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International law being abandoned for self-defence

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(Image via Chanelle Malambo | peopleimages.com)

The international rule of law is increasingly abandoned and that void is filled by the law of the jungle. Might is right, just as it was many centuries ago, writes Dr Murray Alder.

OUR EXISTENCE is once again threatened by war. The international rule of law is increasingly abandoned and that void is filled by the law of the jungle. We have seen – and continue to see – instances of defensive forces either being used against imagined threats or being used in a way that exceeds the horrors inflicted by the aggressor.

What has happened to us? How can we advocate our values and principles as civilised nations if we fail to live by the rule of law? To understand how much and how quickly we are unravelling centuries of work, a reminder is needed of the evolution of international law.

Man’s inherent propensity for violence necessitated the creation of our system of international law in about the 13th Century. The law’s primary purpose at that time was to identify and restrict the number of legal justifications for the use of offensive war.

Man’s thinking evolved over the ensuing centuries, resulting in international law outlawing offensive war in 1928. In 1945, after the horrors of two world wars, international law (and the conscience of humanity) prohibited the unilateral threat or use of offensive armed force. It took man seven centuries of evolution to achieve these advancements — and much senseless bloodshed and introspection.

In contrast, international law’s control of the use of defensive armed force has not changed in all that time. Why? Because the three principles governing its use have proven to be an effective balance between a nation’s right to protect itself and the international community’s wider interest in preventing the unlimited and uncontrolled use of defensive armed force.

In any conflict, the use of defensive armed force needs to cease at some point. It is better for the law to objectively determine that point rather than for an aggrieved self-defending nation to do so subjectively. This helps to prevent the chance of a greater catastrophe arising from the original conflict and, perhaps, engulfing a region or the world in more war.

Thus, the three principles of immediacy, necessity and proportionality were incorporated into international law from its inception to control when – and the extent to which – a nation’s inherent right of self-defence could lawfully be exercised. To lawfully exercise this right, a threat of offensive armed force needed to be imminent in nature, rather than distant or perceived as a future possibility.

The threat also needed to be of such a nature that self-defence was the only option available to the threatened nation (for example, where diplomatic or other measures were plainly not practical options).

Once the principles of immediacy and necessity were satisfied, the threatened nation’s inherent right of self-defence was triggered. The principle of proportionality was then applied to limit any ensuing self-defence. That military action had to be proportionate to the nature of the threat in order to repel it. International law has never permitted the use of defensive armed force to continue on and annihilate an aggressor whose initial threat or use of offensive armed force was successfully repelled.

The three principles of immediacy, necessity and proportionality remain in force today in our system of international law. They define the line between lawful self-defence and unlawful offensive armed force — and between the rule of law and the law of the jungle. Every nation’s inherent right of self-defence – preserved and protected by Article 51 of the Charter of the United Nations 1945 – and the three principles discussed have stood the test of time. They cannot prevent aggression, as history shows us, not because they are flawed but because man is.

But the law itself is again under attack by man.

What shall mankind do as it is poised at the crossroads of its fragile existence? Will it recommit to live by the rule of law? Or will it choose to return to the darkness from which it so recently emerged, destined, if it survives, to relearn the lessons of history?

Few species have had the power and privilege to decide their destiny for themselves — to exist or to perish by their own hand. The point in time for us to decide is not approaching. It is here.

Dr Murray Alder is a lawyer and author whose specialisation is Public International Law, particularly the legal limits of using armed force in self-defence.

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