Source: The Hindu

Introduction

The Right to Self-Defence under International Law came into the limelight in the Israel-Palestinian war. Antonio Guterres, the Secretary-General of the United Nations has recently said that Israel was supposed to approach the United Nations Security Council (UNSC) under international law, after using its Right to Self-Defence against the attack by Hamas. International law does provide the Right to Self-Defence but it cannot go beyond the Right to Self-Defence and hurt civilians.

The act of self-defence does not justify the excessive or indiscriminate deployment of force against non-combatants. Reports indicate that the casualty rate in Gaza during Israel's offensive is unprecedented in this century, reaching nearly 15,000, with a majority being women and children.

What is the Right to Self-Defence?

• The right to self-defence is a fundamental principle deeply ingrained in international law, reflecting the inherent right of states and individuals to protect themselves from imminent threats.
• It is mentioned in Article 51 of the UN Charter, 1945.
• This article recognizes the inherent right of individual or collective self-defence against armed attack, while simultaneously affirming the primary role of the UNSC in maintaining international peace and security.
• The language used in Article 51, particularly the requirement of an armed attack as a trigger for self-defence, has been subject to interpretation and debate in international legal discourse.
• Caroline Test of 19^th century explained the use of right to self defence in international law.

What is the Impact of Caroline Test of Right to Self-Defence?

• The Caroline incident of 1837, involving the burning of a United Nations’s ship by British forces during the Canadian Rebellion, gave rise to the famous "Caroline test."
• This test, articulated by then US Secretary of State Daniel Webster, set forth the conditions under which anticipatory self defence could be justified.
• According to the Caroline test, the use of force in self defence must be "instant, overwhelming, and leaving no choice of means, and no moment for deliberation."

What are the Types of Right to Self Defence?

• There are broadly two types of Self Defence that are preemptive and preventive self defence. The distinction between preemptive and preventive self defence has been a subject of contention in international legal debates.
  • Preemptive Self-Defence: Involves the use of force in response to an imminent threat, where an attack is imminent and unavoidable.
  • Preventive Self-Defence: Anticipates a potential future threat and involves the use of force to eliminate that threat before it materializes.
    • While some argue that preventive self-defence is inconsistent with the UN Charter, others contend that it may be justified under certain circumstances, such as the threat of weapons of mass destruction.

What are the Landmark Cases on the Right to Self-Defence?

• Nicaragua v. United States (1986):
  • The International Court of Justice (ICJ) said that a certain level of "scale and effect" must be reached for an armed attack to be considered as such; not every attack meets the criteria for being classified as an armed attack.
  • ICJ also clarified the meaning of “armed attack” against which the Right to Self-Defence can be exercised. It stated that armed attack here means “the gravest form of the use of force” however the court did not explain the meaning of “grave form of the use of force”.
• Islamic Republic of Iran v. United States of America (2003):
  • ICJ observed that the burden of proof to prove the occurrence of the attack rested on the State that sought to justify its use of force in self-defence.

Conclusion

The reports of unprecedented casualties, especially among civilians, underscore the importance of ensuring that acts of self-defence adhere to international humanitarian principles, preventing excessive or indiscriminate use of force. The Right to self-defence is enshrined in the UN Charter to aid the humanitarian rights of the victim nation and not to provide a sword to increase the destruction.