Is it the right time to reconsider jus ad bellum proportionality?: a response to Kretzmer’s “The inherent right to self-defence and proportionality in jus ad bellum”

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 Dr Gina Heathcote is a lecturer at SOAS, University of London

I shall begin by answering the question posed in my title in the negative.  The very technical and detailed discussion of the scope of jus ad bellum self-defence, as is found in David Kretzmer’s article, plays down the contemporary spaces where the Charter is being re-imagined by States. The post-millennium era has been characterised by state practice that seems to conveniently forget the constraints of the Charter structure, in particular the importance of Articles 2(3) and 2(4) of the Charter, in favour of unilateral force. In returning to the scope and permission embedded in the principle of proportionality, Kretzmer acknowledges but neatly avoids contemporary debates on the use of force in humanitarian crisis and the use of targeted strikes through identification but little analysis of the rhetoric, practice and confusion of the vast literature that has characterised post-millennium debates on jus ad bellum. This is an unfortunate consequence of Kretzmer narrowing in on, first, a component of the use of force (self-defence) and, second, to a specific aspect of that component (proportionality). This avoids looking, seeing or acknowledging the harm – the deaths – caused by targeted strikes and the consequences of both collective and unilateral interventions justified on humanitarian grounds, allowing international lawyers to retell stories of technical legal knowledge that are far removed from ‘what we talk about when we talk about war’ (see B.Stark ‘What We Talk about When we Talk about War’, 32 Stanford Journal of International Law (1996) 91).

 Proportionality is a loaded concept. Kretzmer might present us with a useful legal dissection of a largely under-discussed component of the international law on the use of force but he ignores the manner in which states, particularly powerful states, are able to use proportionality to justify and explain the use of airpower or unmanned aerial vehicles to give the impression of precision warfare (see C.McInnes, Spectator-Sport War: the West and Contemporary Conflict, (Lynne Rienner Publishers, 2002)).

 A focus on proportionality leaves unquestioned the existence of Article 51 as an appropriate justification for the use of force in 2013. Is the right to self-defence, inherent as the Charter tells us, an appropriate right? Can states have inherent rights? Where does self-defence come from? Is its existence really only born through analogy with the individual right to self-defence? Why don’t international lawyers ask these questions? Can the Caroline incident really be the best guideline we can come up with (quoted by Kretzmer at pp.247-248)? Is the deployment of contemporary military force ever instant? Focusing on proportionality suggests that self-defence is a timeless right of states; I have long held my doubts and have advocated that the right to self-defence would benefit from greater scrutiny and reflection. For example, if this right did derive in parallel and in analogy with the interpersonal right to self-defence how do feminist analyses of the gendered nature of the interpersonal right to self-defence disrupt the ‘inherent’ and ‘natural’ right of self-defence under international law? (See G.Heathcote, The Law on the Use of Force: A Feminist Analysis, (Routledge: 2012)

Despite all these questions and concerns, I finished Kretzmer’s article with an affirmative answer to the question of whether it is timely to talk about proportionately for the following reasons.

A return to the parameters of self-defence, while acknowledging debates on humanitarian intervention (unilateral and collective) reminds us of the distinction between lex lata and breaches of the law. As noted by the ICJ in the Nicaragua case, a violation of the law is just that – a violation. For such practices to be the beginning, or the crystallisation of a new customary international law, as has been repeatedly articulated in the post-millennium proliferation of writing on the jus ad bellum, is to misunderstand the nature of customary international law. Kretzmer handles this point with deftness when he writes ‘the only basis for unilateral use of force against another state or against non-state actors in its territory is self-defence under Article 51 of the UN Charter’ (pp.241-242). [As a teacher of international law on the use of force this quotation will be writ large on my course outline, hopefully saving my colleagues the task of second marking those passionate pleas for the existence of a right to humanitarian intervention.]

 The multi-disciplinary engagements and analysis, the cross fertilisation of the study of international law, in particular the law on the use of force, into politics, international relations, security studies and so forth, has developed and expanded our disciplinary horizons (and I am grateful for this) yet this has also propagated myths about the existence of the responsibility to protect as a rule, the right to humanitarian intervention as a law and the muddling of pre-emptive and imminent self-defence. Kretzmer’s article may be centred on re-engaging our understanding of the principle of proportionality under jus ad bellum, yet his deft handling of the pre-emptive / anticipatory distinction and identification of self-defence as the only basis for unilateral action demonstrate the need for continued, careful dissection of jus ad bellum by international lawyers.

Proportionality is a principle loaded in favour of powerful, technologically advanced militaries. The limited academic attention to proportionality, save the detailed account of Judith Gardam (see Necessity, Proportionality and the Use of Force by States, (Cambridge University Press, 2004), has permitted the principle to be used to explain and overlook the disproportionate gains powerful militaries access through the principle. Kretzmer, like Gardam, reminds us that the right to self-defence exists not as unrestrained right but only in the limits placed on the right.

 Post-2000 the collective security structure has not only grappled with humanitarian intervention and pre-emptive force, but as a consequence of the work of the Security Council on women, peace and security (see resolutions 1325, 1820, 1888, 1889 and 1960) states have begun to understand the necessity of understanding and incorporating women’s experiences of armed conflict into the contours of the law. Thus far initiatives have focused on international humanitarian law and international criminal law, as well as post-conflict spaces; however a return to the parameters of proportionality returns to Gardam’s wider opus on the need to understand proportionality through the spectrum of impacts conflict has on a community. Kretzmer’s writing on proportionality is sensitive to the different ways proportionality has been instrumentalised (in particular distinguishing between punitive and deterrence arguments) allowing him to identify not only elusive nature of proportionality under jus ad bellum but its nexus to the very existence and exercise of self-defence as a right under the Charter. Kretzmer thus concludes ‘the main source of disagreement and confusion flows from the lack of consensus over the legitimate ends of force employed by a state that is exercising its inherent right to self-defence’ (p.282). Kreztmer identifies the nexus between necessity and proportionality and we are reminded, in the age of targeted strikes justified as self-defence, that attention to what the parameters of self-defence are is, in fact, a question about the nature of self-defence and, indeed, when force is justified.

 And, to end, rather than reinforcing the existence of self-defence as an inherent, unbridled right of states, discussions of proportionality demands that we / states not only work within the Charter paradigm but also recall that the pacific settlement of disputes enshrined in the Charter, and in customary international law since the Hague Conferences, is a beginning not an endpoint for the development of the law.

 Kretzmer’s article is a timely reminder of the need for developed debate and analysis of jus ad bellum as law that restrains the use of force, rather than justifies it. Proportionality, and Kretzmer’s contribution, is a good place to return and to start.

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Jordan says

April 19, 2013

I wonder whether David's statement about "unilaeral" use of force is meant to save the possibility of "joint" uses of armed force, especially joint force authorized as "regional action" under Article 52 when Article 53 does not control because the Security Council is veto-deadlocked and unable to authorize "enforcement action," and women and children are dying from terroristic targetings emanating from a state that remain unanswered. And I am left to wonder whether drone targetings are being criticized here because they tend to involve a much more precise use of force than cruise missiles or sending in five aircraft to engage a non-state actor target that must be engaged if terroristic targetings that are killing innocent women and children in another country are not stopped -- this, especially, from a consequentialist viewpoint.

Gina Heathcote says

April 30, 2013

Thanks Jordan - can you expand on where you see regional force fitting within the collective security regime, if not authorised by the Council?
Re: drones, I assume the issue with proportionality and drones is not the drone itself - precise or otherwise - rather contemporary decisions to use of drones in response to threats rather attacks. Similiar to provocation arguments under domestic criminal law, measuring the proportionate responses to a provocation (or a threat of potential attacks) rather than an actual or imminent attacks will prove even more difficult to measure than the issues David raises with respect to proportionality under self-defence (as it is defined under Art 51).

and a postscript - womenandchildren is a phrase I would avoid . . . yes, we can speak of civilians but I think it is not useful to group women with children or to consider women's primary experience of armed conflict as in need of protection.