A/HRC/44/38 location, circumstances, possibilities of armed resistance and planning involved. 100 It also means that the lethal use of force cannot be justified or allowed when it is not necessary, is likely to cause disproportionate harm or could reasonably have been avoided by feasible precautionary measures.101 B. Law of self-defence 51. In accordance with the Charter of the United Nations, all Member States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State (Art. 2 (4)). There are just three exceptions narrowly constructed so as fully protect the prohibition of the use of force: 102 (a) authorization by the Security Council; (b) State consent to an attack on its own territory; and (c) self-defence against an armed attack.103 52. International jurisprudence and State practices have largely suggested that selfdefence could only be invoked against an existing threat. However, the notion that a narrowly construed pre-emptive act of self-defence taken to prevent an imminent attack is legal under Article 51 of the Charter has been somewhat accepted,104 as long as the threat is “instant, overwhelming and leaving no choice of means, no moment of deliberation”.105 53. Yet, in the context of the so-called “war on terror”, over the past two decades a small number of influential States have sought to expand that understanding despite the large body of opinions and State practices opposing it.106 It is the view of the Special Rapporteur that these recent minority interpretations create troubling legal distortions. 54. First, they create a distortion of time. Under the expansionist interpretation, preemptive acts of self-defence may be invoked against perceived security threats, 107 including by non-State actors whose plans for attack may not yet be fully known. 108 Under this interpretation,109 imminence becomes no longer just a temporal criterion.110 Rather, an attack can be deemed imminent if it is believed that a further delay in response would prevent the State under threat to defend itself.111 Imminence is thus read into the principle of necessity. 55. Second, they create a distortion of geography. Under this interpretation, once a State has “lawfully resorted to force in self-defense against a particular actor in response to an actual or imminent armed attack by that group”, it is not necessary to reassess imminence in future attacks.112 A State is authorized to use force against particular non-State groups with 100 101 102 103 104 105 106 107 108 109 110 111 112 14 www.unodc.org/documents/justice-and-prison-reform/17-03483_ebook.pdf. Nils Melzer, Human Rights Implications of the Usage of Drones and Unmanned Robots in Warfare (European Parliament, 2013), p. 30. www.washingtonpost.com/outlook/2019/10/22/turkey-is-violating-international-law-it-took-lessonsus/. The Charter did not, however, define an armed attack; the matter was interpreted according to opinio juris confirmed by corresponding State practice. A/59/565 and Corr.1, paras. 188–192; A/59/2005 and Corr.1, para. 124. R.Y. Jennings, “The Caroline and McLeod cases”, American Journal of International Law, vol. 32, No. 1 (January 1938). A/68/382 and Corr.1, para. 87. It was however condemned by the United Nations (A/59/565 and Corr.1). Daniel Bethlehem recommends that an assessment of imminence include the nature and immediacy of the threat, the probability of an attack, information on a pattern of continuing armed activity, the scale of the attack (e.g. likely injury) and the likelihood of other opportunities to undertake effective action in self-defence that would cause less serious collateral injury, loss or damage. If there is a reasonable and objective basis for concluding that an attack is imminent, time, place and manner will not preclude the right to self-defence. See https://legal.un.org/counsel/Bethlehem%20-%20SelfDefense%20Article.pdf. www.justsecurity.org/wp-content/uploads/2017/01/United-Kingdom-Attorney-General-Speechmodern-law-of-self-defense-IISS.pdf. https://legal.un.org/counsel/Bethlehem%20-%20Self-Defense%20Article.pdf. www.chathamhouse.org/publications/papers/view/108106. https://obamawhitehouse.archives.gov/sites/whitehouse.gov/files/documents/Legal_Policy_Report.