30 Apr Soldier Self-Defense Symposium: Norwegian Soldiers’ Self-Defense
[Camilla G. Cooper (Ph.D.) is an Associate Professor of Operational Law at the Norwegian Defence University College. Sigrid Redse Johansen is a Judge Advocate General of the Norwegian Armed Forces. Please note that the following was written in the authors’ personal capacity and is not to be considered as an official Norwegian reply to the questions posed. This post is part of our week-long symposium on soldier self-defense and international law.]
What is the nature of soldiers’ self-defence in your country (a criminal defence, an individual right)? Is it similar to the right or criminal defence of self-defence available to any other citizen?
Self-defence in Norwegian law is considered a criminal defence. Self-defence is set out in Section 18 of the Norwegian Penal Code of 2005 (translation by the Norwegian Ministry of Justice):
An act which would otherwise be punishable, is lawful when it
a) is committed to avert an unlawful attack,
b) does not exceed what is necessary, and
c) does not clearly go beyond what is justifiable, taking into account the dangerousness of the attack, the type of interest the attack violates, and the culpability of the assailant.
The rule in the first paragraph applies correspondingly to any person who effects a lawful arrest or attempts to prevent a person from evading being remanded in custody or serving a custodial sentence.
The exercise of public authority may only be met with an act of self-defence if the exercise of authority is unlawful and the person who exercises it acts with intent or gross negligence.
The same rule applies to both soldiers and other citizens. The Military Penal Code of 1902 states in Section 1 that the basic conditions for criminal liability in the (Public) Penal Code applies also in military criminal cases. This includes the basic rules governing self-defence and necessity.
In military operations, it is common to develop « Soldier’s Cards », based on the mission-specific rules of engagement, which also refer to the basic right to self-defence as set out above.
Does the State have a known view on whether soldier’s self-defence is (also) a legal basis for the State to use force under international law? If so, what would the source of this legal basis be (Jus ad bellum? Human rights law? Another legal regime?)?
Self-defence is, in Norwegian domestic law, not understood as a general basis for use of force, but as a reactive and individual right. Circumstances giving rise to self-defence renders an otherwise unlawful act, lawful. There is no official link between this individual right and international law. Norwegian citizens or persons domiciled in Norway remain under Norwegian criminal jurisdiction for large parts of the Norwegian Penal Code as well as the Military Penal Code – including those Sections governing international crimes and other violations of the laws of war. The right to self-defence accompanies the application of criminal jurisdiction.
According to the Norwegian Manual of the Law of Armed Conflict, the individual right of soldiers to use force in self-defence is not considered a basis for carrying out military operations, but rather as a possibility for using force against imminent or ongoing unlawful attacks in situations where other legal authorities do not provide a sufficient legal basis to deal with the threat (Norwegian LOAC Manual, 2013, pp. 24-25). For instance, if a soldier participating in an armed conflict is attacked by a civilian for reasons not related to the conflict, such as an angry farmer protecting his crops, self-defence would enable the soldier to use force to defend him/herself. The source of this right would be the criminal law concept set out in question 1 and must be understood distinct from States’ right to self-defence under jus ad bellum.
What are the different versions of self-defence applicable to soldiers in your country (individual, unit, collective, etc.)? Can you describe the modalities of the exercise of self-defence: is self-defence available in case of hostile act? Hostile intent (or an equivalent concept)? Must the attack be unlawful (or an equivalent concept, such as unprovoked or unjustified)? Can soldiers use force to defend their unit’s property? To defend partner forces? To defend partner forces’ property?
Norwegian soldiers are able to use force in self-defence to defend themselves, their unit, and others, on the basis of Section 18 of the Norwegian Penal Code. In order for self-defence to become a necessity, there must be an initial threat or attack that is unlawful, that is, not within their ordinary freedom of action.
Lawful acts of war cannot be met with self-defence. This was emphasised in a post-WW2 trial against the owner of a garage who was the victim of saboteurs from the Norwegian resistance movement. The Norwegian Supreme Court concluded that he did not have a right to act in self-defence because the saboteurs were acting in accordance with Norwegian interests and were therefore considered to be acting lawfully, something the garage owner knew (Supreme Court judgement published in Norsk Retstidende, Rt. 1948 p. 75).
Unlawful acts of war, meaning the use of force not in accordance with the law of armed conflict, can be met with self-defence. Because unlawful acts of war also may be responded to on the basis of the law of armed conflict, self-defence will be particularly relevant if the application of such force is restricted, for instance, through rules of engagement.
The principle of equal application of LOAC prescribes that the individual right to self-defence does not extend to use of force on behalf of the State against an invading enemy force. The lawfulness of such use of force is initially assessed on the basis of the jus ad bellum, according to which the violation of the UN Charter is considered an issue of State responsibility, and the victim state may rely on State self-defence in response.
Note that exercise of unlawful public authority cannot lawfully be met with self-defence unless the person exercising the public authority acts with intent or gross negligence (see Section 18 above). This rule provides official servants, such as the police or armed forces, with further protection, and reflects the duty for ordinary citizens to obey public authorities.
The use of force in response to the unlawful threat or attack must be necessary and «justifiable». This means that the act of self-defence must not exceed what is necessary in order to repel the attack and that the least intrusive measure shall be chosen. There is no requirement that the attack has started or even that it is imminent. However, in such cases, it is less likely that the defensive use of otherwise unlawful measures meet the necessity requirement. Furthermore, the assessment of justifiability implies that sometimes the only viable option may also be considered unjust; such as shooting an apple-thief, even if it is the only way of stopping the person from escaping. For the person under attack, the possibility of avoiding the attack may sometimes make the use of force unjustifiable. If the defensive response is excessive, thereby failing the self-defence requirements, it may nonetheless result in a reduction of penalty, or in certain circumstances, the act being excused (§80(d) and §81(b) of the Norwegian Penal Code). The issues of retreat and provocation are not explicitly dealt with, but are nevertheless considered relevant for the assessment of whether the force used was necessary and justifiable. It is also required that the defensive measure be directed at the source of the threat, something which excludes the possibility of relying on self-defence to justify harm to innocent bystanders. The effects caused by the self-defence act on innocent bystanders is likely to be assessed under the defence of necessity, as regulated in Section 17 of the Norwegian Penal Code.
The initial attack giving rise to the self-defence situation may be directed at a person or object. This means that Norwegian soldiers may use force in self-defence to protect property, although the use of lethal force is only likely to be considered necessary and justifiable if the damage to the property will also entail a serious risk of harm to persons. This may for instance be the case with mission essential property.
The defensive measure may be taken both by the attacked person and a third party, and may therefore be used as the basis for defending both the unit, other coalition forces and civilians. As a result of this wide self-defence rule, there is no additional rules for, inter alia, unit self-defence. The Norwegian Manual on the Law of Armed Conflict makes it clear that while the defence of self may not be limited, defence of others and objects may be subjected to limitations, for instance through ROE (Norwegian LOAC Manual, p. 281).