bergsman M. & L Yan (eds), State Sovereignty and International Criminal Law,

TorkelOpsahl Academic Publisher, 2012.

6. Boas, G. et al (eds), ‘Mass International criminal justice: legitimacy and

coherence, Edward Elgar,2012.

7. Cassese A. et al., “International Criminal Law: International crimes”; criminal

jurisdiction, (3rd ed.), Oxford University Press, 2013.

8.

9. Cryer, R. et al., “An introduction to international criminal law and procedure”, Cambridge

University press 2014.

10. Delibasis D, “The right to National Self-defense: In information Warfare Operations”,

(Arena Books, 2007)

11. DinsteinY, War, Aggression and Self-defense, 3rdedn, Cambridge University Press, 2001.

12. Fletcher P.G & Ohlin J.D, Defending Humanity: When force is justified and why,

Oxford University Press, 2008.

13. Gazzini T. &Tsagourias N. ‘The use of force in international law’, the international law

of peace and security, (Ashgate, 2012).

14. Gray C, ‘International law and the use of force’ (3rded), Oxford University Press, 2008.

41

15. Johns F, “Non-legality in international Law: Unruly Law, (Cambridge University Press,

New York, 2013).

16. Kinga T.S, Anticipatory action in self-defense: the law of self- defense -past, present and

future, S.I Amsterdam, 2010.

17. Lennon TJ et al, “Reshaping Rogue States: Pre-emption, Regime change and U.S.

Policy toward Iran, Iraq and North Korea”, (A Washington Quarterly Reader, The EMIT

press, Cambridge, London, 2004).

18. Ruys T, Armed attack' and Article 51 of the UN Charter: evolutions in customary law

and practice Cambridge University Press,, 2013.

19. van den Herik. L, et al, Counter-terrorism strategies in a fragmented international legal

order: meeting the challenges Cambridge University Press, 2013.

20. Vattel E, de 1714-1767, ‘The law of nations or, principles of the law of nature: applied to

the conduct and affairs of nations and sovereigns, Dublin 1787.

21. Weller M, (Ed), The Oxford handbook of the use of force in international law, (Oxford

University Press,2015)

22. Wellman C H, “Liberal Rights and Responsibilities: Essays on Citizenship and

Sovereignty, (Oxford University Press, 2013

23. Yoo J, Point of attack: preventive war, international law, and global welfare, New

York: Oxford University Press,2014.

24. Zwart B et al, “The legacy of the International Criminal Tribunal for the former

Yugoslavia, (Oxford scholarship online, 2011).

II. Resolutions

1. UNGA Res. 573, (1985) SC, adopted on the 2615th meeting of 4 Oct 1985. Available at

http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/573(1985)[accessed on

14/5/2016].

2. UNGA Res. 666 (1990), Adopted by the Security Council at its 2939th meeting on 13

September 1990 S/RES/0666(1990)13 September 1990.

42

3. UNGA Res. 667, 1990, adopted at the 2940th meeting of 16 Sept 1990.

availablehttp://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/667(1990)[accesse

d on 14/5/2016].

4. UNGA Res. 661, (1990) of 6 Aug 1990, adopted at the 2933rd meeting

5. UNGA Res. 660, (1990) of 6 Aug 1990, adopted at the 2932nd meeting 2 Aug 1990.

6. SC Resolution 326, 1973, of Feb 1973, Adopted at the 1691st meeting of 2 Feb 1973

III. Journals

1. Andreas P, ‘Second Thoughts on the Crime of Aggression’, The European Journal of

International Law Vol. 20 no.4 (2009) 117 – 1128.

2. Badr G M, ‘The exculpatory effect of self-defense in state responsibility’, Vol.10,

(Georgia Journal of International and Company Law, 1980.

3. Bakircioglu O, ‘Right to self-defense in National and International Law’: the role of the

imminence requirement, (Ind, Int’l & Comp. Law Review, Vol. 19.1,2009) PP.48.

4. Gill TD, ‘The temporal dimension of self-defense’: Anticipatory, Pre-emption,

Preventive and Immediacy’, Vol.11(3), (Journal of conflict and security Law, Oxford

University Press, 2006,) pp. 361-369 at 369.

5. Kelsen H, ‘Collective and individual responsibility in International Law with particular

regards to the punishment of War Crimes, (California Law Review, Vol. 31, Issue 5,1943

6. Leo Van den hole, "Anticipatory Self-defense Under International Law." American

University International Law Review 19, no. 1 (2003):

7. Roullard L P, The Caroline Case: ‘Anticipatory Self-Defence in Contemporary

International Law’, Miskolc Journal of International Law, Vol. 1. (2004).

43

8. Robinson H P et al, Advantaging Aggressors: Justice &Deterrence in International Law,’

Faculty scholarship paper 297, Harvard National Security Journal, Vol.3, 2011) pp.143

222.

9. SADOFF D A, “A question of determinacy: the legal status of anticipatory self-

defense,” Geo. J. Int'l L., 2009.

IV. Other sources

1. James G, ‘Origin of Definition of “Necessity” in the International Law of Self

Defense – the Caroline Affair’, the International Judicial Academy, Washington,

D.C.,2012Issue, [http://www.judicialmonitor.org/archive_spring2012/historic.html]

2. Principles of International Law Recognized in the Charter of the Nuremberg Tribunal

and in the Judgment of the Tribunal. (Adopted by the International Law Commission of

the United Nations, 1950), [; http://deoxy.org/wc/wc-nurem.htm]

3. The Committee on Foreign Relations United States Senate Seventieth Congress on The

General Pact for the Renunciation of War, signed at Paris August 27, 1928, the Avalon

project documents in law, (history and diplomacy, Yale law school),

[http://avalon.law.yale.edu/20th_century/kbhear.asp]