The question raises 3 questions which are,
1. What is Anticipatory self defense? Was Rwanda's threat an immnent attack?
2. Was DRC's bombing of Rwanda's military Necessary?
3. Was DRC's bombing proportional with Rwanda's threat or attack?
But by not rushing let's go step by step.
The Law before 1945
The concept of the Just war doctrine
Before 1945, the concept of the just war doctrine played a significant role in determining
the legality and legitimacy of war. This doctrine, which dates back to ancient times,
outlined the conditions under which a war could be considered just, including factors
such as just cause, legitimate authority, right intention, probability of success,
proportionality, and last resort.
Additionally, the positivist school of thought upheld the sovereign right of states to resort
to war as a means of resolving disputes. This approach emphasized the importance of
states' autonomy and independence in decision-making regarding the use of force.
Despite these principles, there were several attempts at prohibiting war before 1945. One
notable example is the Covenant of the League of Nations, which was established in 1919
as a way to prevent future conflicts through collective security and international
cooperation. However, the League ultimately proved to be ineffective in preventing the
outbreak of World War II.
Another important initiative was the General Treaty for the Renunciation of War, also
known as the Kellogg-Briand Pact, signed in 1928. This treaty was a multilateral
agreement in which states renounced war as a means of resolving disputes, recognizing
that it was not a legitimate tool for achieving national interests. While the Kellogg-Briand
Pact did not fully succeed in preventing war, it laid the groundwork for future efforts to
outlaw aggressive warfare and promote peace through international law.
Period after 1945 witnessed important advancements in international law aimed at prohibiting
war, promoting peace, and protecting human rights during times of conflict. While challenges
and conflicts persist in the contemporary international system, the legal framework established
in the aftermath of World War II serves as a critical foundation for addressing global security
threats and promoting a more peaceful world.
Non intervention principle.
The general principle is that international law recognizes the autonomy of individual states and
their right to freedom from coercion and to the integrity of their territory. The basic
principle is found in Article 2(4) of the UN Charter "all members shall refrain in their
international relations from the threat or use of force against the territorial integrity or political
Independence of any state or in any other manner inconsistent with the purposes of the United
Nation"1
No state shall organize, assist, forment, finance, incite or tolerate subversive, terrorists or
armed activities directed towards the violent overthrow of the regime of another state or
interfere in civil strife in another state2 In Corfu
3
Channel Case in this case the British warships which had been struck by mines while exercising
the right of innocent passage in Albania territory, Britain sent additional worksheets to sweep
the minefields within Albania territory. When Albania sued Britain, Britain put a defense that it
was "self help" the court was unable to accept it and held that it was unlawful intervention.
The UN Charter and the prohibition on the use of force.
Article 2 (4)4 All members shall refrain in their international relations from the threat or use of
force against the territorial integrity and political independence of any state, or in any other
manner inconsistent with the purposes of the United Nations.
Concept of Use of force: The
concept of "force" has been a debated ever since the adoption of that Charter in 1945 but the
prevailing view is that it is limited to and measures5. Therefore while various forms of non
armed means coercion, such as economic and political measures may constitute breaches of
sovereignty or infringe a principle of non-intervation they will not constitute 'force'. It is also
important to note that the use of force on the basis of consent (invitation) from a host state is
not prescribed by Article 2 (4) of the Charter. In Nicaragua case – Indirect use of force is also
prohibited, threat of force also, not only use but also threat of force is prohibited. ‘Threat of
force’ means an ultimatum announcing recourse to military measures it certain demands are
not accepted. - The General Assembly requested the ICJ to provide an advisory opinion
on whether the threat or use of nuclear weapons was permitted under international law. ICJ in
1
UN Charter
2
Declaration on principles of international law concerning friendly relations and cooperation among the states General
Assembly resolution 2625 (XXV)
3
(1949)ICJ Rep
4
United Nations Charter 1945
5
Commentary (Oxford University Press, 2012)208-209
the Opinion on the Legality of the Threat or Use of Nuclear Weapons 6 Court clarified that if the
use of force itself was illegal, the threat to use such force would likewise be illegal.
In Nicaragua v US7 the court finds that both parties take the view that the principles as to the
use of force incorporated in the UN Charter corresponds in essentials to those found in
customary international law (Opinion juris) A separate opinion was filed by judge Settle
Camara firmly believes that " the non use of force as well as non-intervation - the letter has a
corollary of equality of States and self determination-I'm not only Cardinal principles of
customary international law but could in addition be recognized as peremptory rules of
customary international law which impose obligations on all states"8
Prohibition on the use of force has not just started -
Under the 1919 post first world war covenant of the League of Nations, member states agreed
to submit a dispute 'likely to lead to a rupture' to either arbitration, judicial settlement or
inquired by the league's Council and agreed that resort to war had to wait until 3 months after
the award by the arbitrators or judicial decision or the report by council 9
- The first effort to limit the substantive right over states to resort to war was the adoption of
Paris in 1928 of the general treaty for renunciation of war as an instrument of national policy
also known as the Kellogg Briand Pact in which the parties renounced war as an instrument of
dispute settlement.10
Currently
- The United Nation Charter entered into Force on 24th October 1945, at its score the UN is
about securing stability, preventing the use of unilateral force and thereby save succeeding
generations from the source of war11.
There are two different views on the interpretation of Article 2(4) of the Charter:
(1) The permissive view; and
(2) The restrictive view.
6
(1996)ICJ
7
(1986)ICJ
8
Introduction to public international law by Joaquin.G.Bernas, SJ pg 296
9
Article 2 of covenant of league of Nations(1919)
10
Article 2 of General treaty for the renunciation of war as an instrument of national policy (1928)
11
Preamble to the UN Charter (1945)
Permissive view: According to this view, Article 2(4) does not lay down a total ban on the use
of force and States are still permitted to use force in quite a number of situations, for example:
(1) Use of force in anticipation of a future attack
; (2) Use of force to rescue nationals abroad
(3) Humanitarian intervention;
(4) Regime change (intervention for democracy).
Restrictive view: According to this view, the Charter brought about a radical alteration in
States’ right to use force.
• Article 2(4) lays down a total ban on the use of force save only where explicit exceptions are
made in the Charter itself.
• The Charter allows only two exceptions to the principle of non-use of force, namely:
(1) Self-defence under Article 51; and
(2) Enforcement action under Chapter VII of the Charter.
What to Note is that : Restrictive view is the established law. An analysis of authorities reveals
that the overwhelming majority of jurists accept the restrictive view that Article 2(4) of the
Charter contains a total prohibition of the use of force.The State practice also favours this view.
Out of the 192 UN Members, only two States (US and Israel) rely on the permissive
interpretation. Therefore, the correct interpretation of Article 2(4) is that any use of force by a
State for whatever reason is banned unless explicitly allowed by the Charter of the United
Nations.
Article 3912 specifies that the security Council initially determine the existence of any threat to
the peace, breach of the piece, or acts of aggression.
Article 40 authorizes the security Council to call on the parties to a dispute to comply with the
such provisional measures it may dim necessary to prevent an aggravation of the situation.
Articles 41 and 4213 provides the council with the authority they need to resolve a matter in
order that international Peace and security is maintained. Under Article 41 the security Council
may take measures not involving the use of force and it may make binding calls upon the
members of the United Nations to apply such measures noncoisive measures may include,
complete or partial interruption of economic relations and of rail, sea,air, postal, telegraphic,
radio and other means of communication and the severance of diplomatic relations.
Traditionally allowable Coercive Measures
12
UN Charter
13
UN Charter
- Retorsion: forms of retorsion includes shattering of ports professors of an unfriendly state,
revocation of tariff concessions not guaranteed by treaty or the display of naval forces near the
Waters of an unfriendly state. - Reprisal denotes any
kind of forcible or coercive measures whereby one state seeks to exercise a deterrent effect or
obtaining redress or satisfaction directly or indirectly for the consequences of the illegal at of
another state which has refused to make amends for such illegal.
- Embargo is another lawful measure which might also Pacific, as when a state keeps its own
vessels for fear that it might find their way in foreign territory. They can also be corrective
embargo eg on import of drugs or of oil. - Another is
Boycott which is a form of reprisal which consists of suspension of trade or business relations
with the Nationals of an offending state.
Exception of Prohibition on the use of force
Jus ad bellum, or the justice of war, refers to the ethical and legal principles that govern the
justification and initiation of war. In the context of the situation between Rwanda and the
Democratic Republic of Congo (DRC), several key aspects of jus ad bellum come into play. As
discussed below.
The use of force in self-defense constitutes and exception to the prohibition on the use of force
in Article 2 (4). Article 51 of the charter provides that, "nothing in the present charter shall
impair the inhalent right of individuals or corrective self-defense if an armed attack occurs again
it's a member of the UN Nations, until the security Council has taken measures necessary to
maintain international Peace and security. Measures taken by members in the exercise of this
right of a self-defense shall be immediately reported to security Council and shall not in any
way affect the authority unresponsibility of the security Council under the present Charter to
take at any time such action as it seems necessarily in order to maintain or restore international
Peace and security. In Nicaragua the ICJ stated that that time testifies to the existence of
the right to self-defense under customary international law that exist alongside article 51 of the
UN Charter.
The right to self defense is triggered by an armed attack . An attack must be of a certain
intensity to trigger a right to self defense and not all uses of first prescribed by Article 2(4)
qualify. In Oil platforms case (Islamic Republic of Iran v United States) 14 the ICJ noted that that
mining of a single military vessel might be sufficient to trigger a right to self defense, thus only
acts producing or likely to produce very serious consequences such as territorial invasions,
human fatalities or massive destruction of property will suffice to constitute an armed attack
that triggers are right to select defence. In Nuclear weapons, the ICJ stated that the news on
14
(2003) ICJ
the use of force in a charter do not refer to any specific weapon but apply to any use of force
regardless of the weapons employed15
On 18 March 2014 Russia annexed Crimean peninsula in Ukraine after a Russian intervention
and a local referendum in which an overwhelming majority had devoted to leave Ukraine. The
Russian intervention consisted of the use of armed Force by members of the Russian armed
forces best in the city of Sebastopol pursuant to a treaty between the Russia and Ukraine and
the introduction of Russian servicemen (the infamous 'Little Green Men') copiloting along local
pro Russian militias. The Russian acts constituted armed attack on Ukraine that's triggered are
Ukrainian rights to select defense and the article 51 of the chapter.
The rationale for the rights to self defense is limited to offering a state and the attack the legal
justification to use Force to halt and repel the attack for the time necessary for the you United
Nations security Council to have the opportunity to take control of the situation.
Series of small scale attacks individually sufficiently grave to constitute an armed attack ?
One real-life example of this is the case of Israel's airstrikes in Syria in response to what they
claimed were repeated provocations and attacks from Syrian territory. Despite the attacks
being of a smaller scale, Israel argued that they were acting in self-defense to protect their
national security and prevent further attacks.
In the 2004 advisory opinion by the International Court of JusticeICJ) on the Legal
Consequences of Construction of a Wall in the Occupied Palestinian Territory, the ICJ affirmed
that a state can invoke the right to self-defense in response to an armed attack, even if the
attack is not a large-scale, full-blown war. The ICJ emphasized that the inherent right to self-
defense is not limited to responding to large-scale attacks, but also extends to a series of small-
scale attacks that collectively pose a threat to the state's security.
Collective self defense
Article 51 not only permits individual but also corrective self-defense and depending on the
circumstances a state may therefore be entitled to use the force in the defense of another state
that has been the victim of the attack. According to the ICJ resort to collective self-defense
under customary international law requires the attacked state to declare itself and attack and
make a liquid for assistance.
In Gulf War case16. Following Iraq's invasion of Kuwait, the United Nations Security Council
(UNSC) member states to use force to expel Iraqi forces from Kuwait. This collective action by
15
Legality of the threat or use of nuclear weapons advisory opinion (1996)ICJ
16
1990-1991
multiple states, led by the United States, was justified as an act of collective self-defense to
restore international peace and security in the region.
In NATO intervention in Kosovo17. NATO member states invoked collective self-defense to
protect the civilian population in Kosovo from the ethnic cleansing and human rights violations
carried out by Serbian forces. This intervention was seen as necessary to prevent further
atrocities and maintain regional stability.
In North Atlantic Treaty Organization case (NATO) itself is a prime example of collective self-
defense. Article 5 of the NATO treaty states that an armed attack against one or more member
states shall be considered an attack against all members, and each member has the right to
take collective self-defense measures. This principle was invoked for the first time in response
to the terrorist attacks on September 11, 2001, leading to collective military action by NATO in
support of the United States.
The anticipatory self-defense doctrine
States may be entitled to resort to anticipatory self defense against the unexpected assault
when the threat is imminent. This view was expressed a 2004 High level Panel on Threats,
challenges and change established by the UN Secretary General18
The anticipatory self-defense doctrine can, however, justify unilateral action. Authority for
anticipatory self-defense is not literally set forth in the text of the U.N. Charter. Indeed, because
of the absence of an explicit textual endorsement of anticipatory self-defense, many experts do
not accept its legitimacy. However Article 51 does provide in relevant part that “nothing in the
present Charter shall impair the inherent right of individual or collective self-defence .." Among
those that do believe in the legality of anticipatory self-defense, they usually argue it is derived
from Article 51’s reference to the “inherent” right of self-defense.
Most scholars point to the1837 Caroline incident as the most important event admitting the
doctrine.
In the Caroline case Caroline was a boat used to transport supplies to Canadian rebels.
Despite her being moored in U.S. territory, British forces entered the U.S., boarded the vessel,
killed an American crewman, set the ship on fire, and sent it over Niagara Falls. In the ensuing
diplomatic uproar, the British claimed their action was justified in self-defense. Daniel Webster,
then Secretary of State, addressed this claim in a response to the British Ambassador Webster
conceded that a “just right of self-defense attaches always to nations as well as to individuals,
and is equally necessary for the preservation of both.” When “clear and absolute necessity”
17
1999
18
Report of the secretary general's high level panel on the threats challenges and change (2nd December 2004)
warrants it a state, Webster contends, can use force in self-defense. Moreover, Webster's
further articulation that the necessity for self-defense must be “instant, overwhelming, leaving
no choice of means, and no moment for deliberation” has come to define the prerequisites for
anticipatory self-defense.
Legality Of Anticipatory Self defense.
"Jus in bello" is a Latin term that translates to "justice in war." (Laws of war) It refers to the
ethical principles and legal norms that govern the conduct of parties involved in armed conflict,
particularly focusing on how the war is fought once it has begun. Jus in bello deals with the
rules of engagement, ethical considerations, and limits on the use of force during warfare to
minimize unnecessary suffering and protect non-combatants. Overall, jus in bello seeks to
uphold principles of morality, humanity, and international law even in the harsh reality of
armed conflict. It plays a crucial role in minimizing the impact of war on vulnerable populations
and maintaining a semblance of justice and dignity amid the chaos of battle.
Necessity, proportionality and imminent are the required elements for self defense to be
lawful and to recognize the principle of Jus in bello.
Necessity means that a state must ascertain if they are more peaceful means of redress are
available before resorting to use of force in self defense, this means that self-defense is a use of
force as a last resort. In the Caroline case, the Us Secretary of State Daniel Webster said that
the state alleging a right to use a selfie defense is under an obligation to show a necessity of self
defense instant, overwhelming leaving no choice of means and no moment for deliberation. In
Gabcikovo-Nagymaros Dam case19 the ICJ considered the necessity of Hungary’s actions in
abandoning a joint project with Slovakia. The court balanced environmental concerns with the
necessity of ensuring equitable use of the Danube River.
The requirement of proportionality requires the victim state to strike affair balance between
the armed attack and the measures taken to stop it. To properly assess the proportionality of
use of force it is first necessary to identify the legitimate aim of the use of force and then to
determine whether the amount of force is a the necessary or excessive in order to achieve that
aim. In Nicaragua v. United States case20 the International Court of Justice (ICJ) considered
whether the U.S. support for the Contras in Nicaragua violated the principle of proportionality.
The ICJ ruled that the U.S. had breached its obligations by mining Nicaraguan harbors, as it was
disproportionate to the threat posed by Nicaragua.
19
(1997)
20
(1986)
Immediacy requirement: Imminence refers to the immediacy or proximity of the threat. For
self-defense to be lawful, the threat must be actual or imminent. Imminent threats are those
that are about to occur or are already unfolding. Qassim Soleimani Case, The killing of Iranian
General Qassim Soleimani by a U.S. drone strike in January 2020 sparked debate over the
imminence requirement. Some argued that the attack was anticipatory self-defense, while
others questioned whether the threat was truly imminent. According to the UN Charter, states
can use defensive force only when the threat is actual or imminent.
Analysis:
So the question have raises 3 questions,
1. Was Rwanda's threat an immnent attack?
2. Was DRC's bombing of Rwanda's military Necessary?
3. Was DRC's bombing proportional with Rwanda's threat or attack?
A threat of bombing by Rwanda depending on the specifics of how and when they intended to
carry out the threat could be perceived as an imminent attack. Under the principal of
Anticipatory self-defense a threat can be considered imminent if it is clear, immediate, and
overwhelming leaving no choice of means and no moment for deliberation.
On whether daddy DRC bombing was necessary depends on the circumstances surrounding
Rwanda's initial threat. Necessity in this context refers to need to respond immediately for self-
defense. If the Rwandan cigarette was immediate and concrete the DRC's decision to bomb
strategic military targets in Rwanda might be justified as necessary under self-defense.
However analysis of alternatives that were less destructive should also be considered.
On proportionality the defensive action should not exceed what is reasonably necessary to
defend against the attack and it should not inflict any necessary suffering. Since Rwanda had
not yet executed the attack the proportionality of DRC.
In conclusion, the decision of the Democratic Republic of Congo (DRC) to bomb strategic
military targets in Rwanda in response to a threat of bombing hinges on several key principles
of international law. The concept of anticipatory self-defense allows for preemptive action if
the threat is clear, immediate, and overwhelming, leaving no choice of means and no time for
deliberation. The necessity of the defensive action depends on the immediacy and
concreteness of the threat posed by Rwanda, with a focus on responding immediately for self-
defense. Proportionality also plays a crucial role, requiring that the defensive action does not
exceed what is reasonably necessary to defend against the attack and does not cause
unnecessary suffering. Ultimately, while the DRC may have felt compelled to take preemptive
action against Rwanda, the analysis of alternatives and the consideration of less destructive
means should also be factored in when assessing the proportionality and justification of their
response.
BIBLIOGRAPHY
Statute.
CHARTER OF THE UNITED NATIONS
Books.
INTRODUCTION TO PUBLIC INTERNATIONAL LAW BY JOAQUIN G. BERNAS, SJ
INTERNATIONAL LAW BY ANDERS HENRIKSEN
Case laws.
