07 April 2022

Legitimate self defence


Legitimate self defence


Topic by Ines

Essay by Lawrence


Let us be clear, matters of self defence and legitimate self defence are the concern of legal jurisprudence. But this assumption depends on whether there is legitimate law and order in a specific jurisprudence. What I mean by this is whether the legal system that is defining what is legitimate is itself subject to reasonable standards of justice based on common notions of civilization. So was the legal system in Germany under the national socialists of reasonable standards following the civilized notion of what is reasonable?


First and foremost we usually associate the term self defence with individual defence against someone else inflicting violence on the individual. However, we also apply the term self defence to acts of war and conflict. And I would argue that it would be more reasonable to consider self defence for acts of war or conflict since individual cases of self defence are better served by a legitimate legal system. This is only partly true, because it is a matter of evidence and facts whether acting in self defence was proportional and reasonable. Indeed, but would a future “Claus von Stauffenberg” successfully argue that his attempt to kill Hitler by exploding a bomb during a meeting with Hitler and his staff was an act of self defence or even an act of altruistic self defence?


There is also another aspect to our topic on self defence: acts of self defence can be to protect one’s self and acts of self defence to protect others. Whilst the test of proportionality still applies whether one is acting in self defence or protecting others, what makes the act of protecting others different is the altruistic element of the action.


But can we extend this principle to defence alliances amongst countries? Would it make sense to extend this principle to the Collective defence – Article 5 of NATO? (NATO https://www.nato.int/cps/en/natohq/topics_110496.htm)  Is Article 5 an act of self defence by members of NATO or an altruistic act of self defence to protect allies? Indeed would a “Claus von Stauffenberg” attempted assassination of Hitler be a legitimate act of altruistic self defence (during war time) or is it simply murder (attempted murder) by a reasonable legal standard based on objective standards of civilization?


Again, was the Anglo-Polish alliance of 1939, where both countries agreed  to mutual assistance in a case of war with Germany, an agreement based on mutual acts of altruistic self defence? It is true that the UK declared war on Germany when Hitler invaded Poland, but in terms of effectiveness we can hardly say it was a successful alliance especially for Poland. To mitigate this failed alliance by declaring war on Germany it meant that Britain was hardly equipped to protect itself and the distance between the two countries was not easily bridged with the technology of the time.


Today these altruistic alliances are failing a country as we speak: I am referring to the Budapest Memorandum of 1994 (part of the Treaty on the Non-Proliferation of Nuclear Weapons - https://en.wikipedia.org/wiki/Budapest_Memorandum_on_Security_Assurances) which was supposed to guarantee the sovereignty of Ukraine by the US, UK and the Russian Federation. But twice the UK and USA failed to protect Ukraine from full scale invasion by Russia.


The philosophical issue here is whether the acts of self defence and especially altruistic self defence have to succeed to qualify as acts of self defence? And although alliances and treaties are recognised in international law, how robust are they when it comes to the test? Poland and Ukraine demonstrate that these alliances are not that robust. How robust is Article 5?


So, I would argue that self defence is first and foremost a matter of context. In a just war, which we might want to classify as a self defence war, context is the motivating force to use lethal weapons. The problem here is that we tend to focus on the post aggression part of self defence, but very little is considered on the pre conditions that led to an act of self defence. What effect do the pre aggression factors play on the status of a legitimate self defence?


Consider the situation when an individual visits an entertainment place that is well known to attract drug dealers and other sorts of criminals, and this person gets involved in a fight.  If the individual pulls a gun and shoots an attacker would this be a legitimate act of self defence from a moral perspective? But consider an example at the opposite end of the moral spectrum. If the UK and USA offered direct in-theatre defence help to Ukraine, would this be a legitimate act of treaty obligation and altruistic self defence? Remember the context here is that Ukraine gave up ample means to protect itself in exchange for protection from the UK, USA and ironically Russia.


The failure of the Budapest Memorandum and the 2014 and 2022 invasions by Russia of Ukraine means that nuclear weapons are a deterrent: if Ukraine did not give up its nuclear weapons there wouldn’t have been the 2014 and 2022 Russian invasions. Is the war in Ukraine a legitimate reason for countries to arm themselves with nuclear weapons? Once cannot argue against the principle of taking precautions to protect one’s self.


The other lesson is that altruistic self defence is not as robust as we might want to think. Treaty alliances or even gang agreements are very weak at providing altruistic self defence when needed. At the individual level maybe altruistic self defence might be more robust since the results can be seen immediately.


Best Lawrence


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