More on the Inherent Right of Self-Defense

by Jens David Ohlin

In a comment to my earlier post on humanitarian intervention and natural rights, Adil Haque asks me the following question:

Can States voluntarily make binding agreements that curtail their natural rights of legitimate defense for the sake of greater collective security?

Here’s my answer. The positive law can expand the natural right but cannot curtail it.  To explain my answer, let’s think a little bit more about domestic law.

Consider the right of self-defense under domestic criminal law.  Suppose a state decided to repeal its criminal law defenses of self-defense and defense of others. Imagine that the state had an extensive policy discussion about it and determined that the police should be the exclusive vehicle for the deployment of protective force, in order to maintain security within the state.  Here is the explicit consequence of that legal decision: if an attacker comes to your door and starts attacking, you are required to notify the police so that they may come to exercise protective force on your behalf. If the police refuse to come, or do not come in time, you are not legally permitted to exercise defensive force on your own behalf.

Now suppose that the attack occurs, and you exercise personal defense in order to save yourself from the unlawful assault.  However, self-defense was repealed. So the public prosecutor charges you with murder. You clearly committed a killing and the defense was repealed. You are facing a mandatory sentence of life in prison or the death penalty.

Now imagine that you are the trial judge hearing this case as a bench trial.  What to do?  If you convict the defendant, you are sending him to jail for the rest of his life–or worse yet condemning him to execution.

I think the correct answer to this puzzle is that the defender has an inherent right to defensive force, and the positive law cannot curtail this right.  I would acquit the defendant on that basis.  What would you do?  If you say, well, the positive law has eliminated self-defense, so the defendant must be convicted — my only response is that I hope I don’t get you as a judge if I’m ever in this situation.

One possibility to resolve this quandary is to think of it as a case of civil disobedience.  As Marko Milanovic and others have noted, the classic theory of civil disobedience (Gandhi, Thoreau, King) requires that the disobedient actor accept his or her punishment. I find this avenue most convincing when the disobedience is an act of protest and when the punishment is relatively modest. In the case I am describing, neither of these is true.  The punishment is draconian, and the crime was not an act of protest —  it was an act of survival.

Now you might say that the situation that I have described is fanciful and not likely to happen.  True.  But I think it yields two insights. There may be situations when the positive law runs out, and natural law begins. The second insight is that this only happens in truly extreme cases–cases that are at the margins of the law and rationality and sanity.

But if you think about it, the situation of humanitarian intervention is not all that different — it’s a truly extreme situation, where the positive law runs out and recourse to the inherent rights of defensive force ought to apply.  I think that as international lawyers, from the safe distance of the ivory tower, we are often too likely to see such horrible dilemmas as “normal” problems of international law. But if we imagine it from the other side, i.e. the victim of the Rwandan genocide pleading for outside assistance to repel a murderous rampage, you come to realize that the dilemma of humanitarian intervention is perhaps just as extreme a situation as my hypothetical criminal law case described above. Indeed, I think it is not radical to suggest that a genocide is, in fact, far more extreme than my hypothetical, which only involved the fate of a single homeowner struggling to defend himself against an unlawful attack. Multiply that dozens, hundreds, thousands, hundreds of thousands of times, and you get the real dilemma of humanitarian intervention for modern international law.

http://opiniojuris.org/2017/04/10/more-on-the-inherent-right-of-self-defense/

6 Responses

  1. A thought and a question.

    The thought: I still think you owe us an explanation of how unilateral humanitarian intervention can be included in the natural right of self-defence, given that such intervention does not involve an armed attack on the intervening state. A natural right of humanitarian intervention may exist, but that seems like a fundamentally different idea.

    The question: do you think a domestic criminal-law decision like DPP v Majewski — holding that a defendant cannot argue lack of voluntariness due to intoxication if a crime requires only basic intent — is illegitimate? If one believes in the natural law, as you do, surely voluntariness is a requirement for criminal responsibility that cannot be eliminated by legislative or judicial fiat. Yet that is exactly what Majewski does.

  2. Hi Jens,

    So, on your view, the words “if an armed attack occurs against a Member of the United Nations” do not limit the inherent/natural right of legitimate/self-defense, correct?

    Many thanks,

    Adil

  3. Hi Jens,

    Your question is very similar to the one raised famously in Fuller’s Speluncean Explorers: http://www.nullapoena.de/stud/explorers.html

    (And you seem to be channelling your inner Justice Foster!). I would only say that natural law approaches to this dilemma (of which there can be many varities) are not the only obvious approaches to it.

  4. Thanks Kevin,

    I’m not as familiar with Majewski as you are, but it seems like a fairly straight-forward application of the principle actio libera in causa. In any event, I don’t think there is a natural right to criminal adjudication according to a particular version of mental states. Natural rights are limited to those rights that an individual has in a state of nature, before civil society is formed.

  5. Jens,

    But hasn’t every country in the world that has the death penalty partly abolished lawful self-defence by the condemned person vis-à-vis the executioner?

    Or less controversially, hasn’t every country in the world that has a system of imprisonment partly abolished lawful self-defence by the prisoner vis-à-vis the jailer?

  6. Thanks Ian,

    Self-defense only applies in response to an unjust attack (an aggression). Otherwise, in the absence of this condition, the aggressor could seek to justify his action as a response to the victim’s use of defensive force.

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