Deconstructing self defence
by George Hatjoullis
The concept of self-defence as a legal defence is well established in law. However, it is not an unbounded defence. It usually comes with some notion of reasonable force. The amount of force the law will retrospectively allow that you could have used will depend upon the circumstances. To kill in self-defence when your life was not in danger and could not reasonably have been interpreted as having been in danger might place you the wrong side of the law. Different countries have different benchmarks of what constitutes reasonable but the concept of a cap on what force can be applied in self-defence seems universal.
So it is in international law. The various conventions and notions of war crimes imply that even nation states have limits on the legitimate use of force in self-defence. The equivalent concept is ‘proportionate’ force or response. The difference is that domestically the process of making such judgements is managed by a judicial system whilst in the international context it is managed by a political process and subject to negotiation. This inevitably leads to inconsistencies. If a nuclear power is attacked by a non nuclear power using conventional weapons would it be reasonable to use nuclear weapons to eliminate the enemy? I think the consensus would be that it would not be reasonable. This is the extreme position from which we can now slowly iterate back. Would it be reasonable for the nuclear power to use nuclear weapons on one or two cities in order to persuade the enemy to cease hostilities? Once again, today, this would be deemed unacceptable (though it has happened). Would it be reasonable to use overwhelming air power to firebomb cities and kill hundreds of thousands of civilians in order to terrorise the enemy into ceasing hostilities? This too would not be acceptable today (though it has happened). Would it be reasonable to use modern weapons to target military assets despite the risk of civilian casualties? This is a grey area and one that seems to elicit different responses from different people depending upon the context.
If the more powerful military nation is the aggressor then deliberately targeting military assets knowing there would be civilian casualties might well be deemed unreasonable. However what if the weaker military nation is the aggressor?The first question that needs to asked is why a weak military nation attacks a much more powerful nation. It is not immediately obvious that this is a good idea. The suspicion must always remain that they have been provoked into the action by some oppressive move by the stronger nation. It is likely to be an act of desperation and futility, an animal biting at its own wounds in desperation. If this is the case then attacking military assets without regards to civilian casualties takes on a rather different hue. What if the stronger military power also has an effective shield that minimises casualties and damage, albeit at some great expense and still leaving its own civilian population with not inconsiderable anxiety? How much force should it morally be able to use in eliminating the threat and ending hostilities? Is it morally justified in acting irrespective of the cost to the civilian population of the weaker hostile nation?
I am reminded of these matters at this time every year. On July 20, 1974 I found myself in a hotel in Lapithos on the northern coast of Cyprus. The hotel was on a promontory just beyond the landing sites of the Turkish invasion that was taking place. From the pool area (see photo) I watched the landing as if I was on the set of the Longest Day. To my left a huge battleship pounded the mountains behind the hotel. Adjacent to the pool the Greek Cypriot National Guard had brought along a single field gun and truck load of shells. They then disappeared without ever firing one shell. A few days later our transistor radio, permanently tuned to BFPS, announced that Turkish forces would treat all military assets as legitimate targets, irrespective of their location. We got the message and cowered in the hotel basement. There were at least 80 guests as well staff and assorted refugees from the fighting. The hotel was bombed and sent out a pillar of smoke so black and so high that it was concluded that we had all perished. Ironically there no casualties (apart from everyone’s mental health), and the field gun and truck of shells were not hit. The gun had never been fired.
On the other side of the mountain, and some time after we had been rescued by the Royal Navy, my future father-in-law cowered in a church with the remains of his family and many other families. He and several other men were taken out by Turkish troops and shot. The event is not in dispute only the remains have to be determined so that he can be buried and cease to be missing. He and the other men were civilians. I say the remains of his family because the day before he had witnessed his 5-year-old son shot in the leg whilst two shepherds were being executed by Turkish Cypriot militia. The mother carried the boy, bleeding, to a Turkish army officer who, to his credit, was horrified and ordered a jeep, driven by a Turkish Cypriot militia man, to take the boy to a field hospital. Two Turkish army infantry accompanied them. On the way the two infantry stopped the driver in order to rape the mother. The boy bled in the jeep. At the field hospital the distraught mother, unable to communicate with anyone, was left with the understanding that the boy had died of his wounds. She also came across her neighbour in a hospital bed covered in bullet wounds. Fearing a massacre back at her village, she hurried back without seeing the boys corpse. The boy was still alive and was eventually transferred to Ankara (all verified) but the trail stops there and the Turkish authorities refuse to help determine what then happened. The boy is listed as missing and the family still press to find the man he has become.
The question arises were war crimes committed here? Turkey has never been tried for war crimes. The only excuse that has been offered is that some Greek Cypriots also committed war crimes. No Greek Cypriot has ever been tried for war crimes either. When similar events happened in the Balkans, war crimes were charged very promptly. Why the asymmetry one is left to ask? It may seem like a long time ago but it is only yesterday to those involved.