Lesson 5.5. What is this CIL right of SD?

Note: The content of this post maybe outdated.

A State can rely on its inherent right of self defense when it is (1) necessary: that is to say that the threat or use of force is instant, overwhelming, leaving no alternatives and no moment of deliberation; and (2) proportionate: the force used in self defense is proportionate to the threat or use of force. (This position was formulated after the Caroline Incident that took place in 1837 when the British sank a ship with insurgents in American territory and after British citizen was charged for sinking the ship.)

Under customary law a State use self defense:

  1. When an armed attack occurred: see our discussion on the Israel/ Lebanon/ Hezbollah conflict in 2006.
  2. In anticipation of an armed attack or threat to State security: consider what we learnt on the recent US attack on Iraq based on the alleged existence of nuclear weapons (WMD). This was justified by US as “anticipatory SD” (this is also called “preemptory self defense”.) Is anticipatory SD liable to be abused?
  3. In response to an attack or threat of attack against State interests (nationals and property of the State). See our discussion on the Entabbe incident, where Israel justified the use of force in Ugandan territory against the PLO as SD.  US invasions in Panama and Grenada were also justified on the basis of protecting US nationals in those countries.
  4. where the “attack” doesn’t involve the use of force and involves, instead, economic aggression that is instant and overwhelming.

 

 

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4 comments

  1. Dear mam,
    it would be great if you can explain the legal implications with regard to the resolution of security council in smith goverment of Rhodasian context (Use of force under Chapter VII of UN Charter)

  2. “Read ASIL article on the concept of armed attack and anticipatory self defense.” Where can I find the “ASIL article”? Thanks!

    1. Hi Cecilia, I am so sorry but these posts titled “lessons” were for my students, and I posted them a few years ago. I am not sure what the article was for the ASIL anymore, but here are a series of blog posts and articles on the subject of anticipatory self defense that reflects more recent developments. https://www.ejiltalk.org/category/pre-emptive-self-defence/, https://www.asil.org/insights/volume/19/issue/5/striking-isil-aspects-law-use-force, http://www.ejil.org/pdfs/14/2/412.pdf, and https://www.nyccriminallawyer.com/wp-content/uploads/2014/07/oconnell.pdf.

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