concept of self-defense under International (worldwide) law

INTRODUCTION-concept of self-defense under International (worldwide) law

Self-defense is defined differently under international and national law. Under International (worldwide) law, self-defense is spelled out as an exception to the rule that restricts the use of illegal and unreasonable force. The UN (United Nations) Charter has a clause stipulating that all members in their interactions with other states shall refrain from the threat or use of force against a state that is not only politically independent but has territorial integrity as well in a manner inconsistent with the Charter of the United Nations. Self-defense is defined or stated to constitute a right that can be proven under Customary International law as it was highlighted in the Caroline case[1]. The International Court of Justice affirmed this position in the case of Nicaragua. The ICJ held that a state was legitimately allowed to use self-defense if it reasonably foresees an armed attack against it. The law on the use of unreasonable and illegal force was initially formulated after World War II. Basically, it was designed to prevent the occurrence of such a war between states in the future.

This paper has comparatively analyzed the concept of self-defense under International (worldwide) law. To achieve this paper’s intended goal, the first chapter forms the background of this paper. It deals with customary International law. The second bit of this paper deals with the how International (worldwide) law is enforced in party states. The third chapter consists of a brief history of the customary international rule on the prohibition of the use of  illegal and unreasonable force. The third chapter deals with the United Nations post-1945. Consequently, the fourth chapter focuses on the particulars of the resolution given by General Assembly’s concerning the on use of illegal and unreasonable force. The use of force authorized by the United Nations Security Council forms the fifth chapter. For clarity, it has looked at different elements of self-defense as highlighted under national law that acts as a background to the main agenda of this paper that is self-defense under International law. The arising states obligation regarding the obedience of International law has also been highlighted in this paper.

Customary International Law

Customary law is defined as the law that is developed from custom. Article 38(1) (b) of the International Court of Justice Statute has spelled out that customary law is defined as the general practice that has become readily acceptable in law over time. Customary law, treaties, general principles, and customs are the main primary sources of international (worldwide law) law. [2]All states that are official members of the United Nations are bound by the customary international law. The ICJ has categorically stated that Customary International law is binding on all member states.[3] Some customary international laws arise from the acceptance of the international community as rights that are nondelegable. This is referred to as jus cogens. Jus cogens norms arise from the principles of national laws. Any laws that are contrary to natural law principles are considered null and void. For a custom to be considered as a binding customary norm, it has to have widespread repetition. The member states must have on many occasions applied the custom so much so that it gains international recognition and is presumed to be state practice.

The second requirement is that a state must feel obligated to obey the custom. This decision must be formed independently by each state. This element is also referred to as Opinio Juris. Examples of sources of Customary International law include national and international courts decisions, treaties, the opinions of legal advisors of the nation, diplomatic correspondence, various national legislations and the practice of International organizations are also recognized sources of customary international law under the International Law Commission in 1950.[4] A state that allows or permits genocide, human torture, slavery, crimes committed against humanity, and also war of aggression is said to violate Customary International law.

The Enforcement of International law

The enforcement of International Law is guided by the Pacta sunt servanda principle which translates to agreements must always be respected and obeyed. These agreements include customary international law and the treaties and conventions ratified by an individual state. Aside from setting out prohibitions on the use of unreasonable force, torture, and slavery, International (worldwide) law further covers the consequences of the binding nature of International law. Individual responsibility and state responsibility are forms of responsibility associated with International law. In determining state responsibility, what the violating state ought to have done is one of the considerations that are looked at. The second consideration is what other states must do concerning the violation. As has been indicated earlier, states that are official members of the (UN) United Nations have a duty to respect, to fulfill and to abide by their obligations under International (worldwide) law.[5]

The Vienna Convention enacted in 1969 out rightly focuses on the notion of respect for international obligations. State responsibility, therefore, ensures that a state that violates international obligations must be held accountable for its omissions and its acts. In determining the responsibility of a state, the law requires that the violating state immediately stops the violation and to further make reparations to the injury caused. In determining the extent of state responsibility, a state is held liable for the actions and omissions of its officials on the citizens. This is because the state has a positive obligation to ensure that the state officers promote and respect human rights and International law by extension. However, in determining state responsibility through state officials, each case must be looked at on its own merit. This is because the particulars of one case differ from the particulars of the other case. Article 1 of the Geneva Convention states that third states have an obligation to make sure that International Humanitarian Law is accorded utmost respect at all times. Therefore the third party states that support another state’s abuse of human rights violate its obligation under International law. One International Law violation differs from the other. The extent/magnitude of the violation and the effects of the violation are important considerations that must be addressed when determining state responsibility. Violation of a peremptory norm is considered a serious violation of International (Worldwide) law and state responsibility. Basically, a peremptory norm can be defined as a norm that no member state is allowed to derogate.[6] To counteract a state’s violation of a peremptory norm third-party states may withdraw their assistance to the violating state, they may fail to recognize the state and the third states may unite to bring to an end the violation in question.

The history of the prohibition of the use of illegal force that is unreasonable  under international (worldwide) law

International (worldwide) law is mainly related to interstate relationships and not the relationship between the state and its civilians. This decision was based on the treaty of Westphalia Peace Treaty of 1648 which recognized that the dispute in Westphalia was worsened by the intervention of other states. As such, International Law is mainly considered with how one state reacts towards the other state and the force applied. Technological, chemical, and biological developments and civilization that took place in the twentieth century posed a great risk to human life through wars. Massive killings such as the ethnic cleansing are examples of incidents that led to the restriction on the use of force by the international community. [7]Similarly, the United Nations was formed after the World War II. Therefore, prevention of war by the International Community has been one of the greatest tasks in the twenty-first century. The Hague Peace Conferences of the early and late nineteenth century focused on adjusting and making the rules of warfare more stringent to reduce the wars. The League of Nations followed the Hague Conferences similarly trying to enhance peace among nations in the International Community. Article 11 of the League of Nations[8] spelled out formal approaches imposing restrictions on states that resorted to war but it failed to revoke or to completely remove the right of states to resort to war. Members of the League of Nations were firs obliged to present or to submit an inquiry to the Council of the League of Nations. Articles 13 and 15 of the League of Nations Covenant emphasized that states after submitting their inquiry were not allowed to enter into any war three months after the release of the council’s report.  A state that violates this stipulation and rules could lead to coercive measures to be taken by the League as per Article 16. The League of Nations also failed in its mission to promote World Peace as some states were not members hence not bound by the Covenant of the League of Nations.

The Briand –Kellong Pact was the third International Instrument that was mainly concerned with peace enhancement in the World. For the first time, the notion of the right to wage war was outlawed by this pact. Article 1 of this pact highlighted the contracting parties’ decision to condemn recourse or getting into war as a cure to disagreements between states. Most states in the world were parties to this pact but the remaining states in South America were part of the 1933 Saavedra Lamas Treaty which had a similar stipulation on the ban of war. The Briand-Kellong Pact also failed to achieve its intended purpose because its clauses mainly focused on war and the restriction of interstate wars. It failed to include the rights of member states thus proved ineffective.

League of Nations and pacts such as Briand-Kellong pact efforts to bring about peace in the world were threatened by the onset of the Second World War. The tragic events that resulted from this dispute evidenced internationally promoted the creation and adoption of the United Nations Charter in 1945.

The United Nations post-1945

The United Nations was formed after the Second World War. Different member states came together to promote World peace by preventing interstate wars.  Currently, almost all states in the world are members of the (UN) United Nations.

The illegality of the use of force

Article 2(4) of the United Nations charter has established a ban or a complete prohibition on the threat to use force or the use of force against the territory and the specific political independence of any country/state in a manner that is inconsistent with the United Nations purpose. Therefore the prohibition of the use of force is a general rule that applies to all states. The United Nations approach on war prohibition also comprises of short of war which applies to all states as well.  However, as it has been earlier indicated in this paper the United Nations acts and prohibitions are only concerned with interstate actions and not instate actions. Art 2(7) forms the basis of the principle commonly known as non-intervention.[9] Art 39 of the Charter of the (UN) United Nations implores states to settle on peaceful methods of solving interstate disputes. It urges countries to avoid using force that is unreasonable. However, the general rule of the prohibition of the use of illegal force is not absolute and it has certain exceptions. Chapter VII of the Charter of the United Nations suggests that the force applied should be consistent with the United Nations Charter.

Concerning the prohibition of the use of illegal force, the (ICJ) International Court of Justice has only established the presence of the violation of this provision in two cases. Armed Activities on the Territory of the Congo[10] and the Military and Paramilitary Activities in and against Nicaragua [11] are the two respective cases in which the violation of the prohibition of the use of illegal force has been sufficiently proven.

Brief facts of the Nicaragua case.

In the Nicaraguan case, the US is said to have violated the state sovereignty of Nicaragua. The US violated Nicaraguan sovereignty by training, recruiting, encouraging, aiding, training, directing, and financing paramilitary actions in Nicaragua. The Nicaraguan government argued that the US violated the principle of non-intervention into the territorial independence of one state by another state unreasonably as put out in Art 2(4) of the United Nations Charter. Further, the Nicaraguan government claimed that the US had also violated its duty as a state as provided in Article 8 in the Convention on Rights and Duties of States. According to the Nicaraguan government, the US had substantially violated its duties under International Law through threat to use illegal force and the use of illegal force itself in and against Nicaragua. The US launched attacks against Nicaragua through the air, land, and sea. The US killed, kidnapped, and wounded the Nicaraguan citizens and the US intervention act in Nicaragua’s internal affairs was a violation of International law. The Nicaraguan government demanded that all the acts and violations listed above should cease and the (ICJ) International Court of Justice should order the US government to pay and offer reparations to the Nicaraguan government for the damage caused to property, the economy, and to the Nicaraguan citizens as well. The court found that the US was involved in the unlawful use of  illegal force in Nicaragua. The court also found that the offering of weapons to the opposition of a given state does not in any way constitute an armed attack.  The court ordered the US government to refrain from all past conduct in Nicaragua. The US government was also ordered to pay reparations to the government of Nicaragua.

Brief facts of the Armed Activities on the Territory of the Congo

In June 1999, the Democratic Republic of Congo filed its application to the ICJ. The application alleged that the acts carried out by the Ugandan government in the DRC constituted acts of aggression. Further, the DRC alleged that Uganda’s acts violated the Charter on the African Unity Organization and by extension the charter of the UN. The DRC added that the Ugandan government violated the charters mentioned above through funding and financially supporting paramilitary and military forces that occupied the DRC territory. In furtherance of these acts, the Ugandan government destroyed the property of the DRC citizens and committed acts of violence against the citizens. Uganda violated the international Law rule on the respect of sovereignty by exploiting and pillaging DRC’s natural resources. The government of Uganda filed three counterclaims regarding DRC’s claims. Firstly, it stated that the DRC government used force against Uganda which was a violation of Art 2(4) of the Charter of the United Nations. Secondly, the DRC government allowed the destruction of Uganda’s diplomatic premises to take place. Thirdly, the DRC violated the elements contained in the Lusaka Agreement of 1999. The International Court of Justice issued provisional measures ordering the two parties to stop any action that would prejudice the rights of the other states which might lead to aggravation and extension of the dispute. The court concluded that the consent issued by the DRC government allowing the government of Uganda to enter its territory was consequently withdrawn by August 1998. The ICJ however rejected Uganda’s claim to have acted on self-defense under Article 51 of the UN charter. Further, it was a task to determine why Uganda acted in self-defense when there had been no armed attack against Uganda by the DRC. The court relied on the principle established in the Nicaragua case that the principle of non-intervention prevents and prohibits states from either directly or indirectly intervening in the private and personal issues and affairs of another sovereign state.

The particulars of the General Assembly’s prohibition on the use of force

The 1950s was an era of decolonization. As more and more states attained independence, they became a member of the United Nations therefore under the obligation to enforce International law. Most of these developing states through the General Assembly endeavored to progressively develop International Law. These states attained progressive International law development through the implementation of ideas of justice in the notion of peace. They chose to focus on the notion of peace rather than the notion of the prohibition of the use of illegal and unreasonable force. This is one of the many reasons why United Nations has been successful in its global peace enhancement efforts. The General Assembly applied several declarations that solely focused on peace enhancement. One of the declarations is the (A/RES/1904 (XVIII) of 1963 which was a declaration on the Elimination of all Forms of Racial Discrimination. The other declaration was the (A/RES/1514 (XV) of 1960 the Declaration on the Granting of Independence to Colonial Countries and Peoples. The General Assembly qualified racial discrimination and colonization as violations of the prohibition on the use of force. The idea of a just war was developed from the substantive approach of justified armed countermeasures. The difference between a just war and an unjust war was developed by the Fetiales a group of priests in Rome. This group of priests was responsible for the maintenance of peaceful internal and external relations. For a war to qualify as a just war, certain requirements must be met. The first one is that the war must have a cause that is just, a reasonable punishment for law offenders. A just war should only be waged by a sovereign authority. This requirement, therefore, prohibits the waging of private war.

Thirdly, a just war must be consist of an intended right. The second requirement is in International law, General Assembly’s resolutions are regarded as mere persuasions. They do not have a binding effect, unlike the Security Council’s binding resolutions. General Assembly’s resolutions are therefore considered to constitute a normative value. The Manila Declaration on the peaceful settlement of disputes of 1982, the declaration on the Prevention and removal of Disputes and situations which may threaten International Peace and Security and the Role of the United Nations, the declaration on the enhancement of the effectiveness of the principle of refraining from Threat or Use of force in International Relations are examples of resolutions passed by the General Assembly to foster the prohibition on the use of illegal force. Additionally, the 1992 and 2002 Security Council summit highlighted an increase in the United Nations capacity for peacekeeping and peacemaking.

Various treaties have also been entered into by different states for prohibiting the use of unreasonable force. The Organization of American States Charter is a treaty that focuses on the prohibition of the use of unreasonable force that applies to American states. The 1975 Security and Co-operation conference in Europe also the1990 German Treaty on Final Settlement, and the 1990 Charter of Paris for a New Europe are additional treaties incorporated to prohibit the use of force in various world regions.

The use of force authorized by the United Nations Security Council

The global protection of human rights and the protection of the rights of minorities have greatly contributed to the attainment of World Peace by reducing potential international disputes. Generally, the Security Council introduced some exceptions to the general rule on prohibition and prevention of the use of unreasonable force. Chapter VII of the United Nations Charter has listed some exceptions to the general rule on the prohibition of the use of force. One of the exceptions as had been earlier stated is self-defense. The other exception is that states are allowed to use force when one state is protecting the “vulnerable” in another state through the express authorization of the United Nations Security Council. However, for any state to apply force in the protection of the rights and lives of citizens of another state, the Security Council must give authorization to the intruding state following Articles 41 and 42 of the United Nations Charter. The Kosovo war involving ten states against Yugoslavia is an example of a state using force on another state without the authorization of the Security Council for the protection of the rights of the vulnerable people. Libya is a classical example of an instance when the United Nations Security Council allowed the use of force on a sovereign state for the protection of the rights of vulnerable citizens. The United Nations Security Council on March 17, 2011, enacted and adopted resolution 1973 consequently authorizing member states to take all the measures necessary to ensure that the civilian populated areas and civilians under threat of attack are protected in Libya.

The use of force in self-defense

Article 51 of the (UN)United Nations Charter outlines that states may legitimately resort to using armed force when defending themselves from an imminent attack. States perform a unilateral act when they decide to use force in defending one self. Under International law, self-defense diminishes a state’s political independence and territorial integrity. This is the case because a third party may use force on the violating party thus disregarding the principle of territory integrity and sovereignty. The meaning of self-defense concerning the prohibition and prevention of the use of force originated from the Caroline case. Britain had earlier on adopted the principles of self-defense in the Caroline case which later became Customary International law therefore having a binding effect on all United Nations member states. Self-defense is only permitted in instances when the Security Council is unable to provide the required protection against an illegal imminent attack.

Brief facts of the Caroline case

This case originated from a dispute between the United States Secretary of State and the British government. The dispute related to the destruction of an American vessel that was in an American port by British state officers. The reason behind the destruction of the American vessel is that it was used to ship American groups and munitions that were responsible for the attacks against Canadian territory. Following the attack, the American government stated that the destruction of the vessel was like an attack on the territory of America as well. The government of Britain, on the other hand, claimed it had acted in self-defense. An outline of the key elements of self-defense followed and Daniel Webster the US Secretary of State emphasized the British government had to prove the following factors if they wished to rely on self-defense. Firstly, the British government must prove the necessity. Secondly, it must establish that the attack was instant and sudden. Thirdly, the attack was overwhelming, and fourthly that the British government was left with no choice but to use force on the American vessel as it did.

Therefore, a state that wishes to rely on self-defense must prove that it was the victim in the attack. In such cases, the onus is on the claiming party seeking to justify its actions as those of self-defense. The ICJ in the Nicaragua case stated that not all attacks constitute armed attacks. In fact, only the most grievous forms of attacks will constitute armed attacks as per Art   51 of the Charter of the United Nations. Paragraph 196 of the Nicaragua case outlines that the victim should only use which are proportional and necessary to respond to the armed attack. This paragraph, therefore, creates two principles that are important in self-defense. The first principle is a necessity and the second principle is proportionality. The International Court of Justice advisory opinion rejected the definition of an armed attack to also include assistance given to rebels through the provision of basic support such as food and weapons in the International Court of Justice Advisory opinion of 2004. The International Court of Justice in other words put in place a requirement that the armed attack must be attributed to the state.

Principles of self-defense

The principle of necessity this principle outlines that a state can only use force against another state when it is necessary. The claiming state must establish that the state had completely to option other than to use force to sufficiently defend itself from harm’s way.[12]

The second principle is proportionality. A state when justifying its use of force must prove that the force used was proportionate to the force used against it. This principle as it has been discussed in this paper requires the claiming state to use force that is of lesser magnitude than the force used by the attacking state. It must also establish that it was the victim state and not the state that provoked the violence.

Additionally, the principle of imminence is paramount because establishes the true intention of the state claiming self-defense, it also helps to assess proportionality and forms the basis for assessing how serious the threat is.

Preventive war doctrine is an exception to the requirement of immediate harm. Preventive war doctrine implies that the confines of self-defense should as well extend to the illegal threat that has not yet happened. According to this doctrine, if the state does not take the necessary self-defense measures, once the illegal threat fully blooms will have adverse effects on the state.[13] According to the supporters of this doctrine, as long as the party claiming self-defense can reasonably establish necessity in the sense that there is a dire need to attack first before they are attacked should suffice as a possible element in the law of self-defense. The technological advancement that has been occasioned in recent years has played a big role in the development of this doctrine. This is because terrorism has also advanced with technological advancements and it is clearly important for a state to always be on the lookout. If a state reasonably suspects it will be attacked it can use self-defense relying on the doctrine of preventive war.

National law on self-defense

International Law and National law have a close connection. A state is under an obligation to formulate laws that are consistent with International law. Additionally, the United Kingdom national law has borrowed a lot of International law concepts and clauses. Monist states are states that have accepted that International law and National law form a unity. This explains the major similarities between national self-defense and international self-defense highlighted in this paper. Self-defense is defined as the use of force by one person to defend oneself from harm or injury. It is also defined as the right to prevent suffering or loss by counteracting the person causing harm with reasonable force. It is one of the defenses raised in criminal law. Self-defense is said to be purely based on justification. The defendant who causes harm to another in self-defense must reasonably justify his actions. Self-defense is a common-law defense where the defendant uses reasonable, necessary, and force that is proportionate to defend oneself from imminent attack. Additionally, self-defense is a complete defense in all sexual offenses that involve the unlawful use of force. The common law is the law that regulates the defense of a person. In self-defense, the defendant may either apply reasonable force to protect himself, his property, his immediate family, or for the prevention of crime. The law regulating the defense of property is the Criminal Damage Act of 1971. Criminal Law Act 1967 is the relevant law regulating arrest and the prevention of crime about self-defense. However, the courts have been very cautious when applying this defense to avoid acquitting guilty persons.

This paper is therefore concerned with the particulars of the defense of self-defense. It is therefore divided into different chapters that focus on elaborating this defense. The first chapter deals with the elements of self-defense. The second defense deals with the principles regarding self-defense. The third chapter deals with the application of self-defense in cases. Seeking to answer this question, this paper has evaluated the law on self-defense. This paper has as well extensively looked at the defense of self-defense concerning the UN Charter of 1945. It has also discussed the relation between self-defense and the United Nations Charter of 1945.

Self-defense can be applied differently depending on different circumstances. For instance, a defendant may be acquitted if the homicide is justified that it was committed on a self-defense basis. Additionally, a murder can be reduced to a lesser charge of manslaughter once the defendant raises self-defense. In self-defense, the victim is under no obligation to retreat from an imminent threat. If he/she chooses to apply force, the force applied must be reasonable. The victim should also not use more force than that used applied by the attacker.

The elements of self-defense

Self-defense has several elements that must be sufficiently proven by the defendants in criminal cases.

The first element of self-defense is reasonableness. Force is considered reasonable if a reasonable person would apply the same force when faced with the same situation or under attack. In determining reasonableness, the court must objectively determine whether the force used by the defendant was reasonable. The reasonableness of the force used by a police officer in the line of duty, a citizen, and domestic violence differ from case to case basis. The court stated in Beckford v The queen[14] that a defendant has a right to use force to protect himself or any other person he may be in charge of or responsible for as long as the force used is reasonable. Additionally, a person is generally allowed or justified to use force if the person reasonably believes that the force imposed was necessary to prevent the harm doer from committing a felony. Different people have different understandings of what constitutes reasonableness. Further, in determining reasonableness, was the force reasonable, and was the force use of force necessary in the given circumstances are the two basic questions the prosecutors have to establish in be assessed. This position was stated in R v Williams[15] and in R v Oatbrudge.[16] Lord Morris in Palmer v Republic stated that a defendant who is believed to have applied force in the moment of unexpected anguish or attack is believed to have acted reasonably if his action is instinctively thought and honestly done. In establishing what force is reasonable, the court in Republic v Lindsay stated that the defendant had initially acted in self-defense but had later developed the intention to kill. In the case, the defendant was attacked by three men who had worn masks. He slashed one of the men repeatedly. In determining whether the self-defense was present, the prosecution established that self-defense was not present. Deadly force in self-defense relates to force that has the potential to kill. A gun, a knife bare hands, and vehicles are examples of items that can inflict deadly force. The exception to the deadly force rule is that an individual who is attacked by the defendant using a nondeadly force cannot use deadly force on the defendant.

Section 76 of the Crime and Courts Act 2013 was amended to ensure that owners of homes could rely on self-defense even where the force used was not reasonable. However, it must be established that the unreasonable force was not grossly disproportionate. While applying the objective reasonableness standard for police officers, the court must critically assess what was in the mind of the office while they were causing harm or injury to the other person.

The defendant who raises self-defense must prove that the threat was imminent. Imminent danger means that the attack is immediate. It is an attack that is foreseeable and not one that will occur at a later date or in the future. Imminence does not also relate to past attacks. Therefore, a defendant cannot claim self-defense when he/she uses force to try to remedy past attacks. To determine whether a police officer is entitled to immunity, the courts look at the perception of danger and not the actual danger itself. If a defendant causes harm to a plaintiff in self-defense he must genuinely have the belief that harm is underway. In this case, it does not matter whether the harm takes place or not.

The second element that must be proven by a defendant is that he/she was confronted with an attack that is not provoked. A defendant who raises this defense must establish that the attack had no direct contribution to the attack. In-State v Williams, the court established that a defendant cannot successfully claim self-defense when he/she initiated the attack on the other person. However, this element has two exceptions. One of the exceptions to this rule is that a defendant who initiated an attack against the other party can still claim self-defense if the other party responds and reacts with an excessive force than that the defendant used. The second exception is that a defendant is also entitled to claim self-defense if he withdraws an attack caused on the other party but the other party persists with the attack.

The third element that must be established in self-defense is proportionality. Under this element, a defendant who uses objectively unreasonable force cannot claim self-defense.

The fourth element is innocence the defendant must prove to the court that he is innocent and he only used force to defend himself against the attack and not to initiate the attack in any way.

Burden of proof

In self-defense, the burden of proof lies with the prosecutors. In such cases, the prosecution must establish several factors. One factor that the prosecution must establish is that the defendant’s actions were not intended to protect him or another from an attack. The second factor is that the defendant’s acts were also not intended to protect or defend property, prevent a crime, or to help in the apprehension of a law offender. Further, the prosecution is required to prove that the defendant acted in excessive force and the force was unreasonable.

Similarities between international law on self-defense and national law on self-defense

In both, the law prohibits legal entities from taking self-help measures. Rather, the law insists that the victim legal entities must rely on central bodies to perform acts on behalf of the victim. Under International law, the central body is the United Nations governed by the United Nations Charter. Under National law, the state through the police acts as the central body that is mandated to act on behalf of the victim and is regulated by various national laws that have been put in place. Victims under national law are prohibited by the state from using force to assert their respective rights. Another similarity between the two is that in rare and extreme circumstances the victims whether in the legal person form or as a state are allowed to use force where there is unlawful aggression from the attacker.

The test required to be satisfied between the two categories is that the force applied must be proportionate, it must be necessary and the attack must be imminent. Also in both national and international law, when determining necessity, the defendant that is the party in breach must establish that there was no chance of retreat or that the defendant had no less harmful option or alternative to prevent the attack. Regarding the second element of self-defense which is proportionality, the interests of both the victim and the aggressor must be balanced. As it has been clearly stated earlier, the use of must not be disproportionate or excessive to the harm resulting from the attack. A defendant who uses a more harmful weapon or a more harmful tactic with regards to states is therefore not liable to claim self-defense. The other similarity is that to establish the element of the imminence of the attack the time of the illegal threat or act is of paramount importance. The time between the commission of the illegal attack or threat and the counteract must be reasonable. The test set out to determine the reasonable time is basically, the time should neither be too long nor too short. For both, the defendant cannot attack another party or state and seek to rely on self-defense when the illegal thereat occurred a long time ago.

CONCLUSION

The prohibition on the use of force as outlined in Article 51 of the United Nations Charter has been very effective in the promotion of World peace. It promotes peace settlement of disputes among states and prohibits them from resulting in forceful means. This paper has covered with precision the doctrine of self-defense and its elements. It has highlighted instances when self-defense arises and how states can use it to defend themselves. The comparative analysis done concerning self-defense under International law and self-defense under national law has played a critical part when highlighting the similarities.

BIBLIOGRAPHY

Statutes and treaties

League of Nations Covenant, 1919.

United Nations Charter, 1945.

Caselaw

Armed Activities on the Territory of the Congo (Democratic Republic of Congo) v Uganda ICJ Rep2005.

Beckford v The Queen (1988)AC 130.

The Caroline Case (1837)29 BFSP 1137.

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v The United States of America) ICJ Rep 1986.

Republic v Oatbrudge, 94 Cr App R 367.

Republic v Williams (G) 78 Cr App 2 276).

Books

D Costelloe, Legal Consequences of Peremptory Norms in International Law (2017).

D Luban, Philosophy & Public Affairs, (2004).

JA Hessbruegge, Human Rights and Personal self-defense in International law, (2017).

PM Dupuy, Handbook of International Environmental Law (2007).

VD Degan, Sources of International law (1997).

Journals/Articles

GG Fitzmaurice, “The foundations of the authority of International law and the problem of enforcement”, The Modern Law Review (1956).

JL Goldsmith, “A Theory of Customary International Law”, The University of Chicago Law Review (1999).

M Weller, A Solomou, JW Rylatt, The Oxford Handbook of the use of force in International law, (2015).

[1] The Caroline Case (1837)29 BFSP 1137.

[2] JL Goldsmith, “A Theory of Customary International Law”, The University of Chicago Law Review (1999).

[3] PM Dupuy, Handbook of International Environmental Law (2007).            

[4] VD Degan, Sources of International law (1997).

[5] GG Fitzmaurice, “The foundations of the authority of International law and the problem of enforcement”, The Modern Law Review (1956).

[6] D Costelloe, Legal Consequences of Peremptory Norms in International Law (2017).

[7] M Weller, et.al, The Oxford Handbook of the use of force in International law, (2015).

[8] League of Nations Covenant, 1919.

[9] United Nations Charter, (1945), Article 2.

[10] Armed Activities on the Territory of the Congo (Democratic Republic of Congo) v Uganda ICJ Rep2005.

[11] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v The United States of America) ICJ Rep 1986.

[12] JA Hessbruegge, Human Rights and Personal self-defense in International law, (2017).

[13] D Luban, Philosophy & Public Affairs, (2004).

[14] Beckford v The Queen (1988)AC 130

[15] Republic v Williams (G) 78 Cr App 2 276).

[16] Republic v Oatbrudge, 94 Cr App R 367.