Guest Post: Remarks on Henderson & Cavanagh Guest Post on Unit Self-Defence–Perspectives from the Courtroom

[Kinga Tibori-Szabó currently works for the Legal Representative of Victims at the Special Tribunal for Lebanon. She is also a New York attorney. In 2012, she won the ASIL Lieber Prize for her book Anticipatory Action in Self-Defence.]

What could be more straightforward than a unit commander’s right to defend his unit, or other specified units against hostile acts and hostile intent? But as obvious this right may seem in the military sense, as eclectic and elusive its legal nature can be.

Ian Henderson and Bryan Cavanagh rightly point out that unit self-defence, in the legal realm, can be thought of both as a unit-level derivate of states’ inherent right of national self-defence and as a form of the criminal law concept of personal self-defence. It is also viewed as a corollary of the fundamental human right to life.

Indeed, as pointed out by the authors, if the defensive action taken at the unit level ends up being litigated at the International Court of Justice, it will be the responsibility of the state that will be in question and the legal issue will be whether the right of national self-defence applies.

Equally, Article 31(c) of the ICC Statute and ICTY jurisprudence have approached the question of unit-level action from the perspective of personal self-defence, as a ground excluding criminal liability. The ICTY stated that the “notion of self-defence may be broadly defined as providing a defence to a person who acts to defend or protect himself or his property (or another person or person’s property) against attack” and applied that definition to questions regarding the legality of forceful action taken by military units (Kordic and Cerkez, Judgment, 2001, para. 449).

Add to that the fact that many domestic jurisdictions do not recognize unit self-defence as an independent legal concept, albeit its substance is acknowledged, usually in the form of collective personal self-defence, as a right of a unit commander (have a look at the General Report 19th Congress ISMLLW, Quebec). Even in jurisdictions where unit self-defence is explicitly acknowledged, its content might not be identical. For instance, the US SROE define hostile acts to include force used directly to preclude or impede the mission and/or duties of US forces, including the recovery of US personnel and vital US government property, while other states define the term more narrowly.

Against this background, it seems sensible to aver that unit self-defence should be viewed as a ROE concept that has underlying law and legal consequences, but is not a legal term of itself. Or as Kalshoven and Fontein noted, “the true significance of the right of unit self-defence may lie in its cohesive power”.

Then again, as a lawyer trapped in the courtroom most of the time, I cannot help thinking of that odd situation, at the international judicial level, when none of the mantles we just bestowed on unit self-defence would fit. Every operational term, if it ends up playing a role in (international) courts, will have to be associated with a legal term or drawn from a legal basis. Take, for instance, one of those quintessential on-the-spot-reaction scenarios of a naval vessel under sail, being attacked while transiting between the harbours of allied nations. If the attack, because of its nature and scale, reaches the threshold of an armed attack, the inherent right of national self-defence can be invoked and force may be used within the limits of that right. In such a case, unit self-defence would be absorbed within the jus ad bellum concept. If the use of force triggers an armed conflict, the law of armed conflict will become applicable, in which case, as discussed by Henderson & Cavanagh as well as Jens David Ohlin, the concept of self-defence (unit or personal) becomes arguably redundant. But what if the attack on the vessel does not reach the threshold of an armed attack and the response does not trigger an armed conflict? In that nebulous territory, where neither jus ad bellum nor the law of armed conflict applies, we are left with personal self-defence, in its collective form. Obviously, if the operational term on which the unit’s action is based can be easily linked with provisions similar to those contained in Article 31(c) of the ICC Statute, then the problem is solved. But such provisions might not be readily available (the ICTY, ICTR and STL statutes do not expressly assert an exception of personal self-defence), and the court will have to rely on its case-law or develop relevant jurisprudence. But what if the ROE of the vessel’s nation state allows for a unit self-defence that is more permissive than the personal defence case-law of the international court? Or what if the definition of a unit in the domestic operational term is different from how the court’s jurisprudence defines defence of others or defence of property? Or what if there is no such definition in the case-law? Or what if other gaps, stemming from the different nature of the two terms (unit self-defence as a permissive rule authorising the use military force v. personal self-defence as a narrowly interpreted exception to criminal responsibility) would make it cumbersome to convert the operational term into the legal? Wouldn’t these situations warrant the acknowledgment of an independent legal term of unit self-defence, with its own elements and limits, rather than fiddling with personal self-defence, to fit a purpose it was not primarily meant to fulfil?

The odd situation, however, may never arise. It may as well be that unit self-defence will make more sense as an operational term, capable of being morphed into various, related legal terms. In any case, the debate should be kept alive and, if pertinent, room should be left for an independent legal term of unit self-defence to develop.