Jurisdiction is the capacity of a state to prescribe and enforce rules of law.

The capacity is obtained from

the states' sovereignty. A general principle has now emerged that a State may exercise jurisdiction if
there is a sufficiently close connection between the subject matter and the State to override the
interests of a competing State. There are several principles upon which a state can claim jurisdiction. In
civil cases, the principles range from the mere presence of the defendant in the territory of state,
nationality and domicile these include Territorial jurisdiction, Nationality principle, Passive personality
principle and the protective principle.

The border dispute between the Democratic Republic of Congo (DRC) and Rwanda has been a
longstanding issue rooted in historical, ethnic, and political complexities. The precise delineation of the
boundary between the two countries has been a source of contention, with both sides claiming
ownership of certain territories. This dispute has often been exacerbated by factors such as resource
competition, historical grievances, and internal conflicts within each country.

The escalation of tensions between DRC and Rwanda leading to threats and military action can be traced
back to a series of events marked by increasing hostility and confrontations. Initially, diplomatic efforts
and negotiations aimed at resolving the border dispute may have faltered, leading to a breakdown in
communication and trust between the two nations. This breakdown likely fueled suspicions and
grievances on both sides, contributing to a volatile atmosphere ripe for further escalation.

As tensions mounted, there may have been incidents along the border involving armed clashes or
provocative actions by either side, further inflaming the situation. These incidents could have resulted in
casualties, heightened fears, and a sense of urgency among decision-makers in both DRC and Rwanda. In
such a charged environment, threats and ultimatums may have been issued by one or both parties as a
means of signaling resolve or attempting to coerce concessions from the other side.

The concept of the use of force in international law pertains to the exertion of military, paramilitary, or
coercive power by one state against another1. It is a fundamental principle of international relations that
governs interactions between sovereign states and seeks to maintain peace, stability, and respect for
state sovereignty. The use of force is regulated by various international treaties, customary international
law, and principles enshrined in the United Nations Charte. Article 2(4) of the UN charter serves as a
cornerstone in regulating the use of force in international relations. It explicitly prohibits states from
using or threatening to use force against the territorial integrity or political independence of any other
state. This provision reflects the principle of non-intervention and underscores the importance of
respecting the sovereignty of all states as a peremptory norm is a norm from which States cannot
depart. This is found in Article 53 of the Vienna Convention on the Law of Treaties2,

Despite the strict prohibition against the use of force under Article 2(4)3, the Charter permits certain
exceptions to the rule. Article 51 of the UN Charter,This exception is the inherent right of self-defense,

1
malccolm N.Shaw 8th edition Intenational Law.

2
The use of force by : MUWANGUZI JOHN MARTIN LLB

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UN charter
as articulated in Article 51 of the UN Charter. This provision recognizes the inherent right of states to
defend themselves against armed attack, either individually or collectively, until the Security Council
takes measures necessary to maintain international peace and security. Article 51 recognises that a
state has a right to defend itself if IT HAS BEEN ATTACKED.The attack MUST have already happened. It is
also important to note that Article 51 talks about self-defence and not retaliation.

The right to self-defence is inherent. There must be an attack that is continuous and is likely to continue
where as retaliation is an attack of revenge. As well Article 51 also provides that the matter must be
reported to the Security Council. The right to self-defence is both individual and collective. It can be
exercised by the attacked state alone, or the attacked state can call on the help of other states as it was
in the Nicaragua case.4 where in this case, the International Court of Justice (ICJ) considered Nicaragua's
allegations that the United States had engaged in military and paramilitary activities against Nicaragua,
including support for rebel groups (Contras) and mining of Nicaraguan harbors.

it was decided that according to the International Court of Justice's pronouncement, the right of
collective self-defense under Article 51 of the UN Charter requires that the state which is the victim of
an armed attack must specifically declare itself as such. Additionally, there is no customary international
law permitting another state to exercise the right of collective self-defense based solely on its own
assessment of the situation. Therefore, for collective self-defense to be invoked, it is essential for the
victim state to request assistance from other states, explicitly inviting them to defend it. This
requirement is considered additional to the necessity for the victim state to declare itself as having been
attacked. In summary, the victim state must both declare itself as the victim of an armed attack and
formally request assistance from other states to engage in collective self-defense. The rationale behind
this approach seems fairly obvious: formally requesting assistance for collective self-defence removes
the danger of third States taking advantage of a situation and intervening in matters that do not directly
involve them.

In the context of anticipatory self-defence,Article 51 of the UN Charter that the right of self-defence
exists only if an armed attack ''occurs'' is a very controversial one its argued that when a state is
confronted by an overwhelming sense of danger, such as an imminent attack, States cannot afford to
wait for an attack to occur before they act. So, some States argue that, in those circumstances, they can
act in anticipation of an attack. This is what the notion of anticipatory self-defence‟ implies. Forexample
in 1981, Israel attacked the Iraqi nuclear reactor in Osirak and claimed to have acted in self-defence
because, it said, Iraq directed its nuclear weapons towards Tel Aviv. However Israels action was sharply
criticized by the United Security Council.

4
NICARAGUA V. UNITED STATES OF AMERICA (1986) ICJ REP 14 (THE

MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA

CASE, OR THE NICARAGUA CASE)

In The Caroline Affair5, The facts of the Caroline Affair arose from a dispute involving the USA and the
UK over some affairs in Canada. In 1837, some Canadians connived with Americans to mount an
insurrection against the British authorities, then the colonial powers in Canada. Both rebellions were
crushed, but a few rebels managed to escape to the USA, from where they continued their activities.
The rebels enlisted the services of the US steamboat, Caroline, which was used for troops and arms
mobilization purposes. The British authorities destroyed the boat and pushed her over the Niagara Falls.
In a follow-up series of communications between the US and British authorities over the affair, it fell on
British Secretary of State Daniel Webster to justify the British action to the USA. In his seemingly well
thought out letter to Special Minister Ashburton he stated that the USA had fulfilled its own duty as per
the non-intervention principle and therefore that Britain must justify its action. This case it staed the key
points a state claiming to have taken action in anticipation of an attack must prove that; there is
overwhelming evidence of imminent attack on it, it acts out of necessity, and its action is
proportionate for the attack.

However the issue of anticipatory self-defense holds significant importance for two primary reasons.
Firstly, Article 51 of the UN Charter was not originally conceived with the potential use of nuclear or
biological weapons in mind. These are the types of weapons that could be deployed without
conventional military forces crossing the borders of a country. And furthermore, if the purpose of armed
attack is to cause maximum damage to the facilities of another country— especially its military facilities
—then we can add technological attacks as another deadly means by which one country can now attack
another without visibly crossing its borders.

Secondly, Article 516did not envisage such phenomena as terrorist organizations becoming one of the
most rabid users of force against States. These entities use the most unconventional means in their
activities, such as the use of commercial bodaboda bikes by ADF of DRC in there attacks in Uganda.
What these new developments show is that Article 51 has fallen behind contemporary developments in
international affairs and technology.

In the case of DRC V UGANDA.7 In this case involved allegations by the DRC against Uganda for its
involvement in the armed conflict within the DRC's territory. The ICJ ruled that Uganda had violated the
DRC's sovereignty by engaging in acts of aggression and occupation. The ICJ reaffirmed the principle of
non-intervention and emphasized the importance of respecting state sovereigntiy.

Therefore; The threats by Rwanda to bomb parts of the DRC constitute a clear violation of the
prohibition against the threat or use of force under Article 2(4) of the UN Charter. Such threats, if
credible, would undoubtedly create a sense of insecurity and apprehension within the DRC government
and population. Here the Credibility of Threats would be measured forexample If Rwanda possesses the
means and intent to carry out such threats, they would be viewed as more credible and consequently
pose a greater threat to the DRC, the Capacity of Rwanda, Rwanda's military capabilities, proximity to
5
1837

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UN CHATER

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2005
the DRC's borders, and past military actions or incursions would all contribute to evaluating the extent
of the threat posed and the History of Aggression or Hostility here Past conflicts, border disputes, or
instances of cross-border violence would heighten concerns regarding the credibility and seriousness of
Rwanda's threats on DRC.

In response to Rwanda's threats, the DRC could potentially argue self-defense as a justification for its
actions. The principles of anticipatory self-defense, as recognized under customary international law and
Article 51 of the UN Charter, allow states to defend themselves against imminent armed attacks. In this
case, if the DRC perceives Rwanda's threats as credible and imminent, it could argue that its military
action against strategic targets in Rwanda was necessary to preemptively defend its territorial integrity
and political independence.

However, the DRC's assertion of anticipatory self-defense would depend on demonstrating the
imminent nature of the threat posed by Rwanda's actions and the proportionality of its response. The
DRC would need to provide evidence supporting the credibility of Rwanda's threats and justify the
necessity of its military action to repel the perceived threat. Additionally, considerations of
proportionality would require the DRC to ensure that its response is commensurate with the threat
posed by Rwanda, avoiding disproportionate harm to civilians or civilian infrastructure.

The Democratic Republic of Congo's (DRC) decision to bomb military strategic targets in Rwanda in
response to Rwanda's threats raises complex legal and ethical questions regarding the justification of
anticipatory self-defense. Anticipatory self-defense, as recognized under Article 51 of the UN Charter,
allows states to use force preemptively when faced with an imminent armed attack. However, the
threshold for what constitutes an "imminent" armed attack has been subject to interpretation and
debate in international law. Imminence implies that the threat is immediate and unavoidable, leaving no
reasonable opportunity for the targeted state to pursue alternative measures to defend itself. Factors
like Credibility and Imminence of Threats that Rwanda's threats were both credible and imminent.
Credibility refers to the believability and seriousness of the threats, while imminence pertains to the
immediacy and inevitability of the threat materializing into an armed attack. Factors such as the
specificity of Rwanda's threats, the capacity of Rwanda to carry out such threats, and any prior history of
aggression or hostility between the two countries would all contribute to assessing the imminence of
the threat.

Proportionality and Necessity of Response; Even if Rwanda's threats were deemed sufficiently
imminent to warrant anticipatory self-defense, the DRC's response must still adhere to the principles of
proportionality and necessity. Proportionality requires that the use of force by the DRC be
commensurate with the threat posed by Rwanda's actions. It prohibits disproportionate responses that
result in excessive harm to civilians or civilian infrastructure. Necessity requires that the DRC exhaust all
peaceful means of resolving the dispute before resorting to military action. Diplomatic efforts,
negotiations, or engagement with regional organizations should be pursued wherever feasible.

Evidence and Justification; The DRC would need to provide evidence supporting the credibility and
imminence of Rwanda's threats to justify its preemptive military action. This evidence could include
intercepted communications, intelligence reports, or prior hostile actions by Rwanda. Additionally, the
DRC would need to articulate how its response was both necessary and proportionate in light of the
perceived threat posed by Rwanda.

Proportionality and Necessity This gives the necessity of the country to make an attack as a defence.
Here even if Rwanda's threats were deemed to constitute an imminent armed attack, the DRC's
response must still adhere to the principles of proportionality and necessity. This means that the use of
force by the DRC should be no more than necessary to repel the perceived threat and should not result
in disproportionate harm to civilians or civilian infrastructure. The DRC's targeting of military strategic
targets in Rwanda would need to be assessed in light of these principles. If the bombing caused
significant civilian casualties or damage to civilian infrastructure disproportionate to the threat posed by
Rwanda, it could be considered unlawful under international humanitarian law.

Diplomatic Efforts and Alternative Dispute Resolution here the target is that before resorting to
military action, both Rwanda and the DRC should have pursued diplomatic efforts and alternative
dispute resolution mechanisms to address their border dispute. This could include negotiations
facilitated by regional organizations, mediation by third-party states or international mediators, or
referral to international arbitration or adjudication mechanisms. By engaging in dialogue and diplomacy,
the two countries could have sought to de-escalate tensions, clarify their respective claims, and work
towards a peaceful resolution of their dispute without resorting to violence.

Inconclusion.

While anticipatory self-defense allows states to respond preemptively to imminent armed attacks, the
threshold for what constitutes imminence must be carefully assessed. The DRC's response to Rwanda's
threats must adhere to the principles of proportionality and necessity, and be supported by credible
evidence justifying the seriousness and immediacy of the threat. Only then can the legality and
justification of the DRC's actions be adequately evaluated under international law or the reactions made
by DRC on Rwanda would highly be criticzed by the United National Security Council that would be
anticiaptory self defence as the case of Isearl attacking Iraq on allegations of nuclear weapons as
analysised above.
BIBOLOGRAPHY

BOOKS

International Law 8th edition by Malcolm N, Shaw

The law of use of force by MUWANGUZI JOHN MARTIN makerere university

Public International Law by Dr.D. Bhuvaneswa