Modern Self-Defense: The Use of Force Against Non-Military Threats

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José Luis Aragón Cardiel, Amanda Davis, & Lauranne Macherel each earned their LL.M. from Columbia Law School in 2016 and are international law practitioners. This article is a revised version of a paper initially prepared in a Columbia Law School seminar entitled “International Lawyering for Governments” under the instruction of Professor Sarah Cleveland.

As conventionally understood, a State cannot use self-defense to justify the response to non-military threats because they do not constitute “armed attacks.” Humanitarian intervention conceives the use of force to respond to humanitarian suffering, but it is not an independent legal basis for the use of force without Security Council authorization. However, a State cannot be expected to stand by in the face of an overwhelming danger, whether military or not, threatening to storm into its territory and destroy its population or property. This would seem inconsistent with fundamental norms of sovereignty and integrity.” Thus, this Article explores whether a use of force in such cases could be justified on the basis of a-cautiously-broad interpretation of Article 51 of the U.N. Charter, the doctrine of humanitarian intervention or other “strands of legal argument,” such as international obligations outlawing genocide, torture, and the use of chemical weapons, or the doctrine of necessity. This Article argues that the use of military force in self-defense could be justified in response to a threat that is non-military in nature if (i) the Security Council has failed to act; (ii) the potential scale and effects of the non-military threat are equivalent to those of an “armed attack” in the traditional sense; (iii) the territorial State from which the threat emanates is unwilling or unable to eliminate the threat; (iv) the territorial State has a specific obligation vis-A-vis the State in jeopardy to eliminate the threat; and (v) the use of force is subject to the parameters of necessity, proportionality, and immediacy. However, humanitarian intervention is a better “fit” than self-defense in justifying the use of force to address a humanitarian situation produced by a non-military threat. A military intervention can be better explained as a State intervening to address humanitarian suffering than by attempting to characterize a non-military occurrence as an armed attack justifying the use of force in self-defense. Humanitarian intervention is not currently accepted by States as an independent legal basis for using force, but this Article outlines State practice and arguments that could support its use.

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