About the Author: The author is a 2021 graduate of the National Law University, Delhi. He is currently an Associate at Talwar Thakore & Associates, Mumbai. His interests lie in evolving landscapes of technology and their impact on international law and economics.
Editor’s note: This post is part of the Reflection Series showcasing exceptional student essays from CCG-NLUD’s Seminar Course on Technology & National Security Law.
In this post, we discuss a rather contentious point that whether in international law, a mere threat or use of force by a State against another State would give rise to a right of self-defense.
For context Article 2(4) of the UN Charter provides for all member States to refrain from the threat of or the actual use of force which may threaten the territorial integrity or political independence of any other state. This provision is regarded to have a jus cogens character, i.e., binding on all States as a non-derogable one. Each Member State also has the positive duty to refrain from the use of force against other States under international law.
Pursuant to Article 51 of the UN Charter, States which face a use of force at the level of an ‘armed attack’ have the right to exercise self-defense. An armed attack is when this force is used on a relatively large scale, is of sufficient gravity, and has a substantial effect. Dinstein states that armed attack presupposes a use of force producing serious consequences, epitomized by territorial intrusions, or human casualties or considerable destruction of critical infrastructure.
MEMBER STATE’S RIGHT TO SELF DEFENSE
We need to be aware that this right of self-defense does not manifest at every instance of use of force against another State. In certain instances victim States can instead exercise ‘countermeasures’ against the belligerent State. However, when this right of self-defense does manifest, it must abide by the doctrines of necessity and proportionality.
These doctrines were initially laid down in the aftermath of the Caroline incident of 1837, which has inadvertently governed the rules of use of force for nearly two centuries. Herein, the doctrine of necessity posits that an armed attack can only be responded to when there is no other alternative means to seeking viable redressal. Necessity requires that military action should be used only as a last resort. Then, the doctrine of proportionality provides that the size and scope of an armed attack shall determine the overall objective of the defensive responses. This leads to the conclusion that such action will only be towards self-defense and not retaliatory in nature or have a punitive outlook against the aggressor. The counter attack cannot be unreasonable or excessive and can only be carried out to repel or prevent an attack.
Thus, if we were to literally interpret the law, the answer would be that a mere threat or even a use of force that is not of a level of an armed attack does not give rise to the right of self-defense. However, a look at how State practice has shaped this understanding might lead to a different conclusion.
EMERGING FAULTLINES AND EXPANSION OF LEGAL INTERPRETATION OF RIGHT OF SELF-DEFENSE
The United States, with their invasion of Afghanistan for harboring terrorists in 2001 and the subsequent invasion of Iraq in 2003 for allegedly procuring weapons of mass destruction have posited a changed landscape to the right of self-defense. American actions of ‘self-defense’ completely subvert the legal interpretation of the right being unavailable against threats and conventional use of force. Furthermore, it has led to the emergence of an anticipatory right to self-defense.
At the outset, it is observed that the opinion on the legality of such acts that anticipate armed attacks from threats or other information is divided. Some scholars (usually the ones who have a favorable outlook towards American and/or the Israeli Government actions) argue that the right to anticipatory self-defense is not only in consonance with customary international law but also with article 51 of the U.N Charter.
However, an anticipatory right of self-defense would actually be contrary to the wording of Article 51, since an armed attack must ‘occur’. In any case, Article 51 must be interpreted narrowly containing a prohibition of anticipatory self-defense as one of the purposes of the Charter was to reduce to a minimum the unilateral use of force. At the very least, States claiming the right will have to prove that they face an imminent attack.. It is ideal to have a ‘clear and convincing’ evidence of the same to avoid situations like that of the invasion of Iraq, which was initiated based on extremely faulty intelligence.
There are checks and balances enshrined within Article 51 itself to ensure that this does not become a practice. Key mechanisms include the requirement or duty to report immediately to the Security Council when such an act is undertaken, which can act as a limitation on the exercise of self-defense. However, even this duty does not have the power to stop the states exercising such ‘rights’ as reporting to the Security Council is a mere procedural matter, and nonfeasance cannot technically deprive a state of the substantive right of self-defense or invalidate it.
Therefore, it can be said that the scope of the right to self-defense despite fair legal objections may have already expanded to practically include threats or even conventional uses of force not amounting to an ‘armed attack’. What becomes important now is to see how this right of a sovereign state will shape in the future. Towards this, there are two important questions that need to be answered. Firstly, whether this right can be exercised against non-state actors and secondly, can this right be exercised against a cyber-operation?
When the right of self-defense towards non-state actors is considered, the legal position seems pretty clear. The International Court of Justice itself has expressed that the inherent right of self-defense in the case of armed attack by one state is available only against another state.
The general understanding is that Article 51 of the Charter is an exception to the prohibition on the use of force as enshrined in Article 2(4). Given that Article 2(4) refers only to a ‘state’, its exception must also deal with the same. However, some do argue that while Article 2(4) of the Charter, in proscribing the use of force, refers solely to state actors on both sides. On the other hand, Article 51 mentions a member only as the potential target of an armed attack. This means that the perpetrator of that armed attack is not identified necessarily as a state, especially during these times where it is not just State but non-State entities like terrorists that pose the significant threats to national security concerns of States.
Moreover, regardless of what the law states or what the law should be, the tacit acknowledgement of the Security Council, NATO and EU towards the American invasion of Afghanistan to attack Al Qaeda has given credence to the understanding that self-defense is available against non-State actors. Thus, contemporary state practice (of the first world countries) shows that non-State actors can be behind ‘armed attacks’ which can give rise to self-defense. The ‘pro-democracy’ opinion now states that self-defense against a non-State actor can be justified when the territorial State has manifestly and persistently been unwilling or unable to prevent such attacks in other States, like invasion of Afghanistan on the pretext that if they are harbouring terrorists, they are as liable as the terrorists themselves.
Coming to the second question of whether cyber-operations against a state can give a right to self-defense to that State, it is imperative to determine whether a cyber-operation is an armed attack (as per the prevailing legal view as there is no contrary contemporary state practice yet).
An ‘armed attack’ may not strictly require the use of kinetic weapons, but may, in principle, also be conducted by computers used by hackers. In order to reach this very threshold, the consequences and effects of the cyber-operation in question, must be compared to that of conventional use of force. These operations cannot be isolated or random acts of cyber-attacks and exercising the right against these one-off incidents are excluded from the scope of right to self-defense. Thus, the bar to classify a cyber-operation as an armed attack exists against which a right to self-defense will also exist. However, this bar must be considerably high and will not trigger when hypothetically Indian college students hack a Pakistani bank’s website as a one-off incident.
The high standard set is important to ensure that self-defense is not ‘exercised’ in a ubiquitous manner. However, the first world tells us that if the standard is too high and is creating an obstacle towards their political interests, the standard will be disregarded or modified accordingly making an effective set of laws a Sisyphean task. This is what happened to non-State actors, to threats and simple uses of force and will most likely happen to cyber-operations as well.
Self-defense will be heavily exercised if doing so aligns with the political ideology of the State regardless of what the law states. The law understandably does not allow a State to exercise the right to self-defense against mere threats or even conventional uses of force. However, as we understand from a third-world vantage point of international law, the law is what the first world will allow it to be.
*Views expressed in the blog are personal and should not be attributed to the institution.