Date: 27 Jun 2013

Some Reflections on Self-defence as an Element in Rules of Engagement

Download Book (4,536 KB) As a courtesy to our readers the eBook is provided DRM-free. However, please note that Springer uses effective methods and state-of-the art technology to detect, stop, and prosecute illegal sharing to safeguard our authors’ interests.
Download Chapter (1,645 KB)

Abstract

From 16 to 20 June 2007, the International Security Assistance Force (ISAF) and the Taliban were engaged in a fierce battle over Chora, Afghanistan, resulting in many civilian casualties in and around that capital city. ISAF is a coalition of states established to contribute to the maintenance of security, but which through their frequent engagement in actual warfare have become parties to the armed conflict in Afghanistan. As a result, their actions are governed by international humanitarian law. This includes the prohibition of indiscriminate attacks, i.e. attacks expected to cause civilian casualties at a level excessive in relation to the military advantage anticipated. The hostilities in and around Chora have given rise to the question whether they might have violated this prohibition (a question ultimately answered in the negative). In this debate, self-defence was among the arguments raised in justification. Self-defence usually figures as a standard clause in the rules of engagement. These are texts which, established by commanders, permit or limit the use of force by their armed forces. The chapter briefly discusses the character of these instruments and of the clauses they contain. The focus is in particular on the self-defence clause. Self-defence may be individual or collective, and it may arise on three different levels: as national self-defence, unit self-defence or individual self-defence. National self-defence is the right for states to defend themselves against an attack or imminent attack. Unit self-defence is a notion generally accepted in military practice without having a firm legal basis in most countries. In contrast, individual self-defence is recognised in every domestic legal system. In the closing chapter, the chapter focuses on the relevant Dutch legal system, because the troops involved in the battle over Chora were Dutch forces and collective unit self-defence might have been at issue as an exculpatory argument in that case.

Frits Kalshoven is Professor Emeritus of Public International and Humanitarian Law, Leiden University, The Netherlands. Thyla Fontein is Master of Public International Law, Leiden University.