Faculteit Rechtsgeleerdheid
Universiteit Gent
Academiejaar 2011-12
Han Shot First:
Anticipatory Self-defense in International Law
Masterproef van de opleiding
‘Master in de rechten’
Ingediend door
Sam Van den Bosch
(studentennr. 00600299)
(major: Nationaal en Internationaal Publiekrecht)
Promotor: Prof. dr. Eduard Somers
Commissaris: …………..
Anticipatory Self-defense in International Law
Introduction..........................................................................................................................................1
Goals................................................................................................................................................1
Methods and structure......................................................................................................................1
Conclusions......................................................................................................................................3
1 Notes on Language...........................................................................................................................4
1.1 Situating anticipatory self-defense............................................................................................4
1.2 Defining anticipatory Self-Defense..........................................................................................8
2 The Great Debate............................................................................................................................11
2.1 Overview.................................................................................................................................11
2.2 The restrictionists....................................................................................................................14
2.2.1 The Charter and the customary international law on self-defense..................................15
2.2.2 Customary international law and anticipatory self-defense............................................18
2.2.3 Subsidiary criticisms of restrictionism............................................................................19
2.3 The abolitionists......................................................................................................................23
2.3.1 Weakness of the two-tiered UN Charter-system.............................................................23
2.3.2 Post War Practice as a substitute for or amendment to the UN Charter-system.............25
2.3.3 Selected cases of state practice.......................................................................................25
2.3.4 Assessment of the abolitionist school.............................................................................27
2.4 The counter-restrictionists......................................................................................................28
3 Historical Evolution of the Right of Self-defense and Anticipatory Self-defense.........................30
3.1 Historical Development of the ius ad bellum prior to the First World War............................30
3.1.1 Stage 1: Romans..............................................................................................................30
3.1.2 Stage 2: Christian Theology and secularisation of the bellum justum...........................32
3.1.3 Stage 3: Post-Westphalian freedom to war and Caroline................................................34
3.2 The Caroline Incident.............................................................................................................36
3.2.1 Importance......................................................................................................................36
3.2.2 Historical events..............................................................................................................37
3.3 Self-defense in the interwar-period.........................................................................................41
3.3.1 The League of Nations....................................................................................................42
The Covenant of the League of Nations – the Treaty of the Gaps.......................................43
The Covenant and Self-defense............................................................................................45
3.3.2 The Kellogg-Briand Pact.................................................................................................46
Reservations, War and Self-defense.....................................................................................48
i
State-practice and the judgments at Nuremberg...................................................................51
Nuremberg and Tokyo..........................................................................................................53
3.4 The Charter of the United Nations..........................................................................................56
3.5 Conclusion on the Existence of a Right of Anticipatory Self-defense at the adoption of the
Charter of the United Nations........................................................................................................60
4 Dimensions of Anticipatory Self-defense ......................................................................................62
4.1 Use of force and armed attack: ..............................................................................................64
4.1.1 The Nicaragua-case.........................................................................................................64
4.1.2 Cyber-attacks as armed attacks.......................................................................................66
4.2 Imminence, necessity and proportionality..............................................................................68
4.2.1 Necessity.........................................................................................................................68
4.2.2 Proportionality................................................................................................................69
4.2.3 Imminence.......................................................................................................................71
4.2.4 Immediacy.......................................................................................................................72
5 Anticipatory self-defense and non-state actors...............................................................................73
5.1 State responsibility and territorial sovereignty.......................................................................75
5.1.1 State responsibility..........................................................................................................75
Armed Activities on the Territory of the Congo-case..........................................................75
5.1.2 Territorial sovereignty.....................................................................................................78
5.2 Self-defense vis-à-vis non-state actors...................................................................................81
5.2.1 Imminence, necessity and proportionality and non-state actors.....................................83
5.2.2 How to apply the law......................................................................................................85
5.3 Application of the law to the reported conduct of drone-warfare...........................................87
5.3.1 What “drones” are, what they are not, and why they are used........................................87
5.3.2 The use of drones in the war on terror............................................................................87
6 Self-defense and Weapons of Mass-destruction.............................................................................91
6.1 First Report of the Atomic Energy Commission.....................................................................93
6.2 2002 National Security Strategy.............................................................................................94
6.3 2003 Gulf War.......................................................................................................................100
6.4 Israeli counter-proliferation operations in 1981, 2007 and possible action against Iran......109
6.4.1 1981: Iraq......................................................................................................................109
6.4.2 2007: Syria....................................................................................................................112
6.4.3 TBD: Iran......................................................................................................................114
Current legal regime...........................................................................................................114
An existential threat............................................................................................................115
Nuclear balance..................................................................................................................117
ii
The window of opportunity before the zone of immunity.................................................120
Conclusion........................................................................................................................................122
Bibliography.....................................................................................................................................125
Treaties.........................................................................................................................................125
Resolutions by the Security Council of the United Nations........................................................126
Resolutions of the General Assembly of the United Nations......................................................127
United Nations – other.................................................................................................................127
Decisions and opinions by international courts and tribunals.....................................................128
Travaux and diplomatic communications....................................................................................129
Books...........................................................................................................................................129
Law Journals................................................................................................................................131
Newspaper articles.......................................................................................................................133
Haaretz....................................................................................................................................133
New York Times......................................................................................................................133
Washington Post......................................................................................................................135
Other newspapers....................................................................................................................135
Other sources...............................................................................................................................136
Nederlandstalige samenvatting.........................................................................................................138
iii
Introduction
Goals
This thesis well seek to ascertain the legal status of the theory of anticipatory self-defense under
contemporary international law. This includes, primarily, an investigation into the abstract legality
of anticipatory self-defense: does there exist now, and has there ever existed a right of anticipatory
self-defense.
Complementary to that inquiry will be the delimitation of said right: if a right of anticipatory
self-defense does indeed exist, what will be the extent of that right, and what is its relation to
various other flashpoints of international law. The issues of non state actors and weapons of massdestruction will thus be elaborated upon, insofar as they relate to anticipatory self-defense.
It goes without say that the primary focus will be legal status and legal arguments, rather than
moral, practical or (supposedly) strictly logical arguments and conclusions, although these
considerations may be presented whenever necessary to illustrate various popular and persistent
alternative interpretations of the law.
Methods and structure
Contemporary international law regarding self-defense lies within the purview of the United
Nations Charter, more specifically articles 2(4) and 51 of the Charter. The former containing a
general prohibition on the use of force by states in international relations, the latter providing for an
exception to said ban – the inherent right of self-defense. The word inherent is in this context often
construed as a reference to the right of self-defense under customary international law, which is
claimed to include the right of anticipatory self-defense following the Caroline-doctrine. There is
considerable discussion in doctrine on this point, the thesis will try to summarize this discord.
1
Seeing as how customary international law is an ever changing entity, where interpreting the law
at any point in time requires some (if not extensive) historical knowledge, an evolutionary analysis
seems most apt for what concerns the bulk of the thesis.
To determine the legal status and extent of the right of anticipatory self-defense, this thesis will
thus have to be structured along the following lines:
1.
Some notes on language used, to create a coherent system to be used throughout the thesis.
2.
An analysis of various existing schools of thought concerning anticipatory self-defense
under international law
3.
Determine the right of self-defense under customary law as it existed at various stages in
history before the UN Charter, insofar as relevant to determining the status of self-defense ex
customary international law under the UN Charter-system, and how anticipatory self-defense fits
into that system.
4.
Using the knowledge gained from the previous part, determine the correct interpretation of
articles 2(4) and 51 of the UN Charter, and whether or not there exists any right of anticipatory selfdefense.
5.
Determine the extent of the right of anticipatory self-defense using the framework created in
the aftermath of the Caroline-incident.
6.
Complementary to the previous step, touch upon a few topics of international law that have
special significance for the right of anticipatory self-defense, namely self-defense against non-state
actors and self-defense and weapons of mass-destruction. The use of so-called “drones” by the
United States in its fight against international terrorism will also be analyzed.
The thesis will be divided into six parts: Notes on Language, The Great Debate, Evolution of the
Right of Self-defense and Anticipatory Self-defense, Dimensions of Anticipatory Self-defense, Selfdefense and Non-state Actors, and Self-defense and Weapons of Mass-destruction.
2
Conclusions
General, overarching conclusions are included as the final part of the thesis. Intermediary
conclusions will be formulated when necessitated.
3
1 Notes on Language
1.1 Situating anticipatory self-defense
War really is going out of style. An opinion piece in The New York Times surprised quite a few
people with this provocative title.1 It goes on to state that war between nation states is an
increasingly rare and controversial occurrence. This might seem like a novel and absurd idea, given
today's many ongoing armed conflicts around the world. But not every conflict is war – certainly
not in a legal sense. As a matter of fact, for anyone versed in the jus ad bellum, the obsolescence of
war is very much old news. In this branch of international law, war was jettisoned decades ago
already, at least as a useful legal concept (although it is still of some use for the jus in bello). That is
to say, war no longer has any bearing on the right to war. Absurd as it may sound. But it is true; the
state of war between countries – very much a bilateral arrangement, really – does not confer them
the legal right to wage war on one another. In stead, the right to war has for quite some time been
conditional on a host of other factors: use of force, armed aggression, armed attack, use of force
short of armed attack and collective security measures.
Beyond that: war, for all intents and purposes, is in fact illegal. It has been ever since the 1928
General Treaty for the Renunciation of War, which reads in Article 1:
The High Contracting Parties solemly [sic] declare in the names of their respective
peoples that they condemn recourse to war for the solution of international controversies,
and renounce it, as an instrument of national policy in their relations with one another.2
This treaty is still in force for a host of nations, by the way. Not that it matters, as its content has
since been absorbed into customary international law, 3 and has a twin clause in the United Nations
Charter.4
1 J. S. GOLDSTEIN, AND S. PINKER, “War Really Is Going Out of Style,” The New York Times, December 18, 2011, SR4.
2 Treaty between the United States and other Powers providing for the renunciation of war as an instrument of
national policy (the Kellogg-Briand pact), Paris, August 27, 1928, United States Statutes at Large, Vol 46 Part 2,
2343, available online at: Yale Law School, The Avalon Project, Kellogg-Briand Pact 1928, available at
yale.edu/lawweb/avalon/imt/kbpact.htm, (last visited at May 3, 2012).
3 Infra at 51 – 55.
4 Art. 2 (4) of the UN Charter.
4
But even at the very conception of this revolutionary innovation, that war no longer is a legal
instrument for settling disputes among nations, the authors of the idea recognized one important
exception, one considered an inherent right of nations 5: the right for a state to defend itself in case
of an (aggressive) attack.6 A right reprised expressly in the United Nations Charter.7
This right of self-defense in international law is a seemingly self-evident notion with obvious
consequences. But appearances can be deceiving; the fact that this whole thesis is devoted to
exploring just one aspect of this field should be an indication as to the complex reality of the matter.
Against what does one have the right to defend, is a first unanswered question. In the travaux
and diplomatic notes of the Kellogg-Briand Pact, the threat is “war”.8 The UN Charter, on the other
hand, concerns itself with defense against “armed attack”. 9 The oft-cited Caroline-doctrine talks of
threats an sich.10 These concepts can be reconciled, to be sure, but it gives an indication of the
intricacies concerning the right of self-defense under international law.
And then there are the twin aspects of probability and temporality. Should the (potential) victim
state wait until it has suffered an actual attack before it can legally exercise its right of self-defense?
There are fundamentally two types of self-defense, one before the occurrence of an attack and one
after an attack has commenced.11 There are many scholars of international law arguing for a purely
reactive self-defense – their arguments will be considered infra.12 If any legal proactive self-defense
is acknowledged to exist13, the issue of what the outer limits of legal proactive self-defense are
becomes vital. It would be an understatement to note that literature is divided on this matter, 14 both
for what concerns the existence and the extent of a presumptive right of self-defense before an
5 The language of art. 51 of the UN Charter, concerning self-defense, refers to an “inherent right”. The right of selfdefense was not mentioned by name in the Kellogg-Briand Pact and the Covenant of the League of Nations because
it was deemed inherent to all states, seen infra at 45 and 48.
6 Infra at 48 – 50.
7 Art. 51 of the UN Charter.
8 Art. 1 of the Kellogg-Briand pact: “The High Contracting Parties … renounce [recourse to war] as an instrument of
national policy in their relations with one another.”
9 Art. 51 of the UN Charter: “... individual or collective self-defense if an armed attack occurs...”
10 Letter from Secretary of State Daniel Webster to Lord Ashburton of July 27, 1842, note of April 24,1841, from H.,
MILLER, Treaties and Other International Acts of the United States of America, Washington , Government Printing
Office, 1934,Volume 4, Documents 80-121, available online at Yale Law School, The Avalon Project, The Caroline,
available at avalon.law.yale.edu/19th_century/br-1842d.asp, (last visited at May 3, 2012).
11 D.A. SADOFF, “A question of determinacy: the legal status of anticipatory self-defense,” Geo. J. Int'l L., 2009, (523)
529.
12 The “Restrictionist”-school comes pretty close to purely reactive self-defense, but theories like interceptive selfdefense mitigate even their principles – if not in theory, then in practice. Infra at 19 -22.
13 This is most certainly not a given. A significant portion of the thesis will be devoted to investigating in depth
whether it does.
14 The entire point of chapter 2, infra at 11.
5
actual attack occurs. It is exactly this aspect which this thesis seeks to explore in depth.
First, however, an abstract exposition on the concept of self-defense before an actual attack has
occurred. If one defends against an attack that has not yet occurred, one defends against an attack
that will supposedly take place at some point in the future. This raises a number of issues right off
the bat. Leaving aside the possibility of prescience and all the paradoxes that go with it, a defending
state can never be absolutely sure when or if an attack will occur. The probability of a future attack
can never be “one” - due to the infinite amount of factors involved, mathematically absolute
certainty is illusionary.
More importantly, the victim state's knowledge will be limited. The exchange of information
between two hostile states is a haphazard affair, and any assessment of a potential opponent's
likelihood or desire to carry out an attack can be erroneous to some degree. A lot will depend on
outwardly visible elements – troop movements, diplomatic communications, mobilization, unusual
amounts of smoke billowing from the chimney of an embassy – and the quality of intelligence. If a
right of self-defense before an actual attack has occurred is to have any practical applicability, it
will take these things into account, and put the bar for evidence (the outward function of the
probability that an attack will occur) at a reasonable level, appropriate to the circumstances.15
Absolute certainty of an upcoming attack thus cannot be required as precondition for selfdefense prior to an attack, this for reasons of logic, physics and basic legal principles. On the other
hand, the probability required cannot be so low as to create an all too permissive system of use of
force in international relations. If self-defense is allowed even if the possibility of a future attack is
remote, it becomes a license to wage war entirely at will, 16 and run counter to the fundamental
principle of contemporary international law that is the non-use of force in and peaceful conduct of
international relation. Furthermore, it would be manifestly irreconcilable with the UN Charter,
which has the stated purpose of “[maintaining] international peace and security”, among others.17
A line has to be drawn somewhere along the spectrum of probability, based on certain factors –
and customary international law has provided just that. Following the so-called Caroline-incident18,
15 Art. 32 (b) VCLT reminds that no treaty may be interpreted so that it “leads to a result which is manifestly absurd or
unreasonable” - a right of self-defense must be construed so that a state can actually defend itself.
16 Keeping in mind that the possibility of any given country attacking any other country at some point in the future is
nonzero.
17 Art. 1 of the UN Charter.
18 Infra at 36 - 40.
6
the communications between officials of the United States of American and The United Kingdom
agreed on a set of conditions requisite for the legal exercise of self-defense, these conditions being
a sufficient degree of immediacy of the threat countered, necessity for the use of force and
proportionality in the actual conduct of the defense. Their theory subsequently became the
foundation of the customary right of self-defense in international law, not so much thanking to the
importance of the Caroline-incident,19 but rather trough continuous reference to the theory in
subsequent international legal practice.20 The importance of this doctrine for the legality of selfdefense prior to an actual attack, comes from the fact that the Caroline test does not proscribe the
actual occurrence of an attack, but makes reference to a threat of sufficient gravity and immediacy.21
19 The incident itself has been referred to as “a comic opera affair”: T. M. NICHOLS, The Coming Age of Preventive
War , Philadelphia, University of Pennsylvania Press, 2008, 2, via Wikipedia, Caroline test, available online at
en.wikipedia.org/wiki/Caroline_test, (last visited at May 7, 2012).
20 M. N. SCHMITT, “Preemptive strategies in international law,” Mich. J. Int'l L., 2003, (513) 530.
21 Infra at 39.
7
1.2 Defining anticipatory Self-Defense
Self-defense before an actual attack has occurred is a creature that goes by many names.
Anticipatory, preemptive, preventive, interceptive, and these qualifier welded onto either
defense, strike, or war. Unfortunately, the use of these words in literature is inconsistent at best,
often times even chaotic.22 Various authors seem to have taken to ascribing idiosyncratic meanings
to these terms, ranging from using either anticipatory, 23 preemptive24 or preventive25 as catch-all
terms for proactive (non-reactive)26 self-defense, switching up the terms or simply not making any
clear distinction.27 Taking a moment to review the language to be used for the remainder of this
thesis seems appropriate. Words matter. 28 But, inevitably, the explanations given are used to
maintain internal consistency, and might not conform to some uses in literature for reasons stated.
The use of -defense should be limited to those acts (arguably) legal under international law.
Defense is a legal right, and any action deemed illegal cannot be said to occur based on a legal
right. A preemptive strike is thus a simple descriptive term ex the ordinary meaning. Preemptive
self-defense, on the other hand, cast judgment on its legality, be it appropriate or not.
The use of -war and -strike carry no implications of legality in the context of self-defense and are
purely descriptive; war is no longer a term with any legal implications in the jus ad bellum29
(although it is still used as a legal state in the jus in bello).
The term interceptive self-defense is fairly clear-cut, and was defined clearly by its originator
Waldock: defense against not merely of threats and potential danger but of an attack being actually
22 D.A. SADOFF, “A question of determinacy: the legal status of anticipatory self-defense,” Geo. J. Int'l L., 2009, (523)
530.
23 A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 99.
24 J. D. ARMSTRONG, T. FARRELL and H. LAMBERT, International law and international relations, Cambridge - New York,
Cambridge University Press, 2007, 128.
25 R. A. MÜLLERSON, “The principle of non-threat and non-use of force in the modern world,”, in W. E. BUTLER (ed.),
The non-use of force in international law, Dordrecht, Nijhoff, 1989, 32.
26 D.A. SADOFF, “A question of determinacy: the legal status of anticipatory self-defense,” Geo. J. Int'l L., 2009, (523)
529.
27 Y. DINSTEIN, War, agression and self-defence, Cambridge, Grotius publ., 1994, 183: “… customary right of selfdefense is also accorded to states as a preventive measure, taken in “anticipation” of an armed attack...”, and at 184:
“… preemptive use of force … may come within the ambit of legitimate self-defense under customary international
law.” All three terms are thus used in reference to the same doctrine.
28 To wit, most theories concerning anticipatory self-defense hinge on just one word: “inherent”. See infra at 12.
29 A. D'AMATO, International law, Dobbs Ferry, Transnational Publishers, 1987, 77-78.
8
mounted, that may be said to have begun to occur, though it has not passed the frontier. 30 This
would quality as a form of reactive self-defense.31
The difference between anticipatory, preemptive and preventive is less clear. Read in plain
meaning, there are hardly any differences. If one preempts another actor, one prevents him from
carrying out an intended action. If one prevents an action, one precludes it from happening. If one
anticipates an action, one takes steps to mitigate, nullify or prevent the event. Anticipation requires
a high probability it would seem: the event is almost certain to occur, and one does whatever
possible to mitigate the ill-effects. Prevention, on the other hand, focuses on assuring a possible
event does not come to pass, regardless of certainty or imminence. Preemption also seeks to prevent
an event entirely, but is more focused: it prevents a planned action rather than a possible action.
Sadoff in his terminological analysis makes a distinction between anticipatory self-defense and
preemptive self-defense based on the real or perceived timing of the threat posed, where
anticipatory targets an imminent attack and preemption seeks to thwart a potential escalating
military threat.32 So we take anticipatory to mean directed against an action highly likely to occur –
and seeing as how events become less certain the farther removed in time, this implies high
immediacy.33 This mirrors a strict application of the Caroline-test, and it is thus best viewed as such:
an anticipatory use of force is a use of force that conforms to the Caroline conditions of imminent
threat, necessity, proportionality and immediacy in responding. Preemptive and preventive actions,
on the other hand, target less immediate threats.
Without spoiling the thesis, it should be noted that the only possible proactive legal action in
self-defense under contemporary international law is the one deemed “anticipatory”. Accordingly,
this thesis will focus on anticipatory self-defense, although the cases authors often make for
preemptive and preventive self-defense will also be considered.
Now that anticipatory self-defense has been contrasted to preemption and prevention, a formal
definition seems in order. The Caroline-doctrine – wherein the customary right of self-defense is
30 H.M. WALDOCK, “The Regulation of the Use of Force by Individual States in International Law”, RCADI, 1952,
(451) 498.
31 D.A. SADOFF, “A question of determinacy: the legal status of anticipatory self-defense,” Geo. J. Int'l L., 2009, (523)
531.
32 D.A. SADOFF, “A question of determinacy: the legal status of anticipatory self-defense,” Geo. J. Int'l L., 2009, (523)
530-531.
33 W. M. REISMAN AND A. ARMSTRONG, “Claims to pre-emptive uses of force,” in M.N. SCHMITT AND J. PEJIC (eds.),
International law and armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 80.
9
thought to be best expressed34 – hands us the mainstay for our definition in just on sentence:
[Self-defense can be exercised legally if the] necessity of self-defense [is] instant,
overwhelming, leaving no choice of means, and no moment of deliberation ...35
Although a general definition of legal self-defense under customary international law, it is one
that does not mandate purely reactive self-defense36, as noted supra. Anticipatory self-defense is
thus taken to mean self-defense, in anticipation of an armed attack, that passes the Caroline-test.37
Putting one and one together gives the following definition of anticipatory self-defense:
Self-defense in anticipation of an armed attack, where the necessity of self-defense is instant,
overwhelming, leaving no choice of means, and no moment of deliberation.
The exact meaning of the definition of anticipatory self-defense and its constituent parts will be
discussed infra, in later chapters of the thesis, where the extent of the right of anticipatory selfdefense will be looked at more closely. These sections merely serve to establish what anticipatory
self-defense is taken to mean in the context of this thesis, and to properly motivate the choice of
language.
Having established a linguistic framework, the various legal theories surrounding anticipatory
self-defense can now be discussed in earnest.
34 Y. DINSTEIN, War, agression and self-defence, Cambridge, Grotius publ., 1994, 182.
35 Quoted from the Letter from Secretary of State Daniel Webster to Lord Ashburton of July 27, 1842, note of April
24,1841, from H., MILLER, Treaties and Other International Acts of the United States of America, Washington ,
Government Printing Office, 1934,Volume 4, Documents 80-121, available online at Yale Law School, The Avalon
Project, The Caroline, available at avalon.law.yale.edu/19th_century/br-1842d.asp, (last visited at May 3, 2012).
36 Y. DINSTEIN, War, agression and self-defence, Cambridge, Grotius publ., 1994, 182-183.
37 T.M. FRANCK, Recourse to force, New York, Cambridge University Press, 2002, 97-98.
10
2 The Great Debate
2.1 Overview
To preface this chapter, let us for a moment consider the linchpin of contemporary international
law regarding the right of self-defense, articles 2 (4) and 51 of the United Nations Charter, for it is
their wording that has given rise to an ongoing, unresolved debate on the exact dimensions of the
right of self-defense.
Article 2
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act
in accordance with the following Principles.
4. All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.
Article 51
Nothing in the present Charter shall impair the inherent right of individual or collective
self-defense if an armed attack occurs against a Member of the United Nations, until the
Security Council has taken measures necessary to maintain international peace and security.
Measures taken by Members in the exercise of this right of self-defense shall be
immediately reported to the Security Council and shall not in any way affect the authority
and responsibility of the Security Council under the present Charter to take at any time such
action as it deems necessary in order to maintain or restore international peace and security.38
There are, fundamentally, two ways of reading these articles.39 The first, in keeping with
established notions of interpretation,40 reads a general rule in art. 2(4), and an exception to said rule
38 Art. 2 (4) and 51 of the UN Charter.
39 As noted in Y. DINSTEIN, War, agression and self-defence, Cambridge, Grotius publ., 1994, 178-179; C. GRAY,
International law and the use of force, Oxford, Oxford University Press, 2000, 86-87.
40 T. D. GILL, “The temporal dimension of self-defense”, in M.N. SCHMITT AND J. PEJIC (eds.), International law and
11
in art. 51.41 Exceptions to rules having to be read in a restrictive manner, this view focuses on the
fact that the Charter states that self-defense is a right “if an armed attack occurs”, in present tense.
Wherein the right is thus made conditional on the present occurrence of an armed attack, precluding
a right of self-defense in anticipation of an attack.42
Alternatively, one can read the articles as referring to the inherent right43 to self-defense as a
legal exception to the rule of non-use of force in state relations, whereby the Charter acknowledges
a preexisting right inherent to statehood, rather than proscribing what the right of self-defense
entails.44 And as it happens, this preexisting right of self-defense, born from customary international
law, does not necessarily require that attacks be ongoing before the right to use force in self-defense
is triggered.
For what concerns anticipatory self-defense, these different interpretations have given rise to a
number of different schools of thought. Not all authors agree as to how many schools one can
differentiate.
Sadoff, for example, counts two: the restrictionists and counter-restrictionists. 45
Murphy, on the other hand, counts four: strict constructionist, imminent threat, qualitative threat and
lastly, “the charter is dead”.46
To explain the beliefs of different schools, it seems best to spell out various potential points of
distinction. As pointed out supra, there's the deferring interpretations of art. 51 of the UN Charter.
This binary distinction is what separates restrictionists from counter-restrictionists.
One can,
however, also take a third option: disregard the Charter entirely as devoid of legal force, and focus
solely on state practice. That's the “charter is dead” school. Lastly, within the counter-restrictionist
camp, one can make a subdivision based on what the claimed inherent right of self-defense is
thought to entail. This right can be construed as either narrow – adhering strictly to the Caroline-test
– or broad, hence Murphy's distinction between “imminent threat” and “qualitative” threat. 47 As this
last distinction focuses on the extent of a claimed right rather than its existence, settling on three
armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 116.
41 Y. DINSTEIN, War, agression and self-defence, Cambridge, Grotius publ., 1994, 177.
42 W. M. REISMAN AND A. ARMSTRONG, “Claims to pre-emptive uses of force,”, in M.N. SCHMITT AND J. PEJIC (eds.),
International law and armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 79.
43 C. D. GRAY, International law and the use of force, Oxford, Oxford University Press, 2008, 72-73.
44 T. D. GILL,“The temporal dimension of self-defense”, in M.N. SCHMITT AND J. PEJIC (eds.), International law and
armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 121.
45 D.A. SADOFF, “A question of determinacy: the legal status of anticipatory self-defense,” Geo. J. Int'l L., 2009, (523)
550.
46 S.D. MURPHY, “The doctrine of preemptive self-defense,” Vill. L. Rev., 2005, (699) 706.
47 S.D. MURPHY, “The doctrine of preemptive self-defense,” Vill. L. Rev., 2005, (699) 711 – 717.
12
schools seems most appropriate: one for each interpretation of the UN Charter; restrictionist,
counter-restrictionist and “the Charter is no longer valid / should be done away with” - shortened to
“abolitionist”.
To recap: the “restrictionist”-view, which holds that anticipatory self-defense has no basis under
international law, by virtue of the wording of the UN Charter, or because neither the Charter nor
customary international law allow for it.
The “counter-restrictionist”-view, on the other hand, takes the UN Charter as referring to and
incorporating in the Charter framework customary international law when it speaks of an “inherent
right” to self-defense. For them, the Charter does so allow for anticipatory self-defense, at least in
theory.48 The extent of this right, however, is a contentious matter.
And Lastly, there is the “abolitionist”-view. In their opinion, the UN Charter does not allow for
anticipatory self-defense (and a host of other controversial incarnations of self-defense). But that
hardly matters: the Charter holds no power over nations anyway, 49 and because of this –and a host
of others reasons both practical and legal – it is seen as an outdated instrument, no longer
appropriate for a world that has entered the atomic age, and is now beset with terrorists and other
rogue actors; a pre-atomic age charter. 50 They identify either a need for change or an perceived
change already ongoing.
This chapter will seek to give a concise but thorough overview of each school's arguments, and if
possible, formulate a conclusion on how the issue of anticipatory self-defense's legality is best
approached.
48 A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 93 and 100; C. D.
GRAY, International law and the use of force, Oxford, Oxford University Press, 2008, 72-73.
49 S.D. MURPHY, “The doctrine of preemptive self-defense,” Vill. L. Rev., 2005, (699) 717 – 720.
50 T.M. FRANCK, Recourse to force, New York, Cambridge University Press, 2002, 3-5; C. D. GRAY, International law
and the use of force, Oxford, Oxford University Press, 2008, 39.
13
2.2 The restrictionists
The restrictionist school follows a rigid logic in its reasoning. The (not unreasonable) first
principle, is that there can be no such thing as self-defense in the absence of an outright ban to use
of force or war. In a world where the recourse to force in interstate relations is, for lack of better
word, free for all; where states can choose to engage one-another for such odious goals as territorial
expansion, prestige or even the mere whims of the sovereign, self-defense is a rather superfluous
concept – at least for what concerns the jus ad bellum.51 One can imagine it might have some use in
diplomatic relations, to justify one's actions, but those are not legal concerns.
For self-defense to have any meaning, there has to exist a legal system that prohibits the
(unilateral) resort to force outright, or at least limits it to a number of instances, of which selfdefense is one. The former exemplified by the UN Carter system, the latter more akin to the League
of Nations framework as it existed in the interbellum, 52 or the concept of just war, although that
never was a working legal system but rather a moral or religious doctrine, depending on the era.
The idea that states are limited in their freedom to go to war is a relatively novel innovation of
international law, and it crystallized in the period between the two world wars as a matter of
customary international law, which is explained in detail infra. For this section, suffice to say that,
in the words of Brownlie:
“The [1928 General Treaty for the Renunciation of War] and the [Covenant of the League
of Nations] were responsible for reversing the presumption in favor of the right to war.”53
And with the renunciation of war as an instrument in international relations came the right of
self-defense as prime exception to that rule, thought to be an right inherent to sovereign statehood 54.
Where restrictionists differentiate themselves quite markedly, however, is their interpretation of the
relation between said customary law and the United Nations Charter, or the interpretation of
customary international law at that point in time.
51 Y. DINSTEIN, War, agression and self-defence, Cambridge, Grotius publ., 1994, 176.
52 Brownlie describes them as the 'gaps' in the covenant, most of which hinged on fulfilling procedural requirements
before a resort to war could be sought: I. BROWNLIE, International law and the use of force by states, Oxford,
Clarendon Press, 1963, 56 and 59 – 62.
53 I. BROWNLIE, International law and the use of force by states, Oxford, Clarendon Press, 1963, 92.
54 Expressed most markedly in the travaux of the Kellogg-Briand Pact: I. BROWNLIE, International law and the use of
force by states, Oxford, Clarendon Press, 1963, 236-237.
14
Although it is tempting to ascribe to the Charter a quasi constitutional or even jus cogens nature,
overriding any and all existing, conflicting and subsequent customary and treaty law and thus
negating the issue of determining the relationship between the Charter and customary international
law, this is not necessarily true - and even if it were, it does not resolve any and all questions raised.
Consider, for one, that (not all of) the Charter was not created ex nihilo, but in fact a crystallization
of existing or incipient developments in international law – so too for the rules regulating selfdefense in international law. Does it incorporate the existing customary rules of the time, or do art.
2(4) and 51 of the UN Charter deviate from those rules?
Those scholars arguing that anticipatory self-defense is not a subset of legal self-defense in
international law come in roughly three flavors: customary international law allows for anticipatory
self-defense, but the UN Charter takes precedence over and deviates from it; customary
international law does not allow for anticipatory self-defense and never has; customary international
law at the time of the conception of the Charter did theoretically allow for anticipatory self-defense
and was part of the UN Charter, but subsequent state practice has done away with it. The first two
groups are restrictionists, while the third group's arguments will be discussed when reviewing postCharter state practice. The various points raised by the “true” restictionist schools will now be
discussed.
2.2.1 The Charter and the customary international law on self-defense
That customary international law contains now and contained decades before the conception of
the UN Charter a prohibition of the use of force in inter-state relations is generally accepted: the
Kellogg-Briand Pact and its outlawing of war became binding to even non-party states as customary
international law, a process described in art. 38 of the Vienna Convention on the Law of Treaties.55
Similarly, the exception to this prohibition under the form of self-defense is also taken to be part
of customary international law: the travaux of the Kellogg-Briand Pact, the Judgment of the
International Tribunal of Tokyo and the Judgment of the International Court of Justice in the
55 Y. DINSTEIN, War, agression and self-defence, Cambridge, Grotius publ., 1994, 97.
15
Nicaragua case all serve to illustrate this.56
But while the subset of restrictionism described in this section wholeheartedly agrees with the
uncontroversial notions above, it holds a different view pertaining to the interpretation of the UN
Charter and its relation to the customary rules.
On the interpretation of the Charter rules pertaining to self-defense an sich (disregarding for a
moment how it relates to customary rules), art. 51 of the Charter is taken to mean that self-defense
is permitted only when an armed attack occurs – occurs in present tense. The attack must at least be
underway. To support this theory, arguments used are chiefly of a semantic nature. There is, for one,
the choice of words in defending against an “armed attack”: it is a different term than “use of force”
of art. 2(4) of the Charter, or “aggression”, which is used in the statement of purpose of the Charter
in art. 1(1). The distinction being that aggression can include mere threats, for example
(acknowledged in the United Nations General Assembly Definition of Aggression) 57. Not only that,
self-defense is believed to be only actual “counter-force”, essentially a purely reactive action. This
would invariably invalidate anticipatory self-defense as a legitimate action under the charter. The
proof to back up this statement, however, is not always convincing. To illustrate, here is the original
argument formulated by the ur-restrictionist, Yoram Dinstein:
“What is the point in stating the obvious (i.e. that an armed attack gives rise to the right
of self-defense), while omitting a reference to the ambiguous conditions of preemptive
(sic)58 war? Preventive war (if legitimate under the Charter) would require regulation by lex
scripta more acutely than a response to an armed attack, since the oppertunities for abuse are
incomparably greater... expressio unius est exclusio alterius.”59
While a good rhetorical point, it fails a basic test of logic; it amounts to a disguised argumentum
e contrario. Because art. 51 of the Charter does not explicitly mention anticipatory self-defense,
anticipatory self-defense is proven to be illegal under the Charter? Absent references to
authoritative sources of interpretation, this argument falls flat. In fact, it directly contradicts the
well-established Lotus-principle.60 Furthermore, and closely related, is the logical rule that “if A,
then B” does not equal “if and only if A, then B”. Even if art. 51 is only enumerates reactive self56 Y. DINSTEIN, War, agression and self-defence, Cambridge, Grotius publ., 1994, 180-181.
57 Resolution 3314 (XXIX) of the United Nations General Assembly (14 December, 1974), UN Doc. A/RES/3314
(1974).
58 On the use of anticipatory, preemptive and preventive, see supra at 8 – 10.
59 Y. DINSTEIN, War, agression and self-defence, Cambridge, Grotius publ., 1994, 185.
60 Permanent Court of International Justice, The Case of the S.S. Lotus, (France v. Turkey), P.C.I.J. (ser. A) No. 10,
1927, 18 – 22.
16
defense, this does not rule out other forms. 61 However, even if art. 51 of the Charter does not
contain a prohibition on anticipatory use of force, that does not make anticipatory self-defense legal
under international law. There is still the general prohibition on the use of force in art. 2 (4) of the
Charter. So while the argument formulated by Dinstein does not ring the death-knell for anticipatory
self-defense, it is only one piece of the puzzle.
There exists a general prohibition on the use of force in international relations. One important
exception to that prohibition is self-defense against armed attack. As proven supra, the mere text of
the provisions stating this exception does not outright preclude anticipatory self-defense, but neither
does it explicitly allow for it. Which brings us to the crux of the matter for this section: does the text
of the Charter, rather than outright stating the existence of a right of anticipatory self-defense
(perhaps as part of a larger right of self-defense), refer to, incorporate or allow for a doctrine
existing outside the text? That “outside” doctrine being the customary international laws on selfdefense, incorporated by reference to an “inherent right” in art. 51 of the UN Charter. Restrictionists
deny this, using the above argument formulated by Dinstein – an argument that has been found
lacking. Other authors argue that a plain reading of the text, or a restrictive interpretation (selfdefense being an exception to a rule, indeed proscribing such interpretation) does away with
anticipatory self-defense.62 This would be an adequate explanation, were it not for the word
“inherent”; it is a word which no-one would dare insert into a text of international law, especially
with regards to self-defense, without careful consideration. Even a plain reading does not gloss over
“inherent,” at least not when read in a text written at that point in time concerning the right of selfdefense.63 The restriction of an inherent right would require more than a mere presumption. 64
Looking at the Travaux of the Charter does not illuminate the question. The original DumbartonOaks draft did not mention self-defense – thus being in this respect identical to the Briand-Kellogg
pact, which relied on self-defense being an inherent customary right and requiring no statement,
which contradicts restrictionist claims. But art. 51 was eventually included with the current,
ambiguous wording – so score one for restrictionism. Some scholars claim, however, that the
inclusion of art. 51 was unrelated to the individual states' rights to self-defense, but in stead sought
to clarify the status of regional defense arrangements. That art. 51 was originally supposed to go
61 L. VAN DEN HOLE, “Anticipatory self-defence under international law,” Am. U. Int'l L. Rev., 2003, (69) 84-85.
62 I. BROWNLIE, International law and the use of force by states, Oxford, Clarendon Press, 1963, 272-273.
63 A. D'AMATO, International law, Dobbs Ferry, Transnational Publishers, 1987, 57-73; L. FISLER and D.J. SCHEFFER,
Law and force in the new international order, Boulder, Westview Press, 1991, 561.
64 A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 100.
17
under Chapter VIII of the Charter, but was moved to Chapter VII to prevent permanent UN Security
Council members of meddling in the exercise of collective self-defense using their veto power
supports this proposition.65
It is now clear that while the UN Charter does not explicitly allow for anticipatory self-defense,
no-where is it banned outright. In fact, through reference to an inherent right of self-defense, it may
well incorporate the customary international law to self-defense, which is generally believed to
allow for anticipatory self-defense. This remains to be proven, however, in the following sections
and chapters.
2.2.2 Customary international law and anticipatory self-defense
Another venue to discount anticipatory self-defense is to prove it is not in fact part of established
customary international law, rendering the question of the relation between the Charter and the
customary international laws on self-defense moot.
Brownlie identifies roughly three groups of criticisms one can levy against the idea of
anticipatory self-defense as part of customary international law.66
One: there are few instances of legitimate anticipatory self-defense, especially in the decades
directly preceding the UN Charter, the period one should look to when considering customary
international law the authors of the UN Charter had to work with. This is not a very convincing
argument. Absence of evidence is not the evidence of absence. More importantly, there were in fact
instances of legitimate anticipatory self-defense, one of which was actually considered by the
Tokyo-tribunal and found legitimate!67
Two: a number of treaties concluded in the interbellum contained provisions explicitly
prohibiting anticipatory self-defense. By date, they are the 1933 Convention for the Definition of
Aggression, the 1934 Pact of the Balkan Entente and the 1937 Saadabad Pact. Also of not as that the
popular treaties of mutual assistance of the time (commonly referred to as defensive pacts or
alliances) did not envision an anticipated attack as cause for assistance. Be that as it may, this tells
65 L. VAN DEN HOLE, “Anticipatory self-defence under international law,” Am. U. Int'l L. Rev., 2003, (69) 74-77.
66 I. BROWNLIE, International law and the use of force by states, Oxford, Clarendon Press, 1963, 258-261.
67 The Dutch declaration of war on the Empire of Japan on 8 December 1941, see infra at 54.
18
us nothing of the state of customary international law, for all the treaties enumerated are merely
local agreements of a temporary nature68 (unlike the Covenant of the League of Nations or the
Kellogg-Briand Pact), and their provisions are not shown to have evolved into, be a crystallization
or proof of rules of customary international law.
Three: the effect of the proportionality rule. Brownlie objects that it would be disproportional to
plunge states into an armed conflict based on mere circumstantial evidence of an attack. Whereby
the actual use of force in anticipatory self-defense does not stack up to the potential use of force by
the aggressor. This amounts to a bit of a straw-man, since anticipatory action abides by the
Caroline-rules, which put the bar far above mere circumstantial evidence, and is envisioned against
attacks that are more than merely possible.
Lastly, there are the policy objections. Allowing for anticipatory self-defense might cause the use
of force where none would otherwise have taken place, if a state acts on incomplete or false
intelligence regarding another states actions and/or intentions. While true, this concern has to be
weighed against the idea that a state cannot be expected to simply acquiesce to its enemy striking
first. Today more than ever does technology heap incredible advantages on the one to strike first in
a conflict.69 A working system of international law has to take this into account; if the rules are too
restrictive, there is risk of a conflict with the principle of effective interpretation of the rules. When
the right of self-defense forces you suffer through an enemy attack before you can react, it is only a
theoretical right, for you will most likely lack any capacity to respond.70
2.2.3 Subsidiary criticisms of restrictionism
When challenged on the last point raised in the previous section, that a state cannot be expected
to meekly await an enemy attack, restrictionism finds itself in a tough spot. How to defend a theory
of self-defense that in practice negates the exercise of that right when it is needed most (right before
68 The Balkan Pact was a treaty signed by Greece, Turkey, Romania and Yugoslavia on February 9, 1934; the Saadabad
Pact) was a non-aggression pact signed by Turkey, Iran, Iraq and Afghanistan on July 8, 1937; finally, the Definition
of Aggression was a pet project of Maxim Litvinov, the Peoples Commissar for Foreign Affairs of the Soviet Union
between Romania, Estonia, Latvia, Poland, Turkey, USSR, Iran and Afghanistan.
69 Compare the performance of the Israeli and Arab armed forces in the 1967 and 1973 wars: same strategic conditions
and same actors, but a different party having the first-strike advantage. Another instructive instance is the German
invasion of Poland in 1939,which illustrated the weakness of an army that has not yet been allowed to mobilize.
70 D.W. BOWETT, Self-Defense in international law, New York, Praeger, 1958, 185-186.
19
a devastating enemy attack)?71 No-one likes to defend the indefensible.
To avoid falling into that trap, authors have come out with their various mitigating theories that
serve to allow for what are in fact not purely reactive acts of self-defense. Dinstein, for example,
offers three instances of essentially anticipatory self-defense which he recasts as reactive.72
In 1981, Israeli aircraft attacked and destroyed an Iraqi nuclear reactor. Framed at the time by
Israeli diplomats as an anticipatory strike (although, using the definition of this thesis, their strike
would fall under preventive), and roundly rejected by the international community for not meeting
the criteria for an act of anticipatory self-defense, Dinstein postulates that owning to the state of war
that formally existed between Iraq and Israel at the time the attack was in fact legal. This disregards
the fact that a state of war does not have any repercussions for modern jus ad bellum; war is a term
of art, not a legal state.73 This only reinforces the notion that a restrictive interpretation of the right
of self-defense under the Charter-system leads to an inevitable redictio ad absurdum, forcing
restrictionists to hearken back to obsolete and arcane doctrines like the state of war to defend their
positions.
Another nod to anticipatory self-defense in Dinstein's playbook is the concept of an
“interceptive” strike. Borrowing from Waldock, it is said that:74
“Where there is convincing evidence not merely of threats and potential danger but of an
attack being actually mounted, then an armed attack may be said to have begun to occur,
though it has not passed the frontier.”75
The basic idea is that one attacks an enemy, not before the actual attack, but when he has
embarked on a course of action from where there is no return. One example is that of an ICBM
(Inter-Continental Ballistic Missile) that has left its launching pad but not yet detonated its
warhead.76 It's a very abstract theory, and one that does not appear to have much grounding in
reality or even utility, as the examples used by Dinstein actually illustrate! To come back to the case
71
72
73
74
75
T.M. FRANCK, Recourse to force, New York, Cambridge University Press, 2002, 3.
Y. DINSTEIN, War, agression and self-defence, Cambridge, Grotius publ., 1994, 186 – 191.
A. D'AMATO, International law, Dobbs Ferry, Transnational Publishers, 1987, 77-78.
Y. DINSTEIN, War, agression and self-defence, Cambridge, Grotius publ., 1994, 190.
C.M. WALDOCK, “The Regulation of the Use of Force by Individual States in International Law”, RCADI, 1952,
(451) 498.
76 Y. DINSTEIN, War, agression and self-defence, Cambridge, Grotius publ., 1994, 189.
20
of a launched ICBM: what defenses can a state possible mount after the enemy has already
launched its strategic weapons? One could target assets of the opposing state, but that would do
nothing to repel the most pressing threat, that of an ICBM-strike: at present, it is not technologically
possible to effectively defend against such weapons.77
Another example of interceptive self-defense proposed is the case of the Japanese attack against
the US Pacific Fleet in Pearl Harbor on December 7, 1941. 78 Distein argues that had the US
intercepted the Japanese carrier fleet on its way to Hawaii, they would have had the right to attack
and sink them under the guise of a legitimate use of counter-force, since he claims the Japanese had
embarked on an irrevocable armed attack. But this just shifts the issue to the definition of
“irrevocable”, and a well-established doctrine of international law (the Caroline-test) is thrown out
in favor of an eerily similar, but untested and unexplained new theory! Once again restrictionism
collapses under the weight of its untenability. To the point of the attack on Pearl Harbor: how
irrevocable was the Japanese attack, once their carrier-groups had set sail? Could the Japanese High
Command not have called off the attack at the very last moment, perhaps after a military coup – a
very real possibility, as the “2-2-6 incident” demonstrated.79 In fact, in the verbal communications
between the Japanese High Command and the commander of the Combined Fleet, it is made clear
that the planned attack could be canceled at any time, depending on the progress of ongoing
negotiations, hardly an irreversible course of action:
“Should it appear certain that Japanese-American negotiations will reach an amicable
settlement prior to the commencement of hostilities, it is understood that all elements of the
Combined Fleet are to be assembled and returned to their bases in accordance with separate
orders.”80
Replacing the doctrine of anticipatory self-defense with a theory that does not even make sense
for the few self-selected examples, does not make for good international law.
77 The US government has long worked on a program that would allow them to intercept enemy ICBMs, but the results
have been underwhelming. Furthermore, modern warhead technologies such as (electronically generated) decoys,
flightpath adjustments and MIRVs (missiles carrying multiple independent warheads that scatter in-flight) can easily
overwhelm even the most advanced hypothetical systems.
X., “Russian warhead alters course midflight,” The Washington Times, November 20, 2005, available at
washingtontimes.com/news/2005/nov/20/20051120-115514-2217r/, (last visited at May 3,2012).
78 Y. DINSTEIN, War, agression and self-defence, Cambridge, Grotius publ., 1994, 189.
79 Wikipedia, The February 26 Incident, available online at en.wikipedia.org/wiki/February_26_Incident, (last visited
at January 31, 2012).
80 MILITARY HISTORY SECTION, HEADQUARTERS, ARMY FORCES FAR EAST (eds.), Pearl Harbour Operations in World War II
Monographs Vol. 32, Meriam Press, 1999, 27, avalable online at
books.google.be/books/about/Pearl_Harbor_Operations.html?id=1m9_nFk2QmEC&redir_esc=y.
21
Lastly, there is the “pin-prick” theory of cumulative uses of force amounting to an armed
attack.81 Although more at home in the chapter discussing the meaning of armed attack, and
generally the scope of anticipatory self-defense under contemporary international law, it is often
used to justify what are in fact anticipatory strikes – and thus serves as a proxy for the negation of
anticipatory self-defense, stripping it of the argument of necessity for the effective exercise of a
right of self-defense. For example, the Israeli strike triggering the Six Day war can be justified as a
response to the aggregate of all measures taken by Egypt at that point, to wit: the blockade of the
Straits of Tiran, bellicose utterances, troop movements and numerous fedayeen raids from the
Sinai.82 This theory finds some support in the Nicaragua-ruling, but is very much dependent on
particular circumstances.83 At any length, the fact that it could serve as an alternative to anticipatory
self-defense in the case of the “Six Day War” doesn't really invalidate the doctrine of anticipatory
self-defense, considering the weakness of other counterpoints. It is not really antithesis to
anticipatory self-defense as it is complementary, forming another subset of legitimate self-defense
under international law.
81 C. GRAY, International law and the use of force, Oxford, Oxford University Press, 2000, 107.
82 Y. DINSTEIN, “The Legal Issues of 'Para-War' and Peace in the Middle-East”, SJLR 1970, 496-70.
83 C. GRAY, International law and the use of force, Oxford, Oxford University Press, 2000, 108.
22
2.3 The abolitionists
A school which draws on similar axioms concerning the right of self-defense vis-à-vis the UN
Charter, but comes to radically different conclusions are what this thesis call the abolitionists. They
look at the original (1945 CE) state of the UN Charter, and assert that international law should or
already has moved beyond the confines of the original UN Charter system.
2.3.1 Weakness of the two-tiered UN Charter-system
The system implemented by the UN Charter concerning the jus ad bellum had two fundamental
characteristics. It outlaws the use of force as a valid means of settling interstate disputes, while
entrusting the enforcement of this principle to collective security measures. The principle of nonuse of force being laid out in art. 2(4) of the Charter, and the Security Council being tasked with
enforcing it under its powers laid out in Charter Chapter VI and VII. By that logic, self-help (i.e.
self-defense) is a fall-back exception to be used sparingly as one awaits collective measures. 84 In
that sense, they follow the restrictionist view that anticipatory self-defense, among other measures,
is incompatible with a strict reading of the UN Charter system. 85 This system is seen as failing to
establish a working system of international collective security for a number of reasons:
During the Cold War, and beyond, the Security Council has often times been unable to
respond to threats to international peace and security for reasons of political expediency on
the part of its members in using their veto-powers. Innovations like the Uniting For Peace
Resolution have not been enough to counter this development. Collective security is often
found wanting, necessitating a broader scope of self-help measures to fill the gap.
Technology has advanced speedily, and transformed weaponry and warfare in the
process. To limit self-defense to reactive in this day and age is to render it moot. But that is
what the text of art. 51 of the Charter seems to proscribe. This also feeds back into the
previous point; collective security is typically triggered with some delay, making it ill-suited
84 T.M. FRANCK, Recourse to force, New York, Cambridge University Press, 2002, 2-5.
85 T.M. FRANCK, Recourse to force, New York, Cambridge University Press, 2002, 4.
23
in dealing with the risk of instantaneous annihilation a world rife with atomic weaponry
faces.86
A rise in the public consciousness of the importance of human freedom and human right,
especially when considered as perquisite for international peace, seem to become
increasingly incompatible with the emphasis placed in the Charter on Sovereignty.
Lastly, modern armed conflict has moved beyond the confines of battlefields and armies,
and is now overwhelmingly fought out through non-state actors, at low levels and within,
not between states.87
Often times, the issues of an ineffective collective security apparatus and undue emphasis on
state sovereignty are inexorably linked. It is the epicenter of the other area where the UN Charter
faces criticism, the conundrum of the “responsibility to protect”. Can members of the UN use their
sovereignty as a shield to prevent them from being held to account for carrying out atrocities against
their own people? In theory, the answer is no, they cannot. In practice, however, the enforcement of
this lofty goal leaves a lot to be desired, for much the same reason that counting on collective
security measures to deal with international aggression does: politically expedient use of veto
powers in the UN Security Council. But this issue, although running parallel to abolitionist
discourse on self-defense, goes well beyond the bounds of this thesis and cannot be considered in
depth.
Returning to the issue of self-defense, the abolitionist school of thought can be summarized
thusly: that the UN Charter in its current form and under (perceived) mainstream interpretation is
too restrictive in the amount of self-help it allows, and does not have an effective collective security
mechanism to counter this weakness. The relevance to the issue of anticipatory self-defense is that it
is believed not to be legitimate under mentioned mainstream theory, but abolitionist will propose
various theories to justify it nonetheless (this might even include broad statements on anything
ranging from anticipatory to outright preventive measures).
86 A. D'AMATO, International law, Dobbs Ferry, Transnational Publishers, 1987, 85.
87 T.M. FRANCK, Recourse to force, New York, Cambridge University Press, 2002, 2-4.
24
2.3.2 Post War Practice as a substitute for or amendment to the UN Charter-system
Remedies proposed vary. Overhauling the UN Charter, falling back on practices of member
states – basically customary international law conceived since the Charter; 88 or an entirely novel
paradigm in the interpretation of the UN Charter, one that broadens the scope of art. 51 of the
Charter by placing special emphasis on the phrase “against the territorial integrity or political
independence of any member state”.89
The latter – introducing a sort of de minimis threshold – is deemed incongruent with the wishes
of the framers of the UN Charter, and no evidence is to be found in the travaux. Although the
International Court of Justice has made a distinction between acts that do or don't amount to an
armed attack90, this distinction is not based on the mentioned (unfortunate) phraseology of the
Charter. If abolitionist theory has any merit, it is to be found in their analysis of state practice since
1945.
On the relation of state practice and interpretations on the UN Charter: where abolitionist theory
diverges from both restrictionism and counter-restrictionism on the issue of anticipatory selfdefense, is that they accept the restrictionist thesis on anticipatory self-defense for what concerns
the Charter an sich, but follow the counter-restrictionist tract when it comes to any subsequent
developments. Where counter-restrictionism will consider anticipatory self-defense valid ab initio,
and subsequent practice serving to clarify the evolution and scope of that right, abolitionists opine
that the existence of any right of anticipatory self-defense (or other forms of proactive self-defense)
can be derived purely from post-World War II state practice. Although it should be noted that the
exact interpretation of said practice diverges from one author to the next; it always does. But at its
core, the distinction is: deriving the existence of a right of anticipatory self-defense from
contemporary state practice, vs. using state practice to delimitate the scope of said right.
88 T.M. FRANCK, Recourse to force, New York, Cambridge University Press, 2002, 1-205.
89 A. D'AMATO, International law, Dobbs Ferry, Transnational Publishers, 1987, 75.
90 Infra at 64 – 66.
25
2.3.3 Selected cases of state practice
One divergent interpretation is the view of D'Amato with regards to the Osirak-incident. His
analysis dutifully follows the abolitionist path, first by claiming that
“The self-defense provision of article 51 comes into effect only “if an armed attack
occurs,” and there was no armed attack … on Israel in 1981.”91
And subsequently, supposedly for emphasis, denying the validity of anticipatory self-defense
under the current (UN Charter) system of international law. It was already pointed out that the state
of war between Iraq and Israel has no bearing on the jus ad bellum, as war itself is in fact illegal.92
This, however, is not the main argument for justifying the attack proposed by D'Amato. In stead, he
offers the following justification:
“War was outlawed [in the UN Charter and the Kellogg-Briand Pact] because a nation's
rightful claim to security could be guaranteed on a collective basis by the community of
nations...
But in the post-atomic age, the fact of instantaneous nuclear destruction has outrun old legal
rules. Those rules have to be reinterpreted in light of present realities...
Because of [the potential of atomic weapons to erase a state as small as Israel without effort
and immediately], the old safeguards of collective security become irrelevant.”93
Although not entirely unjustified in its claims, it should be clear that this is not in fact a legal
analysis, but a a rhetoric argument. What's more, it is not an entirely honest one. While true that the
UN Charter did not consider the advent of nuclear weapons, the idea that a nation can be easily
overwhelmed by a massive and crippling first-strike is not new, as pointed out earlier. Nazi
Germany did not need nuclear weapons to overwhelm Poland before an international response
could be mounted. And once again, the discussion becomes moot once it is recognized that the UN
Charter did actually allow for anticipatory self-defense through reference to the inherent right of
self-defense.
An in depth analysis on the legality of the Osirak-strike will follow infra at 109.
91 A. D'AMATO, International law, Dobbs Ferry, Transnational Publishers, 1987, 78.
92 A. D'AMATO, International law, Dobbs Ferry, Transnational Publishers, 1987, 77.
93 A. D'AMATO, International law, Dobbs Ferry, Transnational Publishers, 1987, 84-85.
26
2.3.4 Assessment of the abolitionist school
Insofar that they follow the restrictionist approach when interpreting art. 51 of the UN Charter
overly narrowly, the same critique applies: even though the UN Charter does not explicitly allow for
anticipatory self-defense, no convincing case can be made that it is banned outright. In fact, through
reference to an inherent right of self-defense, it in fact incorporates customary international law,
which the following chapters will show allows for anticipatory self-defense.
And once the premise that a right of anticipatory self-defense cannot be found in the UN Charter
through its reference to customary international law is discarded, claims to seeking the existence of
a right in postwar practice becomes moot, not more than an addendum to the counter-restrictionist
use of these cases as determinant of the finer points of the extent of a right of anticipatory selfdefense.
27
2.4 The counter-restrictionists
Perhaps the most comprehensive approach to the question of anticipatory self-defense is
provided by what this thesis describes as the counter-restrictionist school of thought. It manages to
convincingly reconcile the UN Charter with customary international law, all the while allowing for
anticipatory self-defense within reasonable bounds.
Now to state this school's arguments in short order. That, in the decades before the birth of the
UN charter system, there existed in customary international law a right of self-defense, in tandem
with a prohibition on war (analogous but not identical to the provisions of art 51 and art 2(4) of the
Charter, respectively). This right of self-defense is said to include a right of anticipatory selfdefense, one adhering to the principles laid out a century prior in the aftermath of the Carolineincident.
Others schools claim that that customary right is separate from the one recognized/established in
art. 51 of the UN Charter, and that one of them has supplanted the other – restrictionists adhering to
a strict (perhaps unduly so) interpretation of the UN Charter, and abolitionists claiming that
contemporary state practice has begun to displace the supposedly outdated UN Charter, the
outdatedness finding its origin in a likewise strict interpretation of the Charter. Counterrestrictionism, on the other hand, postulates that rather than creating an entirely new and separate
right, the UN Charter in article 51 in fact recognized the existing, inherent right of self-defense
developed through natural and customary law, and in doing so incorporated it into the Charter, and
might have even modified said right.94
The implications for a possible right of anticipatory self-defense are obvious: if the incorporated
customary law allows for anticipatory self-defense, such a right would be in accordance with the
Charter barring explicit statements to the contrary; relinquishment of a right of a State, especially
one considered inherent, necessitates explicit proscriptions to that end.95
Moreover, considering the fact that the entire inherent, customary right of self-defense is
grounded in the language of the Caroline-doctrine, and that said language plainly allows for
anticipatory self-defense, it becomes almost inconceivable that a provision incorporating the
94 A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 93-95.
95 A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 100.
28
customary right of self-defense could negate anticipatory self-defense without providing for an
explicit wholesale replacement for the customary laws on self-defense. Seeing as how the UN
Charter in stead makes reference to an inherent right of self-defense, the case for a counterrestrictionist approach to the UN Charter becomes highly convincing.
This theory, maybe even more so than the other two views on self-defense, requires a thorough
analysis of all components involved, owning mainly to the way in which the argument is structured.
In plain language, everything works, or nothing does. There must have existed at the time of the
creation of the Charter a customary right of self-defense, or the UN Charter could not refer to or
incorporate such a right. This customary right must be exceedingly compatible with the UN Charter,
otherwise the thesis that it is incorporated into the Charter could render it self-defeating. The
customary right must encompass anticipatory self-defense, otherwise the incorporation of
customary law into the UN Charter does nothing to allow for anticipatory self-defense. The Charter
itself cannot delitgitimize anticipatory self-defense, or the case could be made that it not only
incorporates the customary right of self-defense, but also modifies it to disavow anticipatory
actions. And lastly, subsequent state practice and customary international law developments could
have caused the incorporated customary rules to have mutated, again endangering the prospect of
legitimate anticipatory self-defense.
The first few concerns can only be alleviated by thorough analysis of the development of
customary international law up to the creation of the UN Charter. Other questions can only be
answered by looking at the Charter itself, and the process by which it was drafted – the travaux.
And finally, a look at state practice and selected cases is in order. Rather than review the counterrestrictionist ideas in a brief fashion, as was the case for the other schools, this thesis will now
devote several chapters to the inquiries proposed, the appraisal of counter-restrictionism implicitly
contained in those chapters.
29
3 Historical Evolution of the Right of Self-defense and
Anticipatory Self-defense
3.1 Historical Development of the ius ad bellum prior to the First World
War
3.1.1 Stage 1: Romans
When discussing the development of the laws of self-defense in customary international law, and
various historical precedents and precursors, it is important to recollect one very important point
raised in the previous chapters, where the various contemporary schools of thought on the matter
were reviewed. Our modern view of self-defense is very much shaped by developments during the
first half of the twentieth century. The laws of nations have seen as a consequence of these
developments a number of fundamental innovations: that the use of force or resort to war in
international relations is in fact illegal, or at least limited to certain circumstances of last resort – the
former thanking to the Kellogg-Briand Pact and the UN Charter, the latter more in tune with the
Covenant of the League of Nations.
In tandem with this limitation or prohibition to resort to force are of course enforcement
mechanisms or safeguards: collective security measures on the one hand, and self-help measures on
the other – those include self-defense.
These conditions, however are relatively recent developments – the first half of the twentieth
century. Before that time, there was no international consensus on the principle of non-use of force,
or even on any limits to the freedom to use force, which would render the issue of enforcing any
such prohibition or limitation moot, be it by self-help of collectively. That does not mean, however,
that our contemporary laws arose ex nihilo. Quite to the contrary: the following chapters will in fact
show how our current laws on use of force and self-defense come at the end of a long line of
30
historical memes96 of international law, all of which have contributed to or mutated into the concepts
we know today.
Even so, it is vital to keep in mind that, although relevant to the development of self-defense as
we know it in a contemporary context, the concepts that will be expounded upon are not at all the
same as those we know today, even though they might carry similar names or cover parallel ideas.
Context is everything; “self-defense” has long been floating around in the primordial soup of
historical doctrine, but absent a corresponding institutionalized limitation or ban on the use of force,
it differs markedly from what we have come to know in contemporary law. Obvious as this might
be, it cannot be stressed enough.
The origins of our thought and terminology concerning self-defense can be traced back to the
days of the ancient Roman Republic. Although in practice waged at the whim of the Senate or
powerful individuals,97 wars conducted by Rome required the fulfillment of certain religious and
formal conditions, observed by a college of priests called the fetiales. Formal conditions included
the need openly declare war, by throwing a lance across the border into the enemy lands.
Substantive conditions existed as well, however: the need for a just cause for war, which would
result in a just war – a war sanctioned by the gods. Just causes typically hinged on the violation of a
state's rights, or an abrogation of duties towards that state (the victim state being Rome). 98 One of
those violations of a state's rights was driving out an invader, which could be considered a primitive
reference to self-defense.99
Besides and in addition to these formal, religious concepts were the commentaries of Greek and
Roman writers, several of whom expressed their opinions on the justifications for or justness of war,
Cicero and Aristotle among them. Their justifications for war, however, contained such
justifications of “[enabling] men to make themselves masters of those who naturally deserve to be
96 A term used to denote a unit of cultural transmission, it can be anything from a musical cord to a legal concept. Its
practical value is to draw a parallel between the transmission and mutation of genetic and cultural information. A
genetic sequence originating within a member of the Cynodontia might, after countless transmissions and mutations,
end up being part of a Hominid genome. In the same vein, a cause for just war concocted by a member of the
Roman fetiales priests might evolve into a cornerstone of the contemporary customary laws of self-defense. On
memes: R. DAWKINS, The Selfish Gene, Oxford, Oxford University Press, 2006, 189 – 202.
97 Y. DINSTEIN, War, agression and self-defence, Cambridge, Grotius publ., 1994, 62; I. SHEARER, “A revival of the just
war theory,”, in M.N. SCHMITT AND J. PEJIC (eds.), International law and armed conflict, Boston, Martinus Nijhoff
Publishers, 2007, 2.
98 A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 2 – 3.
99 A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 2.
31
slaves”. And in Aristotle's case, it should be kept in mind that he prescribed morality, not legality,
whereas the Roman principles did largely concern (procedural) legality.100
These conditions only concerned the causes for war, not its scope, and were purely internal in
nature, not multilateral – a far cry from today's laws on the use of force.
3.1.2 Stage 2: Christian Theology and secularization of the bellum justum
The idea of just wars did not disappear along with the Roman Empire, it in fact survived by
latching onto an initially unlikely host (not unlike other parts of Roman legal heritage): the Catholic
Church. Although the early Church espoused a pacifist posture, this became an untenable position
when it became the state religion of the Roman Empire during the reign of Constantine. To justify
this new, bellicose attitude of the Church, the just war-idea was revived as a theological doctrine by
St. Augustine in his book De Civitate Dei101, and further developed by theologians like St. Thomas
Aquinas.
While the formalism of the Roman concepts – with spears and declarations of war and whatnot –
was abandoned, the need for “just causes” endured, taking the form of long lists of justifications for
war, depending on the author. One enduring cause, however, was to defend against enemy
incursions. An innovation of the period was the introduction of a need for war to be waged by a
“prince” (sovereign), not a private individual – this to indicate that it sought to regulate what we
would now call inter-state conflicts, an enduring feature of the laws on use of force in international
law (although caution is warranted in using these terms when referring to an era that lacked true
states).102
Important mainly as vessels for the just war ideas, the practical implications of the theological
doctrines of just war were minor: warfare in Europe shortly before and long after the fall of the
Roman Empire was endemic, and seldom subject to theological considerations. 103 Nonetheless, the
just war doctrines did help in laying some conceptual groundwork for what would come later. A
100C. D. GRAY, International law and the use of force, Oxford, Oxford University Press, 2008, 12-13.
101J. D. ARMSTRONG, T. FARRELL and H. LAMBERT, International law and international relations, Cambridge, Cambridge
University Press, 2007, 120.
102 Y. DINSTEIN, War, agression and self-defence, Cambridge, Grotius publ., 1994, 62 – 66.
103I. SHEARER, “A revival of the just war theory,”, in M.N. SCHMITT AND J. PEJIC (eds.), International law and armed
conflict, Boston, Martinus Nijhoff Publishers, 2007, 4-5.
32
curious example is the just cause for war of self-defense, as proposed by Grotius:
“For in order that a self-defense may be lawful, it must be necessary; and it is not
necessary unless we are certain, not only regarding the power of our neighbor, but also
regarding his intention.
The danger … must be immediate and imminent in point of time … it is permissible to
forestall an act of violence which is not immediate, but which is seen threatening, but which
is seen threatening from a distance … a wrong action commenced, but not yet carried
through.”104
Even though it had little effect on actual state/sovereign behavior, the question of what could
mandate a just war proved to be a popular topic among medieval and early modern writers, many
compiling extensive lists of just causes for war. Over time, owning to the growing religious fissures
in European society and the diminishing power of the Church to authoritatively decide on these
matters, the issue drifted from the earlier canonists to secular writers, many of whom were aligned
with worldly rulers. As such, the just causes for war became distinctly political: 105 scholars at the
Spanish Court would recognize the justice in putting down an insurrection by force of arms, not
unlike the rebellion they faced in the Netherlands.106
And as the number of writers and just causes they proposed grew, so did doctrinal discussion.
Could both sides claim non-conflicting just causes for war? Were all causes equal, or some more
equal than others? Eminent scholars like Victoria 107 and Grotius argued in the affirmative, leading to
the theoretical possibility of two sides in a conflict both having just cause for war. However, with
the large amount of causes available, and no one to authoritatively differentiated between valid and
dubious ones, the very concept of a just war lost all meaning. 108 The theory of just war collapsed on
itself, as all wars became potentially just wars. As the European Wars of Religion subsided, and the
modern Westphalian system of sovereign nation states solidified, the study of just wars was largely
abandoned in favor of pragmatic formalism:109 the right to war became a sovereign right (now that
104A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 7.
105J. D. ARMSTRONG, T. FARRELL and H. LAMBERT, International law and international relations, Cambridge, Cambridge
University Press, 2007, 120.
106 Y. DINSTEIN, War, agression and self-defence, Cambridge, Grotius publ., 1994, 63 – 65.
107I. BROWNLIE, International law and the use of force by states, Oxford, Clarendon Press, 1963, 11.
108 Y. DINSTEIN, War, agression and self-defence, Cambridge, Grotius publ., 1994, 65.
109A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 9; J. D. ARMSTRONG, T.
FARRELL and H. LAMBERT, International law and international relations, Cambridge, Cambridge University Press,
2007, 121; I. SHEARER, “A revival of the just war theory,”, in M.N. SCHMITT AND J. PEJIC (eds.), International law and
armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 5-6.
33
states were sovereign, they had a “sovereign right” to wage war), 110 exercised freely, only subject to
the fulfillment of formal criteria – the polar opposite of the medieval developments. Doctrine
reconnected with reality in a positivist manner. Although philosophers would still discus the matter
and differentiate between just and unjust war, they no longer held any pretenses regarding the
legality of their claims; just war was at best a moral quandary.111
3.1.3 Stage 3: Post-Westphalian freedom to war and Caroline
The next two and a half centuries there existed an unrestricted right to war for all sovereign
states,112 expansion and aggression only checked by other states' willingness to maintain a balance
of power. This was formalized after the Napoleonic wars during the Congress of Vienna, creating
the so-called Concert of Europe. Mutually recognized Great Powers decided among themselves the
fate of the world, and any changes to the existing status quo were legally recognized not based on
abstract legal rules, but rather peer acceptance.113 The use of force, in this context, was a mere
exercise of self-help, a means of redressing wrongs, enforcing claims and settling disputes –
preferably a means of last resort, but not necessarily. 114 The use of force was recognized a s a tool
for the advancement of national interests.
The move away from rights and right (right, as in just) in the sphere of international conflicts
rendered the period rather uninteresting for studying self-defense, and its subset of anticipatory selfdefense. If the use of force is free for all at any time, the notion of a right of self-defense becomes
moot. There were, however, a few areas and developments that merit closer scrutiny. Most
importantly, a conflict between the united states and Great Britain unwittingly planted the seeds for
the development of the customary rules for the legitimate exercise of a right of self-defense. This
would be the Caroline-incident, discussed in the very next chapter. The tail-end of the nineteenth
century also saw important changes to the unrestricted right to war – small and incremental
changes, but important nonetheless.
110C. D. GRAY, International law and the use of force, Oxford, Oxford University Press, 2008, 17.
111I. BROWNLIE, International law and the use of force by states, Oxford, Clarendon Press, 1963, 11-18.
112A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 10.
113I. BROWNLIE, International law and the use of force by states, Oxford, Clarendon Press, 1963, 19-20.
114A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 12.
34
One of these trends was the acceptance of war as a true act of last resort, and consequently the
development of means of settling international disputes peacefully. One popular method then, as it
is today, was arbitration, as seen in the case of the Alabama-claims and the Behring Sea fisheries
dispute.115
Others were treaties limiting the disputes over which states could go to war. Only one was
successful, the Convention Respecting the Limitation of the Employment of Force for the Recovery
of Debts, banning the resort to war for the fulfillment of monetary debts between states. Also of
note, the Treaties for the Advancement of Peace 116 that introduced a cooling-off period between its
signatories before they could resort to war over a given dispute.117
All these developments had one thing in common, and that one thing is the steady erosion of the
unrestricted right to war.118 Its importance cannot be overstated, as it contained the seeds that would
blossom into the Covenant of the League of Nations, wherein the use war was limited to a narrow
set of circumstances, after the fulfillment of certain conditions.
But although a few limitations were introduced, they were typically bilateral and voluntary; the
right to war was at its core still very much an unfettered state right. This has important
repercussions for any claimed right of self-defense, mainly that there existed no need for a true
right, and no-one bothered construing one. It was, in the context of an unfettered right to war, no
more than a political excuse. This changed, however, after the Caroline-incident of 1837. The two
parties in this dispute set out a set of legal requisites for self-defense to be claimed, and agreed on
the laws that governed the case.119 Although not necessary under the ius ad bellum paradigm of the
time, the parties still recognized a right separate from the universal freedom to go to war. For this
reason, the case itself will be considered in depth in the following chapter.
115I. BROWNLIE, International law and the use of force by states, Oxford, Clarendon Press, 1963, 22.
116 Y. DINSTEIN, War, agression and self-defence, Cambridge, Grotius publ., 1994, 76.
117I. BROWNLIE, International law and the use of force by states, Oxford, Clarendon Press, 1963, 23-24.
118A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 13.
119A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 19.
35
3.2 The Caroline Incident
3.2.1 Importance
When scouring the landscape of international law for references to the theory of anticipatory
self-defense, one event to always pop up in relation to the genesis of the theory is the so-called
“Caroline incident” or “Caroline affair”. Note the use of “event” rather than “case”, as the
importance of Caroline lies not in formal legal proceedings: the legal principles embodied by the
Caroline affair were conceived through a series of diplomatic communications following an
international incident. Although the relevance of said principles is today sometimes disputed, they
remain ubiquitous. Indeed, for some authors, the correspondence exchanged between the United
Kingdom and the United States in response to the incident marked the beginning of self-defense as
a veritable legal theory in international law,120 breaking with the ancient practice of using selfdefense as an excuse to justify what were, in essence, wars of choice. 121 Others, however, see it as
no more than a simple international incident, with whatever relevance it might have held for
international law now lost in time,122 or at least limited to a tiny niche of the self-defense question123.
Regardless, government officials regularly reference it in justifying their state's use of force, for
example in the 1976 Israeli raid on the Entebe airport.124
With all this in mind, it seems only logical to start this intellectual journey by explaining the
historical facts of the Caroline. The place of the incident in international law can then serve as a
segue to the conception of both the right of self-defense and the theory of anticipatory self-defense,
discussed in the next chapter.
120J.A. GREEN, “Docking the Caroline”, CDZJICL, 2006, (429) 432.
121M.A. ROGOFF AND E. COLLINS, “The Caroline incident and the development of international law”, BKNJIL, 1990,
(493) 501.
122M.B. Occelli, “Sinking the Caroline”, SDILJ, 2003, 467 - 490.
123J.A. GREEN, “Docking the Caroline”, CDZJICL, 2006, (429) 432.
124M.A. ROGOFF AND E. COLLINS, “The Caroline incident and the development of international law”, BKNJIL, 1990,
(493) 507.
36
3.2.2 Historical events
The date is December 29th, 1837. It's been sixty-two years since the United States declared their
independence from the (then) Kingdom of Great Britain, and the relations between the two states
remain tense. It's been only a few decades since the US attempted to annex Britain's remaining
North American possessions (comprising modern Canada) through belligerent invasion in 1812, and
the Canadian questions once again threatens to put both states on the path to war.
Trying to emulate the example posed by the 18th-century American revolutionaries, Canadian
rebels had risen up against the British rule in upper Canada earlier that year, but had been defeated
by a superior loyalist force, forcing many of them to flee to the US. One of these exiles, William
Lyon Mackenzie, was not about to give up his dreams for an independent Republic of Canada,
however. In the course of December 1837, he established a base of operations on a small island on
the Canadian side of the Niagara river, where he set out to assemble a force capable of invading the
mainland, with the eventual goal of establishing an independent Canadian state. Small-scale
firefights ensued, pitting Mackenzie's men against loyalist Canadian militiamen stationed across the
river.
One of the rebels main supply-lines took the form of one chartered American steamship, the
Caroline, which ferried in arms and rebels from the US, doing so three times on December 29 th
alone. It docked at the American side of the river at six in the evening. Hoping to prevent further
such strengthening of the rebels, the commander of the loyalist forces decided the Caroline had to
be removed before any more supplies could be ferried in.
A force of fifty men, operating seven boats, is sent to the island. To their surprise, however, they
discover that the Caroline is no longer moored there, but rather across the river – American territory.
They still pres forward with their mission, and capture the ship, setting it ablaze downstream, killing
two American citizens on-board. Although successful in crippling the rebellion (it disintegrates soon
thereafter), the raid causes an uproar in the Unites states, particularly in the state of New York,
37
home to the Caroline and the two deceased sailors.125 The US felt their sovereignty and territorial
integrity violated, while Great Britain, for its part, admonished the US for failing to stop the rebels
operating from their territory.126 Some correspondence between US and British officials followed,
and that seemed to be the end of it (indeed, the British Foreign Secretary took more than three years
to respond to initial letter, which speaks volumes as to its urgency).127
Eventually, however, judicial retaliation in the State of New York against a man suspected of
being part of the Caroline raiding party further soured relations, when then-Secretary of State John
Forsyth refused to comply with British demands that the man be released, basing his refusal on
constitutional limits of federal power to dictate judicial state policy. With this last incident, a new
general war was no longer beyond the realm of possibility. 128 This outgrowth of the incident was,
however, contained when Daniel Webster replaced Forsyth – although the Secretary could not
convince the Supreme Court of the State of New york on the constitutional issue, he at least
recognized the grave nature of the situation. The detained Canadian was eventually released
because of an alibi.129
The fallout from the incident itself, however, was not so easily curtailed. A game of diplomatic
ping pong ensued (not to be confused with Ping Pong Diplomacy, which was still centuries away),
pitting successive Secretaries of State in the US against
Henry Fox, the British Minister at
Washington, D.C, and Lord Palmerston, the British Foreign Secretary.
Initially, the US demanded redress, while the British largely ignored their request, noting “the
piratical character” of the Caroline, the afore-mentioned issue of US failure to stop insurgents
125R. Y. JENNINGS, “The Caroline and McLeod Cases”,AM. J. Int'l L., 1938, 84; W. MENG, “The Caroline” in R.
BERNHARDT, in 3 Encyclopedia of Public International Law: Use of Force, War and Neutrality Peace Treaties, 1982,
81-82.
126J.A. GREEN, “Docking the Caroline”, CDZJICL, 2006, (429) 433 – 434; R. Y. JENNINGS, “The Caroline and McLeod
Cases”,AM. J. Int'l L., 1938, 82 and 84; M.A. ROGOFF AND E. COLLINS, “The Caroline incident and the development of
international law”, BKNJIL, 1990, (493) 494.
127J.A. GREEN, “Docking the Caroline”, CDZJICL, 2006, (429) 434; K. R. STEVENS, Border Diplomacy: The Caroline
and McLeod Affairs in Anglo-American-Canadian Relations, 1837-1842, Tuscaloosa, University of Alabama Press,
1989, 19 and 126-127.
128M.A. ROGOFF AND E. COLLINS, “The Caroline incident and the development of international law”, BKNJIL, 1990,
(493) 521.
129People v. McLeod, 25 Wend. 917 (N.Y. Sup. Ct. 1841), M.A. ROGOFF AND E. COLLINS, “The Caroline incident and the
development of international law”, BKNJIL, 1990, (493) 496.
38
operating on their side of the border, and the general necessity of self-defense and self-preservation.
When New York chose to go ahead with its judicial adventure, however, the issue again came to the
forefront of British-American relations. On the issue of the man detained in New York, and the
question of federal responsibility for state actions, there was by and large agreement between
Webster and Palmerston. On the legality of sinking the Caroline, disagreement remained.130
To summarize the lengthy correspondence, Webster noted the existence of a right for a nation to
defend itself, but declared this right of be limited in scope. More precisely:
“It will be for Her Majesty's Government to show, upon what state of facts, and what
rules of national law, the destruction of the "Caroline" is to be defended. It will be for that
Government to show a necessity of self-defence, instant, overwhelming, leaving no
choice of means, and no moment for deliberation. It will be for it to show, also, that the
local authorities of Canada,- even supposing the necessity of the moment authorized them to
enter the territories of the United States at all,-did nothing unreasonable or excessive;
since the act justified by the necessity of self-defence, must be limited by that necessity,
and kept clearly within it... A necessity for this, the Government of the United States
cannot believe to have existed. ” [Emphasis added]131
The actual meaning and weight of this phrase (the “Caroline Formula”) 132 will be discussed at
length infra. For now, suffice to say that Webster did not believe the sinking of the Caroline met his
test.
What's more important is that Lord Palmerston agreed with Webster, at least on the principle of
the law, acknowledging that the (invoked) right of self-defense was not at all an absolute right. He
even accepted the wording used by Webster, invoking the now famous “necessity of self-defense,
instant, overwhelming, leaving no choice of means”.133
134
The correspondence that followed
130M.A. ROGOFF AND E. COLLINS, “The Caroline incident and the development of international law”, BKNJIL, 1990,
(493) 497.
131Letter from Secretary of State Daniel Webster to Lord Ashburton of July 27, 1842, note of April 24,1841, from H.,
MILLER, Treaties and Other International Acts of the United States of America, Washington , Government Printing
Office, 1934,Volume 4, Documents 80-121, available online at Yale Law School, The Avalon Project, The Caroline,
available at avalon.law.yale.edu/19th_century/br-1842d.asp, (last visited at May 3, 2012).
132J.A. GREEN, “Docking the Caroline”, CDZJICL, 2006, (429) 435.
133M.A. ROGOFF AND E. COLLINS, “The Caroline incident and the development of international law”, BKNJIL, 1990,
(493) 499.
134J.A. GREEN, “Docking the Caroline”, CDZJICL, 2006, (429) 436.
39
thereafter focused not on the existence of a limited right of self-defense, but whether the sinking of
the Caroline was to be considered legal by said standard. 135 A discussion not of the law, but rather of
the facts followed. Although no agreement was reached on this point, partly thanking to differing
interpretations of the facts of the case, the matter was laid to rest with a formal apology from the
British government for violating the territory of the United States, regardless of the legality of said
violation. Secretary Webster accepted the apology, happy to see his interpretation of international
law agreed upon (and further tension averted).136
135 J.A. GREEN, “Docking the Caroline”, CDZJICL, 2006, (429) 436.
136M.A. ROGOFF AND E. COLLINS, “The Caroline incident and the development of international law”, BKNJIL, 1990,
(493) 500.
40
3.3 Self-defense in the interwar-period
The idea that nations had an unrestricted right to war dominated until the early twentieth century,
some contrary events and trends notwithstanding.137 During the nineteenth century, this appeared to
produce a working system; several great powers kept each other in check, and extended their
defensive umbrella's over smaller, so-called neutral nations, like Belgium. By the turn of the
century, however, this system had reached its practical limits: all great powers were now bound in
interlocking alliances designed to prevent any deviation from the established status quo. Yet at the
same time, each of the many Empires sought to fortify its own position, be it by expanding into
neighbor's territories or by acquiring colonial possessions. When newfound nationalist sentiment in
the Balkans and elsewhere compounded these building tension, the Balance of Power that was seen
guaranteeing the peace until then plunged all the European Powers into a war of unprecedented
scale. Between the assassination on 28 June 1914 of Archduke Franz Ferdinand of Austria, the heir
to the throne of Austria-Hungary, and the signing of an armistice on 11 November 1918, twenty
million people are believed to have perished. Four empires, all of them former great powers, were
dissolved. Mankind was violently catapulted into the twentieth century, and international law would
have to follow suit.
The failure of the previous system to maintain the peace, and the spectacular way in which it
had, created a climate favorable to a new approach. 138 During the peace negotiations in Paris in
1919, following the armistice, several statesmen – Woodrow Wilson and Jan Smuts most prominent
among them – argued that the conference not only consider the end of the last war, but also make
provisions to try and usher in a new era in international relations. 139 Thanking to the enormity of the
horrors of what came to be known as the Great War, a consensus developed among world leaders
that any war of that magnitude should be avoided going forward, and that the system of
international relations had to be tailored to that end. 140 To achieve this, measures were needed aimed
at maintaining world peace through collective security, procedural guarantees, and opportunities
had to be provided for the peaceful settlement of disputes. Chief among them would be the creation
137I. BROWNLIE, International law and the use of force by states, Oxford, Clarendon Press, 1963, 49-50.
138 I. BROWNLIE, International law and the use of force by states, Oxford, Clarendon Press, 1963, 51; T.M. FRANCK,
Recourse to force, New York, Cambridge University Press, 2002, 10.
139I. BROWNLIE, International law and the use of force by states, Oxford, Clarendon Press, 1963, 55-56.
140C. D. GRAY, International law and the use of force, Oxford, Oxford University Press, 2008, 19.
41
of the League of Nations, an intergovernmental organization founded through the Covenant of the
League of Nations by the Commission of the League of Nations at the Peace Conference.
3.3.1 The League of Nations
From its inception, the system create by the Covenant had a number of glaring flaws. Its
membership was limited and excluded several major powers of the time, most notably the United
States and the newly formed Soviet Union. The covenant itself as sometimes poorly drafted,
especially with regards to the articles concerning the recourse to war – this was the source of the so
called “gaps” of the Covenant. And for enforcing its decisions, the League could not depend on its
own (forces lent by member states, like the UN, but was entirely dependent on the persuasive power
and goodwill of the more powerful member states.141
As to the spirit of the League of Nations systems, this too contained the weaknesses that would
hobble its effective function later on in the inter-war period. The text of the treaties sometimes left
in place or confirmed pre-war customary international and treaty law: the cooling of period, for one,
was an outgrow of the supra mentioned Bryan treaties – war was still a recognized as the default
option should peaceful dispute settlement mechanisms fail. 142 And although further limitations and
technical hurdles were introduced, the sovereign right to war was still acknowledged. 143 There was
no clear and general prohibition of war, only safeguards to limit the recourse to war. 144 The UN
system, by contrast, has the built-in presumption against the use of force.
That's not to say the Covenant was entirely a rehash of nineteenth century customary
international law. The qualifications and limitations to the instances where resort to war was
permitted were more extensive than anything seen up to that point, and as such it can be said that
the Covenant derogated significantly from existing customary law. 145 Although the right to war was
still there, it was at least made subject to certain restrictions, and made a matter of international
141I. BROWNLIE, International law and the use of force by states, Oxford, Clarendon Press, 1963.
142T.M. FRANCK, Recourse to force, New York, Cambridge University Press, 2002, 10.
143I. BROWNLIE, International law and the use of force by states, Oxford, Clarendon Press, 1963, 56.
144A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 30-31.
145A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 29 – 30.
42
concern (ex art. 11 of the Covenant), and no longer had the character of “a private duel”. 146 And it is
notable that members who did resort to war did so under the cover of certain justifications like selfdefense, rather than invoking the naked right to war. This might be considered a step towards a
presumption against the legality of war as a means of self-help.147
The Covenant of the League of Nations – the Treaty of the Gaps148
To minimize the risk of its members seeking recourse to force to settle disputes, the Covenant of
the League implemented a set of procedural limitations to the freedom of states to use force against
one another. The compliance with these obligations decided the legal status of a war, legal or
illegal.149 These limitations were contained in a set of interlocking articles of the covenant, which,
read together, limited the instances in which states could go to war depending on the outcome of a
settlement mechanism, as well as implementing a guaranteed delay between the occurrence of a
dispute and the start of hostilities.150
Article 12 of the covenant proscribes that the members of the League “if there should arise
between them any dispute likely to lead to a rupture” will “submit the matter either to arbitration or
judicial settlement or to enquiry by the Council [of the League of Nations],” which covers the
referral to a settlement mechanism. Furthermore, “they agree in no case to resort to war until three
months after the award by the arbitrators or the judicial decision, or the report by the Council.” 151
This covers the general obligation of states too seek a peaceful settlement to their disputes, as well
as a cooling-off period of at least three months.
146A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 29 and 31.
147A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 31 and 34; I.
BROWNLIE, International law and the use of force by states, Oxford, Clarendon Press, 1963, 56 – 57; T.M. FRANCK,
Recourse to force, New York, Cambridge University Press, 2002, 10.
148Title inspired by use of the “gaps” terminology in A. C. AREND and R. J. BECK, International law and the use of
force, London, Routledge, 1993, 32; Y. DINSTEIN, War, agression and self-defence, Cambridge, Grotius publ., 1994,
77.
149I. BROWNLIE, International law and the use of force by states, Oxford, Clarendon Press, 1963, 57.
150A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 32 - 33; T.M. FRANCK,
Recourse to force, New York, Cambridge University Press, 2002, 10; C. D. GRAY, International law and the use of
force, Oxford, Oxford University Press, 2008, Figure 2.1 at 21.
151Art. 12 of the Covenant of the League of Nations, available online at avalon.law.yale.edu/20th_century/leagcov.asp,
(last visited May 4, 2012).
43
Article 13 and 15 then put states under the obligation not to go to war with parties to the disputes
complying to the decisions by either the Council or an arbitral or judicial decision. Read together,
these articles thus ensured that – in case of compliance with the decision – no recourse to war was
to be sought, or in case of non-compliance by either one of both of the parties to the dispute, that the
hostilities would at least be delayed until three months after the peaceful dispute settlement
mechanism decision.152 All this of course assumed there was a decision by a peaceful settlement of
dispute mechanism, like an arbitral award, or a council decision. Should no such decision exist
(perhaps because the body to which the dispute was rendered required a unanimous decision), the
parties to the dispute would still be free to go to war at their leisure – a possibility in fact recognized
by article fifteen of the covenant:153 “If the Council fails to reach a report which is unanimously
agreed to … the Members of the League reserve to themselves the right to take such action as they
shall consider necessary for the maintenance of right and justice.”154
The Covenant also included in art. 16 the possibility of applying sanctions – economic and
military –against a member resorting to war without following the proscriptions of articles 12 – 15.
The importance of this article was, however, negligible: states feared the repercussions of economic
sanctions on their own economies, and it was seen as paradoxical to launch wars of sanction when
the stated goal of the League was to keep the peace.155
To summarize the system: states are under the obligation to seek a peaceful resolution via a
decision of an external body, and could only “legally” go to war if 1) no such decision was taken, or
2) the decision was not complied by, and then only after a period of three months had passed, or 3)
either state refused to submit to the peaceful settlement mechanism. This left substantial freedom to
resort to war still, serious “gaps”.156
A second-tier barrier to inter-state violence was also provided in the form of article 10 of the
152A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 33.
153C. D. GRAY, International law and the use of force, Oxford, Oxford University Press, 2008, 20.
154Art. 15 of the Covenant of the League of Nations.
155I. BROWNLIE, International law and the use of force by states, Oxford, Clarendon Press, 1963, 58.
156 Y. DINSTEIN, War, agression and self-defence, Cambridge, Grotius publ., 1994, 79-80.
44
Covenant, stating that “the Members of the League undertake to respect and preserve as against
external aggression the territorial integrity and existing political independence of all Members of
the League.”157 Thus was provided for a general prohibition of “aggression,” enforceable by the
Council. It was only a second-tier barrier, however, in that it had to be read in the light of articles
12, 13 and 15 of the Covenant;158 uses of force after following these procedural steps was not
deemed aggression, no matter how odious or effectively aggressive the motives behind that use of
force. Territorial changes could be made “even by war, provided that the the peaceful methods laid
down in the Covenant have been exhausted.”159 Article 10 was intended to be subordinate to the
previously mentioned interlocking articles, especially article 15. For this reasons, article 10 has
been deemed confusing and redundant, 160 even though at the time it was hailed as a revolutionary
innovation in international law. It was, in theory – but in practice the article constituted only a moral
obligation, further weakened by the vague language used. Article 10 was never used as basis for
action by the Council.161
If nothing else, these steps at least introduced a presumption against the legitimacy of the
recourse to force, seeing as how the grounds for said recourse were theoretically always subject to
some kind of review. And it introduced the distinction between legal and illegal wars, based on the
compliance with procedural obligations.162
The Covenant and Self-defense
Little has been said so far on the matter of self-defense and the covenant, let alone anticipatory
self-defense. But should the previous sections appear redundant in breaching the topic of
anticipatory self-defense, it is best kept in mind that, for the customary international laws of selfdefense, context is everything. For self-defense to achieve its current iteration, a general prohibition
157Art. 10 of the Covenant of the League of Nations.
158 Y. DINSTEIN, War, agression and self-defence, Cambridge, Grotius publ., 1994, 77.
159Report of the first Committee of the Plenary, Records of the Second Assembly (1921), Meetings of Committees,
Minutes of the First Committee, at 192 via A. C. AREND and R. J. BECK, International law and the use of force,
London, Routledge, 1993, 39.
160NC. D. GRAY, International law and the use of force, Oxford, Oxford University Press, 2008, 21-22.
161I. BROWNLIE, International law and the use of force by states, Oxford, Clarendon Press, 1963, 64 65.
162A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 34.
45
on the use of force is necessary; contemporary self-defense, be it anticipatory or plain reactive, is an
exception to the prohibition to use force in international relations.
The above sections discussing the Covenant serve to establish one thing quite clearly, and that is
the move away from the sovereign right (or freedom) to war, while still falling short of an outright
prohibition, like the one present in the Kellogg-Briand pact. Call it the missing link between
nineteenth century and twentieth century jus ad bellum. By establishing this link, the idea that the
UN Charter presented a clear break with the past becomes a lot less convincing, and the idea that it
sought to incorporate customary international law through reference to the “inherent” right of selfdefense a lot more credible – which happens to be the linchpin to understanding the legal status of
anticipatory self-defense.
One question remains unanswered, though: what exactly was the status of self-defense in this
intermediate stage of international law?
At the time, there was universal agreement on the question of the “right of legitimate selfdefense”: it was impliedly reserved by the members, 163 and since it was an inherent right, to include
it in the covenant was deemed superfluous.164 This prompt recognition of the legitimate right of selfdefense – indicating that it existed before the Covenant was considered – undercuts the
characterization of nineteenth century innovations in self-defense as simple political justifications,
and strengthens the position of the Caroline-doctrine as originator of the actual right of self-defense
in international law.
3.3.2 The Kellogg-Briand Pact165
Several other treaties and a few League of Nations resolutions came into being after 1919, but
most of these had either limited membership or were of only moral authority. In 1928, however, one
particular treaty was signed that would garner nearly universal membership, and whose binding
163A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 34.I. BROWNLIE,
International law and the use of force by states, Oxford, Clarendon Press, 1963, .
164A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 37.
165The General Treaty for the Renunciation of War of 27 August, 1928 is most often referred to in literature as the
Kellogg-Briand treaty, this will be the term used in this thesis. It is also sometimes refereed to as the Pact of Paris.
46
provisions would see themselves sanctioned in court after the Second World War: the General
Treaty for the Renunciation of War of 27 August, 1928.166
The treaty originated with Aristide Briand, then French Foreign Minister. Having already
received a Nobel Peace Prize in 1926 for his part in the conclusion of the Locarno-treaties, the
socialist minister sought to ensure future peace in Europe (and check the spread of communism)
through the implementation of his internationalist vision. This was to be achieved through European
economic integration on the one hand (which never came to fruition his lifetime), but also primarily
through an outreach to the United States, proposing to publicly subscribe to a mutual agreement
tending to outlaw war between them. The United States Secretary of State Frank B. Kellogg
formulated a counter-proposal, one with a more far-reaching scope: to seek the adherence of all
principal world powers to a declaration outlawing war as an instrument in international relations. 167
After several draft versions and notes had been passed around, the treaty eventually took the form
of the American draft of April 13, 1928.168 The provisions of the treaty are refreshingly brief, and
read as following:
Article one: The High Contracting Parties solemly declare in the names of their respective
peoples that they condemn recourse to war for the solution of international controversies, and
renounce it, as an instrument of national policy in their relations with one another.
Article two: The High Contracting Parties agree that the settlement or solution of all disputes or
conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall
never be sought except by pacific means.169
The importance of this treaty for the development of the customary international laws of the jus
ad bellum can hardly be overstated. With the Kellogg-Briand treaty, the presumption against the
legality of resort to force was finaly established in earnest – the transition from “jus ad bellum to
166T.M. FRANCK, Recourse to force, New York, Cambridge University Press, 2002, 11.
167A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 52-53.
168A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 53-58; I. BROWNLIE,
International law and the use of force by states, Oxford, Clarendon Press, 1963, 80-81.
169Art. 1 of the Kellogg-Briand Pact.
47
jus contra bellum”.170 By 1939, sixty three states had ratified the treaty, including all major world
powers (China, France, Germany, Great Britain, Italy, Japan, the United States and the U.S.S.R.),
meaning that only four states at the time were not bound by its provisions.171
But near universal acceptance and fairly strong provisions aren't necessarily indicative of the
formation of customary international law. The interpretation of the treaty is a crucial factor; was the
character of the obligations moral or legal? And what does subsequent state-practice show? As to
the correct interpretation of the treaty provisions, the extensive preliminary discussions and and
notes made by contracting parties provide the necessary insight. Although the provisions might
initially seem to lack the characteristics of a legal obligation, with an absence of sanctions and a
clear definition of terms like “war”, these considerations fall into nothingness compared to the clear
wishes expressed by the negotiators, the primary tools toward interpreting nuances. And the fact of
the matter is that the signatories intended the treaty to create legal, not moral obligations. 172 For
example, one way in which the legal nature of the legality is expressed is the stimulation in the
negotiations that a violation of the treaty by one contracting party would relieve all others from their
duties towards that party – in effect allowing for wars of sanction, 173 should contracting parties feel
the necessity.
“As I have already pointed out, there can be no question, as a matter of law, that violation
of a multilateral anti-war treaty through resort to war by one party thereto would
automatically release the other parties from their obligations to the treaty-breaking States.”174
Were the obligations only of a moral nature, this line of reasoning would not apply. There existed
in the minds of the parties a clear conviction that the treaty created legal obligations. This was
further evidenced by widespread (if not uniform) state-practice, mentioned infra.
Reservations, War and Self-defense
170 Y. DINSTEIN, War, agression and self-defence, Cambridge, Grotius publ., 1994, 81.
171I. BROWNLIE, International law and the use of force by states, Oxford, Clarendon Press, 1963, 75.
172I. BROWNLIE, International law and the use of force by states, Oxford, Clarendon Press, 1963, 83.
173The Soviet Declaration of War on Japan in 1945, for example, was phrased as a war of sanction against Japanese
aggression: Soviet Declaration of War on Japan, August 8, 1945, Moscow, available online at
avalon.law.yale.edu/wwii/s4.asp, (last visited at May 4,2012).
174Secretary of State for Foreign Affairs, Further Corespondence with Government of the United States respecting the
United States Proposal for the Renunciation of War, (Command paper 3153, 1928), No. 1, available online at
avalon.law.yale.edu/20th_century/kbbr.asp, (last visited at May 4, 2012).
48
Now that it has been established that the Kellogg-Briand treaty provided for legal obligation
entailing a blanket abandonment of war as an instrument in settling international disputes, certain
questions arise. What does it mean to renounce war as an instrument in international relations, for
one? And secondly, what is the status of self-defense in this treaty? While the importance of the
latter question for this thesis is obvious, the former is also important. Both the Covenant of the
League of Nations and the Kellogg-Briand Treaty speak of “war, while current the contemporary
jus ad bellum expressed in the UN Charter seeks to regulate the “use of force”. If the relation
between the UN Charter and the customary laws of self-defense (in part owning to the KelloggBriand pact) are to be established, this issue of differing terminology must first be resolved.
The term “war” was not further defined in the treaty, and is in any case a vague term to use in the
jus ad bellum; it is not quantified. The UN Charter handled this differently, putting an emphasis on
banning “the use of force”
175
- a clear renunciation of any violence or undue application of power.
But abandoning war is more ambiguous in its intent; there are many uses of force that do not meet
the dictionary-definition of war – and that's saying nothing of a possible sui generis definition
specific to a certain treaty.
To deduce the meaning of “war” in the Kellogg-Briand pact, the first stop is the text of the treaty
itself, interpreted in concordance with the various reservations and correspondence made by the
negotiating parties. There is the text of art. 2, proscribing that all disputes should be settled by
pacific means – this would eliminate the possibility of parties in non-peaceful actions that fail to
meet a “war-threshold”. And to interpret “pacific” as allowing for a certain level of violence would
require an overwhelming amount of traveux pointing in the opposite direction. And in as it happens,
it would appear that the parties involved did not consider “pacific” or “war restrictive terms, as no
Travaux point in that direction.176 Furthermore, subsequent state-practice reinforces the notion that
the treaty sought to ban all not just “formal” instances of war, but in fact all illegitimate uses of
force in the international realm. Various instances where Chinese, Japanese and Soviet armed forces
clashed without the subject nations formally declaring a state of war were at the time considered
violations of the treaty, and the parties involved did not try to justify them by pointing to the
absence of a state of war.177
The above points toward a striking equivalence between the provisions of the treaty and those
175Art. 2(4) of the UN Charter.
176I. BROWNLIE, International law and the use of force by states, Oxford, Clarendon Press, 1963, 87.
177I. BROWNLIE, International law and the use of force by states, Oxford, Clarendon Press, 1963, 87-89.
49
later codified in the United Nations Charter, and reinforces the notion that the Charter, for what
concerns the jus ad bellum, sought to reconfirm existing customary law, and not create new law.
The status of self-defense in the Kellogg-Briand treaty is less obvious, owning to the absence of
any explicit references in the text of the treaty provisions. The Travaux and various reservations
made by the signatories do provide for an exception to the renunciation of war in the case of selfdefense, however, further codified in several reservations made by the signatories. 178 The right of
self-defense was present in early drafts of the treaty, like the April 1928 French draft, and
emphasized in government notes made by the United Kingdom, the Empire of Japan and South
Africa.179 In response to this insistence on the importance of self-defense, the United States prepared
a note wherein both the existence of the self-defense exception, as well as the reasons for not
including it were made clear. An excerpt of preparatory correspondence by the United States:180
“[On self-defense:] There is nothing in the American draft of an antiwar treaty which
restricts or impairs in any way the right of self-defense. That right is inherent in every
sovereign State and is implicit in every treaty [emphasis added]. Every nation is free at all
times and regardless of treaty provisions, to defend its territories from attack or invasion,
and it alone is competent to decide whether circumstances require recourse to war in selfdefense. If it has a good case, the world will applaud and not condemn its action. Express
recognition by treaty of this inalienable right, however, gives rise to the same difficulty
encountered in any effort to define aggression. It is the identical question approached from
the other side. In this respect, no treaty provision can to the natural right of self-defense. It is
not in the interest of peace that a treaty should stipulate a juristic conception of self-defense,
since it is far too easy for the unscrupulous to mould events to accord with an agreed
definition.”181
Such was the nature of the inherent right of self-defense; it was considered inherent in every
treaty. It was accepted by the parties concerned that the treaty did not affect the existing right of
self-defense: almost every party expressed this opinion in notes that were exchanged, and these
178I. BROWNLIE, International law and the use of force by states, Oxford, Clarendon Press, 1963, 90.
179A. C. AREND AND R. J. BECK, INTERNATIONAL LAW AND THE USE OF FORCE, LONDON, ROUTLEDGE, 1993, 54-56; I. BROWNLIE,
International law and the use of force by states, Oxford, Clarendon Press, 1963, 235-236.
180A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 54.
181Secretary of State for Foreign Affairs, Further Corespondence with Government of the United States respecting the
United States Proposal for the Renunciation of War, (Command paper 3153, 1928), No. 1, available online at
avalon.law.yale.edu/20th_century/kbbr.asp, (last visited at May 4, 2012).
50
notes are considered an authentic and binding for what concerns the interpretation of the treaty. 182
This reaffirms the notion previously hinted at that the inherent right of self-defense both precedes (it
is here recognized as a right even before the conclusion of the treaty, after all) and is compatible
with the contemporary conception of the outlawing of the use of force in international relations. The
idea that the nineteenth century doctrine of self-defense – formulated after the Caroline-incident –
would thus survive in an international legal system that operates on the basis of an outlawing of the
use of force is thus entirely reasonable, if seemingly slightly paradoxical. It has even been argued
that the Caroline-doctrine in fact decoupled self-defense from the nineteenth century legal system
of freedom to war at its inception.183
State-practice and the judgments at Nuremberg
It has been asserted earlier on in this thesis that the Kellogg-Briand pact would go on to form the
template for the customary laws on the use of force in international law – a blanket prohibition on
the use of non-pacific means of conducting international relations, with a self-defense exception. It
was already shown that the treaty was adopted almost universally, and that the contracting parties
had intended the treaty to impose legal obligations. To pass into the realm of customary
international law, however, sufficient state practice has to be shown.
Two distinct “classes” of state practice can be discerned: generic instances of violent clashes
preceding the Second World War, and those recourses to war taking place in the context of the
Second World War, and subsequently reviewed during the various post-war trials. During those
trials, the by then established customary laws of war, including the prohibition of a recourse to war
in international relations and the exception of legitimate self-defense (and even anticipatory selfdefense), would in fact be invoked. Suffice to sum up the instances of state practice mentioned in
literature, and then move on to an analysis of the post-war trials and how they relate to the UN
Charter.
Instances of state practice confirming the legal obligations contained in the Kellogg-Briand pact:
182A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 58; Y. DINSTEIN, War,
agression and self-defence, Cambridge, Grotius publ., 1994, 81- 82.
183A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 23.
51
After an incident between Chinese and Soviet forces in 1929, both parties were reminded
of their obligations, with the Soviet Union invoking the exception of legitimate selfdefense.184
Following the 1931 Japanese invasion of Manchuria, the League of Nations Assembly
passed a resolution referencing the Kellogg-Briand pact as grounds for non-recognition of
the situation created by resort to war, rejecting Japanese claims to self-defense in that case.185
In the wake of the 1932 “Leticia dispute” between Colombia and Peru concerning the
territory upstream the Amazon river from the port of Leticia, the Council of the League of
Nations adopted a report finding Peruvian actions incompatible with, among others, the
Kellogg-Briand pact.186
In the years leading up to and including the start of the Second World war, the pact was also
invoked on numerous occasions by individual governments reacting to belligerent actions taken by
the Axis powers and the Soviet Union: by the Soviet Union following the German annexation of
Austria in 1938, by the United States following the secession of Czechoslovak territory to NaziGermany and Poland in 1938 (the Munich-agreement notwithstanding), by the United Kingdom
following the German invasion of Poland in 1939.187
Also of note are the Italian invasion and conquest of Abyssinia (Ethiopia) in 1935, and the
conflict that broke out between the Republic of China and the Empire of Japan in 1937. Both Italy
and Japan were condemned for their actions by reports before the Council of the League of Nations,
in both instances citing the Kellogg-Briand pact, and Japanese claims of self-defense (a valid
exception to the provisions of the pact) were rejected. 188 It should be noted that the impact of
League descisions was lessened considerably due to both aggressors having already rescinded
(Japan) or promptly rescinding (Italy) their membership to the League.
All of which goes to show that, although the provisions of the pact were often violated, the legal
obligations contained within were never denied. Customary international law needn't uniformly be
184A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 68-69.
185A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 68-69.
186I. BROWNLIE, International law and the use of force by states, Oxford, Clarendon Press, 1963, 76-77.
187A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 72; I. BROWNLIE,
International law and the use of force by states, Oxford, Clarendon Press, 1963, 79-80.
188A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 70-71; I. BROWNLIE,
International law and the use of force by states, Oxford, Clarendon Press, 1963, 77-78.
52
abided by as much as it need be recognized as law to become or remain law. And thus is covered
both the required state practice and opinio juris necessiatis to confer the status of customary
international law to the contents of the Kellogg-Briand pact.
Nuremberg and Tokyo
After the end of the Second World War, during the trials at Nuremberg and Tokyo, the customary
laws regarding resort to war and self-defense – even anticipatory self-defense – were explicitly
invoked and applied. An analysis of these trials gives the clearest and most extensive view of the
state of customary international law at the time of the adoption of the United Nations Charter. The
judgments were in fact subsequently affirmed by the United Nations General Assembly, further
reinforcing the notion of the United Nations Charter seeking to incorporate customary international
law.189
In the Judgments of the tribunals are contained affirmations of the status of the obligations
contained in the Kellogg-Briand pact as customary international law at the time of the War. It was
confirmed by the tribunals that the renunciation of war by the Kellogg-Briand treaty made
(aggressive) war illegal in international law. 190 Also affirmed were the the existence of the right of
self-defense, and explicit and implicit recognitions of a right of anticipatory self-defense in
accordance with the “imminence” principle established in the Caroline-case. What follows are
references of relevant language in the judgments.
The affirmation of the legal obligations contained in the Kellogg-Briand treaty took up a
considerable part of the Judgement at the Nuremberg trials, so only a limited excerpt will be
presented:
“[What] was the legal effect of this Pact? The nations who signed the Pact or adhered to it
189Resolution 95 (I) of the United Nations General Assembly (11 December, 1946 ), UN Doc. A/RES/95 (1946); I.
BROWNLIE, International law and the use of force by states, Oxford, Clarendon Press, 1963.
190A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 75.
53
unconditionally condemned recourse to war for the future as an instrument of policy, and
expressly renounced it. After the signing of the Pact, any nation resorting to war as an
instrument of national policy breaks the Pact. In the opinion of the Tribunal, the solemn
renunciation of war as an instrument of national policy necessarily involves the proposition
that such a war is illegal in international law...”191
Explicit affirmation of the existence of a right of anticipatory self-defense (here termed
preventive, a poor choice of words no doubt) in accordance with the standards of the Carolinedoctrine, with regards to the German invasion of Norway (the German claim to anticipatory selfdefense was then rejected based on the facts of the case):
“The defense that has been made here is that Germany was compelled to attack Norway
to
forestall
an Allied
invasion,
and
her
action
was
therefore
preventive.
It must be remembered that preventive action in foreign territory is justified only in case of
"an instant and overwhelming necessity for self-defense leaving no choice of means, and no
moment of deliberation.”192
Affirmation of the right of self-defense in the face of an imminent threat (anticpatory selfdefense), applied to the case of the Dutch declaration of war against the Japan:193
“The fact that the Netherlands, being fully apprised of the imminence of the attack, in self
defence declared war against Japan on 8th December and thus officially recognized the
existence of a state of war which had been begun by Japan cannot change that war from a
war of aggression on the part of Japan into something other than that.”194
Another instance where the court did not reject the legality of anticipatory self-defense, but
relied on facts to dismiss a defense claim to anticipatory self-defense with regards to the German
191The International Military Tribunal, Judgment of the International Military Tribunal for the Trial of German Major
War Criminals, Judgment (30th September and 1st October, 1946, Nuremberg), The Law of the Charter, available
online at avalon.law.yale.edu/imt/judlawch.asp, (last visited at May 4, 2012).
192The International Military Tribunal, Judgment of the International Military Tribunal for the Trial of German Major
War Criminals, Judgment (30th September and 1st October, 1946, Nuremberg), The Invasion of Denmark and
Norway, available online at avalon.law.yale.edu/imt/juddenma.asp, (last visited at May 4, 2012).
193Noted but not cited by I. BROWNLIE, International law and the use of force by states, Oxford, Clarendon Press, 1963,
258.
194The International Military Tribunal for the Far East, Judgment of the International Military Tribunal for the Far
East, Judgment, (4 November 1948, Tokyo), in PRITCHARD, R.J.; ZAIDE, S.M. (eds.), The Tokyo War Crimes Trial: The
Complete Transcripts of the Proceedings of the International Military Tribunal for the Far East, New York, 1981,
49.587, available online at werle.rewi.hu-berlin.de/tokio.pdf, (last visited at May 4, 2012).
54
invasion of the Soviet Union:195
“It was contended for the defendants that the attack upon the U.S.S.R., was justified
because the Soviet Union was contemplating an attack upon Germany and making
preparations to that end. It is impossible to believe that this view was ever honestly
entertained. The plans for the economic exploitation of the U.S.S.R., for the removal of
masses of the population, for the murder of Commissars and political leaders, were all part
of the carefully prepared scheme launched on the 22nd June without warning of any kind,
and without the shadow of legal excuse. It was plain aggression.”196
From whence is once again proven that customary international law prior to the adoption of the
United Nations Charter contained a prohibition on the resort to war in conducting international
relations, as well as an exception to this prohibition in the form of the inherent right of legitimate
self-defense, including defense against imminent threats – anticipatory self-defense.
195I. BROWNLIE, International law and the use of force by states, Oxford, Clarendon Press, 1963, 258.
196The International Military Tribunal, Judgment of the International Military Tribunal for the Trial of German Major
War Criminals, Judgment (30th September and 1st October, 1946, Nuremberg), The Aggressive War Against the
Union of Soviet Socialist Republics, available online at avalon.law.yale.edu/imt/judsov.asp, (last visited at May 4,
2012).
55
3.4 The Charter of the United Nations
The previous chapters have shown that, by 1945, the international customary laws of the jus ad
bellum had already reached a state almost identical to that contained in the United Nations Charter,
minus the provisions for collective security and enforcement arrangements. But the core provisions
relating to recourse to force and self-defense were very much in place: a prohibition on the recourse
to war, except in the case of legitimate self-defense. Now all that's left before the contemporary
dimensions of the claimed right of anticipatory self-defense can be established, is to establish
clearly the relation between the customary internationals laws of 1945 and the United Nations
Charter.
The previous chapters have shown the existence of a clear and unbroken evolutionary lineage of
the jus ad bellum of 1945, and the survival of the Caroline-doctrine throughout this process,
culminating in the recognition of the right of anticipatory self-defense according to the Carolinestandard of an imminent threat during the post-war trials in Tokyo and Nuremberg. These trials, it
should be recalled, took place in an identical context as the formation of the United Nations: the
effort of the Allied Powers of the Second World War to establish a world order fostering
international peace and an adherence to international law and human rights. This link was made
obvious with the affirmation of the Judgments by General Assembly Resolution 95.197
Keeping all that in mind, it is now time to turn to the interpretation of the Charter provisions on
self-defense and their relation to relevant customary international law.
Article 51 of the United Nations Charter states:
Nothing in the present Charter shall impair the inherent right of individual or collective
self-defense if an armed attack occurs against a Member of the United Nations...
[emphasis added]198
Recalling the scholarly debate on the issue of the interpretation, there are two ways of reading
the article: either the Charter seeks to reference the customary right of self-defense (the use of
197Resolution 95 (I) of the United Nations General Assembly (11 December, 1946 ), UN Doc. A/RES/95 (1946).
198Art. 51 of the UN Charter.
56
“inherent right” being a reference to customary international law according to the ICJ) 199, or it seeks
to establish a new right of self-defense, or at least seriously modify the existing customary right,
based on the language of article 51 of the Charter.
In the previous chapters it has been shown that the customary right of self-defense
unambiguously includes a right of anticipatory self-defense owning to the Caroline-doctrine,200 and
that the template for the prohibition of the use of force in the United Nations Charter (a prohibition
with an exception for self-defense) existed as customary international law before the Charter was
contemplated.201 It follows from this that if the Charter is but an affirmation of existing law, and the
self-defense exception indeed a reference to the existing right of self-defense in customary
international law,202 that there exists in contemporary international law (following the United
Nations Charter) a genuine right of anticipatory self-defense following the Caroline-doctrine.
One possible source for the correct interpretation of the United Nations Charter are rulings by the
International Court of Justice. Whether article 51 of the United Nations Charter merely references
the existing customary right of self-defense in international law was considered by the International
Court of Justice in the (in)famous Nicaragua-case. The Court ruled that the Charter did indeed
reference the customary right of self-defense, and did not further qualify that statement. 203 Given the
proven existence of a right of anticipatory self-defense in customary international law, this could be
considered an implicit recognition of said right. Unfortunately, the Court declined to make any
explicit pronouncements on that matter.204
Although the Court did openly refuse to make a pronouncement on the issue of anticipatory selfdefense, one of the deciding judges was of the opinion that the ruling might be interpreted as
199ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Judgement, ICJ Reports 1986, 94; Y. DINSTEIN, War, agression and self-defence, Cambridge, Grotius publ., 1994,
181.
200That the Caroline-doctrine stems from the nineteenth century does not diminish its validity, as the continuous
references in the post-war trials show, contrary to erroneous claims in R. A. MÜLLERSON, “The principle of non-threat
and non-use of force in the modern world,”, in W. E. BUTLER (ed.), The non-use of force in international law,
Dordrecht, Nijhoff, 1989, 32; I. BROWNLIE, “The principle of non-use of force in international law”, in W. E. BUTLER
(ed.), The non-use of force in international law, Dordrecht, Nijhoff, 1989, 19.
201Contrary to certain erroneous claims in literature:R. A. MÜLLERSON, “The principle of non-threat and non-use of force
in the modern world,”, in W. E. BUTLER (ed.), The non-use of force in international law, Dordrecht, Nijhoff, 1989, 29.
202The Charter needn't be an affirmation of existing law for the self-defense exception to incorporate the customary
laws of self-defense, but it would certainly strengthen that case.
203ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Judgement, ICJ Reports 1986, par. 193.
204ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Judgement, ICJ Reports 1986, par. 194.
57
rejecting the legality of anticipatory self-defense and allowing for self-defense only after an armed
attack had occurred, so for this reason issued a dissenting opinion. Judge Schwebel did not resign to
leave the matter open for interpretation,205 and noted that:
“I wish, ex abundanti cautela, to make clear that, for my part, I do not agree with a
construction of the United Nations Charter which would read Article 51 as if it were
worded : "Nothing in the present Charter shall impair the inherent right of individual or
collective self-defence if, and only if, an armed attack occurs . . ." I do not agree that the
terms or intent of Article 51 eliminate the right of self-defence under customary international
law, or confine its entire scope to the express terms of Article 51.” 206
It must be recalled that the opinion of the ICJ, and dissenting opinions, on the matter is
authoritative, but not actual law.
A more definite conclusion on the interpretation of art. 51 of the Charter could theoretically be
arrived at by analyzing the drafting history of the Charter, and the drafters' vision. Two drafting
documents are important: the so-called “Dumbarton Oaks proposals” (named after the location of
the conference, a suburb of Washington D.C.) and the documents of the San-Fransisco conference
where the actual Charter was approved. The taveaux of the charter, however, appear to be equally
inconclusive.
On the one hand, confirming the restrictionist view, are contemporaneous dialogues between
U.S. Government officials and the U.S. negotiator Harold Stassen, where Stassen explained that
“We do not want exercised the right of self-defense before an armed attack has occurred.” 207
Although this plainly states the restrictionist point of view, it is but one intra-government
communication, and may have been made in reference to collective self-defense.208
Buttressing the counter-restrictionist view, it is noted that during the Charter deliberations, there
was nothing to suggest that the drafters aimed to limit the scope of self-defense – had the drafters
intended to do so, there surely would be ample trace of it in the Travaux, or at least some trace
205L. VAN DEN HOLE, “Anticipatory self-defence under international law,” Am. U. Int'l L. Rev., 2003, (69) 94-95.
206ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Dissenting Opinion of Judge Schwebel, ICJ Reports 1986, 337-338.
207D.A. SADOFF, “A question of determinacy: the legal status of anticipatory self-defense,” Geo. J. Int'l L., 2009, (523)
552.
208T. KEARLY, “Regulation of Preventative and Preemptive Force in the United Nations Charter,” WYOLREV, 2003,
(663) 710.
58
comments. In fact, the original Dumbarton Oaks proposal did not include a reference to the right of
self-defense, leaving the matter entirely to customary international law. 209 Furthermore, the absence
of an effort to harmonize the glaringly divergent terminology of the English and the French text of
article 51 of the Charter (usage of “armed attack” and “agression armée”) is not at all consistent
with the view that the drafters aimed at restricting the right of self-defense. If anything, both points
seem to indicate that the drafters merely mentioned the right of self-defense in passing, without the
goal to significantly alter it.210
What the Travaux do mention, however, is that during the negotiations all attention in reviewing
article 51 was on the legal rules concerning collective self-defense, evidenced by the original
placement of article 51 in Chapter VIII of the Charter, concerning “Regional Arrangements”. The
concern of the negotiators was that the Security Council could use its Article 53 power to meddle in
the affairs of regional security organizations, and that a permanent member veto could preclude
them from undertaking collective security measures, or have the Security force a regional
organization into action, a concern that was assuaged by reaffirming the individual and collective
right of self-defense in article 51. The discussion focused on the issue of regional arrangements, not
on defining the legal limits of the individual state's right of self-defense. 211 The use of “armed
attack” in the English text can furthermore be explained by the fact that self-defense was considered
only at a late stage in the San Fransisco conference, and the language used stemmed from a hurried
draft proposal of the American delegation where they spoke of the individual right to defend against
aggression and the collective right to defend against armed attack. 212 Ultimately, time pressure
combined with disagreements lead to imprecise language open to interpretation.213
209A.E. ECKERT AND M MOFIDI, “Doctrine or doctrinaire,” Tul. J. Int'l & Comp. L., 2004, (117) 131.
210D.A. SADOFF, “A question of determinacy: the legal status of anticipatory self-defense,” Geo. J. Int'l L., 2009, (523)
554.
211 D.W. BOWETT, Self-Defense in international law, New York, Praeger, 1958, 182-193; T. KEARLY, “Regulation of
Preventative and Preemptive Force in the United Nations Charter,” WYOLREV, 2003, (663) 706; M.S. MCDOUGAL
and F. P. FELICIANO, Law and Minimum World Public Order, New Haven, Yale University Press, 1961, 232-241; O.
SCHACHTER, "The Right of States to Use Armed Force", Michigan Law Review, 1984, 1620 and 1634; L. VAN DEN
HOLE, “Anticipatory self-defence under international law,” Am. U. Int'l L. Rev., 2003, (69) 76-77.
212D.A. SADOFF, “A question of determinacy: the legal status of anticipatory self-defense,” Geo. J. Int'l L., 2009, (523)
555.
213T. KEARLY, “Regulation of Preventative and Preemptive Force in the United Nations Charter,” WYOLREV, 2003,
(663) 668.
59
3.5 Conclusion on the Existence of a Right of Anticipatory Self-defense at
the adoption of the Charter of the United Nations
The various schools of interpretation with regards to art. 51 of the Charter of the United Nations
and how it relates to a possible existence of a right of anticipatory self-defense were analyzed in the
early chapters of this thesis, and the arguments against the existence of a right of anticipatory selfdefense have been found lacking. They are too reliant on linguistic arguments from what is in effect
a vague phraseology. Furthermore, when faced with policy considerations against a purely reactive
self-defense, they either harken back to discarded theories, like the “state of war” in jus ad bellum,
or rely on anticipatory self-defense in disguise.
In fact, through a comprehensive analysis of the historical evolution of what is currently the
prohibition on the use of force in international relations, and parallel to that self-defense, it has
been shown that customary international law in fact provides for a right of anticipatory self-defense
following the rules contained in the Caroline-doctrine, a fact confirmed at the post-World War Two
tribunals.
Likewise, it has been shown that the Charter of the United Nations, through reference to an
“inherent right” of self-defense, sought to incorporate the customary right of self-defense, a fact
confirmed by the International Court of Justice.
The question of whether the Charter of the United Nations set out to change customary
international law with regards to anticipatory self-defense, however, remains unanswered. The
framers of the Charter do not seem to have concerned themselves much with delimiting the
“inherent” right of self-defense of individual states, and that the Travaux are therefore unhelpful
towards interpreting the Charter. Subsequent state practice has been sparse, and inconclusive either
for or against anticipatory self-defense. Nevertheless, given that anticipatory self-defense has been
proven to have been part of customary international law in 1945, the burden of proof is now on
those claiming that this is no longer the case. Without clear evidence to the contrary, an older
customary law cannot be believed to have been replaced by a newer one, 214 and anticipatory self214T. R. BERNARD, Customary International Law, in Enceclopedia of Public International Law, Vol. 7, Oxford, Oxford
University Press, 2003, 61-62; I. BROWNLIE, Principles of Public International Law, Oxford, Oxford University
Press, 1990, 3-4; D. GILL, “The temporal dimension of self-defense”, in M.N. SCHMITT AND J. PEJIC (eds.),
International law and armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 117; R. JENNINGS and A. WATTS,
Oppenheim's International Law, Vol. 1, Peace, London, Longman, 1992, 25-26.
60
defense must be considered as part of the contemporary jus ad bellum.
61
4 Dimensions of Anticipatory Self-defense
Having determined the state of the customary international laws on self-defense and anticipatory
self-defense in the wake of the Second World War, there is but one thing left to investigate: what is
the status and the extent of the right of anticipatory self-defense in contemporary international law?
The study of the evolution of the jus ad bellum has revealed that there is a strong case to be made
that the United Nations Charter incorporates the customary right of self-defense. And at the time of
the adoption of the Charter, customary international law included a right of anticipatory selfdefense. This thesis will now seek to discern what post-war state practice reveals about the
contemporary status of anticipatory self-defense.
The classical formulation of self-defense, first and best expressed following the Caroline-case,
holding that “It will be for a Government to show the necessity of self-defense, instant,
overwhelming, leaving no choice of means and no moment for deliberation.” 215 From this formula
are distilled in literature the preconditions for the exercise of legitimate anticipatory self-defense:
necessity, proportionality and imminence.216 This thesis will seek to clarify the meaning of these
preconditions, as well as the importance placed on the definition of armed-attack, and where
applicable investigate the influence of contemporary state practice on delimiting or defining the
terms, although it should be clear that all terms defy a bright-line distinctions. 217 Following that
general analysis of the extent of the right of anticipatory self-defense, the focus will shift to a
number of selected topics relevant to the right of self-defense:
The issue of non-state actors and the exercise of anticipatory self-defense and the Global
War on Terror, and the effect of the 21st century innovation of “drones”.
The question of anticipatory self-defense vis-à-vis weapons of mass-destruction, based on
a case-by-case analysis of the First Report of the Atomic Energy Commission, the 2002
215See supra at 36 – 40.
216L. VAN DEN HOLE, “Anticipatory self-defence under international law,” Am. U. Int'l L. Rev., 2003, (69) 97.
217A.E. ECKERT AND M MOFIDI, “Doctrine or doctrinaire,” Tul. J. Int'l & Comp. L., 2004, (117) 136.
62
United States National Security Strategy, the 2003 United States' invasion of Iraq and the
Israeli counter-proliferation operations against Iraq, Syria and (hypothetical at the moment
of writing) Iran.
63
4.1 Use of force and armed attack:
4.1.1 The Nicaragua-case
Article 2 (4) of the United Nations Charter prohibits the “use of force” in state-relations, and art.
51 of the Charter allows for the exception of self-defense in reference to an “armed attack.” This
has led to some discussion as to the relation between the two terms, although there is consensus that
all armed attacks are uses of force, but not all uses of force are armed attack. Also note how the
term “war”, prevalent in earlier customary international law and treaties, has fallen out of favor
entirely and now typically has no more place in the jus ad bellum. Where earlier the distinction
between uses of force short of war an war was relevant, it is now a question of uses of force short of
armed attack.218
The issue was most famously discussed at some length in the “Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America)”-case219 (referred to as
the Nicaragua-case), where the Court looked at the competing claims of Nicaragua and the United
States. Nicaragua claimed that the Unites States had illegitimately attacked her, by supporting antigovernment militia, and by mining Nicaraguan harbors. The Unites States counter charge was that it
was merely exercising a collective right of self-defense, protecting Costa Rica, El Salvador and
Honduras against Nicaraguan armed attack.220
On the issue of what constitutes an armed attack, it was noted that any use of force of sufficient
gravity, because of its scale and effects, could be an armed attack. 221 Relying on the Definition of
218 D. KRITSIOTIS, “Topographies of force,”, in M.N. SCHMITT AND J. PEJIC (eds.), International law and armed conflict,
Boston, Martinus Nijhoff Publishers, 2007, 31 – 45.
219ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Judgement, ICJ Reports 1986.
220ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Judgement, ICJ Reports 1986, par. 18-25; C. GRAY, International law and the use of force, Oxford, Oxford
University Press, 2000, 97.
221Y. DINSTEIN, War, agression and self-defence, Cambridge, Grotius publ., 1994, 192-193.
64
Agression General Assembly Resolution222, the Court held that assistance to rebels in the form of the
provision of weapons or logistical support did not amount to an armed attack, although it was a
form of illegal intervention.223 The Court did not elaborate on what uses of force would be sufficient
to qualify as an armed attack, 224 only noting that there existed most grave uses of force (amounting
to an armed attack), and less grave uses of force. It did sum up some other less grave uses of force
by a state: violating existing international boundaries, acts of reprisal, depriving peoples of their
right to self-determination, organizing or encouraging the organization of armed bands for incursion
into the territory of another state, and organizing, instigating assisting or participating in acts of
civil strife or terrorist acts in another state when those acts involve the threat or use of force. 225 The
ICJ also seemed to have recognized the possibility that several uses of force not amounting to an
armed attack might cumulatively be considered an armed attack.226
While any use of force amounting to an armed attack would confer the victim state the right to
respond with force in self-defense, less grave uses of force only allow for “proportionate countermeasures”.227
It should be noted that while authoritative, the ICJ's decision is not the end-all be-all in
discerning what constitutes an armed attack. The Judgment was heavily criticized at the time of
adoption by literature and a number of dissenting judges as overly abstract, unbalanced and relying
to heavily on theoretical definitions.228
For what concerns anticipatory self-defense, the above findings are relevant towards determining
when states should invoke anticipatory self-defense. If the act inflicted on a victim state (or believed
222Resolution 3314 (XXIX) of the United Nations General Assembly (14 December, 1974), UN Doc. A/RES/3314
(1974).
223ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Judgement, ICJ Reports 1986, par. 195; C. GRAY, International law and the use of force, Oxford, Oxford University
Press, 2000, 97.
224A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 120.
225ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Judgement, ICJ Reports 1986, par. 191; D. KRITSIOTIS, “Topographies of force,”, in M.N. SCHMITT AND J. PEJIC (eds.),
International law and armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 49-50.
226C. GRAY, International law and the use of force, Oxford, Oxford University Press, 2000, 108; nicaragua para 231
227ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Judgement, ICJ Reports 1986, par. 195; D. KRITSIOTIS, “Topographies of force,”, in M.N. SCHMITT AND J. PEJIC (eds.),
International law and armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 51-52.
228T. D. GILL, “The temporal dimension of self-defense”, in M.N. SCHMITT AND J. PEJIC (eds.), International law and
armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 122-123.
65
to be inflicted imminently) does not amount to an armed attack, (anticipatory) self-defense is not
“triggered.” That an imminent threat amount to an armed attack is in a way a precondition for
anticipatory self-defense.
4.1.2 Cyber-attacks as armed attacks
A most curious thing happened mid-2009: a computer-virus began to spread, with a propensity
for settling in the software of industrial applications, especially those geared towards Siemens
equipment. Although it seemed harmless enough, only spreading and causing no ill-effects, the fact
that it managed to seep into many of the world's industrial sites was cause for alarm. Specialists set
out to analyze the code.
After careful analysis, it was concluded that the program was targeted to take over a specific
model of frequency converters, a type of power supply that changes its output frequency to control
the speed of a motor. As it turned out, these correspond with the types used in to run the centrifuges
used in the nuclear enrichment program of the Islamic Republic of Iran. Moreover, when the
program altered the frequency of the electrical current supplying the centrifuges, they would spin
faster and faster. The program would eventually make the current hit 1,410 Hertz, or cycles per
second – enough to send the centrifuges flying apart. All the while a different part of the program
was targeted at the exact same software used to monitor the centrifuges in the Iranian facilities,
reconfiguring it to display normal frequency values, so as to give no indication of the impending
ruin of the centrifuges.229
As it turned out, the virus (or worm) termed “Stuxnet” had been specifically tailored to target
and disrupt the Iranian nuclear enrichment program, and was reported to have been successful at
that, setting the program back several years. The suspected originators of the program were Israel
and the United States, but those allegations remain unproven today.
The Stuxnet-incident goes to prove that so called cyber-attacks230 are able to cause extensive
229BROAD, W.J.; SANGER, E.S., “Worm Was Perfect for Sabotaging Centrifuges,” The New York Times, November 18,
2010, A1.
230A proposed definition for cyber-attacks or warfare: any use of computer code to effect harmful changes in programs,
66
material damage, much like conventional weapons could. This raises the issue of how international
law deals with these kinds of attacks; are they seen as an illegitimate use of force, can they amount
to an armed attack, and can they be the basis for a use of force in (anticipatory) self-defense?
Owning to the novelty of the field, little study has yet been conducted, and state practice is
similarly elusive. The United States Armed Forces are ahead of the curve, however, in that they
have considered the issue and formulated an official policy, indicating that any cyber-attack of
sufficient severity will be regarded as grounds for a use of force in self-defense, if no other options
remained.231
The effect of these developments on the dimensions of the right of self-defense seems to be a
largely unexplored field, for now.
networks or machines.
231“Any computer attack that threatens widespread civilian casualties (which could be cause by cutting off power
supplies, bringing down hospitals and the like, …) would be treated as an act of aggression.” From SANGER, D. E.,
BUMILLER, E., “Pentagon To Consider Cyberattacks Acts of War,” The New York Times, June 1, 2011, A10.
67
4.2 Imminence, necessity and proportionality
4.2.1 Necessity
Under the Caroline-doctrine, the threat of attack must be so instant and overwhelming as to leave
no other choice; the use of force becomes the only means of action, necessitated by the
circumstances. At the same time, the U.N. Charter proscribes that states seek peaceful resolutions to
conflicts before resorting to the use of force,232 a restatement of international law first firmly
established in the Covenant of the League of Nations, 233 and originating in the just war principle of
“last resort”.234 The condition of necessity thus stipulates that is that the use of force in self-defense
is only then legitimate if peaceful measures have failed, or would be futile; 235 all reasonable
alternatives to the use of force must be exhausted.236 The precondition of “necessity” is easy to
comprehend, but not quite so easy to determine in fact, as it is predicated on the absence of options,
and proving a negative is notoriously hard to do. The state claiming self-defense must not have any
means of halting an (imminent) attack other than a recourse to force; were it possible to avert the
attack through reliance on diplomacy, international organizations, economic sanctions or any venue
of nonviolent dispute resolution, the defending state would have no justification for violating the
general prohibition against the use of force.237
When self-defense is sought against non-state actors, especially terrorists, an important part of
proving necessity will be in showing that classical law-enforcement measures are insufficient.238
232Art. 2(3) of the UN Charter: “All Members shall settle their international disputes by peaceful means in such a
manner that international peace and security, and justice, are not endangered.”
233See supra at 43.
234J. D. ARMSTRONG, T. FARRELL and H. LAMBERT, International law and international relations, Cambridge, Cambridge
University Press, 2007, 122.
235A.E. ECKERT AND M MOFIDI, “Doctrine or doctrinaire,” Tul. J. Int'l & Comp. L., 2004, (117) 136.
236L. FISLER AND D.J. SCHEFFER, Law and force in the new international order, Boulder, Westview Press, 1991, 647; M.
N. SCHMITT, “Preemptive strategies in international law,” Mich. J. Int'l L., 2003, (513) 530.
237 Addendum to the eighth report on State responsibility (29 February, 10 and 19 June 1980), UN. Doc.
A/CN.4/318/Add.5-7, 69 par. 122; D.A. SADOFF, “A question of determinacy: the legal status of anticipatory selfdefense,” Geo. J. Int'l L., 2009, (523) 526; L. VAN DEN HOLE, “Anticipatory self-defence under international law,” Am.
U. Int'l L. Rev., 2003, (69) 99.
238M.N. SCHMITT, “Responding to transnational terrorism under the jus ad bellum,”, in M.N. SCHMITT AND J. PEJIC (eds.),
International law and armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 171.
68
An illustrative case of what can be considered a state lacking alternatives to the use of force to
avert an imminent attack would be the quintessential example of anticipatory self-defense, the 1967
Israeli attack against its Arab foes.239
In 1967, Israel faced the following situation: it was not recognized as a state by the nations of the
Arab coalition, and her neighbors worked openly towards her destruction, eliminating the
possibility of direct diplomatic overtures and consequently severely limiting the available
diplomatic options. Even more important was the recent expulsion of a U.N. Peacekeeping-force
from the area. The United Nations Emergency force (I) 240 had been put in place by General
Assembly Resolution 1000,241 agreed upon during an emergency session following the Suez-crisis.
Shortly before the Six Day War, however, the U.N. forces were presented by Egyptians with a
unilateral request for withdrawal, with which the U.N. Secretary General complied without protest
or reference to the Security Council. Israel could hardly be supposed to rely on the U.N. to defend
her against attack after it had displayed such a lack of commitment. These factors contributed in
making a use of force the one remaining – and thus necessary – option in confronting the the
imminent threat.
Another example of when the “necessity” threshold is met are the deliberations preceding
Operation Allied Force, the NATO bombardment of Serbian targets with the object of protecting the
Albanian population in Kosovo in 1999. Supporters of the action contended that trying to channel
the action through the Security Council would have been a waste of time, as a veto by the Russian
Federation was deemed inevitable, thus eliminating this alternative venue to the use of force.242
4.2.2 Proportionality
The use of the term “proportionality” in the context of self-defense conveys a different meaning
from that of everyday use, or the use in the jus in bello. A more appropriate term might be
“sufficient towards the goal of defense”. Rather than seek the outright destruction of the entirety of
239L. VAN DEN HOLE, “Anticipatory self-defence under international law,” Am. U. Int'l L. Rev., 2003, (69) 100.
240United Nations, First United Nations Emergency Force, available at
un.org/en/peacekeeping/missions/past/unefi.htm, (last viewed at May 7, 2012).
241Resolution 1000 (ES – I) of the United Nations General assembly (November 5; 1956), UN Doc. A/RES/1000
(1956).
242M. N. SCHMITT, “Preemptive strategies in international law,” Mich. J. Int'l L., 2003, (513) 531 – 532.
69
the attacking state's military or economic potential, current doctrine on self-defense holds that the
actions of the defending state have to be appropriate towards the goal of to halting, repulsing or
making impossible the (imminent) attack. This obviously does not imply a symmetry between the
attacking use of force and the defending use of force, but only that the defending state not go
beyond what is required towards eliminating the (threat of) enemy attack.243
There is also a psychological aspect to proportionality, in that the use of force can also seek to
deter the opposing party from sustaining the condition that necessitated the self-defense, rather than
seeking the outright destruction of the (capacity for) attack.244
Recycling a biblical legal metaphor, proportionality requires not an eye for an eye and a tooth for
a tooth, but an eye or a tooth, depending on what it takes an eye to repel the attack.245
The above definition is obviously highly abstract. In practice, an important yardstick for
measuring whether a use of defensive force was proportional is the impact on civilian
noncombatants and the strategic nature of targets. Targets should be based on the ability to reduce
the military strength of the aggressor, and in such a way that it undermines that attack against which
is defended. Target choices that cause civilian casualties may invalidate the claim of
proportionality,246 and must in any case conform to the jus in bello on the status of civilians as
contained in the Protocol I additional to the Geneva Conventions.247
Specifically for what concerns anticipatory self-defense, doctrine holds that it is more
challenging to meet the precondition of proportionality and necessity, seeing as how the size and
243 J. D. ARMSTRONG, T. FARRELL and H. LAMBERT, International law and international relations, Cambridge - New York,
Cambridge University Press, 2007, 123; T. D. GILL, “The temporal dimension of self-defense”, in M.N. SCHMITT AND
J. PEJIC (eds.), International law and armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 124; C. GRAY,
International law and the use of force, Oxford, Oxford University Press, 2000, 106; D.A. SADOFF, “A question of
determinacy: the legal status of anticipatory self-defense,” Geo. J. Int'l L., 2009, (523) 526 – 527; L. VAN DEN HOLE,
“Anticipatory self-defence under international law,” Am. U. Int'l L. Rev., 2003, (69) 103-104.
244A.E. ECKERT AND M MOFIDI, “Doctrine or doctrinaire,” Tul. J. Int'l & Comp. L., 2004, (117) 136; M.S. MCDOUGAL and
F. P. FELICIANO, Law and Minimum World Public Order, New Haven, Yale University Press, 1961, 242; M. N.
SCHMITT, “Preemptive strategies in international law,” Mich. J. Int'l L., 2003, (513) 533.
245D.A. SADOFF, “A question of determinacy: the legal status of anticipatory self-defense,” Geo. J. Int'l L., 2009, (523)
527.
246A.E. ECKERT AND M MOFIDI, “Doctrine or doctrinaire,” Tul. J. Int'l & Comp. L., 2004, (117) 137; J.G. GARDAM,
“Proportionality and Force in International Law,” AM. J. Int'l L., 1993, (391) 406-407.
247International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August
1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125
UNTS 3.
70
scope of the imminent enemy attack might be harder to prove if it was never allowed to
materialize.248
4.2.3 Imminence
The attack which an act of anticipatory self-defense seeks to avert needs to be sufficiently
imminent. The right of anticipatory self-defense does not allow one to use force freely in response
to a threat or anticipation of an attack, but requires the clear immanence and great danger of an
attack.249 This is sometimes framed as a dual requirement of urgency (temporal) and credibility
(probability) of a threat.250
In practical military terms, this is sometimes defined as the opposing armed forces being in final
preparations for an attack through maneuvers, deployments and other measures or readiness. 251
Again, the case of the Six Day War is illustrative in this regard. By late may and early June 1967,
Israel's Arab neighbors (Egypt, Jordan and Syria) had forged military alliances and placed their
troops under a unified command, as well as deploying troops inside each other's borders. Beyond
merely mobilizing and deploying to the border, Egyptian troops had also moved into the Sinai
demilitarized zone, expelling United Nations peace keepers that had been put in place there a
decade earlier. There was an increase in Arab reconnaissance flights, including aircraft flying over
the clandestine Israeli nuclear research facility.252
248D.A. SADOFF, “A question of determinacy: the legal status of anticipatory self-defense,” Geo. J. Int'l L., 2009, (523)
527; M. N. SCHMITT, “Preemptive strategies in international law,” Mich. J. Int'l L., 2003, (513) 530 – 531.
249A.E. ECKERT AND M MOFIDI, “Doctrine or doctrinaire,” Tul. J. Int'l & Comp. L., 2004, (117) 140; O. SCHACHTER, "The
Right of States to Use Armed Force", Michigan Law Review, 1984, 1634.
250 T. D. GILL, “The temporal dimension of self-defense”, in M.N. SCHMITT AND J. PEJIC (eds.), International law and
armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 114.
251D.A. SADOFF, “A question of determinacy: the legal status of anticipatory self-defense,” Geo. J. Int'l L., 2009, (523)
530.
252T. D. GILL, “The temporal dimension of self-defense”, in M.N. SCHMITT AND J. PEJIC (eds.), International law and
armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 134; D.A. SADOFF, “A question of determinacy: the legal
status of anticipatory self-defense,” Geo. J. Int'l L., 2009, (523) 565.
71
4.2.4 Immediacy
Another condition for self-defense that is sometimes mentioned in regards to reactive selfdefense, is that the self-defense must be exercised immediately, against an ongoing attack, and not
after the attack has run its course (if it was indeed one of limited objectives and duration). This to
distinguish it from an unlawful instance of retaliation, where the use of force is no longer pointed at
an attack, but only seeks to cause harm to the opposing party on a talio basis. The issue is muddled
somewhat by using both imminence and immediacy interchangeably in both contexts.253
Immediacy is largely a redundant criterion, however, as it is covered by the perquisite of
necessity and proportionality. If the attack on seeks to defend against has run its course, it becomes
logically impossible to hold that one had no other recourse than the use of force to destroy an attack
(it has already ended, so no recourse whatsoever would apply), or that one used an appropriate
amount of force (if an attack is already over, no amount of force will be appropriate to end it).
253M. N. SCHMITT, “Preemptive strategies in international law,” Mich. J. Int'l L., 2003, (513) 533 – 534.
72
5 Anticipatory self-defense and non-state actors
The issue of non-state actors is a pressing issue in international law. While the main concern of
the framers of the Covenant of the League of Nations, the Kellogg-Briand treaty and the United
Nations Charter were possible armed conflicts between states, recent decades have seen the rise of
so-called non-state actors. This issue was brought to the fore quite graphically on September 11,
2001, when terrorists hijacked several passenger jets and flew them into targets in New York and
Washington D.C. In response, the United States – supported for the most part by the international
community – conducted military operations against Al-Qaida in Afghanistan, and currently claims
the right to use its military might against suspected terrorist targets all over the world. Nations
where the United States operates militarily in search of terrorist suspects now include, but are not
limited to, Afghanistan, Iraq, Pakistan, Somalia and Yemen.
When contemplating the application of an anticipatory right of self-defense to a situation
involving non-state actors, it is important to distinguish primarily between the different ares of
concern in this field; non-state actors pose a challenge to international law for a variety of reasons.
International jus ad bellum is formulated with inter-state conflicts in mind; can international law
(like the right of self-defense) be applied to non-state entities? Under what conditions and
modalities? What is the relation of the laws on self-defense and non-state actors.
Non-state actors do not always operate entirely independent from states: they often receive
various forms of support from, operate in the territory of or for the benefit of certain states. This
leads to the question of whether actions of non-state actors can be imputed to states, and what
options are open to victim states in the territory of or against such sanctuary-states; the issue of
state responsibility and territorial sovereignty.
73
Once those theoretical questions have been sufficiently answered, this thesis will analyze an
ongoing conflict where a claimed right of anticipatory self-defense against non-state actors is
heavily relied upon, the so-called Global War on Terror (although the use of the term by the United
States government has subsided,254 is still a useful catch-all for various engagements around the
world) engaged in by the United States against various purported terrorist organizations. Special
focus will be on how the United States relies primarily on “drones” 255 to conduct these operations,
and whether they are used in accordance with international law.
254WILSON, S.; KAMEN, A., “'Global War On Terror' Is Given New Name,” The Washington Post, March 25, 2009,
available at washingtonpost.com/wp-dyn/content/article/2009/03/24/AR2009032402818.html, (last visited at May 3,
2012).
255Commonly used term for remote-controlled or self-piloting unmanned aerial vehicles.
74
5.1 State responsibility and territorial sovereignty
5.1.1 State responsibility
The issue of state responsibility determines whether the actions of non-state actors can be
imputed to a state, and if self-defense measures might by implication extend to targeting said state
(assuming of course that this would be in accord with the perquisites of necessity, proportionality
and if appropriate imminence). This is to be quite clearly distinguished from a state that is unwilling
or unable to act against non-state actors, in which case the defense cannot be aimed at the
sanctuary-state itself.256
In the Armed Activities on the Territory of the Congo-case, the ICJ expressed her current doctrine
on the issue of state-responsibility, recalling the standard applied in the Nicaragua-case.
Armed Activities on the Territory of the Congo-case
A recent case before the ICJ where both the issue of anticipatory self-defense, as well the
question of state responsibility were at issue was the 2005 “Armed Activities on the Territory of the
Congo (Democratic Republic of the Congo v. Uganda)”-case.257
The case was brought before the court by the Democratic Republic of the Congo, former Zaire,
in the wake of the ongoing conflict there against Uganda, which was accused of supporting antigovernment militia, trying to overthrow the Congolese government and illegally occupying and
256M. N. SCHMITT, “Preemptive strategies in international law,” Mich. J. Int'l L., 2003, (513) 543.
257ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ
Reports 2005, 168, available online at icj-cij.org/docket/index.php?p1=3&p2=3&code=co&case=116&k=51, (last
visited May 7, 2012).
75
exploiting Congolese territory. Uganda defended itself by both claiming that its military presence
had initially been acquiesced to, owning to “the fact that the Congolese army did not have the
resources to control the remote eastern provinces”, 258 and necessitated in self-defense against militia
operating from the territory of the Congo, supported by the government of the Congo. Attacks
against government troops and further occupation were also claimed to have been in self-defense.259
The Court rejected the Ugandan claim of Congolese consent as based on the “Lusaka”agreement,260 however, and cited internal Ugandan High Command documents as evidence of nondefensive Ugandan motives.261
Although the Ugandan actions had a semblance of anticipatory self-defense – which the Court
“feels constrained, however, to observe”, the Court nonetheless held that “Uganda has insisted in
this case that operation “Safe Haven” was not a use of force against an anticipated attack... “reliance
is placed by the Parties only on the right of self-defence in the case of an armed attack which has
already occurred, and the issue of the lawfulness of a response to the imminent threat of armed
attack has not been raised... [a]ccordingly [it] expresses no view on that issue”. So it is in the
present case.”262 Once again the ICJ passed up the opportunity to illuminate the question of
anticipatory self-defense, and chose to reject the Ugandan claim of self-defense based on the fact
that the Ugandan High Command did not show any intent of acting in self-defense, but openly
sought to protect “national interests”. The Court did note that, even if Uganda had actually intended
to act in self-defense, their actions did not pass the test of necessity and proportionality. 263
On the question of state responsibility, the Court looked at the Ugandan claims, accusing the
other side of providing support to rebel groups against her, and in doing so being responsible for the
attacks perpetrated by the militia. The Court noted that, to be attributable to a state, attacks had to
258ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ
Reports 2005, par. 36.
259ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ
Reports 2005, par. 38 and 43.
260ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ
Reports 2005, par. 92 and 97.
261ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ
Reports 2005, par. 109 and 119
262ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ
Reports 2005, par. 143.
263ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ
Reports 2005, par. 147.
76
emanate from armed bands or irregulars sent by the a state, or on behalf of a state within the sense
of Article 3 (g) of General Assembly resolution 3314 (XXIX) on the definition of aggression,
adopted on 14 December 1974.264 Uganda was unable to meet this burden of proof,265 as its evidence
was deemed to flimsy.266
When answering the Congolese claims of Ugandan support of anti-government militia, the Court
reiterated the principles expressed in its Nicaragua-descision of what amounts to a prohibited use of
force against another state vis-à-vis the support of non-state actors: “The Court considers that the
obligations arising under the principles of non-use of force and non-intervention were violated by
Uganda ... In the case concerning Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), the Court made it clear that the principle of nonintervention prohibits a State “to intervene, directly or indirectly, with or without armed force, in
support of an internal opposition in another State” … The Court further affirms that acts which
breach the principle of non-intervention “will also, if they directly or indirectly involve the use of
force, constitute a breach of the principle of non-use of force in international relations” … the Court
accordingly concludes that Uganda has violated the sovereignty and also the territorial integrity of
the DRC. Uganda’s actions equally constituted an interference in the internal affairs of the DRC and
in the civil war there raging. The unlawful military intervention by Uganda was of such a
magnitude and duration that the Court considers it to be a grave violation of the prohibition on the
use of force expressed in Article 2, paragraph 4, of the Charter.” 267
In effect, the Court invoked the existence of a two-tier system, much as it had in the Nicaraguacase. On the one hand, it sanctioned the violation of the “non-intervention principle” by supporting
non-state actors working against another government as an illegitimate use of force by the
intervening government, but decided that to attribute an armed attack by non-state actors to a state
there needed to be shown to be sent by or act on behalf of a state. In Nicaragua, this is equated to
264Resolution 3314 (XXIX) of the United Nations General Assembly (14 December, 1974), UN Doc. A/RES/3314
(1974).
265ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ
Reports 2005, par. 146.
266ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ
Reports 2005, par. 131 – 136.
267ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ
Reports 2005, par. 163 – 165.
77
having “effective control of the military or paramilitary operations.”268
This rather stringent “sending”-requirement is at odds with the one proposed by the Appeals
Chamber of the International Criminal Tribunal for the former Yugoslavia, which in the Tadicdescision adopted a more relaxed standard of “overall control going beyond mere financing and
equipping of such forces and involving also participation in the planning and supervision of military
operations.”269
The importance of the ruling for anticipatory self-defense might not be immediately obvious,
seeing as how the Court refused to rule on the matter. However, It becomes plain once it is recalled
that anticipatory self-defense is still self-defense, and thus tied to an armed attack, which can only
be attributed to a state if “effective control” is proven.
To conduct an act of anticipatory self-defense against a state for the (imminent) actions
conducted by non-state actors, the defender must thus still pass the “effective control” test. Striking
at assets of a state for mere material support of non-state actors or terrorists would be problematic,
and is in practice indeed generally refrained from, even by the most “preemptive” of states. For
example, while the United States alleged Iranian support of militia and terrorists in post-invasion
Iraq,270 they did not conduct any military operations against Iran.
5.1.2 Territorial sovereignty
The issues of territorial sovereignty boils down to this: under what circumstances can a state has
been subjected to an armed attack from non-state actors cross into an other state with the objective
of defending itself, given the ancient right of territorial sovereignty inherent to all states. This is
made subject to the question of whether the state where a non-state actor armed attack originates, or
268ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Judgement, ICJ Reports 1986, par. 115.
269ICTY, Prosecutor v. Tadic, Judgment, Case No. IT-94-1-T (14 July 1997), par. 120 and 145; L. FISLER AND D.J.
SCHEFFER, Law and force in the new international order, Boulder, Westview Press, 1991, 645; M.N. SCHMITT,
“Responding to transnational terrorism under the jus ad bellum,”, in M.N. SCHMITT AND J. PEJIC (eds.), International
law and armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 186.
270A.M. Gordon and A.W. Lehren, “Leaked Reports Detail Iran's Aid for Iraqi Militias,” The New York Times, October
23, 2010, A1.
78
where such actors find refuge – the sanctuary-state -
has complied with the international
obligations to prevent the commission form its territory of “criminal acts against another nation or
people.”271 This principle is regularly reiterated in statements and documents relating to the issue of
terrorism,272 for example in the 1970 Declaration on Friendly Relations: “Every state has the duty to
refrain from … acquiescing in organized activities within its territory directed towards the
commission of [acts of civil strife or terrorist acts in another state], when the acts ... involve the use
or threat of force.”
273
It also reiterated in the UN Security Council Resolutions passed in the
aftermath of the September 11, 2001 terrorist attacks this principle by reference to Security Council
Resolution 1269, where, among other duties enumerated, “The Security Council calls upon all states
to take ... appropriate steps to: prevent and suppress in their territories through all lawful means the
preparation and financing of any acts of terrorism.”274
The question is, does a violation of legal obligations by the sanctuary state, or an inability to
comply with obligations, allow for the victim-state to forgo its territorial sovereignty? Some would
answer that question in the negative: when the International Law Commission considered the
question in 1980, they concluded that an armed intervention into a state in order to attack terrorists
could not be regarded as self-defense when the State itself had not been guilty of an armed attack,
or controlling the terrorists.275
But more recently, a common view, espoused mostly in American literature, is that a victim state
may conduct defensive operations in the sanctuary state if the sanctuary state is unable or unwilling
to comply with its obligations noted supra.276 Of course, this presupposes that a right of self-defense
has indeed been triggered, or the victim state must otherwise rely on domestic and international
271Permanent Court of International Justice, The Case of the S.S. Lotus, (France v. Turkey), P.C.I.J. (ser. A) No. 10,
1927, dissenting opinion of Moore, 88.
272M. N. SCHMITT, “Preemptive strategies in international law,” Mich. J. Int'l L., 2003, (513) 541.
273UN General Assembly, Declaration of Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, 24 October 1970, 123, available at:
http://www.unhcr.org/refworld/docid/3dda1f104.html, (last visited at May 7, 2012).
274Resolution 1269 of the United Nations Security Council (19 October, 1999), UN Doc. S/RES/1269 (1999),
operative clause 4.
275Report of the International LAW Commission on the work of its thirty-second session (5 May-25 July 1980), UN
Doc. A/35/10 (1980), 53; A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge,
1993, 182.
276M. N. SCHMITT, “Preemptive strategies in international law,” Mich. J. Int'l L., 2003, (513) 541;M.N. SCHMITT,
“Responding to transnational terrorism under the jus ad bellum,”, in M.N. SCHMITT AND J. PEJIC (eds.), International
law and armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 176 – 177.
79
law-enforcement instruments.277 And of course, the sanctuary state must be given ample time to be
allowed to comply to its obligations, after being demanded to do so, before its sovereignty is
sidestepped.278
Numerous historical precedents exist, the Caroline-case chief among them, as the case did in fact
concern a Canadian-British cross-border operation into the United States, without the Consent of
the United States.279 Another case noted is the US pursuit of the Mexican bandit/folk hero Pancho
Villa in 1916 into Mexico, on the grounds that the Mexican state was unable to confront the strong
gang of Pancho Villa. Turkish and Iranian actions in Iraq against Kurdish separatists are also cited,
as well as the Israeli raid at Entebbe in 1976, although these cases were contested in the
international arena.280
277M. N. SCHMITT, “Preemptive strategies in international law,” Mich. J. Int'l L., 2003, (513) 539 – 540.
278M.N. SCHMITT, “Responding to transnational terrorism under the jus ad bellum,”, in M.N. SCHMITT AND J. PEJIC (eds.),
International law and armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 182.
279M. N. SCHMITT, “Preemptive strategies in international law,” Mich. J. Int'l L., 2003, (513) 542.
280L. FISLER AND D.J. SCHEFFER, Law and force in the new international order, Boulder, Westview Press, 1991, 642-644.
80
5.2 Self-defense vis-à-vis non-state actors
The most pertinent question to ask if one is to illuminate the relation between anticipatory selfdefense and non-state actors is whether the laws regulating the use of force and self-defense are
supposed to apply to non-state actors and conflicts that involve them. This question has seen quite
an evolution in recent years.
Recall that when the International Law Commission considered the question in 1980, they
concluded that an armed intervention into a state in order to attack terrorists could not be regarded
as self-defense when the State itself had not been guilty of an armed attack, or controlling the
terrorists.281 The preferred method of dealing with terrorists until the mid-nineties has typically been
law-enforcement, as was the case with the Lockerbie-disaster, or the car-bomb attack against the
World Trade Center. Whenever self-defense was invoked in response to terrorist activities, it was
typically to target a state sponsor of terrorism, like was the case with US attacks against Libya in
1986 or Iraq in 1993, met with muted international response,282 but stringent criticism in
literature.283
More recently, however, a shift has occurred in opinion, beginning in the aftermath of a string of
bombings against US Embassies in East-Africa in 1998. In response, the US targeted terrorist
camps in Afghanistan, as well as a chemical plant in the Sudan. International reaction focused
exclusively on the attacks against the Sudan, as the target choice appeared to have been based on
poor intelligence: what was claimed to be a chemical weapons plant turned out to be a
pharmaceutical plant vital for regional medicine production. The silence on the targets attacked in
Afghanistan is sometimes seen as an implicit acceptance of the applicability of the right of selfdefense to non-state actors.284
281A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 182; Report of the
International Law Commission, 32nd Session, 1989 II (2) Yearbook of the International Law Commission 1, p 53.
282M.N. SCHMITT, “Responding to transnational terrorism under the jus ad bellum,”, in M.N. SCHMITT AND J. PEJIC (eds.),
International law and armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 163.
283A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 184-188.
284L. FISLER AND D.J. SCHEFFER, Law and force in the new international order, Boulder, Westview Press, 1991, 641; S. D.
MURPHY, “Contemporary Practice of the United States Relating to International Law”, AM. J. Int'l L., 1999, (161)
164 – 165; M.N. SCHMITT, “Responding to transnational terrorism under the jus ad bellum,”, in M.N. SCHMITT AND J.
PEJIC (eds.), International law and armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 164-165.
81
Current doctrine on the application of the right of self-defense in response to an armed attack by
a non-state actor is believed to have been established after the terrorist attacks against targets in
New York and Washington D.C. On September 11, 2001, carried out by members of the Al-Qaida
terrorist-network. The day after the attacks, the UN Security Council passed Resolution 1368, in
which it affirmed the “inherent right of individual or collective self-defense” in reaction to the
attacks. This was followed by a comparable resolution 1373. At that time, the suspicion was already
on transnational terrorists, not states. Both resolutions were reaffirmed by resolution 1378. which is
sometimes regarded as sanctioning the use of force against Al-Qaida, and can thus be seen as an
implicit recognition of self-defense as basis for said use of force.285
Therefore, it can be said that nothing in article 51 of the UN Charter, nor in customary
international law states that uses of force, or attacks to be defended against can only be carried out
by states. Any use of force sufficient to be considered an armed attack can trigger the right of selfdefense, be the originator a state, non-state actor or a state acting through a proxy. The right of selfdefense itself, however, can only be exercised by sates.286
The question of whether or not a terrorist action gives cause for the exercise of the right of selfdefense is thus predicated on the severity of the act. Going by the Nicaragua-standard, only those
actions of sufficient “scale and effects” amount to an armed attack. Absent an armed attack, states
cannot resort a use of force in self-defense, and can only rely on appropriate measures within their
own borders and classical domestic and international law-enforcement instruments.287
Another point of note, expressed by the ICJ in its Advisory Opinion on Legal consequence of the
Construction of a Wall in the Occupied Palestinian Territories,288 is that to trigger self-defense, an
285Resolution 1368 of the United Nations Security Council (12 September 2012), UN Doc. S/RES/1368 (2001);
Resolution 1373 of the United Nations Security Council (28 September, 2001), UN Doc. S/RES/1373 (2001);
Resolution 1378 of the United Nations Security Council (14 November, 2001), UN Doc. S/RES/1378 (2001); B. E.
CARTER ET AL., International Law, Aspen Publishers, 2003, 75; S. D. MURPHY, “Contemporary Practice of the United
States Relating to International Law”, AM. J. Int'l L., 1999, (161) 639 – 640; M. N. SCHMITT, “Preemptive strategies
in international law,” Mich. J. Int'l L., 2003, (513) 536 – 537;M.N. SCHMITT, “Responding to transnational terrorism
under the jus ad bellum,”, in M.N. SCHMITT AND J. PEJIC (eds.), International law and armed conflict, Boston,
Martinus Nijhoff Publishers, 2007, 165 – 167.
286 T. D. GILL, “The temporal dimension of self-defense”, in M.N. SCHMITT AND J. PEJIC (eds.), International law and
armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 118; M. N. SCHMITT, “Preemptive strategies in
international law,” Mich. J. Int'l L., 2003, (513) 539;M.N. SCHMITT, “Responding to transnational terrorism under the
jus ad bellum,”, in M.N. SCHMITT AND J. PEJIC (eds.), International law and armed conflict, Boston, Martinus Nijhoff
Publishers, 2007, 167 – 168.
287M. N. SCHMITT, “Preemptive strategies in international law,” Mich. J. Int'l L., 2003, (513) 539 – 540.
288ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (9
July 2004), www.icj-cij.org.
82
attack has to be mounted from outside the state. In that case, the Court found that terrorism
originating from the Occupied Territories did not trigger a right of self-defense, as those territories
were considered “inside” of Israel. The opinion has sometimes been read as precluding any and all
self-defense against non-state actors, but this disregards the factual circumstances specific to the
Wall-opinion, and all UN-practice sketched above. Indeed, the Court specifically mentioned Israel
to be in a different position as that envisioned by Security Council Resolution 1368 and 1373.289
5.2.1 Imminence, necessity and proportionality and non-state actors
Imminence is the area where conflicting notions of anticipatory self-defense are most
pronounced, especially when concerning non-state actors. In the case of non-state actors –
especially terrorists – imminence of an attack is hard to discover. One of the characteristics of
terrorists is that they typically operate clandestinely, in the shadows, and strike without warning.
This has led some authors to conclude that, for a right of self-defense to be effective, imminence
vis-à-vis non-state actors has to be defined separately and more broadly, a sentiment echoed in the
2002 United States National Security Strategy, which is tackled later.290
Other authors note that the National Security Strategy paints “classical” notions of imminence as
too restrictive, pointing out that in the Caroline-case itself, and several subsequent cases,
imminence was handled with considerable flexibility.291
One proposed standard for when an anticipatory strike is warranted is the convergence of the
existence of an organization, and the capacity to attack. This justified by the notion that a terrorist
organizations have as their defining purpose to attack other nations; once the capacity to attack is
acquired, an attack is sure to follow, even if uncertainty remains as to the time and place of the
enemy’s attack .292 The “time and place” phraseology is lifted verbatim from the 2002 United States
289L. FISLER AND D.J. SCHEFFER, Law and force in the new international order, Boulder, Westview Press, 1991, 639 –
640; M.N. SCHMITT, “Responding to transnational terrorism under the jus ad bellum,”, in M.N. SCHMITT AND J. PEJIC
(eds.), International law and armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 168 – 169.
290Infra at 94 – 99.
291 T. D. GILL, “The temporal dimension of self-defense”, in M.N. SCHMITT AND J. PEJIC (eds.), International law and
armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 147 – 148.
292M.N. SCHMITT, “Responding to transnational terrorism under the jus ad bellum,”, in M.N. SCHMITT AND J. PEJIC (eds.),
International law and armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 174.
83
National Security Strategy.293
There are two basic problems with this theory. The first problem being that it is just a theory, not
supported by state practice, or other sources of national law beyond United States government
policy. The second issue to be had with this broadening of imminence for the purpose of combating
terrorists is of a logical nature; it is an obvious petitio principii. It is asserted that terrorist
organizations have as their purpose to attack, and that if a capacity is acquired an attack is sure to
follow, from which is derived the rest of the theory. But this initial, critical point remains unproven.
It also presupposes that there is such a uniform category as “terrorist organizations.” Although this
idea would hold true for the organization that is Al-Qaida, many other non-state organizations
targeted as terrorists or in the War on Terror do not fit this bill. Furthermore, it must be noted that
the 2002 Nationlal Security Strategy does not differentiate between so-called “rogue states” and
terrorist actors, indicating that it envisioned a wholesale widening of the concept of imminence, not
one targeted at terrorists.
Two pertinent examples spring to mind: the Afghani and Pakistani Taliban, and Hezbollah. The
latter is a militant Shi'ite-Muslim-dominated organization operating in Lebanon, which the United
States has deemed a terrorist organization, but which is at the same time the dominant force in
Lebanese politics, and has historically shown great restraint in employing its relatively formidable
military arsenal against stated enemy Israel, 294 inconsistent with the “certainty of attack” logic. The
Taliban, on the other hand, is a Pashtun-dominated militant group that used to rule most of
Afghanistan during the nineties, but was ousted in the aftermath of the September 11, 2001 terror
attacks. They are seen as a (popular) insurgency, not a terrorist network, 295 yet they are targeted
using the same criteria and sometimes employ the same tactics as terrorists.
With regards to necessity and proportionality, the only characteristic typical of self-defense
against non-state actors is that inability or unwillingness of a sanctuary state to apprehend a
(suspected) terrorist can be a basis of necessity.296
293National Security Council, The National Security Strategy of the United States of America (September 2002), 15,
available online at nssarchive.us/NSSR/2002.pdf, (last visited at May 8, 2012).
294The new York Times, Times Topics, Hezbollah, available at
topics.nytimes.com/top/reference/timestopics/organizations/h/hezbollah/index.html?8qa, (last visited May 3, 2012).
295The New York Times, Times Topics, Taliban, available at
topics.nytimes.com/top/reference/timestopics/organizations/t/taliban/index.html?8qa, (last visited May 3, 2012).
296L. FISLER AND D.J. SCHEFFER, Law and force in the new international order, Boulder, Westview Press, 1991, 649.
84
5.2.2 How to apply the law
Although the theory of applying the right of self-defense to the fight against transitional
terrorism is easy enough on first glance, the applicability to long-term and far-flung conflicts is
questionable, owning to the concepts of necessity and proportionality. These issues become plain
when the fight against international terrorist networks is compared to an instance of an armed attack
between states – let us compare it to the familiar case of the Israeli raid on the Iraqi Osirak reactor
complex of 1981.297
In 1981, Israel conducted an aerial bombardment of an Iraqi reactor, and was condemned for
those actions by the UN General Assembly and Security Council. The Israeli armed attack was
considered an illegal use of force. Now, since Iraq had been the target of an illegal armed attack, it
can be presumed to have had a right to defend itself, if meeting the preconditions of proportionality
and necessity (and against an imminent threat if the self-defense was anticipatory). But what would
that have meant in practice? It meant that Iraq could have engaged the Israeli jets on-route to the
reactor; as they were conducting the bombing; after they had completed the bombing but had not
yet returned to Israel (as a form of hot-pursuit); and finally before the jets had taken of (for a
moment presuming that the Iraqi air-force was ever capable of such a feat), if Iraq had evidence that
an Israeli attack was imminent. But could Iraq choose to bomb Israeli airfields, say, the following
day? Unless Iraq had proof that the attack on their reactor was only a first blow in an ongoing
offensive, and that more Israeli attacks were imminent, they could not justify striking Israel; no such
use of force would be either necessary to stop an attack that had already ended, or sufficient to that
end.
Now to apply the same template to the so-called Global War on Terror. The first problem is
determining the parties to the conflict, and this is where the folly of employing a concept like a
“War on Terror” becomes obvious. “Terror” did not attack the United States, the Al-Qaida network
did. Consequently, the actions of the United State had to at least be pointed at the Al-Qaida network,
insofar as they related to the attacks of September 11, 2001.
A second issue is the immanence of the United States' response. By the time the bombing
campaign in Afghanistan started, the September 11, 2001 attacks had been over for a while, and any
297Infra at 109 – 111.
85
subsequent action could not be aimed at defending against said attacks. However, the United States
could claim to defend against an ongoing campaign, wherein the September 11 attacks had only
been one “offensive” in an ongoing attack against the United States. Al-Qaida had attacked US
targets before: they were implicated in bombings in 1993 (World Trade Center car bombing), 1998
(bombings of US East African Embassies) and 2000 (bombing of the warship USS Cole).298
For US military actions against terrorists to be acts of legitimate self-defense, they must thus be
pointed at targets that are posing an imminent threat of attack, or engaged in a “stream of attacks”
against the United States, and meet the preconditions of necessity and proportionality. As the
following chapter will show, the current US policy of using armed drones to conduct air-strikes on
terrorist suspects is at odds with several of these requirements, even under the lenient “stream of
attacks”- principle that is not universally accepted.
298M. N. SCHMITT, “Preemptive strategies in international law,” Mich. J. Int'l L., 2003, (513) 535 – 536; M.N. SCHMITT,
“Responding to transnational terrorism under the jus ad bellum,”, in M.N. SCHMITT AND J. PEJIC (eds.), International
law and armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 175.
86
5.3 Application of the law to the reported conduct of drone-warfare
5.3.1 What “drones” are, what they are not, and why they are used
The official terminology for the machines that have commonly come to be known as “drones” is
“UAVs,” or “UCAVs;” Unmanned Aerial Vehicles and Unmanned Combat Aerial Vehicles. This
history of using pilot-less flying machines goes back a way, starting with explosives-packed
balloons and evolving towards ballistic rockets used by Nazi Germany near the end of World War
Two. Modern UAVs, however, are no longer of the fire-and-forget type, but rather remotecontrolled through the use of radio and satellites. The technology for this has been steadily evolving
over the past decades, resulting in ever more complex machines that can be piloted from everincreasing distances; contemporary technology allows for these craft to be controlled from around
the globe almost as easily as a some computer games, allowing people without any actual
experience flying aircraft to control them. Depending on the model, these unmanned aircraft can
serve intelligence gathering purposes, or be equipped with and able to deploy actual weapons.
It's important to note that although these craft are “unmanned”, they currently still require a
human to operate them. They just don't require an on-board presence. This might change in the
future, where craft might operate entirely autonomously based on computer algorithms, but this is
not yet the case.299 Current drones are not yet the stuff of science-fiction like Terminators, or the ED
209, but rather very advanced cousins of the common R/C-car.
5.3.2 The use of drones in the war on terror
299P. FINN, “A future for drones: Automated killing,” The Washington Post, September 20, 2011, available at
washingtonpost.com/national/national-security/a-future-for-drones-automatedkilling/2011/09/15/gIQAVy9mgK_story.html, (last visited at May 3, 2012); W.J. HENNIGAN, “New drone has no pilot,
so who's accountable?” Los Angeles Times, January 26, 2012, available at
articles.latimes.com/2012/jan/26/business/la-fi-auto-drone-20120126, (last visited at May 3, 2012).
87
As noted, there are several uses to drones. The United States Armed Forces use both small
machines, integrated within units of ground-troops, as wall as larger craft operated by the Air Force
for scouting missions, and direct fire-support in their operations in support of the government of
Afghanistan, as part of the International Security Assistance Force there. These uses are of no
particular interest to international law. There exists a program, however, jointly run by the US Air
Force and Central Intelligence Agency, that seeks to directly target suspected terrorists, among
other, away from actual front lines (in so far that one can speak of front lines). This “ Joint Special
Operations Command” now operates armed drones in the skies above Pakistan, 300 Somalia
301
and
Yemen.302 These operations will be shown to be at odds with several principles of the jus ad bellum.
It should be noted, though, that owning to the clandestine and classified nature of the CIA-run
program, the analysis will have to rely primarily on facts reported in the media.
A first possible issue to be had with these operations is that they violate the territorial
sovereignty of the nations in which they take place. This concern is not really pressing, however,
owning to the tacit consent of the governments involved, and the fact that they lack effective control
over the areas where the attacks take place. The United States can invoke the principle of
“unwillingness of inability” of the governments involved to groups seeking to attack the United
States.
When the conformity of the strikes to the rules of (anticipatory) self-defense is measured,
however, problems emerge. To invoke self-defense, the United States needs to either prove that the
targets are part of an organization that is engaged in an ongoing offensive against the Unites States,
or an organization that poses an imminent threat of attack. Although it can be argued that the AlQaida organization is engaged in an offensive against the United States, the same can not be said for
other targets of the drone-program. In Somalia, for example, targets are typically affiliated with Al
Shabab, a local militant organization. From the New York Times: “Over the past two years, the
administration has wrestled with how to deal with the Shabab, many of whose midlevel fighters
oppose Somalia’s weak transitional government but are not necessarily seeking to battle the United
States.”303 The article goes on to state that the only foreign operation attributed to the organization
300S. SHANE, “U.S. Drone Stikes Are Said To Target Rescuers at Sites,” The New York Times, February 6, 2012, A4.
301M. MAZZETTI AND E. SCHMITT, “U.S. Expands Its Drone War Into Somalia,” The New York Times, July 1, 2011, A1.
302E. SCHMITT, “U.S. To Step Up Drone Strikes Inside Yemen,” The New York Times, April 26, 2012, A9.
303M. MAZZETTI, AND E. SCHMITT, “U.S. Expands Its Drone War Into Somalia,” The New York Times, July 1, 2011, A1.
88
has been a bombing in Uganda.
To justify these operations, the US would have to show that there existed an imminent threat –
and even going by the very lenient standard set in the 2002 United States Security Strategy, the
Shabab do not meet the criteria of “willingness” and “ability”, lacking primarily willingness.
But presupposing for a moment that the drone-strikes were indeed targeted at organizations of
non-state actors posing an imminent threat to the United States. The strikes would still have to meet
the other preconditions set for the lawful exercise of self-defense, namely a necessity for the use of
force, and a proportional use of force. This analysis is limited due to the clandestine, classified
nature of the program; it is not possible to know if non-use of force options were available if the
targets, their location and various law enforcement initiatives that may have been considered are
unknown. The proportionality of force used, on the other handed, can be measured after the fact,
and rely on what is known of reported attacks.
The known facts present particular problems for proportionality, owning to the peculiar targeting
choices being made. Recall that the amount of damage to non-combatants plays a role in assessing
the proportionality of the use of force. We know that the US government distinguishes between two
sorts of attacks, both of which it practices, one kind in all theaters, the other for now only in
Pakistan. The distinction is made between so-called “signature strikes” and “personality strikes.”
While personality strikes seek to target a known terror suspect, signature strikes “would allow the
agency to hit targets based solely on intelligence indicating patterns of suspicious behavior, such as
imagery showing militants gathering at known al-Qaeda compounds or unloading explosives.” 304
These signature strikes are currently being considered in Yemen, and already practiced in
Pakistan.305 One reported subset of these signature strikes is the deliberate targeting of rescuers at
the site of a prior strike, as well as mourners at subsequent funerals.306
Proportionality comes down to a targeted balancing act; it has to be appropriate to avert the
threatened attack, but nothing more and nothing else. In the case of the personality strikes, the
reasoning applied seems to be that the threat of attack can only be averted by the death of this or
that individual, and that no other (law enforcement) options were available. This analysis might not
304G. MILLER, “CIA seeks new authority to expand Yemen drone campaign,” The Washington Post, April 19, 2012,
available at washingtonpost.com/world/national-security/cia-seeks-new-authority-to-expand-yemen-dronecampaign/2012/04/18/gIQAsaumRT_story.html, (last visited May 3, 2012).
305S. SHANE, “U.S. Drone Stikes Are Said To Target Rescuers at Sites,” The New York Times, February 6, 2012, A4.
306S. SHANE, “U.S. Drone Stikes Are Said To Target Rescuers at Sites,” The New York Times, February 6, 2012, A4.
89
be correct for every case concerned, but there is some logic to be discerned. But what logical case
can one make for these signature strikes? Targeting unknown, un-uniformed individuals, of
unknown affiliation, only because they happen to be at a certain place at a certain time. And that
certain place and certain time might be a funeral, or assisting the victims of a recent air-strike. The
entire concept is anathema to the requirement that a defensive action be narrowly tailored to avert a
threatened attack. To kill an indefinite number of people who fit a certain signature on the offchance that some of them might at some point conduct an attack does not fall within the ambit of
legitimate self-defense.
Unlike some weapon systems (think nuclear weapons307), the use of drones does not present an
a-priori challenge to international law. The way they are currently used bu the United States,
however, is problematic.
Of course, beyond the question of whether these attacks are or are not instances of legitimate
self-defense, one can also asks if targeting funerals, as well as the wounded and their rescuers are
not inherently criminal and violations of the jus in bello, especially considering the fact that these
strikes are not carried out by a uniformed military, but by a civilian agency, the CIA. These
considerations would bring us too far, however, this being a thesis on the status of anticipatory selfdefense, not about all aspects of contemporary drone-warfare.
307Aknowleged by the ICJ in it's Nuclear Weapons advisory opinion, infra at 115 – 116.
90
6 Self-defense and Weapons of Mass-destruction
Weapons of mass destruction are not a new concern in international law; one of the earliest
Hague treaties was concerned with restricting the the use of noxious gases in warfare.308
It is informative to linger for a moment on the issue of gas-warfare, for it helps to illuminate the
question the following chapters will seek to answer: how do weapons of mass-destruction influence
the right of anticipatory self-defense?
A fairly common platitude is that the current jus ad bellum, as expressed in the United Nations
Charter, is somehow outdated, that it was designed to regulate a pre-nuclear world. This leads some
to conclude that international law needs to move beyond those pre-nuclear rules. Not to sound
biased against that notion, but the fears of the nuclear age – of almost instant and widespread
destruction – are not entirely new. Poison gas has been considered a strategic weapon with the
potential to depopulate large areas, even entire nations, long before the conception of the United
Nations Charter. One such instance was the Second World War, where both the Allies and the Axis
nations developed large stockpiles of gas-weapons, and using them to target civilian populations
was contemplated by the Allies as late as 1944 in reaction to the introduction of flying bombs and
ballistic strategic rockets to the German arsenal. Weapons were produced and plans for their use
drawn up. Ultimately, however, both sides refrained from using gas weapons for fear of an equally
deadly retaliation by the opposing side.309 The attitudes then shown when dealing with gas-weapons
is strikingly similar to the way nuclear weapons are spoken of today, although on a somehow what
smaller scale.
Claiming that the framers of the United Nations Charter, who were well aware of the potential of
gas and biological weapons, created a Charter wholly unsuited for the nuclear age ignores the
parallels between the mentality governing the potential use of nuclear weapons and that of gas or
germ warfare. The grouping of these weapons under the umbrella-term of weapons of mass
308Declaration on the Use of Projectiles the Object of Which is the Diffusion of Asphyxiating or Deleterious Gases,
The Hague, July 29, 1899, in SCOTT, J. B., The Hague Peace Conferences of 1899 and 1907,Baltimore, the Johns
Hopkins Press, 1909, Vol. II, available online at avalon.law.yale.edu/19th_century/dec99-02.asp, (last visited at May
4, 2012).
309HARRIS, R., PAXMAN, J., A Higher form of Killing, New York, Hill and Wang , 1982, 126 – 134.
91
destruction is all the more apt for it, and the statement that they would cause changes in established
rules of international law should be rejected if not backed up by convincing positive proof.
Now to consider several cases where the effects of weapons of mass destruction on the right of
anticipatory self-defense is in play.
92
6.1 First Report of the Atomic Energy Commission
One instance where the effect of nuclear weapons on the right of self-defense was considered
was the First Report of the Atomic Energy Commission. In this report was contained a statement
claiming that “A violation [of an international treaty or convention establishing an effective system
for international control of atomic energy] might be so grave in character as to give rise to the
inherent right of self-defense recognized in Article 51 of the United Nations Charter.”310
Although a Report of the Atomic Energy Commission does not have the power to create or
change international law in se, it is a useful instrument in interpreting established international law.
From this report, it can thus be gathered that violations of certain treaty obligations might be a
factor in determining an imminent threat, triggering the right of self-defense. Preparation for atomic
warfare in breach of such a treaty is a possible example. 311 But if a treaty breach alone is enough to
establish an imminent threat is uncertain for lack of any state practice in the matter – treaty breaches
as imminent threats have not yet been invoked.
310The First Report of the Atomic Energy Commission to the Security Council (December 30, 1946), in U.S. and U.N.
Report Series n° 8, Washington, U.S. Govt. print. Off., 1947, 22; L. VAN DEN HOLE, “Anticipatory self-defence under
international law,” Am. U. Int'l L. Rev., 2003, (69) 91.
311L. VAN DEN HOLE, “Anticipatory self-defence under international law,” Am. U. Int'l L. Rev., 2003, (69) 91.
93
6.2 2002 National Security Strategy
“Traditional concepts of deterrence will not work against a terrorist enemy whose avowed
tactics are wanton destruction and the targeting of innocents; whose so-called soldiers seek
martyrdom in death and whose most potent protection is statelessness. The overlap between
states that sponsor terror and those that pursue WMD compels us to action.”312
The National Security Strategy, September 2002, Section V.
In the wake of the devastation visited upon their nation on September 11th, 2001, when terrorists
of the al-Qaeda network attacked several civilian and military targets in the United States using
hijacked airliners, the U.S. Government under then-president George Walker Bush was faced with
what seemed to be a fundamentally altered security landscape. Threats now faced differed
significantly from those of the Cold War; the logic of containment and deterrence depended on satebound rational adversaries. Not so for the threat of terrorism: al-Qaeda, for one, is an international
network , only loosely organized by a central command and funded mainly by Osama bin Laden,
who used to be a wealthy Saudi Arabian exile. This differs markedly from the challenges posed by a
hostile state. And it is unclear whether deterrence can be considered effective against terrorist
organizations, who may be more willing to perish and at the same time provide less viable targets
for second-strikes.313
These considerations, among others, lead to the adoption by the U.S. Of a new strategic military
doctrine. Although a trend towards preemption vis-a-vis asymmetrical foes can be found in previous
government statements and documents,314 the most notorious is the 2002 National Security Strategy.
This strategy, sometimes referred to as the Bush-doctrine, was openly predicated on the use of
preemptive force against suspected terrorists and those persons and states who would aide and
support them.315
312National Security Council, The National Security Strategy of the United States of America (September 2002), 15,
available online at nssarchive.us/NSSR/2002.pdf, (last visited at May 8, 2012).
313A.E. ECKERT AND M MOFIDI, “Doctrine or doctrinaire,” Tul. J. Int'l & Comp. L., 2004, (117) 121
314W. M. REISMAN AND A. ARMSTRONG, “Claims to pre-emptive uses of force,”, in M.N. SCHMITT AND J. PEJIC (eds.),
International law and armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 81 – 85.
315National Security Council, The National Security Strategy of the United States of America (September 2002), 5 – 7,
available online at nssarchive.us/NSSR/2002.pdf, (last visited at May 8, 2012); A.E. ECKERT AND M MOFIDI, “Doctrine
or doctrinaire,” Tul. J. Int'l & Comp. L., 2004, (117) 119.
94
The 2002 National Security Strategy focus on preemptive or anticipatory 316 action is twofold and
best expressed in the actual language of the document:
III. Strengthen Alliances to Defeat Global Terrorism and Work to Prevent Attacks Against
Us and Our Friends
…
We
will
disrupt
and
destroy
terrorist
organizations
by:
Defending the United States, the American people, and our interests at home and abroad by
identifying and destroying the threat before it reaches our borders. While the United States
will constantly strive to enlist the support of the international community, we will not
hesitate to act alone, if necessary, to exercise our right of self-defense by acting
preemptively against such terrorists, to prevent them from doing harm against our people
and our country;317
and
V. Prevent Our Enemies from Threatening Us, Our Allies, and Our Friends with Weapons
of Mass Destruction
… We must be prepared to stop rogue states and their terrorist clients before they are able
to threaten or use weapons of mass destruction against the United States and our allies and
friends. … The United States has long maintained the option of preemptive actions to
counter a sufficient threat to our national security. The greater the threat, the greater is the
risk of inaction — and the more compelling the case for taking anticipatory action to
defend ourselves, even if uncertainty remains as to the time and place of the enemy’s
attack. To forestall or prevent such hostile acts by our adversaries, the United States
will, if necessary, act preemptively.318
[emphasis added]
The language cited from Section III confirms the focus on preemptive action in combating
terrorism, but Section V goes beyond that stated goal to introduce the second leg of the new security
316The actual NSS speaks of preemption, but this thesis will analyze whether it falls within the ambit of anticipatory
self-defense.
317National Security Council, The National Security Strategy of the United States of America (September 2002), 6,
available online at nssarchive.us/NSSR/2002.pdf, (last visited at May 8, 2012).
318National Security Council, The National Security Strategy of the United States of America (September 2002), 15,
available online at nssarchive.us/NSSR/2002.pdf, (last visited at May 8, 2012)
95
strategy. Under the 2002 National Security Strategy, the U.S. Reserves the right to act preemptively
against a state developing or seeking to develop nuclear weapons and other weapons of mass
destruction, even if they pose no imminent danger or threat. 319 the U.S. led invasion of Iraq in 2003
is often regarded as a first test-case for this use of preemptive force to prevent the acquisition of
weapons of mass destruction. It is discussed infra320;the current section will focus only on the actual
2002 National Security Strategy, not in the least because other justifications for the invasion of Iraq
were put forth by the U.S. that merit discussion in the aforementioned section.
The question as to whether the 2002 National Security Strategy conform with the standards set in
international law for the legitimate exercise of anticipatory self-defense cannot be contained in one
singular answer. It is important to distinguish the doctrine of striking preemptively against states
seeking to develop weapons of mass destruction, and the principle that one can act preemptively
against suspected terrorists. The issue of using preemptive or anticipatory force against non-state
actors sits at the intersection of the jus ad bellum, jus in bello, state responsibility and (extra
territorial) law enforcement; it is dealt with in a wholly separate chapter.
If one is to invoke legitimate anticipatory self-defense, as the 2002 National Security Strategy
seems to do with reference to “exercising our right of self-defense”, the basic requirements for its
exercise still stand, regardless of the nature of the opponent, be it terrorist or state. To wit, sufficient
immediacy of the threat must be proven, as well as necessity of the means used, and proportionality
in their use. And the doctrine proposed in the USS is one clearly at odds with these principles – it is
one of illegal preemption, not legal anticipatory self-defense. This principle was even explicitly
restated by the United Nations High-level Panel on Threats and Change.
321
The mere probability of
an attack and an enmity for the target state do not suffice to meet the test of imminence, 322 which is
what the 2002 National Security Strategy seems to be suggesting.
Differing views exist, though, which emphasis the importance of weapons of mass destruction in
319A.E. ECKERT AND M MOFIDI, “Doctrine or doctrinaire,” Tul. J. Int'l & Comp. L., 2004, (117) 121
320Infra at 100 – 108.
321W. M. REISMAN AND A. ARMSTRONG, “Claims to pre-emptive uses of force,”, in M.N. SCHMITT AND J. PEJIC (eds.),
International law and armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 88-89.
322A.E. ECKERT AND M MOFIDI, “Doctrine or doctrinaire,” Tul. J. Int'l & Comp. L., 2004, (117) 143;
96
the equation.
One approach is to give a “common lawyer” interpretation of the Caroline-doctrine. Certain
authors, supported at times throughout the twentieth century by the U.S. State Department, advance
a different interpretation of the inherent right of self-defense. This view was first posited by Myres
McDougal and Florentino Feliciano, and expounded upon by Abraham Sofaear. It hinges on an
alternative interpretation of the classical Caroline-doctrine, wherein it is not applicable to all forms
of inherent self-defense, but rather just a subset. The Caroline-standard was developed in response
to an anticipatory attack on the territory of a state (the U.S.) that was willing to itself act against the
threat posed against the other state (the British Empire) from its territory, and Sofaer holds that it
should be considered only in that context. By this logic, it would make sense for the standard to be
an exceedingly narrow and require the typical “imminence”; if a threat manifests itself on the
territory of another state, and that other state is willing to itself remove that threat, the soon-to-be
victim-state can only be allowed to act against the threat if it cannot wait for the response of the
state on who's territory the threat manifests itself for fear that the threat would be fulfilled– if the
the threat is indeed very imminent. But that is a very narrow category, the conditions of which are
very different from the modern risk of an attack with weapons of mass-destruction launched by
terrorists who might be secretly acting as proxies for a state.323
Building on the above premise, that the application of a strict requirement of imminence was in
fact formulated for and only appropriate if the state from where the attack is anticipated is not
responsible and willing to suppress it, Sofaer concludes that the standard that should be generally
applied is this: necessity to act under the relevant circumstances, together with the requirement that
any action be proportionate to the threat addressed. 324 This is likened to the formulation of
McDougal and Feliciano, citing Julius Stone, who hold that the UN Charter should not be read
“artificially narrow and mechanical”, or that the charter is a value-free document. They point to the
accepted requirements for the legal exercise of (anticipatory) self-defense, and conclude that “the
requirements of necessity and proportionality … can ultimately be subjected to that most
comprehensive and fundamental test of all law, reasonableness in particular context.” 325 Where the
generally accepted standard of assessing the legality of a proactive act in self-defense is necessity
and proportionality of the act in response to an imminent threat, the above view in stead proposes a
sole evaluation of necessity based on circumstance, taking into account the nature and magnitude of
323A.D. SOFAER, “On the necessity of pre-emption,” Eur. J. Int'l L., 2003, (209), 214.
324A.D. SOFAER, “On the necessity of pre-emption,” Eur. J. Int'l L., 2003, (209), 220.
325M.S. MCDOUGAL and F. P. FELICIANO, Law and Minimum World Public Order, New Haven, Yale University Press,
1961, 217.
97
the threat, among other factors such as the likelihood of the attack occurring. 326 Although
“likelihood” might sound akin to imminence (recall the introductory chapter of this thesis and the
focus it placed on the elements of probability and its relation to imminence), it is altogether
different in that here it is not a perquisite, but rather one among many factors to be considered
(where absence or weakness of one factor may outweigh another – such is the nature of a
reasonable assessment).
If the above view is taken, the 2002 National Security Strategy is merely a restatement of
perfectly legal principles: the threat posed by a hostile regime developing weapons of mass
destruction is a grave one, as is the threat of terrorism in the nuclear age. Hostile regimes
developing weapons of mass destruction might not be an imminent threat, but the potential threat is
very grave. Couple that with a few belligerent statements and historical animosity, and a preemptive
attack might be reasonably justified, even if the threat is not at all imminent. And if you take away
imminence, striking at suspected terrorists, or hostile states, when an early window of opportunity
presents itself becomes a lot less controversial.
Unfortunately for the 2002 National Security Strategy's proponents, this is not how international
law works. Or rather, the views expressed supra are a deviation from the established jus ad bellum.
It starts from a faulty premise, namely that the Caroline-doctrine is only applicable in a limited
number of circumstances, where 1) there is a threat on another nation's soil, 2) that nation is willing
to act against that threat, but 3) the threat is so imminent that the potential victim-state cannot wait
for the other's response but must act themselves. Although these circumstances fit the facts of the
Caroline-affair, this is not the meaning generally ascribed to it. Although it would be a hyperbole to
state that the facts of the Caroline-incident are irrelevant, it is a lot closer to the truth than the
above formulated theory. The importance of Caroline is not to be found in the case itself, but rather
in the subsequent citations in literature. Although first formulated in response to a singular and
peculiar incident, and maybe intended to apply only to that incident, the Caroline-doctrine has since
begun a life of its own. The legal power of the doctrine lies in the continuous references to it in
international law, and it has to be interpreted thusly. It may have started out as a formula for limited
number of circumstances, but the principle that was elevated to customary international law status
was a different creature altogether, evolved to a principle applicable to all cases of self-defense
under customary international law. It is not the area of applicability upon first formulation that is
relevant, but that at the moment of attainment of customary international law status. If the state
practice and opinio juris point to the Caroline-formulation applying to all self-defense, that that is
326A.D. SOFAER, “On the necessity of pre-emption,” Eur. J. Int'l L., 2003, (209), 220.
98
what the applicability will be under customary international law. And right now, the imminencerequirement that can be found in Caroline is very much part of international law. The United
Kingdom Attorney General stated as much in a secret memo in 2003:
In my opinion there must be some degree of imminence. I'm aware the USA has been
arguing for recognition of a broad doctrine to use force to pre-empt danger in the future. If
this means more than a right to respond proportionality to an imminent attack (and I
understand that the doctrine is intended to carry that connotation) this is not a doctrine
which, in my opinion, exists or is recognized in international law.327
For these reasons, the 2002 United States National Security Strategy has to be considered
incompatible with international law.
327W. M. REISMAN AND A. ARMSTRONG, “Claims to pre-emptive uses of force,”, in M.N. SCHMITT AND J. PEJIC (eds.),
International law and armed conflict, Boston, Martinus Nijhoff Publishers, 2007,100-101.
99
6.3 2003 Gulf War
“There are known knowns; there are things we know we know. We also know there are
known unknowns; that is to say we know there are some things we do not know. But there
are also unknown unknowns – there are things we do not know we don't know.” 328
United States Secretary of Defense Donald Rumsfeld
Advocates for the invasion usually support their position by pointing to one or more out of three
possible justifications. In no particular order, these are: the invasion was a case of legitimate
anticipatory/preemptive self-defense; the invasion was based on the doctrine of “humanitarian
intervention” (although this was more of a rhetorical device, and never invoked in the international
legal forum by the U.S. Government); or that the invasion was authorized by the UN Security
Council though a string of resolutions that, when viewed as a whole, allowed for military action
against Iraq.
This thesis will now review these justifications, with emphasis on the argument that it concerned
a case of legitimate anticipatory self-defense.
Although the humanitarian aspect was often mentioned in public speeches, 329 the actual legal
justification given by the US government rested on a framework of UN Security Council
resolutions. This was the argument put forward before the UN, and by the Chief Legal Adviser to
the U.S. State Department W. H. Taft IV. 330 Their line of reasoning also detailed by then-deputy
assistant attorney general in the Office of Legal Counsel at the U.S. Department of Justice John
Yoo, who would later gain notoriety for authoring the infamous “torture memo's”. Although the
328Quoted from United States Department of Defense, DoD News Briefing by Secretary Rumsfeld and Gen. Myers
News Transcript (February 12, 2002), available online at defense.gov/transcripts/transcript.aspx?transcriptid=2636,
(last visited May 8, 2012).
329Most famously, in the 2003 State of the Union address to the United States Congress, where the use of violence by
the Iraqi state against its inhabitants was condemned and included in a litany of justifications for the invasion.
330Done in W.H. TAFT AND T.F. BUCHWALD, “Preemption, Iraq and international law,” AM. J. Int'l L., 2003, (557) 557 –
563.
100
article he authored is not intended as a government statement, it closely mirrors the mentioned
justification, and is more exhaustive. What follows is a condensed account of the Yoo publication, 331
rather than Taft publication, as Yoo also tries to make the case for the invasion of Iraq as an exercise
of legitimate anticipatory self-defense.
To understand their arguments, a look back at a previous war is needed: the expulsion of Iraqi
forces from occupied Kuwait. On August 2, 1990, Iraq invaded Kuwait. This prompted a flurry of
UN Security Council resolutions condemning the invasion and calling for an immediate withdrawal,
soon backed by an oil embargo against Iraq. 332 When these measures and diplomatic overtures had
proven themselves ineffective, Resolution 678 was adopted, which authorized the use of force by
UN member states in enforcing Resolution 660, “and all subsequent relevant resolutions.” 333 After
liberation of Kuwait by a US-lead coalition, Resolution 687 was adopted, establishing conditions
for a cease-fire. One of the conditions was the requirement for Iraq to abandon its various weapons
of mass destruction programs and stockpiles, and to submit to International Atomic Agency
Inspections to monitor Iraqi compliance.334
Fast-forward to 2002. Wary of hostile states seeking to develop weapons of mass destruction in
the aftermath of the September 11, 2001 terror attacks in New York City, the US government
pressures the United Nations to take actions against Iraq, which is perceived as having resumed its
illegal weapons development. The result is Security Council Resolution 1441, which condemns the
1998 expulsion of weapons inspectors from Iraq, and implores the regime to meet its international
disarmament obligations under threat of unspecified “serious consequences”. 335 And although this
resolution specifically established a breach of responsibilities under previous resolutions, it did
leave the opportunity for future compliance.
These facts are undisputed in doctrine. Their interpretation, however, leaves room for divergent
331J. YOO, “International law and the war in Iraq,” AM. J. Int'l L., 2003, (563) 563 – 576.
332Resolution 660 of the United Nations Security Council (August 2 1990), UN Doc. S/RES/660 (1990); Resolution
661 of the United Nations Security Council (August 4 1990), UN Doc. S/RES/661 (1990); Resolution 662 of the
United Nations Security Council (August 9 1990), UN Doc. S/RES/662 (1990); Resolution 664 of the United
Nations Security Council (August 18 1990), UN Doc. S/RES/664 (1990); Resolution 665 of the United Nations
Security Council (August 25 1990), UN Doc. S/RES/665 (1990); Resolution 666 of the United Nations Security
Council (September 13 1990), UN Doc. S/RES/666 (1990); Resolution 667 of the United Nations Security Council
(September 16 1990), UN Doc. S/RES/667 (1990); Resolution 669 of the United Nations Security Council
(September 24 1990), UN Doc. S/RES/669 (1990); Resolution 670 of the United Nations Security Council
(September 25 1990), UN Doc. S/RES/670 (1990); Resolution 674 of the United Nations Security Council (October
29 1990), UN Doc. S/RES/674 (1990); Resolution 677 of the United Nations Security Council (November 28,
1990), UN Doc. S/RES/677 (1990).
333Resolution 678 of the United Nations Security Council (November 29 1990), UN Doc. S/RES/678 (1990).
334Resolution 678 of the United Nations Security Council (April 3, 1991), UN Doc. S/RES/687 (1991).
335Resolution 1441 of the United Nations Security Council (November 8, 2002), UN Doc. S/RES/1441 (2002).
101
opinions (although not necessarily divergent and correct). In Yoo's (and by extension the US
government's) justification of the 2003 Iraq invasion, a purported material breach by Iraq of its
obligations under Resolution 1441 gives rise to an authorization for the use of force. Leaving aside
for a moment whether there was in fact such a material breach, a look at the reasoning behind the
“authorization” for the use of force. Recall that Resolution 678 contained a clause calling for the
use of force to enforce Resolution 660, and subsequent resolutions. As Resolution 1441 merely
restates and calls on Iraq to abide by Resolution 687, a breach of resolution 1441 is interpreted as a
breach of obligations under Resolution 687. Resolution 687, meanwhile, is claimed to be
enforceable by the use of force allowed under Resolution 678.336
In a simplified form, the claim is as follows: Res. 678 allows for use of force to enforce Res.
687; Res. 1441 establishes the violation of Res. 687, but allows for a last chance for complying;
Res. 1441 is not complied by; ergo, Res. 678 is again triggered through the violation of Res. 687
established in Res. 1441 and the use of force is authorized.
The arguments laid out supra contain a number of weaknesses, however. The opinion that the
violation of Res. 1441 triggered the authorization for the use of force from Res. 678 presupposes
two thing: that there was indeed a violation of the terms of Res. 1441, and that this would
automatically trigger Res. 678 (through Res. 687).
On the matter of a breach of Res. 1441: a first step should be to look at the actual language of the
resolution.
1. Decides that Iraq has been and remains in material breach of its obligations under
relevant resolutions, including resolution 687 (1991), in particular through Iraq's failure to
cooperate with United Nations inspectors and the IAEA, and to complete the actions
required under paragraphs 8 to 13 of resolution 687 (1991);
2. Decides, while acknowledging paragraph 1 above, to afford Iraq, by this resolution,
a final opportunity to comply with its disarmament obligations under relevant
resolutions of the Council; and accordingly decides to set up an enhanced inspection regime
with the aim of bringing to full and verified completion the disarmament process established
336W.H. TAFT AND T.F. BUCHWALD, “Preemption, Iraq and international law,” AM. J. Int'l L., 2003, (557) 557 – 563; J.
YOO, “International law and the war in Iraq,” AM. J. Int'l L., 2003, (563) 567 – 570.
102
by
resolution
687
(1991)
and
subsequent
resolutions
of
the
Council; 337
[emphasis added]
From the outset, it is clear that Res. 1441 indeed affords Iraq another chance to comply with its
obligations under that and previous resolutions. But how is a breach of obligations to be
established?
4. Decides that false statements or omissions in the declarations submitted by Iraq
pursuant to this resolution and failure by Iraq at any time to comply with, and cooperate
fully in the implementation of, this resolution shall constitute a further material breach of
Iraq's obligations and will be reported to the Council for assessment in accordance with
paragraphs 11 and 12 below;
11. Directs the Executive Chairman of UNMOVIC and the Director-General of the IAEA
to report immediately to the Council any interference by Iraq with inspection activities, as
well as any failure by Iraq to comply with its disarmament obligations, including its
obligations regarding inspections under this resolution;
12. Decides to convene immediately upon receipt of a report in accordance with
paragraphs 4 or 11 above, in order to consider the situation and the need for full
compliance with all of the relevant Council resolutions in order to secure international peace
and security;338
[emphasis added]
The matter is fairly clear: any suspected breaches are to be reported to the Council, who will then
decide further steps. No formal declaration to that effect was made by the Council – there were
complaints by the weapons inspectors on Iraqi cooperation and the quality of documentation, but
without subsequent Security Council decisions, it is wrong to decide there was in fact a breach of
responsabilities under the resolution. The US government did reserve for itself the right to make this
determination, as they considered it an objective fact,339 but one state's decision on the matter does
not alter the legality under international law.
337Resolution 1441 of the United Nations Security Council (November 8, 2002), UN Doc. S/RES/1441 (2002), par. 1
and 2.
338Resolution 1441 of the United Nations Security Council (November 8, 2002), UN Doc. S/RES/1441 (2002), par. 4,
11 and 12.
339W.H. TAFT AND T.F. BUCHWALD, “Preemption, Iraq and international law,” AM. J. Int'l L., 2003, (557) 559; M. J.
MATHESON, “Remarks, in Legal Authority for the Possible Use of Force Against Iraq,” ASIL PROC. 1998,141.
103
As to the question of whether Res. 1441 was intended to trigger previous resolutions authorizing
the use of force, statements by the members of the Security Council at the adoption of the resolution
speak very much for themselves:
“As we have said on numerous occasions to Council members, this resolution contains no
"hidden triggers" and no "automaticity" with respect to the use of force. If there is a further
Iraqi breach, reported to the Council by UNMOVIC, the IAEA or a Member State, the
matter will return to the Council for discussions as required in paragraph 12.”340
John Negroponte, United States Ambassador to the United Nations
We heard loud and clear during the negotiations the concerns about "automaticity" and
"hidden triggers" -- the concern that on a decision so crucial we should not rush into military
action; that on a decision so crucial any Iraqi violations should be discussed by the Council.
Let me be equally clear in response, as a co-sponsor with the United States of the text we
have just adopted. There is no "automaticity" in this resolution. If there is a further Iraqi
breach of its disarmament obligations, the matter will return to the Council for discussion as
required in paragraph 12.341
Sir Jeremy Greenstock, United Kingdom Ambassador to the United Nations
No automatic triggers with respect to the use of force, the language is quite clear. Furthermore,
the Security Council decided in Res. 1441 to “remain seized of the matter”, 342 which at the very
least carries the intent of establishing that further resolutions were needed to authorize the use of
force.343 Not to mention that several nations who supported the resolution – including France –
openly declared that use of force against Iraq required an additional resolution. 344 There are no real
indications that Res. 1441 was intended to trigger Res. 678.345 Any such reading of Res. 1441 relies
on poorly construed textual arguments and selective reading of the resolution. One of such possible
misreadings is claiming that in using the word “consider” in paragraph 12 only implied the
3404644th Meeting of the United Nations Security Council (November 8, 2002), UN Doc. S/PV.4644 (2002), 3.
3414644th Meeting of the United Nations Security Council (November 8, 2002), UN Doc. S/PV.4644 (2002), 4 – 5.
342Resolution 1441 of the United Nations Security Council (November 8, 2002), UN Doc. S/RES/1441 (2002), par. 14.
343I. SHEARER, “A revival of the just war theory,”, in M.N. SCHMITT AND J. PEJIC (eds.), International law and armed
conflict, Boston, Martinus Nijhoff Publishers, 2007, 13.
344SCIOLINO, E., “Threats And Responses: Discord; France to Veto The Iraq War, Chirac Says,” The New York Times,
March 11, 2003, available at nytimes.com/2003/03/11/world/threats-and-responses-discord-france-to-vetoresolution-on-iraq-war-chirac-says.html, (last visited at May 3, 2012).
345 I. SHEARER, “A revival of the just war theory,”, in M.N. SCHMITT AND J. PEJIC (eds.), International law and armed
conflict, Boston, Martinus Nijhoff Publishers, 2007, 13.
104
possibility for the Security Council to discuss the matter further, without prohibiting the use of force
by member states.346 Beyond obvious stretching of the language and ignoring statements made at
the adoption of the resolution, this ignores the simple fact of the Council remained seized of the
matter, precluding unilateral actions.
The advocates for military action against Iraq pursued another line of argument. It was put
forward by the already mentioned John Yoo, a member of the White House Legal Council at the
time, and is consistent with the 2002 National Security Strategy.
Their view of the right of self-defense is consistent with the counter-restrictionist school of
thought, with one important caveat, as will be shown. They acknowledge that art. 51 of the UN
Charter recognizes the “inherent” right of self-defense, and do not find any indications that the
drafters of the Charter intended to limit this customary right. As always, though, the devil is in the
details: Yoo in fact proposes a novel interpretation of the Caroline-doctrine, trying to widen the
meaning of “imminence”. Why he did not make the case for Iraq being an imminent threat
consistent with the classical interpretation is not stated. Most likely, he recognized that Iraq posed
no imminent threat at the time, and that intelligence to the contrary was seriously flawed. 347 It is this
lack of hard evidence of an imminent threat that prompted the quote at the beginning of this section:
the absence of evidence on an Iraqi threat was apparently not to be taken as an evidence of absence.
When Yoo lays out the requirements for self-defense consistent with the Caroline-doctrine, he
distinguishes two main elements: proportionality and necessity on account of imminence.348
It is necessity on account of imminence where the justification for the use of force against Iraq
goes off the rails, although it is cloaked in opaque language. While it is true that “the concept of
imminence must encompass an analysis that goes beyond the temporal proximity of a threat to
include the probability that the threat will occur” (which this thesis pointed out in the introductory
chapter), the following claims are a lot less uncontroversial: “the threatened magnitude of harm
must be relevant” and “factors to be considered should now include the probability of an attack; the
346W.H. TAFT AND T.F. BUCHWALD, “Preemption, Iraq and international law,” AM. J. Int'l L., 2003, (557) 562.
347D. JEHL, “The Struggle For Iraq: Itelligence; C.I.A. Chief Orders 'Curveball' Review,” The New York Times, April 8,
2005, available at select.nytimes.com/gst/abstract.html?
res=FA0D16F93C5A0C7B8CDDAD0894DD404482&scp=2&sq=iraq%20curveball&st=cse, (last visited at May 3,
2012).
348J. YOO, “International law and the war in Iraq,” AM. J. Int'l L., 2003, (563) 572.
105
likelihood that this probability will increase, and therefore the need to take advantage of a limited
window of opportunity”.349 What Yoo proposes here – and with him the 2002 National Security
Strategy, as well as a number of other authors – is that the use of force shall be legitimate, not when
a threat is imminent in the classical sense, but when an opportunity to arrest a possible and
sufficiently grave threat presents itself. This is presented as a widening of the scope of imminence,
but not an unreasonable one: state practice supposedly supports an evolving understanding of
imminence, with cases cited being the Cuban missile crisis, as well as United States military action
against Libya in 1986, Panama in 1989, and Afghanistan and Sudan in 1998.350
Applied to the case of the 2003 invasion of Iraq, this theory focuses on three elements: the
destructive potential of weapons of mass destruction (gravity of the threat), 351 the historical
willingness of Iraq to use these weapons 352 and the alleged support of terrorism by the Iraqi state
(possibility of the threat).353 If Iraq were presumed to be developing weapons of mass destruction, 354
then there existed a possibility of these being handed over to terrorist groups, who would then no
hesitate to use them on Western targets. It is, however, extremely hard to disrupt terrorist plans once
they have passed to point of acquiring these weapons, and there is no guarantee for success. It is
much easier (in a sense of being predictably possible), however, to remove a state's capacity to
develop these weapons, or even to remove a regime suspected of supporting terrorism (this being
the opportunity for the removal of a threat). The chain of possible events is thought to be best
broken at the “state acquires weapons of mass destruction”-stage. Given these weapons' enormous
potential for destruction, and the presumed ties with terrorist organizations the Iraqi regime
maintained and the difficulty of disrupting terrorist operations involving these weapons, the optimal
window of opportunity against the possible threat was seized upon by invading and occupying Iraq
in 2003. Or so goes the theory.
The actual meaning of “imminence” has been a much-debated subject, to be sure. But the line of
reasoning presented above goes well beyond the confines of what “imminence” encompasses.
Although presented a an evolving understanding of imminence, what this theory actually proposes
349J. YOO, “International law and the war in Iraq,” AM. J. Int'l L., 2003, (563) 572-574.
350J. YOO, “International law and the war in Iraq,” AM. J. Int'l L., 2003, (563) 573.
351Proposed as an element relevant to the interpretation of international law in the ICJ, The Legality of the Threat or
Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226.
352W.H. TAFT AND T.F. BUCHWALD, “Preemption, Iraq and international law,” AM. J. Int'l L., 2003, (557) 559.
353Letter to Congressional Leaders on the Strike on Iraqi Headquarters (June 28, 1993), 1 PUB. PAPERS OF
WILLIAM J. CLINTON 940 (1993).
354A claim later proven false, and based on faulty intelligence.
106
is nothing less than a substitution of anticipatory self-defense with preemptive self-defense, where
the threat defended against is no longer imminent but rather possible. “Possible” and “possibility”
are in fact the terms used, right after discussing imminence. Simply positing that imminence has
come to mean possible does not make it so; to argue otherwise is beyond Orwellian in the context of
international law, where the distinction between the two is paramount. The cases cited to illustrate
this point – the 1998 bombings of Sudan and Afghanistan – speak volumes in this regard. The
cruise-missile strikes against targets in Afghanistan in 1998 do somehow-what fit the bill for selfdefense – if one considers the bombings committed by al-Qaeda as a continuous ongoing operation
and the missile attacks as a way to defend against those. But they most likely not being anticipatory
self-defense,355 and weren't considered so at the time, especially the attacks against targets in Sudan,
as they were supposedly based on faulty and inconclusive intelligence.356
Much like was the case with the 2002 National Security Strategy, the possible presence of
weapons of mass destruction in the equation is presented as adequate justification for allowing
preemptive action, but no evidence from literature, international court-cases or state practice is
cited. In fact, the one relevant precedent Yoo references is the 1981 Israeli destruction of the Iraqi
reactor, but it is acknowledged as having most likely been an illegitimate use of force. The only
difference in imminence between the two cases is the fact that after 1981 Iraq has shown that it
developed certain other weapons of mass destruction (of the chemical variety) and some willingness
to use it – but again without further references to sources of international law that might confirm the
relevance of these factors vis-a-vis imminence.357 The case of the strike against a chemical plant in
the Sudan in 1998 is controversial, and in retrospect a cautionary tale against the liberal application
of preemptive use of force. And it is worth noting that the willingness of the Iraqi regime to use
weapons of mass-destruction is somehow-what overstated; although they were used internally and
against Iran,358 Iraq did not resort to using weapons of mass destruction in the 1991 Gulf War, or in
its “retaliatory” strikes against civilian targets in Israel.
When one proposes a deviation from the established status quo in customary international law,
355A.E. ECKERT AND M MOFIDI, “Doctrine or doctrinaire,” Tul. J. Int'l & Comp. L., 2004, (117) 143-144
356CLOUD, D. S., “Colleagues Say C.I.A. Analyst Played by the Rules,” The New York Times, April 23, 2006, available
at nytimes.com/2006/04/23/washington/23mccarthy.html?_r=1, (last visited at May 3, 2012); X., “Dubious
Decisions on the Sudan,” The New York Times, September 23, 1998,, available at
nytimes.com/1998/09/23/opinion/dubious-decisions-on-the-sudan.html?scp=1&sq=dubious%20decisions%20on
%20the%20sudan&st=cse, (last visited at May 3, 2012).
357J. YOO, “International law and the war in Iraq,” AM. J. Int'l L., 2003, (563) 574.
358The use of these weapons was at the time condemned by the United Nations Security Council in Resolution 612 of
the United Nations Security Council (May 9, 1988), UN Doc. S/RES/612 (1988).
107
like a widening of the concept of imminence, or an introduction of legitimate preemptive use of
force against an opponent (believed to be) developing weapons of mass destruction, it is incumbent
upon the one who claims this innovation to prove its validity by reference to the appropriate
sources. A mere statement pointing out the destructive capacity of weapons of mass destruction, and
their presumptive transformatory character vis a vis international law does not suffice: weapons of
mass destruction are not a novel problem, and in fact predate the current customary and UN Charter
jus ad bellum by decades: as early as 1899, a treaty on poison gas was first signed, 359 and their
destructive potential has been shown in the First World War. Chemical warfare presents much the
same issues as nuclear exchanges, with deterrence and first-strike advantages having a role to play.
In any case, necessary state practice and opinio jusris was not shown. Advocates for the Iraq war
and the 2002 National Security strategy have proven unable to meet these requirements, unless one
were to accept the dubious concept of instant customary law, or deviant interpretation of the
Caroline-doctrine.
Although invoked, neither the invasion of Iraq or the 2002 National Security Strategy meet the
standards of legitimate anticipatory self-defense.
359B. GHARAGOZLI, “War of words or a regional disaster?” Hastings Int'l & Comp. L. Rev., 2010, (203) 210.
108
6.4 Israeli counter-proliferation operations in 1981, 2007 and possible
action against Iran
“Nuclear weapons are explosive devices whose energy results from the fusion or fission
of the atom. By its very nature, that process, in nuclear weapons as they exist today, releases
not only immense quantities of heat and energy, but also powerful and prolonged radiation ...
These characteristics render the nuclear weapon potentially catastrophic. The destructive
power of nuclear weapons cannot be contained in either space or time. They have the
potential to destroy all civilization and the entire ecosystem of the planet. ”360
6.4.1 1981: Iraq
The 1981 Israeli strike on an Iraqi nuclear reactor under construction near Baghdad is a wellknown flash-point in international legal theory. To analyze its implications for anticipatory selfdefense, let us first consider the history of the Iraqi nuclear program.
Starting in the late 1960's, Iraq initiated their nuclear program, resulting in a small researchreactor, bought from the Soviet Union in 1968. Iraq then signed the Treaty on the Non-Proliferation
of Nuclear Weapons (NPT) the following year, and in 1974, Iraq began negotiating with France to
purchase an additional nuclear reactor. The negotiating parties disagreed over the type of rector,
however. Not all reactors are equally suitable for use in a nuclear weapons program, and the French
declined to sell a gas-graphite reactor, which would have generated enough plutonium to produce
five to eight nuclear
warheads per year. In stead, they agreed to supply a 70-megawatt material-test research reactor
of the “Osiris”-line, as well as a smaller Isis reactor. The installation housing these dual reactors
came to be known as “Osirak”.
The delivered reactors were unsuitable for the development of nuclear weapons, and Iraq did
open up the installation to IAEA-inspections, yet Israel suspected that the ultimate purpose of the
360ICJ, The Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 243.
109
installation was the development of nuclear weapons. 361 Supporting this claim were the outsize
purchases of nuclear materials by Iraq, as well as public statements towards the will to develop an
“Arabian bomb” by later-President of Iraq Saddam Hussein. 362 These suspicions were confirmed
after the 1991Gulf War, when the United Nations Special Commission was able to review the Iraqi
program for the development of various weapons of mass-destruction.
The prospect of an Iraqi nuclear program or nuclear bomb was considered in Israel as a grave
threat, and the chances of the international community acting against Iraq in any case were seen as
slim, owning to the then-growing military might of Iraq, and its still respected statute in the
international arena. Especially the nascent United States – Iraq dimmed Israeli hopes for a
multilateral containment of a hypothetical nuclear Iraq; following the Iranian revolution the U.S.
had taken to support Iraq as a counterweight to the power of Iran. This on-top of the already
positive relation Iraq maintained with the Soviet Union, its primary weapons supplier.363
Acting on their suspicions, Israel conducted an air-strike on June 7, 1981, destroying the underconstruction installation with minimal loss of life. Following the attack, Israel quickly conceded
responsibility for the strike and Iraq brought the issue before the Security Council, decrying the
“Israeli Aggression Against the Peaceful Nuclear Installations in Iraq.”364
When the matter was discussed before the Security council, Israel defended the attack, explicitly
claiming the right of anticipatory self-defense after having exhausted diplomatic options, 365
contending that the advent of nuclear weapons should broaden the right of self-defense to include
preemptive attacks against nuclear programs. 366 In the discussions before the Security Council, a
split occurred over the issue of anticipatory self-defense: one group of states accepted the
legitimacy of anticipatory self-defense, but rejected the Israeli claim based on the facts of the case
361 T. D. GILL, “The temporal dimension of self-defense”, in M.N. SCHMITT AND J. PEJIC (eds.), International law and
armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 139.
362D.A. SADOFF, “A question of determinacy: the legal status of anticipatory self-defense,” Geo. J. Int'l L., 2009, (523)
568.
363 T. D. GILL, “The temporal dimension of self-defense”, in M.N. SCHMITT AND J. PEJIC (eds.), International law and
armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 140.
364The Israeli aggression against the peaceful nuclear installations in Iraq: statement made by Dr. Sa'adoun Hammadi,
Minister for Foreign Affairs of Iraq, before the Security Council, 12 June 1981.
365A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 159; C. D. GRAY,
International law and the use of force, Oxford, Oxford University Press, 2008, 78.
366 A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 160; D.A. SADOFF, “A
question of determinacy: the legal status of anticipatory self-defense,” Geo. J. Int'l L., 2009, (523) 569.
110
(namely, a lack of an imminent threat, and military might not being the only means available to
Israel), while the other group rejected the theory of anticipatory self-defense altogether. No
consensus was reached on anticipatory self-defense, but the Security Council did unanimously
condemn the Israeli action as a clear violation of the United Nations Charter.367
The condemnation of the Israeli strike by the Security Council is firmly grounded in
international law. Although Iraq was discovered to have an extensive program for the development
of weapons of mass destruction after the 1991 Gulf War, and showed willingness to use those
weapons against both military and civilian targets in the war with Iran and Kurdish separatists, none
of those factors were yet relevant in 1981 – for all their prowess, Israeli intelligence organizations
cannot predict the future.
It is true that Israel had reasons to be suspicious of the Iraqi program: Iraq was openly hostile to
Israel and had on several occasions committed troops against it; thanking to its hydrocarbon plenty,
an Iraqi nuclear program made little economical sense; and Iraq had made statements to the effect
that it eventually sought a nuclear weapon. But those factors do not amount to conclusive evidence
of an Iraqi effort to develop a nuclear weapon,much less deploy one and imminent threat.368
While the Osirak incident does not present a clear instance of state practice supporting or
disproving the right of anticipatory self-defense, it is nonetheless indicative of what does and does
not present an “imminent” threat, seeing as how those nations supporting the notion of anticipatory
self-defense rejected Israeli claims based on the facts of the case. The mere existence of a declared
and legal and nuclear program, even if it may some day lead to the development of nuclear
weapons, and coupled with historical hostility (as was the case in the relationship of Iraq and
Israel), does not constitute an imminent threat.369
367Resolution 487 of the United Nations Security Council (June 19, 1981), UN. Doc. S/RES/487 (1981); Resolution
36/27 of the United Nations General Assembly (November 13, 1981), UN. Doc. A/RES/36/27 (1981); A. C. AREND
and R. J. BECK, International law and the use of force, London, Routledge, 1993, 161; T.D. GILL, “The temporal
dimension of self-defense”, in M.N. SCHMITT AND J. PEJIC, International law and armed conflict, Boston, Martinus
Nijhoff Publishers, 2007, 140; D.A. SADOFF, “A question of determinacy: the legal status of anticipatory selfdefense,” Geo. J. Int'l L., 2009, (523) 569 – 570.
368 T. D. GILL, “The temporal dimension of self-defense”, in M.N. SCHMITT AND J. PEJIC (eds.), International law and
armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 141.
369A. C. AREND and R. J. BECK, International law and the use of force, London, Routledge, 1993, 162-163.
111
6.4.2 2007: Syria
The alleged September 2007 Israeli air-strike against a supposed North Korean-built nuclear
reactor in Syria had the potential to be just as controversial and informative as the 1981 Osirakincident.
First, the facts of the case: on September 6, 2007, Israeli warplanes bombed a building inside of
Syria, near the town of Al Kibar, believed to be housing a nuclear reactor under construction. The
reactor was not declared as per the Nuclear Non-Proliferation Treaty, to which Syria is a signatory,
and the Syrian government maintains that there never was a nuclear project at the site of the
bombing. Even if they were building a reactor, however, they would not be obliged to declare this
until the actual completion, estimated to still have been years away. 370 Recent civil unrest within
Syria, however, has emboldened the IAEA to try and sanction Syria for the suspected reactor, and
the organization voted to refer the matter to the Security Council. Syria maintains that the site did
not contain any nuclear projects.371
From what we know now, there appear to be more similarities between the cases than
differences, at least in operational terms: the Israeli air force preformed a surgical strike on a
nuclear reactor in a hostile state before it was allowed to go on-line, and before any indications
existed as to the capability or willingness of the other state to use the reactor for offensive purposes.
Yet, the reactions to both incidents have been markedly different: the 1981 raid sparked
international condemnation and a Security Council resolution condemning Israel. The 2007 attack,
on the other hand, remains unacknowledged by both parties involved: Israel will neither deny or
affirm they carried out an attack, while Syria did not pres for any reaction or condemnation
following the attack and promptly erase any traces of the building at the site 372 – there appears to be
tacit understanding between the parties involved to let sleeping dogs lie.
370D.E. SANGER AND M. MAZZETTI, “Israel Struck Syrian Nuclear Project, Analysts Say,” The New York Times, October
14, 2007, A1.
371D. BILEFSKY, “Nuclear Agency Reports Syria to Security Council,” The New York Times, June 10, 2011, A6.
372W.J. BROAD AND M. MAZZETTI, “Satellite Photos Show Cleansing of Syrian Site,” The New York Times, October 26,
2007, available at nytimes.com/2007/10/26/world/middleeast/26weapons.html?scp=10&sq=syria%20nuclear
%20reactor&st=cse, (last visited at May 3, 2012).
112
This largely explains the different handling of the incident in the international sphere. The one
crucial point of distinction between the Iraqi and Syrian projects was that the Iraqi reactor was built
openly and monitored by the IAEA, while the Syrian reactor was built and operated in total secrecy
(or was nonexistent, if the Syrian government is to be believed). This allows the actors involved to
pretend no armed attack has in fact taken place, sidestepping the issue of whether or not the attack
was legitimate under international law. Syria, rather than decry Israel's use of force, simply objected
that the Israeli's committed a “breach of airspace” and “dropped some munitions”, this in a letter to
the U.N. Secretary General, not the Security Council. 373 Can there be an armed attack if the victim
state denies it suffered an armed attack? The question of the legality of the attack needn't be
answered if the question isn't posed.
Beyond what was already mentioned, a further inquiry into the legal aspects of the case seems
redundant, seeing as how the case is nearly identical to the 1981 strike against the Iraqi reactor and
would yield identical conclusions. That the facility was not monitored by the IAEA does not change
that fact; possible noncompliance with the IAEA does not trigger a right to use force – although it
might have made the Security Council less likely to condemn Israel, should Syria have sought a
Security Council resolution. But no such resolution was sought. Israel might have defended the
attack with reference to the First Report of the Atomic Energy Commission, with made reference to
breaches of treaties concerning atomic development as elements in determining the triggering of
self-defense.
The answer to the question no-one asked: a hidden reactor might be perceived as more
threatening than a declared one, but is still not an imminent threat allowing for anticipatory selfdefense, unless one were to blindly apply the standard set by the First Report of the Atomic Energy
Commission. But the legal status of that standard has not yet solidified for lack of state practice.
373Letters from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the
Secretary-General and the President of the Security Council (9 September 2007), UN. Doc A/61/1041–S/2007/537
(2007).
113
6.4.3 TBD: Iran
In Recent years, the Iranian nuclear program has been a topic of growing concern for the
international community. Although the Iranian government maintains that its program is of a
peaceful nature, there is a growing suspicion in some corners that Iran is in fact working on squiring
the capacity to build nuclear weapons, although the general consensus is that they do not yet seek to
actually build one.374 Iran would seek to become not a nuclear weapon state, but a nuclear capable
state.
Owning to the international concerns over the Iranian nuclear program, as well as recent antidemocratic measures taken by the government, the Islamic Republic is currently the target of
several U.N. Security Council approved sanctions.375
The nation most concerned with the Iranian nuclear program is Israel, and the government of
Israel has indicated on occasion that it will not allow Iran to reach nuclear capability, describing that
possibility as an existential threat to Israel. There is growing concern that Israel might use military
power to destroy or delay the Iran program, as it has done before against Iraq and Syria. 376 This
chapter will seek to establish whether the Iranian nuclear program does indeed have the potential to
be an existential threat to Israel, and if Israel can invoke the right of anticipatory self-defense to
bring a forcible end to said program.
Current legal regime
Iran is a signatory to the Nuclear Non-Proliferation Treaty, and currently allows its facilities to
be inspected by the International Atomic Energy Agency, although the IAEA currently considers the
374G. MILLER, AND J. WARRICK, “U.S. Report finds debate in Iran on building nuclear bomb,” The Washington Post,
February 18, 2011, available at washingtonpost.com/wp-dyn/content/article/2011/02/18/AR2011021805632.html?,
(last visited at May 3, 2012); The New York Times, Times Topics, Iran's Nuclear Program, available at
topics.nytimes.com/top/news/international/countriesandterritories/iran/nuclear_program/index.html?8qa, (last
visited at May 3, 2012).
375Since 2006, the United Nations Security Council has imposed four rounds of sanctions against Iran in response to its
nuclear program. Acting under Chapter VII of the Charter of the United Nations, the Security Council adopted
resolutions 1737 (2006), 1747 (2007), 1803 (2008) and 1929 (2010).
376I. KERSHNER, AND D. E. SANGER, “Israel Faces Questions About News Reports Of Eyeing Iran Strike,” The New York
Times, November 4, 2011, A10.
114
regime uncooperative, and is unable to make any definite pronouncements on a possible nuclear
weapons program.377
As a result of limited Iranian cooperation, the Security Council has been prompted to pass
several resolutions imploring Iran to fulfill its duties to the IAEA.
An existential threat
A frequently reoccurring justification for a broad use of preemptive force by Israel against its
neighbors seeking to develop nuclear technology is the notion that, should a hostile nation be
allowed to develop a sufficient level of expertise and infrastructure, Israel will face an existential
threat. This meme, which gets thrown around frequently in media and military circles, 378 can be
considered official Israeli policy, 379 even though there have recently been former officials publicly
and current officials privately speaking out against that notion.380
The relevance of this debate towards determining the legality of a strike against Iranian nuclear
facilities is narrow, but not nonexistent. Although it has been previously noted that the magnitude of
a possible threat is no substitute for the required imminence for a legitimate anticipatory act of selfdefense, there has been one curious judicial opinion hinting at the opposite in the specific case of a
nuclear exchange to protect the existence of a state. When asked by the United Nations General
Assembly to consider the legality of the use or threat of use of nuclear weapons, the International
377 Report by the Director General to the Board of Governors of the International Atomic Energy Agency (February 24,
2012), IAEA Publications GOV/2012/9 (2012), 10-11, available online at
iaea.org/Publications/Documents/Board/2012/gov2012-9.pdf, (last visited at May 8, 2012).
378A. OREN, “U.S. Top brass: Nuclear Iran is existential threat to Israel,” Haaretz, September 8, 2009, available at
haaretz.com/print-edition/news/u-s-top-brass-nuclear-iran-is-existential-threat-to-israel-1.4613, (last visited at May
3, 2012).
379The exact phrase was uttered by the Israeli Prime Minister in the Knesset: J. LIS,, “Netanyahu: Gaza violence shows
Israel cannot afford to be lax on Iran nuclear threat,” Haaretz, 14 March, 2012, available at
haaretz.com/news/diplomacy-defense/netanyahu-gaza-violence-shows-israel-cannot-afford-to-be-lax-on-irannuclear-threat-1.418677, (last visited at May 3, 2012).
380Current Israeli Defense Minister Barak privately disavowing the notion: X, “Report: Barak says Iran is not
existential threat to Israel,” Haaretz, 17 September 2009, available at haaretz.com/news/report-barak-says-iran-isnot-existential-threat-to-israel-1.7710, (last visited at May 3, 2012); Former and present Mossad-chiefs speaking
out: B. RAVID, “Mossad chief: Nuclear Iran not neccesarily existential threat to Israel,” Haaretz, 29 December, 2011,
available at haaretz.com/print-edition/news/mossad-chief-nuclear-iran-not-necessarily-existential-threat-to-israel1.404227 (last visited at May 3, 2012).
115
Court of Justice issued an advisory opinion wherein it was stated that “the threat or use of nuclear
weapons would generally be contrary to the rules of international law applicable in armed conflict,
and in particular the principles and rules of humanitarian law”, but then added this caveat: “the
Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or
unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be
at stake .”381
If a threat to the survival of a state might prompt legal use of nuclear weapons, it seems prudent
to investigate the claim that an Iranian nuclear program poses an existential threat to Israel.
At the very least, it provides a policy-argument: given Israel's large undeclared nuclear arsenal,
and if the threat posed is indeed existential, they might well be prompted to use their weapons. If
the incipient Iranian program is destroyed, and the threat fails to materialize, so does the specter of
an Israeli nuclear attack dissipate – in some twisted way, this would be a point in favor of an Israeli
strike before an existential threat is allowed to mature. That said, the existence of an existential
threat does not necessarily alter the validity of any Israeli claim to preemption or anticipation right
now. But from the use of this element in an ICJ advisory opinion, and in literature and rhetoric, it is
not inconceivable that it enters customary international law as a relevant factor at some point in the
future, warranting at least a cursory inquiry in this thesis.
An analysis of what would constitute an existential threat to the state of Israel is very much a
technical matter: what is the quantitative and qualitative magnitude of destruction necessary to
threaten the existence of a state? And how to define the existence of state? The latter might seem
self-evident, but it is not, certainly not for Israel, where a distinction can be made between the
existence as a state an sich, but also as a Jewish state. A threat sufficient to sufficiently degrade
Israel's Jewish character might be considered existential. There exists, however, a policy document
that examines the question of existential threats in the relation Iran – Israel, taking into
consideration religious and ethnic makeup of both states. The report “Iran and The Gulf Military
Balance ” by the Center for Strategic and International Studies 382 looks at the current and potential
381ICJ, The Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 266.
382A. WILNER AND A.H. CORDESMAN, “U.S. and Iranian Strategic Competition: Iran and the Gulf military balance - II,”
Center for Strategic and International Studies, 2012, available online at
csis.org/files/publication/120222_Iran_Gulf_Mil_Bal_II_WMD.pdf, (last visited at May 8, 2012).
116
military capabilities of involved actors, as well as country-specific vulnerabilities to, among others,
nuclear weapons, taking into account such factors as ethnic localization and importance of urban
populations.
Nuclear balance
Terrible as nuclear weapons might be, they are not magical devices – one nuclear detonation on a
nation's soil does not necessarily mean the sudden collapse of said state. A nuclear bomb is still a
bomb, be it a very powerful and poisonous one; it destroys property, and kills, wounds and poisons
people. To cause the collapse of a state – and thus pose an existential threat – a certain threshold of
destruction has to be achieved. On the question of what exactly would constitute an existential
threat to Israel in terms of nuclear attacks, and the capabilities needed to achieve them, the report
contains the following conclusions:
•
To end Israel as a functioning state, the destruction of the economic and Jewish cultural hubs
will suffice.
•
This can be achieved via nuclear strikes on only two Israeli cities: Tel Aviv-Yafo, population
3.219 million, and Haifa, population 1.027 million. Jerusalem is not considered a likely target due
to its large non-Jewish population and presence of holy sites of Islam.383
A lot will depend on the types of weapons used, however; nuclear weapons are diverse in their
purpose, power and effects. Firstly, there is the distinction between fission and fusion weapons, the
latter being considerably more powerful, but also requiring greater expertise. Fission weapons work
by using a mechanical device to initiate an uncontrolled nuclear chain-reaction in fissile material,
releasing various forms of energy. To build this bomb, one needs to construct the mentioned device,
and acquire certain amounts of refined fissile material. Fusion weapons use the afore-mentioned
energy released by a fission weapon to achieve nuclear fusion, which in turn releases even greater
amounts of energy. These weapons can be calibrated to deliver more or less, and different kinds of
destruction – the raw destructive potential is measured by equivalence to amounts of TNT,
measured in the kilotons and megatons. To achieve the destruction of cities mentioned, the weapons
383A. WILNER AND A.H. CORDESMAN, “U.S. and Iranian Strategic Competition: Iran and the Gulf military balance - II,”
Center for Strategic and International Studies, 2012, 128.
117
have to have a certain strength. On that issue, the report states the following:
•
It is unlikely that Iranian strikes limited to basic fission weapons, in the 20 kiloton range,
which is comparable to the atom-bombs used against the Empire of Japan at the close of World War
II, would produce enough immediate damage and casualties to Israel’s Jewish populations to make
recovery impossible.
•
An Iranian force armed with boosted fission weapons of 100 kilotons each or more, or
fusion bombs in the 1 megaton or larger range could deliver enough damage to destroy much of
Israel’s coastal cities and population.384
Now that it has been established what an existential threat looks like (several successful strikes
with weapons in the 1 megaton range), how do Iran's current and future capabilities stack up? The
answer to that question is unclear, mostly owning to the uncertainty in determining the state, or
even existence of Iran's nuclear weapons program. This is due, in part, to the phenomenon of
parallel technology: all but the final stages of a nuclear weapons program also have civilian
applications, so it is unclear what the ultimate goal of a nuclear program is until an actual nuclear
test occurs. It remains uncertain if Iran even seeks to develop any weapons. 385 According to U.S.
Government sources:
Iran is keeping open the option to develop nuclear weapons in part by developing various
nuclear capabilities that better position it to produce such weapons, should it choose do so.
We do not know, however, if Iran will eventually decide to build nuclear weapons .386
The most recent report, which represents the consensus of 16 U.S. intelligence agencies,
indicates that Iran is pursuing research that could put it in a position to build a weapon, but
that it has not sought to do so. 387
Currently, developments toward nuclear capability include suitable payload delivery systems
(capable of containing and correctly detonating a nuclear device, with limited parallel applications),
384A. WILNER AND A.H. CORDESMAN, “U.S. and Iranian Strategic Competition: Iran and the Gulf military balance - II,”
Center for Strategic and International Studies, 2012, 128.
385G. MILLER, AND J. WARRICK, “U.S. Report finds debate in Iran on building nuclear bomb,” The Washington Post,
February 18, 2011, available at washingtonpost.com/wp-dyn/content/article/2011/02/18/AR2011021805632.html?,
(last visited at May 3, 2012).
386James R. Clapper, Statement for the Record for the U.S. Senate, Committee on Armed Services, Worldwide Threat
Assessment of the US Intelligence Community, March 10, 2011.
387K. DILANIAN, “U.S. does not believe Iran is trying to build nuclear bomb,” Los Angeles Times, February 23, 2012,
available online at articles.latimes.com/2012/feb/23/world/la-fg-iran-intel-20120224, (last visited at May 8, 2012).
118
simulated devices and quantities of low-level enriched uranium. 388 But this does not indicate a
willingness do develop nuclear weapons, only the willingness to develop the capacity to develop the
weapons (so-called breakout capacity). Ignoring all those factors, and presuming Iran was indeed
seeking to develop a weapon, estimates vary on the amount of time it would take them to achieve
that goal.
•
Current U.S. Secretary of Defense Leon Panetta estimates it would take 1 year to devellop a
crude nuclear device (crude taken to mean less potent than the weapons used against Hiroshima and
Nagasaki), and 2 to 3 years to develop a suitable delivery vehicle.
•
Former chief of Mossad Meir Dagan testified to the Knesset Foreign Affairs and Defense
Committee on January 6, 2011 that he did not believe that Iran would have a nuclear weapons
capability before 2015. “The question is not when Iran will acquire the bomb, but how long until
the leader decides to begin enriching [uranium] at 90 percent... Once such a decision is made, it
would take a year or two to produce a nuclear warhead,” he said, adding that Iran would then need
more time to develop an effective missile delivery system.
These estimates, however, apply to the capability to make a nuclear device. To produce the kind
of weapons described supra would take an estimated 6-10 years, according to the report. This does
not factor in the need to develop parallel to the weapons program an effective delivery system,
requiring miniaturization and capabilities to overwhelm air and missile defense systems.389
Although great uncertainty remains as to the existence and state of a possible Iranian nuclear
program, it is safe to conclude that Iran does not currently pose an existential threat to Israel, and
even if it reaches nuclear capacity it still won't pose an existential threat for at least half a decade
from that point on, due to the need to develop more powerful and refined devices. By contrast,
Israel has almost certainly developed the capability to target advanced nuclear warheads on every
major Iranian city, creating an existential threat to Iran long before Iran will pose one to Israel.390
388A. WILNER AND A.H. CORDESMAN, “U.S. and Iranian Strategic Competition: Iran and the Gulf military balance - II,”
Center for Strategic and International Studies, 2012, 85 and 93.
389A. WILNER AND A.H. CORDESMAN, “U.S. and Iranian Strategic Competition: Iran and the Gulf military balance - II,”
Center for Strategic and International Studies, 2012, 97, 128 and 132.
390A. WILNER AND A.H. CORDESMAN, “U.S. and Iranian Strategic Competition: Iran and the Gulf military balance - II,”
Center for Strategic and International Studies, 2012, 13.
119
The window of opportunity before the zone of immunity
Of course, the discourse on the threat of Iran never claimed Iran poses an existential threat right
now, or that it would have to do so before a preemptive strike is warranted. The current debate in
Israel and elsewhere now focuses in stead on something entirely different, the so called “window of
opportunity” or “zone of immunity”. One expression of the idea is found in a February 29, 2012
editorial in the New York Times by Amos Yadlin (who happens to be one of the pilots that
conducted the 1981 Orisak-raid). In his words:
“An Israeli strike against Iran would be a last resort, if all else failed to persuade Iran to
abandon its nuclear weapons program. That moment of decision will occur when Iran is on
the verge of shielding its nuclear facilities from a successful attack – what Israel’s leaders
have called the “zone of immunity.”391
So the decision to attack is not predicated on the severity of the threat, the probability of the
threat materializing, or the imminence of the threat, but solely on the question of whether or not an
attack will still be feasible at a later date. This is entirely reminiscent of the 2002 United States
National Security Strategy, where it was proposed that one should be allowed to attack opponents
when an opportunity to do so presented itself, even if there remained doubts as to the time and place
of the threat392 – a euphemism for a lack of imminence.393
As with previous cases discussed, there is but one conclusion, and that is that a strike against a
state that is merely developing – not even seeking or approaching – a potential capability to produce
weapons of mass-destruction cannot be an instance of legitimate anticipatory self-defense, this for
lack of an imminent threat. Considerable effort has been put in trying to find some kind of
justification for the claim that the possibility of Iran acquiring a nuclear weapon would change this
equation, but it manifestly did not. Iran does not pose an existential or imminent threat to Israel, and
won't for quite some time. But the law in this area might change at some point in the future; both
Israel and the U.S. now openly assert the right to conduct preemptive strikes against hostile states
seeking to develop weapons of mass destruction, and more states might follow suit. Furthermore,
391YADLIN, A., “Israel's Last Chance to Strike Iran,” The New York Times, March 1, 2012, A31.
392National Security Council, The National Security Strategy of the United States of America (September 2002), 15,
available online at nssarchive.us/NSSR/2002.pdf, (last visited at May 8, 2012)
393B. GHARAGOZLI, “War of words or a regional disaster?” Hastings Int'l & Comp. L. Rev., 2010, (203) 210.
120
the question of the role of treaty-violations concerning proliferation in establishing an imminent
threat remains unresolved,394 and might be invoked as grounds for an attack.
394As per the First report of the Atomic Energy Council, supra at 93.
121
Conclusion
This thesis set out to investigate the following questions:
•
Does there exist in contemporary international law a right of anticipatory self-defense, and
what is its relation to the relevant provisions of Charter of the United Nations.
•
What are the dimensions and requirements for the legitimate exercise of anticipatory selfdefense.
•
And finally, to take a look at the intersection of anticipatory self-defense and the hotspots of
contemporary international law that are non-state actors and weapons of mass-destruction.
To the issue of the existence of a right of anticipatory self-defense, the first hurdle that had to be
taken was the delicate issue of defining anticipatory self-defense. A first step is recognizing the
dichotomy of
reactive and proactive notions of self-defense. Reactive self-defense is an
uncontested nation, proactive self defense not so. This issue is then to recognize that proactive selfdefense covers a spectrum of actions, anticipatory self-defense referring to self-defense as
envisioned in the Caroline-doctrine, self-defense exercised against an imminent threat of attack.
This to contrast it to other notions, like preemption, prevention and interceptive self-defense. While
a case is to be made for the legitimacy of anticipatory self-defense, the same can not be said for
those other forms of proactive self-defense.
Having established a linguistic framework, the contentious nature and aspects of anticipatory
self-defense were laid bare in a brief analysis of various schools of thought on the matter. The
schools claiming that there exists no right of anticipatory self-defense compatible with the Charter
of the United Nations (“restrictionism” and “abolitionism”) err prima facie in their interpretation of
vital aspects concerning anticipatory self-defense: the restrictionist place undue focus on the phrase
“if an armed attack occurs” in art. 51 of the UN Charter, while disregarding the reference to “the
inherent right of self-defense,” as well as the basic principle of effective interpretation of the selfdefense rule. They are unable to point to relevant Travaux of the Charter to support their positions.
Abolitionists, on the other hand, make the fundamental error of not realizing that a law does not
122
lose its power because it is broken. That the UN Charter is not always abided by does not mean it is
no longer in force.
The validity of the claims of the third school (“counter-restrictionists”), however, can only be
established after conducting a thorough historical analysis of the evolution of the right of selfdefense in customary international law, and its effects of the Charter of the United Nations.
Following a comprehensive analysis of the historical evolution of self-defense, it was found that
customary international law in fact provides for a right of anticipatory self-defense following the
rules contained in the Caroline-doctrine, a fact confirmed at the post-World War Two tribunals. The
Charter of the United Nations, through reference to an “inherent right” of self-defense, sought to
incorporate the customary right of self-defense, a fact confirmed by the International Court of
Justice. The Travaux or the language of the Charter do not point towards a will to modify existing
customary law, and subsequent state practice has been sparse, and inconclusive either for or against
anticipatory self-defense. Without clear evidence of the customary international law on self-defense
having been replaced or modified by a new system, anticipatory self-defense must be considered as
part of the contemporary jus ad bellum.
Moving on to delimit the bounds of and discover the preconditions for the legitimate exercise of
anticipatory self-defense, the elements of the Caroline-doctrine were dissected: necessity,
proportionality, imminence of the threat and immediacy of the response. Bright-line conditions
could not be established. In any case, the threat against which anticipatory self-defense is targeted
needs to amount to an armed attack (which arguably includes certain cyber-threats), the threat must
be highly probable and urgent, no timely peaceful alternatives to a use of force must remain, and the
force used must be no more than what is required to avert or deter the threat and aimed squarely at
the threat (taking into account possible civilian casualties and damage).
If a threat originates from a non-state actor, self-defense can be exercised against that non-state
actor like it would be against a state. However, to target a state itself for (threatened) actions of nonstate actors, the target-state state must be shown to have effective control over the actions of the
non-state actor. To be allowed to engage non-state actors in a sanctuary-state if that state does not
control them is a contentious issue, although contemporary practice and views lean towards the
principle that it is allowed if the sanctuary-state is unable or unwilling to remove the non-state
actor threat. But in any case, regular preconditions (necessity, proportionality, ...) still apply. The
most infamous contemporary operation against non-state actors operating from impotent or
unwilling sanctuary-states, the worldwide “drone-campaign” of the United States, fails to abide by
123
several of these conditions in its choice of targets, even though the usage of “drones” an sich
needn't be problematic.
Lastly, the effects of the introduction of weapons of mass-destruction (especially nuclear
weapons) into the equation of anticipatory-self defense. A large number of contemporary instances
of the invocation of anticipatory self-defense involve counter-proliferation operations. Although
nuclear-related treaty violations and the presence of an existential threat could contribute to the rise
of a right of self-defense ex the Atomic Energy Commission and the ICJ, targeting states that are
merely suspected of developing nuclear weapons, but not proven to have been in breach of a treaty
and not actually posing an existential threat at the moment of the use of force, cannot be considered
legitimate instances of anticipatory self-defense, and state-practice confirms this in the
condemnation of such operations.
In conclusion, anticipatory self-defense can be said to be an existing right of states, even in a
United Nations' context, but an exceedingly limited right, subject to strict preconditions, and thus a
far cry from the specter of preemptive or preventive self-defense. Weapons of mass destruction and
the threat of terrorism are to be taken into account, but have not yet been shown to have induced a
far-reaching widening of the scope of the right or anticipatory self-defense beyond imminent threats
of armed attack. This contrary to numerous claims in recent memory, mainly by the governments of
the United States and Israel, erroneously invoking anticipatory self-defense in attacks aimed at
counter-proliferation, and failing to meet the preconditions for the legitimate exercise of the right in
the conduct of the “Global War on Terror.”
124
Bibliography
Treaties
Declaration on the Use of Projectiles the Object of Which is the Diffusion of Asphyxiating or
Deleterious Gases, The Hague, July 29, 1899, in SCOTT, J. B., The Hague Peace Conferences of
1899 and 1907,Baltimore, the Johns Hopkins Press, 1909, Vol. II, available online at
avalon.law.yale.edu/19th_century/dec99-02.asp, (last visited at May 4, 2012).
League of Nations, Covenant of the League of Nations, 28 April 1919, available at online at
unhcr.org/refworld/docid/3dd8b9854.html (last visited at May12, 2012).
Treaty between the United States and other Powers providing for the renunciation of war as an
instrument of national policy (the Kellogg-Briand pact), Paris, August 27, 1928, United States
Statutes at Large, Vol 46 Part 2, 2343, available online at: Yale Law School, The Avalon Project,
Kellogg-Briand Pact 1928, available at yale.edu/lawweb/avalon/imt/kbpact.htm, (last visited at
May 3, 2012).
United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available online at:
unhcr.org/refworld/docid/3ae6b3930.html (last visited May 12, 2012).
Soviet Declaration of War on Japan, August 8, 1945, Moscow, available online at
avalon.law.yale.edu/wwii/s4.asp, (last visited at May 4,2012).
United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty
Series, vol. 1155, p. 331, available online at :unhcr.org/refworld/docid/3ae6b3a10.html ( last visited
at May 12, 2012).
International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions
of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts
(Protocol I), 8 June 1977, 1125 UNTS 3.
125
Resolutions by the Security Council of the United Nations
Resolution 487 of the United Nations Security Council (June 19, 1981), UN. Doc. S/RES/487
(1981).
Resolution 612 of the United Nations Security Council (May 9, 1988), UN Doc. S/RES/612 (1988).
Resolution 678 of the United Nations Security Council (November 29 1990), UN Doc. S/RES/678
(1990).
Resolution 687 of the United Nations Security Council (April 3, 1991), UN Doc. S/RES/687
(1991).
Resolution 1269 of the United Nations Security Council (19 October, 1999), UN Doc. S/RES/1269
(1999).
Resolution 1368 of the United Nations Security Council (12 September 2012), UN Doc.
S/RES/1368 (2001).
Resolution 1373 of the United Nations Security Council (28 September, 2001), UN Doc.
S/RES/1373 (2001).
Resolution 1378 of the United Nations Security Council (14 November, 2001), UN Doc.
S/RES/1378 (2001).
Resolution 1441 of the United Nations Security Council (November 8, 2002), UN Doc. S/RES/1441
(2002).
126
Resolutions of the General Assembly of the United Nations
Resolution 95 (I) of the United Nations General Assembly (11 December, 1946 ), UN Doc.
A/RES/95 (1946).
Resolution 1000 (ES – I) of the United Nations General assembly (November 5; 1956), UN Doc.
A/RES/1000 (1956).
Resolution 3314 (XXIX) of the United Nations General Assembly (14 December, 1974), UN Doc.
A/RES/3314 (1974).
Resolution 36/27 of the United Nations General Assembly (November 13, 1981), UN. Doc.
A/RES/36/27 (1981).
United Nations – other
The First Report of the Atomic Energy Commission to the Security Council (December 30, 1946),
in U.S. and U.N. Report Series n° 8, Washington, U.S. Govt. print. Off., 1947, 22.
UN General Assembly, Declaration of Principles of International Law Concerning Friendly
Relations and Co-operation Among States in Accordance with the Charter of the United Nations, 24
October 1970, available at: http://www.unhcr.org/refworld/docid/3dda1f104.html, (last visited at
May 7, 2012).
Addendum to the eighth report on State responsibility (29 February, 10 and 19 June 1980), UN.
Doc. A/CN.4/318/Add.5-7 (1980).
Report of the International LAW Commission on the work of its thirty-second session (5 May-25
July 1980), UN Doc. A/35/10 (1980).
The Israeli aggression against the peaceful nuclear installations in Iraq: statement made by Dr.
127
Sa'adoun Hammadi, Minister for Foreign Affairs of Iraq, before the Security Council, 12 June 1981.
4644th Meeting of the United Nations Security Council (November 8, 2002), UN Doc. S/PV.4644
(2002).
Letters from the Permanent Representative of the Syrian Arab Republic to the United Nations
addressed to the Secretary-General and the President of the Security Council (9 September 2007),
UN. Doc A/61/1041–S/2007/537 (2007).
United Nations, First United Nations Emergency Force, available at
un.org/en/peacekeeping/missions/past/unefi.htm, (last viewed at May 7, 2012).
Decisions and opinions by international courts and tribunals
Permanent Court of International Justice, The Case of the S.S. Lotus, (France v. Turkey), P.C.I.J.
(ser. A) No. 10, 1927, 5.
The International Military Tribunal, Judgment of the International Military Tribunal for the Trial of
German Major War Criminals, Judgment (30th September and 1st October, 1946, Nuremberg), The
Law of the Charter, available online at avalon.law.yale.edu/imt/judlawch.asp, (last visited at May 4,
2012).
The International Military Tribunal for the Far East, Judgment of the International Military
Tribunal for the Far East, Judgment, (4 November 1948, Tokyo), in PRITCHARD, R.J.; ZAIDE, S.M.
(eds.), The Tokyo War Crimes Trial: The Complete Transcripts of the Proceedings of the
International Military Tribunal for the Far East, New York, 1981, 49.587, available online at
werle.rewi.hu-berlin.de/tokio.pdf, (last visited at May 4, 2012).
ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Judgement, ICJ Reports 1986, 14, available online at icj-cij.org/docket/?
p1=3&p2=3&k=66&case=70&code=nus&p3=4, (last visited at May 12, 2012).
ICJ, The Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996,
128
226.
ICTY, Prosecutor v. Tadic, Judgment, Case No. IT-94-1-T (14 July 1997).
ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion (9 July 2004), www.icj-cij.org.
ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
Judgment, ICJ Reports 2005, 168, available online at icj-cij.org/docket/index.php?
p1=3&p2=3&code=co&case=116&k=51, (last visited May 7, 2012).
Travaux and diplomatic communications
Letter from Secretary of State Daniel Webster to Lord Ashburton of July 27, 1842, note of April
24,1841, from H., MILLER, Treaties and Other International Acts of the United States of America,
Washington , Government Printing Office, 1934,Volume 4, Documents 80-121, available online at
Yale Law School, The Avalon Project, The Caroline, available at
avalon.law.yale.edu/19th_century/br-1842d.asp, (last visited at May 3, 2012).
Secretary of State for Foreign Affairs, Further Corespondence with Government of the United
States respecting the United States Proposal for the Renunciation of War, (Command paper 3153,
1928), No. 1, available online at avalon.law.yale.edu/20th_century/kbbr.asp, (last visited at May 4,
2012).
Books
AREND, A. C. and BECK, R. J., International law and the use of force, London, Routledge, 1993, xi +
272 p.
ARMSTRONG, J. D., FARRELL, T. and LAMBERT, H., International law and international relations,
129
Cambridge - New York, Cambridge University Press, 2007, ix + 308 p.
BERNARD, T. R., Customary International Law, in Enceclopedia of Public International Law, VII,
Oxford, Oxford University Press, 2003, 555 p.
BOWETT, D.W., Self-Defense in international law, New York, Praeger, 1958, xv + 294 p.
BROWNLIE, I., International law and the use of force by states, Oxford, Clarendon Press, 1963, 532 p.
BROWNLIE, I., “The principle of non-use of force in international law,” in BUTLER, W. E. (ed.), The
non-use of force in international law, Dordrecht, Nijhoff, 1989, 17 – 29.
BROWNLIE, I., Principles of Public International Law, Oxford, Oxford University Press, 1990, 800 p..
CARTER, B. E., TRIMBLE, P.R. AND BRADLEY, C.A.,, International Law, Aspen Publishers, 2003, 1159 p.
D'AMATO, A., International law, Dobbs Ferry, Transnational Publishers, 1987, vi + 250 p.
DAWKINS, R., The Selfish Gene, Oxford, Oxford University Press, 2006, xxiii + 360 p.
DINSTEIN, Y., War, agression and self-defence, Cambridge, Grotius publ., 1994, xxi + 325 p.
FISLER, L. and SCHEFFER, D.J., Law and force in the new international order, Boulder, Westview
Press, 1991, 326 p.
FRANCK, T.M., Recourse to force, New York, Cambridge University Press, 2002, xii + 205 p.
GILL, T. D., “The temporal dimension of self-defense”, in SCHMITT, M.N.,
AND
PEJIC, J. (EDS.),
International law and armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 113 – 156.
GRAY, C., International law and the use of force, Oxford, Oxford University Press, 2000, xii + 243
p.
GRAY, C. International law and the use of force, Oxford, Oxford University Press, 2008, xiii + 455
p.
HARRIS, R., PAXMAN, J., A Higher form of Killing, New York, Hill and Wang , 1982, 306 p.
JENNINGS, R. AND WATTS, A., Oppenheim's International Law, Vol. 1, Peace, London, Longman,
130
1992, xxxvi + 554 p.
KRITSIOTIS, D., “Topographies of force,” in SCHMITT, M.N. ANDPEJIC, J. (EDS.), International law and
armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 29 – 78.
MÜLLERSON, R. A., “The principle of non-threat and non-use of force in the modern world,” in
BUTLER, W. E. (ed.), The non-use of force in international law, Dordrecht, Nijhoff, 1989, 29 – 38.
MCDOUGAL, M.S. and FELICIANO, F. P., Law and Minimum World Public Order, New Haven, Yale
University Press, 1961, xxvi + 872 p.
REISMAN, W. M. AND ARMSTRONG, A., “Claims to pre-emptive uses of force,” inSCHMITT, M.N. AND
PEJIC, J.(eds.), International law and armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 79
– 112.
SCHMITT,M.N., “Responding to transnational terrorism under the jus ad bellum,” in SCHMITT, M.N.
AND
PEJIC, J. (eds.), International law and armed conflict, Boston, Martinus Nijhoff Publishers,
2007, 157 – 196.
SHEARER, I., “A revival of the just war theory,” in SCHMITT, M.N. AND PEJIC J. (eds.), International
law and armed conflict, Boston, Martinus Nijhoff Publishers, 2007, 1 – 20.
STEVENS, K. R., Border Diplomacy: The Caroline and McLeod Affairs in Anglo-American-Canadian
Relations, 1837-1842, Tuscaloosa, University of Alabama Press, 1989, 225 p.
Law Journals
DINSTEIN, Y., “The Legal Issues of 'Para-War' and Peace in the Middle-East”, St. John's L. Rev.
1969-1970, 466 – 483.
ECKERT , A.E. AND MOFIDI, M., “Doctrine or doctrinaire,” Tul. J. Int'l & Comp. L., 2004, 117 – 151..
GHARAGOZLI, B., “War of words or a regional disaster?” Hastings Int'l & Comp. L. Rev., 2010, 203 –
243.
131
GREEN, J.A., “Docking the Caroline”, Cardozo J. Int'l & Comp. L , 2006, 429 – 480.
JENNINGS, R. Y., “The Caroline and McLeod Cases,”AM. J. Int'l L., 1938, 82 – 99.
KEARLY, T., “Regulation of Preventative and Preemptive Force in the United Nations Charter,”
Wyoming Law Review, 2003, 663 – 766.
MATHESON, M. J., “Remarks, in Legal Authority for the Possible Use of Force Against Iraq,” ASIL
Proceedings, 1998, 136 – 150.
MURPHY, S. D., “Contemporary Practice of the United States Relating to International Law”, AM. J.
Int'l L., 1999, 102 – 139.
MURPHY, S.D., “The doctrine of preemptive self-defense,” Vill. L. Rev., 2005, (699) 699 – 748.
OCCELLI, M.B., “Sinking the Caroline”, San Diego International Law Journal, 2003, 467 – 490.
ROGOFF, M.A., AND COLLINS, E., “The Caroline incident and the development of international law,”
Brook. J. Int'l L. , 1990, 493 – 527.
SADOFF, D.A. “A question of determinacy: the legal status of anticipatory self-defense,” Geo. J. Int'l
L., 2009, 523 – 583.
SCHACHTER, O., "The Right of States to Use Armed Force", Michigan Law Review, 1984, 1620 –
1646.
SCHMITT, M. N., “Preemptive strategies in international law,” Mich. J. Int'l L., 2003, 513 – 548.
SOFAER, A.D., “On the necessity of pre-emption,” Eur. J. Int'l L., 2003, 209 – 226.
TAFT, W.H. AND BUCHWALD, T.F., “Preemption, Iraq and international law,” AM. J. Int'l L., 2003, 557
– 563.
VAN DEN HOLE, L., “Anticipatory self-defence under international law,” Am. U. Int'l L. Rev., 2003, 69
– 106.
WALDOCK, H.M., “The Regulation of the Use of Force by Individual States in International Law”,
RCADI, 1952, 451 – 517.
132
YOO, J., “International law and the war in Iraq,” AM. J. Int'l L., 2003, 563 – 576.
Newspaper articles
Haaretz
LIS, J. , “Netanyahu: Gaza violence shows Israel cannot afford to be lax on Iran nuclear threat,”
Haaretz, 14 March, 2012, available at haaretz.com/news/diplomacy-defense/netanyahu-gazaviolence-shows-israel-cannot-afford-to-be-lax-on-iran-nuclear-threat-1.418677, (last visited at May
3, 2012).
OREN, A., “U.S. Top brass: Nuclear Iran is existential threat to Israel,” Haaretz, September 8, 2009,
available at haaretz.com/print-edition/news/u-s-top-brass-nuclear-iran-is-existential-threat-to-israel1.4613, (last visited at May 3, 2012).
RAVID, B., “Mossad chief: Nuclear Iran not neccesarily existential threat to Israel,” Haaretz, 29
December, 2011, available at haaretz.com/print-edition/news/mossad-chief-nuclear-iran-notnecessarily-existential-threat-to-israel-1.404227 (last visited at May 3, 2012).
X, “Report: Barak says Iran is not existential threat to Israel,” Haaretz, 17 September 2009,
available at haaretz.com/news/report-barak-says-iran-is-not-existential-threat-to-israel-1.7710, (last
visited at May 3, 2012).
New York Times
BILEFSKY, D., “Nuclear Agency Reports Syria to Security Council,” The New York Times, June 10,
2011, A6.
BROAD, W.J.
AND
MAZZETTI, M., “Satellite Photos Show Cleansing of Syrian Site,” The New York
Times, October 26, 2007, available at nytimes.com/2007/10/26/world/middleeast/26weapons.html?
133
scp=10&sq=syria%20nuclear%20reactor&st=cse, (last visited at May 3, 2012).
CLOUD, D. S., “Colleagues Say C.I.A. Analyst Played by the Rules,” The New York Times, April 23,
2006, available at nytimes.com/2006/04/23/washington/23mccarthy.html?_r=1, (last visited at May
3, 2012).
GOLDSTEIN, J. S.
AND
PINKER, S., “War Really Is Going Out of Style,” The New York Times, December
18, 2011, SR4.
GORDON, A.M. AND LEHREN, A.W., “Leaked Reports Detail Iran's Aid for Iraqi Militias,” The New
York Times, October 23, 2010, A1.
JEHL, D., “The Struggle For Iraq: Intelligence; C.I.A. Chief Orders 'Curveball' Review,” The New
York Times, April 8, 2005, available at select.nytimes.com/gst/abstract.html?
res=FA0D16F93C5A0C7B8CDDAD0894DD404482&scp=2&sq=iraq%20curveball&st=cse, (last
visited at May 3, 2012).
KERSHNER, I.,
AND
D. E. SANGER, “Israel Faces Questions About News Reports Of Eyeing Iran
Strike,” The New York Times, November 4, 2011, A10.
MAZZETTI, M. AND SCHMITT, E., “U.S. Expands Its Drone War Into Somalia,” The New York Times,
July 1, 2011, A1.
SANGER, D.E. AND MAZZETTI, M., “Israel Struck Syrian Nuclear Project, Analysts Say,” The New York
Times, October 14, 2007, A1.
SANGER, D. E., BUMILLER, E., “Pentagon To Consider Cyberattacks Acts of War,” The New York
Times, June 1, 2011, A10.
SCHMITT, E., “U.S. To Step Up Drone Strikes Inside Yemen,” The New York Times, April 26, 2012,
A9.
SCIOLINO, E., “Threats And Responses: Discord; France to Veto The Iraq War, Chirac Says,” The
New York Times, March 11, 2003, available at nytimes.com/2003/03/11/world/threats-andresponses-discord-france-to-veto-resolution-on-iraq-war-chirac-says.html, (last visited at May 3,
2012).
134
SHANE, S., “U.S. Drone Stikes Are Said To Target Rescuers at Sites,” The New York Times, February
6, 2012, A4.
YADLIN, A., “Israel's Last Chance to Strike Iran,” The New York Times, March 1, 2012, A31.
X., “Dubious Decisions on the Sudan,” The New York Times, September 23, 1998,, available at
nytimes.com/1998/09/23/opinion/dubious-decisions-on-the-sudan.html?scp=1&sq=dubious
%20decisions%20on%20the%20sudan&st=cse, (last visited at May 3, 2012).
Washington Post
FINN, P., “A future for drones: Automated killing,” The Washington Post, September 20, 2011,
available at washingtonpost.com/national/national-security/a-future-for-drones-automatedkilling/2011/09/15/gIQAVy9mgK_story.html, (last visited at May 3, 2012).
MILLER, G.
ANDWARRICK,
J., “U.S. Report finds debate in Iran on building nuclear bomb,” The
Washington Post, February 18, 2011, available at washingtonpost.com/wpdyn/content/article/2011/02/18/AR2011021805632.html?, (last visited at May 3, 2012).
MILLER, G., “CIA seeks new authority to expand Yemen drone campaign,” The Washington Post,
April 19, 2012, available at washingtonpost.com/world/national-security/cia-seeks-new-authorityto-expand-yemen-drone-campaign/2012/04/18/gIQAsaumRT_story.html, (last visited May 3, 2012).
WILSON, S.; KAMEN, A., “'Global War On Terror' Is Given New Name,” The Washington Post, March
25, 2009, available at washingtonpost.com/wpdyn/content/article/2009/03/24/AR2009032402818.html, (last visited at May 3, 2012).
Other newspapers
DILANIAN, K. “U.S. does not believe Iran is trying to build nuclear bomb,” Los Angeles Times,
February 23, 2012, available online at articles.latimes.com/2012/feb/23/world/la-fg-iran-intel20120224, (last visited at May 8, 2012).
HENNIGAN, W.J., “New drone has no pilot, so who's accountable?” Los Angeles Times, January 26,
135
2012, available at articles.latimes.com/2012/jan/26/business/la-fi-auto-drone-20120126, (last
visited at May 3, 2012).
X., “Russian warhead alters course midflight,” The Washington Times, November 20, 2005,
available at washingtontimes.com/news/2005/nov/20/20051120-115514-2217r/, (last visited at May
3,2012).
Other sources
CLAPPER, J. R., Statement for the Record for the U.S. Senate, Committee on Armed Services,
Worldwide Threat Assessment of the US Intelligence Community, March 10, 2011.
Letter to Congressional Leaders on the Strike on Iraqi Headquarters (June 28, 1993), 1 PUB.
PAPERS OF WILLIAM J. CLINTON 940, 1993.
MILITARY HISTORY SECTION, HEADQUARTERS, ARMY FORCES FAR EAST (eds.), Pearl Harbour Operations in
World War II Monographs Vol. 32, Meriam Press, 1999, 55 p., avalable online at
books.google.be/books/about/Pearl_Harbor_Operations.html?id=1m9_nFk2QmEC&redir_esc=y,
(last visited at May 12, 2012).
National Security Council, The National Security Strategy of the United States of America
(September 2002), 15, available online at nssarchive.us/NSSR/2002.pdf, (last visited at May 8,
2012).
Report by the Director General to the Board of Governors of the International Atomic Energy
Agency (February 24, 2012), IAEA Publications GOV/2012/9 (2012), 10-11, available online at
iaea.org/Publications/Documents/Board/2012/gov2012-9.pdf, (last visited at May 8, 2012).
The new York Times, Times Topics, Hezbollah, available at
topics.nytimes.com/top/reference/timestopics/organizations/h/hezbollah/index.html?8qa, (last
visited May 3, 2012).
The New York Times, Times Topics, Iran's Nuclear Program, available at
136
topics.nytimes.com/top/news/international/countriesandterritories/iran/nuclear_program/index.html
?8qa, (last visited at May 3, 2012).
The New York Times, Times Topics, Taliban, available at
topics.nytimes.com/top/reference/timestopics/organizations/t/taliban/index.html?8qa, (last visited
May 3, 2012).
United States Department of Defense, DoD News Briefing by Secretary Rumsfeld and Gen. Myers
News Transcript (February 12, 2002), available online at defense.gov/transcripts/transcript.aspx?
transcriptid=2636, (last visited May 8, 2012).
Wikipedia, The February 26 Incident, available online at
en.wikipedia.org/wiki/February_26_Incident, (last visited at January 31, 2012).
WILNER A. AND CORDESMAN, A.H., “U.S. and Iranian Strategic Competition: Iran and the Gulf
military balance - II,” Center for Strategic and International Studies, 2012, available online at
csis.org/files/publication/120222_Iran_Gulf_Mil_Bal_II_WMD.pdf, (last visited at May 8, 2012).
137
Nederlandstalige samenvatting
Het doel van deze thesis is de staat van de theorie van “anticipatieve zelfverdediging” in het
internationale recht te onderzoeken, dit door het uitvoeren van een literatuurstudie, die tevens
actuele gebeurtenissen incorporeert.
De eerste delen van de thesis behelzen een analyse van het taalgebruik aangaande deze materie
in de Engelstalige literatuur, meer bepaald het verwarrend gebruik van de termen anticipatief,
preventief, preemptief en interceptief, gevolgd door een overzicht van de verschillende zienswijzen
die in de literatuur bestaan aangaande anticipatieve zelfverdediging. Dit houdt in een blik op de
restrictieve (anticipatieve zelfverdediging niet verenigbaar met het VN-Charter), contra-restrictieve
(wel verenigbaar), en afschaffingsgezinde (het VN-Charter heeft geen regulerende kracht vis-a-vis
zelfverdedeging) scholen.
De daaropvolgende hoofdstukken onderzoeken de historische evolutie van het recht op
zelfverdediging in het internationaal gewoonterecht, alsook de ontstaansgeschiedenis van het VNCharter. Hieruit wordt geconcludeerd dat anticipatieve zelfverdediging deel uitmaakt van het
internationale gewoonterecht, en verenigbaar is met het VN-Charter.
Hierop volgt een analyse van de voorwaarden voor het legitiem uitoefen van anticipatieve
zelfverdediging, namelijk dat verdedigd wordt tegen een imminente dreiging van een gewapende
aanval, waartegen geen andere opties meer aan te wenden vallen, en dat niet meer dan de het
noodzakelijke geweld wordt aangewend, strikt gericht tegen de dreiging.
Met deze voorwaarden in het achterhoofd worden vervolgens enkele speciale casussen
behandeld, namelijk het samengaan van anticipatieve zelfverdediging en contra-proliferatie in
militaire operaties van Israël en de Verenigde Staten, inclusief een kijk op de dreiging van een
oorlog tussen Iran en Israël, alsook een onderzoek van het uitoefenen van anticipatieve
zelfverdediging tegen niet-staatgebonden actoren, met speciale focus op de Amerikaanse strijd
tegen het internationale terrorisme met behulp van onbemande gewapende luchtvaartuigen, de
zogenaamde “drones”.
138