Preemptive Self-Defense, Customary International Law, and the Congolese Wars

  • 2017

Preemptive Self-Defense, Customary International Law, and the Congolese Wars

Author:
Patrick Kelly
Abstract:

Perhaps no event—aside from the Rwandan Genocide itself—demonstrated both the failings and urgent need for effective international law than the First and Second Congolese Wars. However, these conflicts occurred not merely due to a state of lawlessness, but rather, state actors—notably Rwanda and Uganda—would claim their actions were completely in keeping with international rules governing military intervention. In contrast, the Democratic Republic of the Congo alleged violations of both international and humanitarian law occurred from such acts of armed intervention.

Initially considered invalid by the ICJ—which claimed the actions of both countries were not in keeping with the language of the UN Charter and, thus, in violation of international humanitarian and human rights obligations—the actions of Rwanda and Uganda were not entirely different from that described in the National Security Strategy of 2002. What seems to have undergone a change is the acceptance of preemptive self-defense—especially when combating non-state actors like al-Qaeda and the Taliban. Certainly, the post-9/11 security demands of the international community motivated this change. The ICJ has yet to review the matter of preemptive self-defense; however, the practice and policy of states—most notably the United States—has instead begun to incorporate a claim of preemptive self-defense into customary international law. Retrospective analysis would likely see the actions of Rwanda and Uganda, at least in part, validated. The effects of this development have yet to be fully experienced, though if nothing else, it demonstrates the dynamic nature of customary law.