Reducing the Grounds Upon Which the Use of Force is Legally Permissible

[Richard Mackenzie-Gray Scott is a postdoctoral fellow at the Bonavero Institute of Human Rights and Fellow at St Antony’s College, University of Oxford.]

With never-ending news cycles churning out depictions of horrid events, causes for hope may appear few and far between. Yet they lay resting, ready to be enacted. One is a passage of the provisional measures order of the International Court of Justice relating to the Russia-Ukraine conflict. Tucked away at the end of paragraph 59, the Court states: ‘Moreover, it is doubtful that the Convention, in light of its object and purpose, authorizes a Contracting Party’s unilateral use of force in the territory of another State for the purpose of preventing or punishing an alleged genocide’. While there may be those that question whether the Court went further than it needed to at this particular juncture, such as proponents of humanitarian intervention or those understandably hesitant about premature pronouncements being made on issues that may arise before the Court in the future, its standpoint is significant for a related reason. But before commenting further on this statement, a wee precursor is necessary. The points set out below are threefold and interconnected. First is the issue where the bounds of what is or can be reasonably argued as lawful conduct expand to extents that intersect with such conduct simultaneously being wrong. Second, how the concept of anticipatory self-defence through its use is an example of this issue, including because it arguably measures-up unfavourably against the principle of legal certainty. Third, and finally, why this concept should have no place in the law governing the use of force, which is an appeal that appears to form part of a wider movement aimed at reducing the grounds upon which the use of force is legally permissible.

The Expansion of Lawful Conduct

Monica Hakimi has articulated that when providing rationales for conduct using the legal language familiar to the argumentative practice of the international legal order, states contribute to strengthening international law’s normative purchase. Undertaking this practice of attempting to find grounds that might validate state conduct involves them looking to the authority provided by actual or perceived international rules (contested or settled). Doing this work of trying to find grounds for conduct to be considered lawful implies that the rules being used in this process hold some significance, otherwise why bother referring to them and attempting to manipulate their language. But what if such processes are utilised to give the appearance of caring about these rules and what they represent, but undermining them nonetheless? Agendas and their success often rely on subtlety, not the brazenness embodied by admittedly ignoring laws outright. Better to engage with these laws through legal argument, even if there is no intention of adhering to them, because there will exist the manifestation of attempting to do so whilst conveying respect for the associated procedures of contestation. What if this very practice is part of what can be described as the underbelly of the international legal order, whereby the law actually enables conduct that is wrong? Katharina Pistor in a revealing book provides concrete examples of how laws are designed and used by those that can afford it in order to advance their interests, pushing further the boundaries of what is lawful. As a result, the overlap between what is lawful and what is wrong increases.

Anticipatory Self-defence and (Lack of) Legal Certainty

Bringing this expansion of conduct that is lawful, or can be reasonably argued as such, into the context regarding the use of force by states, the international rulebook here seems to be in a sorry state of affairs. Nancy Simons points out that states construe ‘the exceptions to the prohibition on the use of force in innovative ways’. While previous violations of this rule do not provide grounds to justify future violations, with the proviso that previous violations can provide new avenues to develop custom based on state practice and opinio juris, such conduct appears to be a symptom of the law lacking in clarity because of elements being added to it. If there is to be an international rule of law, legal certainty arguably needs to form part of it. Yet it is questionable whether the rules on the use of force measure-up favourably against this principle, including because of a concept that is currently attached to these rules. Precise rules provide clarity in determining what conduct is lawful versus conduct that is unlawful. A caveat is that if attempts at making a rule precise results in overprecision, then the law may fall into the ‘trap of over-exhaustiveness’ (p. 91), meaning conduct not explicitly mentioned becomes legally permissible, even if it results in the same or similar outcomes as conduct that is unlawful according to that same rule. It is therefore crucial to strike a balance that avoids creating ambiguity regarding what conduct will result in what legal exposure. Lack of clarity in the law means manipulators of rules and their language have an easier job expanding the bounds of what is considered to be lawful conduct compared to if the law were clearer. In this respect, there is a concept currently part of the law governing the use of force that provides space for advancing legal arguments that expand the bounds of what can be considered legally permissible conduct: anticipatory self-defence. Anticipatory self-defence is understood here as an armed attack by a state against another state that could be construed as an attempt at defensive action in response to an appearance being conveyed by the other state that it may use force at some point in the future but has not actually done so. This concept requires gutting. Its existence is part of a disease within the law, which is killing it.

Whatever way this concept is spun, whether using terms such as ‘imminent’ or ‘immediate’ in order to be considered compatible with existing law, for example, Article 51 of the UN Charter – stipulating ‘if an armed attack occurs’, which, textually at least, does not mean or imply a forecast about a possible future – its nature makes it a plaything for those skilled at wrapping up justifications for conduct in the paper of legal arguments, including on occasions where there is considerable detachment from what is positive law. Using force can be wrong even if it is lawful. Acting in self-defence may not be wrong, depending on the context and how it is carried out. However, acting or reacting on the assumption that something might happen at an unknown future point in time is arguably not self-defence. It is offence, albeit the kind that could make a practical defence depending on the (lack of) power asymmetries between parties. No matter if it is seconds or years and everything in-between, there appear to be no current methods of knowing how something in the future might pan out. And there is a difference between knowing something and thinking that we know something. Stanislav Petrov somehow knew he did not know that the United States had launched an armed attack against the former Soviet Union in 1983, even though an automated system (mis)informed him that it had. If Stanislav believed in anticipatory self-defence, a nuclear war could have started. If this story tells anything, it is that we cannot know what is about to happen. There can be reaction out of assumptions or guesses, or action based on calculations accounting for whatever factors, in which case such predictions are likely to be as accurate as a chimpanzee throwing darts at a dartboard (or worse). But following through on that incomplete knowledge would still be throwing the first punch. Even the best available intelligence information is not a crystal ball – though some may treat it as such. There are situations in which self-defence is both necessary and justifiable, including under international law. Yet such conduct need not be based on any of the anticipatory jargon that is conducive to arbitrary line-drawing, which is an effort that ends up being required, even if ultimately futile, when trying to determine things such as what ‘imminent’, ‘last possible window of opportunity’, ‘no reasonable chance for take-backsies’, or whatever other formulation of invented phrase mean in the context of a world today where devastation can occur in a matter of seconds at the push of a button.

Some may consider it ‘absurd to suggest that international law requires a State to “take the first hit” when it could effectively defend itself by acting preemptively’, but it is at least worth reflecting on what the empirical effectivity would be, in the short and the long-term, of a weaker state launching an attack against a stronger state before potentially being attacked, including the danger of providing the stronger state a legal justification to use force in self-defence. Positions favouring the existence and use of anticipatory self-defence appear to overlook that this concept may benefit militarily powerful states only, especially in comparison to those that are considerably weaker. It is tricky to envisage how getting the jump on a comparatively more powerful state is going to be of meaningful benefit to a weaker state if and when both parties use force. Deterrence of further force may be achieved if this dynamic were reversed, in that a less military powerful party may think twice about attacking its more powerful opponent if the latter were to execute a show of force by way of a warning about not pushing things any further. However, while exceptions are possible, effective self-defence arguably depends on the extent of the power asymmetries between parties, meaning considerable disparities may render the effectivity of a weaker state’s anticipatory action minimal if not inconsequential in both the short and the long-term duration of any ensuing attacks. An alternative consideration is that not having any concept of anticipatory self-defence as part of the law could mean misery for survivors of an armed attack within a state that waited for an attack to occur before lawfully using force in response. But does anticipatory use of force really protect against this problem? Are there examples of force being used by a state in anticipation of a possible attack occurring against it where that state prevented or even mitigated damage and suffering ensuing from the related use of force? Even hypothetically, it is difficult to picture how using anticipatory force helps self-defence efforts to prevent or limit further armed force and the associated impacts in a meaningful way, save perhaps in situations where a state uses disproportionate force that ends a conflict before it begins. Yet the existence of anticipatory self-defence as part of the law governing the use of force can benefit certain states able and willing to protect and advance their interests via gunboat diplomacy, with military escalation being an aim instead of securing de-escalation.

A Wider Movement of Reducing the Grounds for Legally Permissible Uses of Force

A reason the ICJ order is noteworthy is because it relates to another feature of the law governing the use of force, in particular the surrounding attempts to defend it: unilateral humanitarian intervention (in contrast to humanitarian assistance). This is another concept that has been (mis)used to justify lethal force, sometimes with ‘vagueness, hyperbole, and neocolonial undertones’ (p. 121). But the Court appears to have issued a declaration against raising this defence as part of arguments claiming that certain uses of force are legally permissible. If this reading is accurate, the decision helps reduce the grounds that states can use to try and justify breaking the law. It has also been pointed out that reforming the veto power at the UN Security Council is another means of limiting yet a further ‘(unwritten) exception’ to the prohibition on the use of force. Reducing these grounds further includes gutting the concept of anticipatory self-defence attached the rules on the use of force and chucking it outwith this body of law to die, before its further invocation contributes to turning the law here into a carcass.

Exceptions do not prove rules. They weaken them. Although conflict is part and parcel of international law’s work and ‘constructing an international community’, the prohibition on the use of force aims to protect against the armed violence that all too often inflicts unjustifiable damage. Yet this law has a harder time doing so if ambiguous exceptions continue making its rules prone to ‘doublespeak’. The justice that the rule of law seeks to complement is already thin enough at the international level. A thickening agent is more clarity in the law existing, in particular because providing it has the potential to restrain the expansion of the boundaries of what is lawful to extents that intersect with what is wrong. Enough of the amoral and immoral conduct of states. And enough with the law that plays a role in these processes and outcomes, used as a medium of communication to attempt justifying, by adding perceived societal legitimacy to, particular acts or omissions, regardless of whether such conduct is actually lawful. It is concerning if one of the functions of international law is to legitimise unlawful conduct by engaging in discourse using language that refers to actual and perceived rules of international law. Yet this function need not be.

It is worth considering ‘what it would mean to construct an internationalism that prohibits violence across the board’. One way of continuing the ball rolling in a related direction is to abandon concepts clinging like a cancer to the rules on the use of force, thereby saying cheery-bye to at least some of the inventions that attempt to create exceptions to the related prohibition by using whatever construction of words, and thus diminishing legal certainty in the process. Laws are kept unclear for the benefit of those with power. Simplifying them has the potential to reduce the grounds for states that utilise ‘argumentative openness to create space to pursue their aims’. To realise legal certainty in practice is to reduce these grounds providing for contorted versions of legally permissible conduct, which is preferable to the inverse, whereby uncertainty about what is unlawful enables conduct that may well be exactly that. Maintaining the status quo is continuing with the lending of authority to actors that wield the power to abuse international rules through conduct accompanied by legalistic rhetoric. Pretty chatter with poisoned intent. The law is not always objective, and can mask orders that revel in subjectivity. Referring to legal rules in attempts to look at problems objectively involves buying into constructs that may be attempting to be objective, but are sometimes not. So long as there is sufficient ambiguity in the law creating unclear exceptions to it, there will be scope to use the law as an authoritative accompaniment to conduct that ends and immiserates lives. Lawful but wrong – it is time to reduce this overlap, or better yet prevent it from occurring. One place to do so is in the rules that attempt to limit the use of force that should be about preventing armed violence, yet on reflection appear to be about almost everything but.    

[With many thanks to Elena Abrusci, Dapo Akande, Elizabeth Stubbins Bates, Tarun Khaitan, Kate O’Regan, Katie Pentney and Ewan Smith for their helpful feedback on a previous draft.]