The Right to Self-Defence

Appropriately lost amongst the headlines of contemporary turmoil and tragedy is the commencement of the trial for five former Blackwater security contractors charged with manslaughter, murder and illegal use of weapons stemming from the 2007 shooting and killing of seventeen Iraqis in Baghad’s Nisour Square – the charges against the men pertain to fourteen of the seventeen people killed. 

As a result of a 2009 dismissal of an initial trial followed by the successful appeal of the 2009 decision in 2011, it has taken nearly seven years to test the legal validity of the claim that the shooting in Nisour Square was done in self-defence.  And this is why the trial is actually an important global event; a minute event, but an important one nonetheless. 

The right to self-defence, of an individual person or an organization of people such as a nation-state, is held, globally, as a customary, codified and, for some, commonsensical right.  Whether a divine, natural, legal or political provision, the right to self-defence is globally accepted as a foundational right that governs how people and organizations of people may interact violently.  Globalized acceptance does not mean globally minded practice however.  Determining for whom, when and how self-defence can be legitimately claimed and enacted is too often fraught with inconsistencies, contradictions and hypocrisy’s that afford the powerful, the privileged, the “strong” the right to defend themselves, whilst determining other forms of violence, particularly those directed at/against the powerful, privileged and strong, to be illegitimate. 

In this trial, it would appear as though the powerful, privileged and strong are being held to account for their enactments of violence.  Even if the defendants can prove that they were not the aggressors in Nisour Square, the prosecution can still mount a convincing case that the force exercised by the contractors was reckless and excessive and thus illegitimate.  That the former contractors are being held to account through judicial proceedings must be lauded as one of a few serious efforts to hold security contractors to account for heinous actions perpetrated in Afghanistan and Iraq. 

It also must be recognized as a privileged proceeding for the men being charged.  This trial is a privilege and thus globally meaningful, at least when it comes to the exercise of legitimate violence, because too few instances of self-defence are subject to judicial proceedings, let alone other forms of collective oversight and too many instances of excessive and reckless violence are “legitimized” through inequitable and discriminatory processes, which allow certain people and organizations of people to effectively enact let alone claim self-defence.

Effectively enacting defence of the self is by no means a globally equitable performance.  The capabilities of some, in this case commercial security contractors, to procure and equip themselves with both deflective (e.g. body armour) and ballistic (e.g. automatic firearms) technologies drastically enhances the potential to effectively enactment self-defence.  Indeed that is the very point of commercially sourced security guards, which is to say that commercial security contractors are themselves a technology of self-defence of those they’ve been hired to guard – and commercial contractors do not come cheap. 

To claim self-defence would seem to require significantly less resources than to effectively enact it, however, the deployment, adornment and/or brandishing of technologies of self-defence works to enhance the functionality of some claims over others.  By this I mean to say, that the deployment, adornment and brandishing of technologies of self-defence is the most effective method of claiming the right.  Claiming and enacting self-defence does not prescribe whether one will be successful, however, to claim self-defence without or with hampered access to the technologies that can enhance the potential for a successful defence can hardly be considered to be an effective claim. 

The legal and emotional consequences of this trial are not likely to extend beyond those most immediately involved in it.  However, it will be exceedingly interesting to see how both the prosecution and the defence determine whether the Blackwater contractors legitimately acted in self-defence.  It will be even more interesting and meaningful to see if the prosecution or the defence deploy methods of determination that either mitigate or exacerbate the inequitable/discriminatory access to and enactment of self-defence. 

I am not hopeful for the latter, but even so, this trial will serve as a minute demonstration of the mutability and contingence of the so-called immutability and inherency of the right of self-defence.  Recognizing the mutability and contingence of the right to self-defence is a first step towards conceptualizing and codifying a practice that is more globally minded, i.e., a practice which is non-exclusionary.

Chris Hendershot
PhD Candidate & Graduate Fellow 
York Centre for International and Security Studies