The sovereign right to self-defense is a fundamental principle under international law. Individual soldiers engaged in armed conflict and their units are universally recognized to have a right to self-defense, known as individual and unit self-defense respectively. Soldiers might also be authorized to fire on more ambiguous threats where they see an individual engaged in what is interpreted as a ‘hostile act’ or demonstrating ‘hostile intent’.
While traditionally the concept of soldier self-defense was rarely used as an exception to the rule in conflicts, it has emerged as a legal paradigm in contemporary times. A new comparative empirical study by the Global Public Policy Institute (GPPi) discloses that the vast majority of times soldiers have fired their weapons in Afghanistan in self-defense or in response to a sign of hostile intent. The study, titled ‘When Looks Could Kill: Emerging State Practice on Self-Defense’, compares the way the four NATO countries of United States, United Kingdom, France and Germany, have applied concepts of self-defense and hostile intent in Afghanistan and also sheds light on how the practice affects civilian protection and mission accomplishment in conflict, stabilization and peacekeeping contexts. Previously, the self-defense paradigm was also used by the United States to justify the US take-down of an Iranian drone and a Syrian warplane over Syria last month as well as many US strikes in Somalia and other regions of Africa.
The study shows that soldiers belonging to countries with limited self-defense interpretations faced difficulty in dealing with ambiguous threats while those with broad interpretations and hostile intent were a principal cause of civilian casualties in Afghanistan. Hence, a too narrow or too broad self-defense interpretation can put either soldiers or civilians’ lives in danger. A preliminary study on the topic by Harvard National Security Journal ‘Reconceptualizing Individual or Unit Self-Defense as a Combatant Privilege’ also discusses how the ambiguity surrounding the standards of self-defense have raised issues of accountability of states under international humanitarian law.
Self-defense has emerged as an increasingly prominent justification in practice, but one whose underlying foundation and criterions are vague and under-developed. Lack of vigorous discussion on the subject, no fixed standards guiding self-defense, and no common understanding of its relationship with other International Humanitarian Law (IHL) principles make it more abstruse. State practice differs significantly, and there is noteworthy uncertainty even within each state’s practice and jurisprudence. How self-defense is understood and used is important because as it is used in practice, self-defense appears to offer an independent framework for use of force, distinct from IHL. Part of the reason that there has been so little discussion of these conceptions is that they have been treated as tactical rules and elided from legal discussions. Thus, what is called for is a more considered development of this doctrine, with specific attention to some of the issues that have already arisen in practice.
The GPPi study has jotted own few recommendations in this regard to minimize the civilian causalities as well as provide the soldiers with certain measures to defend themselves proficiently. The study recommends that all states ought to elucidate their positions on self-defense, hostile act, and hostile intent concepts. It should also take into due consideration as how standards extracted from other bodies of law is decoded in soldier’s self-defense and its linkages with IHL. The issue of defining, coping and putting limits on the degree of response to hostile intent needs to be elaborated further. Safeguarding consistent protection standards for civilians across all armed conflict situations should be the primary objective in the whole progression.
See full report here
This summary is written by Saddam Hussein and Sitwat Waqar Bokhari, who work as research fellows at the Center for Research and Security Studies (CRSS), Islamabad.