Conclusions

The legal restrictions on self-defence have primarily emerged from the legitimate concern about potential arbitrariness that may result from uncurbed use of private force in both national and international legal orders. As elaborated above, the subjectivist, danger-based approach has attempted to remove the imminence rule with a view to according the traditional self-defence doctrine to the realities of abused individuals, who sometimes resort to force against their abusive partners in nonconfrontational settings, and of the US, which based its preventive war against Iraq on the grounds that the latter might potentially pose future threats to its national security. This book has essentially probed the doctrine of individual and international self-defence and, in particular, the legitimacy of defensive force, employed by individuals and states, to arrest an anticipated (nonimminent) harm. In doing so, the book has aimed to go beyond a black letter analysis of the law of self-defence. Chapter 1 looked at the criminal law of self-defence, wherein there exists a richer jurisprudence and experience to be benefited from. Chapter 2 explored the historical roots of the laws of war in order to depict the “bigger picture” of the development, role and rationale of the defensive lethal force in interstate relations. Chapter 3, by rising upon such a broad background, sought to clarify the contours of international self-defence under the hard-earned UN collective security system, and thereafter criticised the idea of using premature military force against anticipated threats. Finally, Chapter 4 examined, in a comparative fashion, the validity of recent challenges directed at the traditional requirement of imminence. This study, in a nutshell, has argued that the concept of imminence constitutes an indispensable component of the national and international law of self-defence. This major premise has been supported by the following core observations. First and foremost, the imminence rule, by forcing the would-be victim to exhaust all viable, peaceful alternatives and, when possible, to seek national or international authorities’ aid before turning to defensive force, attempts to ensure that the lethal measure was in fact necessary and proportionate. The requirement of imminence, on that account, enables the

domestic or international adjudicator to ascertain not only whether there were any other, less drastic avenues to avert the illegal and deadly threat, but also whether the means employed to ward off such a threat were proportionate under the concrete circumstances of the case. The requirement of imminence thus provides an objective and/or measurable character to the elements of necessity and proportionality in a bid to balance the interests of the defender and putative aggressor in a just manner. Indeed, since defensive lethal force is meant to protect a vital interest of the defendant; the temporal requirement enables the adjudicator to properly consider whether such an interest was actually threatened to necessitate the employment of deadly force and whether an appropriate or fair balance between the harm inflicted and interest preserved was proportionately struck by the defendant. As elaborated upon in Chapters 1 and 4, self-defence is neither a punishment nor an act of law enforcement. These functions are entrusted to central national and international bodies that hold a monopoly on the use of legitimate force to ensure peace and stability in domestic and international settings. Accordingly, defensive force may only be resorted to when central bodies, equipped with monopolistic power on legitimate force, are unable to prevent an unlawful aggression against the members of the national or international community. The right to self-defence, viewed in this light, is an interim measure, which does not affect the general authority and responsibility of the Security Council and relevant national authorities to maintain or restore peace and stability. This explains why forceful measures of self-defence must immediately be reported to the Security Council or national authorities: self-defence persists until the relevant bodies have taken charge to contain the situation. The right to self-defence, on account of its extreme character, may be invoked only as a last resort against illegal, deadly and imminent threats. As discussed, the main rationale for the imminence rule lies in the legitimate concern to prevent unnecessary assaults or killings committed under the pretext of self-defence. This point is important, as, traditionally, selfdefence is categorised as a defence of justification, which accentuates the rightfulness of a nominally criminal act. Justification defences negate criminal liability on the grounds that the actor is considered not to breach any criminal norm, but to invoke his moral and legal right to protect his vital interests. Claims of excuse, on the other hand, recognise the wrongfulness of the act committed, yet seek to save the actor from criminal liability by emphasising his incapacity for criminal condemnation. The difference between justification and excuse further plays an important role in determining the rights and duties of third parties: when the actor is merely excused for his untoward conduct, third parties are disallowed to assist the wrongful – but excused – actor. A justified act, in contrast, not only deprives the wrongful agent of the right to resist the application of the justified conduct, but also encourages third parties to assist the justified

actor. More significantly, justified conduct, as opposed to an excused act, may legitimately be modelled (or followed) by the members of the domestic or international community under analogous conditions. From this perspective, this study (using domestic violence cases as a point of reference for imminence) has maintained that the battered woman’s honest but distorted perception as to the immediacy of an illegal attack cannot justify her exercise of a premature lethal strike against her quiescent abuser. The battered woman’s genuine but mistaken belief in the necessity of such force, albeit the sympathy felt for her, may give rise to the claims of excuse, not of justification. Societies often excuse unoffending agents for causing needless harm, rather than justifying them. While some commentators insist that a battered woman’s premature strike should be categorised as self-defence, a defence of justification, it should be remembered that excusing individuals who find themselves in years of abuse does not necessarily mean demeaning them, or branding them as psychotic. In contrast, when an actor is excused, society exhibits moral disapproval towards the act, as opposed to the actor. Indeed, to excuse an individual implies that, while the conduct was objectively untoward, the agent can be forgiven on the basis of human frailty that often manifests itself under extremely demanding circumstances. The battered woman, in this respect, may arguably be excused due to the horrendous circumstances she endured, which eventually led her to develop a distorted perception of danger prior to her recourse to deadly force. In summary, under the self-defence doctrine, abused individuals are not entitled to use lethal force against their abusers without sufficient proximity in time to the aggression applied against them. The justification of premature attacks in such cases may encourage private killings for one’s past and/or expected future behaviour. Put differently, the elimination of the imminence rule may legitimise vigilantism by providing a licence to kill when the would-be victim subjectively believes – no matter how unreasonably from an objective point of view – that lethal force is necessary to ward off an anticipated aggression. The relaxation or exclusion of the temporal requirement from the criminal law of self-defence appears to be an attempt to cure the symptoms of a deeply rooted social problem. The remedy does not lie in loosening the grip of the law that restricts the use of private force in non-confrontational scenarios, but rather in discovering practical solutions to heal the disease at the societal level through accentuating the role of social and legal institutions. At the international level, on the other hand, risks of discarding the temporal rule are much graver due to the magnitude of harm that might result from unrestrained state aggression. As shown in Chapter 2, the notion of interstate aggression has never been an alien phenomenon to humankind, as nations have hitherto fought countless wars. Yet, they also sought ways to put limits upon when and how a given combat should be

fought. While such limits were largely ignored by states when their national interests so required, and many unjust wars were fought under the pretext of self-defence, following the unprecedented destruction of the world wars, states came to prioritise peace in international relations in order to materialise their own self-preservation. The tangible fear of total annihilation and the pressing need to escape from the Hobbesian state of nature thus forced the architects of the UN Charter to ban the concept of aggressive warfare and recognise the right to self-defence as the sole justified use of force outside the collective security frame. By condemning aggressive warfare as the supreme international crime, the UN system aimed at deterring armed aggression from being employed as a solution to international disputes and as an instrument of national policy. Today, the prohibition of unilateral force constitutes a peremptory norm of international law from which member states cannot derogate. Under the UN Charter, states are debarred from invoking defensive lethal force, unless they face an actual or imminent attack in cases when the Security Council is unable to contain the situation. The preventive war doctrine, nonetheless, by claiming the right to undertake massive attacks against hypothetical future threats, has sought to depart radically from this hard-won collective security system by, in large measure, invoking the positivist understanding of warfare. As emphasised in Chapters 3 and 4, even though it was accepted that modern warfare and recent innovations in military technology may well give considerable advantage over an opponent if allowed to strike first, unilateral force cannot be based on fear or ungrounded expectation that some day a designated enemy might attack. Warfare, be it defensive or offensive, is too serious a phenomenon to be left to subjective judgements. Wars simply cause colossal and irrevocable damage upon everything – tangible and intangible. It is this simple truth that forced the drafters of the League of Nations, Kellogg-Briand Pact and the United Nations Charter to take realistic steps to prohibit the use of force, save in the common interest and in cases of self-defence, which requires the occurrence of an armed attack for the right to be invoked. The preventive war doctrine neither requires the anticipated threat to be material or imminent, nor does it call for the alleged threat to be proven beyond reasonable doubt, which inevitably grants full discretion to states to determine whether and when they should engage in armed hostilities against their potential enemies. This security doctrine thus effectively obfuscates the distinction between defensive and offensive military force and thereby seeks to institutionalise hegemonic unilateralism without any due regard to the UN system. As argued in Chapter 4, if preventive wars were to be recognised as self-defensive, it must also be accepted that the use of force engaged against an incipient threat is an act of justification, which, by its very nature, may be imitated by other states under analogous circumstances. If such were the case, states might then

legitimately wage wars against one another – without prior recourse to the Security Council – in particular when one’s past practices (or hostile attitude) are read to suggest that some day it might pose a threat to others’ security interests. Such an approach would eventually lead international relations to degenerate into chaos and lawlessness. In international law, neither the record of past aggression of an undemocratic regime against its neighbours, nor its use of biological or chemical weapons against its own citizens, may justify the use of international selfdefence, unless such a state poses an imminent threat against which the would-be victim has no peaceful alternative but to employ immediate force. International law does not entitle a state to unilaterally strike another on the ground that the latter, given its history of aggression or its possible ties with clandestine organisations, might at some point acquire the ability and intent to attack it, particularly if such considerations are based on false evidence. The preventive war strategy, by discarding the imminence rule from the equation of defensive warfare, deprives self-defence of an objective criterion against which the legality of force may properly be gauged. As submitted throughout this book, the requirement of imminence is not merely a proxy for necessity. In contrast, the traditional elements of self-defence are inextricably connected to one another to ensure that private force can only be invoked when the Security Council is not able to prevent an imminent aggression and that the military force is not misused in the name of security. The imminence rule also tries to assure that a fair balance between the rights of the aggressor and the defender is struck. The preventive war doctrine has thus far legitimately aroused considerable international concern that it might undermine the achievements of the collective security system, which legally abolished warfare as a means of national policy. As state practice, recent judgements of the ICJ and the widespread disapproval of American unilateralism at various levels suggest, this doctrine is by no means evolving into a norm of customary international law. In fact, the majority of the international community does not even endorse anticipatory self-defence, let alone the loosely formulated doctrine of prevention, which could only serve the interests of militarily superior countries. Therefore, if the US and its allies are sincerely concerned about the ineffectiveness of international law in the face of new threats, they must find effective ways to address the root causes of the problem, rather than turning to premature aggression to achieve a semblance of security at the expense of international peace and order. It is, in this connection, worth concluding with Habermas, who offers not only a practical, but also a durable, solution:

In the face of enemies who are globally networked, decentralized and invisible, the only effective kinds of prevention will be on other operative levels. Neither bombs nor rockets, neither fighter jets nor tanks

will be of any help. What will help is the international networking of flows of information among intelligence services and prosecutorial authorities, the control of flows of money, and the rooting out of logistical supplies . . . Other dangers which arise from failures of negligence in non-proliferation policies (concerning nuclear, chemical, and biological weapons) are at any rate better handled through stubborn negotiation and inspection than with wars of disarmament. . . .1