Afghanistan- Legality of Anticipatory Self-Defence in 20 Century World Order Reappraisal

8/6/2019 Afghanistan- Legality of Anticipatory Self-Defence in 20 Century World Order Reappraisal

1/43

THE LEGALITY OF ANTICIPATORY

SELF-DEFENCE IN THE 21ST

CENTURY WORLD ORDER:A RE-APPRAISAL

By

Abdul Ghafur Hamid @ Khin Maung Sein

Associate Professor

Ahmad Ibrahim Kulliyyah of Laws

International Islamic University Malaysia

Netherlands International Law Review (NILR)Vol. 54, Issue 3 (2007), 441-190

The Hague, the Netherlands


2/43

2

THE LEGALITY OF ANTICIPATORY SELF-DEFENCE IN THE21ST CENTURY WORLD ORDER: A RE-APPRAISAL

By Abdul Ghafur Hamid

While the overwhelming majority of states do not practice anticipatory self-defence, believing that it would create a dangerous precedent, it is ironic that many writers supportthe idea. After September 11, there have been louder voices that advocate the legality of anticipatory self-defence. What makes the matter worst is the pronouncement of a

preventive style of self-defence in the National Security Strategy of the United States,which goes far beyond the traditional concept of anticipatory self-defence. The olddoctrinal debate has resurfaced with stronger vigour. The present paper is an attempt to re-appraise the debate and test the legality of anticipatory self-defence. The paper objectivelyinterprets Article 51 of the Charter in light of canons of treaty interpretation and explores

customary international law of the time. It reexamines the Caroline formula and affirmsthat it had not been established as customary international law before September 11 due tolack of widespread and consistent state practice and opinio juris . The paper concludes thatalthough state practice after September 11 tends to condone the use of force againstimminent terrorists attacks, Article 51 of the UN Charter is still a good law to cope withthe normal inter-state use of force and that despite the flaws of the United Nations, theCharter-based system of world order can very well serve the international community evenin the context of the 21 st century world order.

1. INTRODUCTION

The right of self-defence of States is in fact a sacred principle, meant for the protection of countries that are small and weak from the aggression of powerful countries.

Nevertheless, what is ironic in the extreme is that throughout the period of over sixtyyears after 1945, only the Big Powers or militarily strong countries dearly invoked thisright of self-defence as justification for their uses of force against other countries. 1 To

Abdul Ghafur Hamid & Khin Maung Sein, LL.B., LL.M. in International Law (Yangon), Ph.D.(IIUM), Associate Professor of Law and Member of the WTO and Globalization Unit, International IslamicUniversity Malaysia.

1 The following are the major incidents in which self-defence was claimed: (1) The Anglo-French

Invasion of Suez (1956); (2) The Cuban Quarantine (1962); (3) The Vietnam War (1964-1973); (4) The SixDay War (1967); (5) The Entebbe Raid (1976); (6) The Soviet Intervention of Afghanistan (1979); (7) TheUS rescue mission in Tehran Hostage case (1980); (8) The Iran-Iraq War (1980-1988); (9) The IsraeliDestruction of Iraqs Nuclear Reactor (1981); (10) The Falkland Islands War (1982); (11) The USIntervention of Grenada (1983); (12) The Nicaragua Case (1986); (13) The US Air Raid on Libya (1986);(14) The US Intervention of Panama (1989); (15) The Iraqi Invasion of Kuwait (1990); (16) The USMissile Strike on Iraq (1993); (17) The US missiles strikes against Sudan and Afghanistan (1998); (18) TheUS use of force in Afghanistan (2001); and (19) The US invasion of Iraq (2003). Out of the 19 incidents,the US is the one that most frequently used force and claimed self-defence. Israel ranks second andinvolved in 4, the UK and Iraq 2 each and the Soviet Union, France, Iran and Argentina 1 each.


3/43


4/43

4

with the Caroline formula). However, since anticipatory self-defence is also preemptivein nature, the two terms are often used interchangeably.

What makes the situation more confusing is the pronouncement of the NationalSecurity Strategy of the United States of America, which clearly intends to expand thetraditional concept of anticipatory self-defence to include the use of force against threats

which are not yet imminent or even not yet fully formed.5

Taking the actual words usedin the NSS itself, many commentators describe the situation in the NSS as preemptiveself-defence (or sometimes Bush doctrine). 6 On the other hand, others are of the viewthat the NSS can best be interpreted as promoting the doctrine of preventive self-defence 7 and the present writer agrees with them. The Secretary-Generals High-LevelPanel also uses the term preventive to describe a use of force against a non-imminentthreat. 8

In a nutshell, there can be only two possible situations that do not fall under theArticle 51 requirement of the actual armed attack: an imminent attack and a non-imminent threat. The present writer believes that the term anticipatory self-defence iswell established and has been used for a long time to describe the Caroline concept of

self-defence against imminent attack and thus it should be maintained in that position.9

And there is no harm to address such a situation as preemptive self-defence. Nevertheless, the only term that can be used to describe a use of force against a non-imminent threat is preventive self-defence (although it is believed that the term self-defence should not be used for such a preventive war against remote threats). For the

purposes of this article, therefore, the term anticipatory self-defence refers to the use of armed force by a State to stop an imminent attack by another State and the termpreventive self defence refers to the use of force by a state to prevent another state from

pursuing a threat which is not imminent and more remote in time such as is articulated inthe National Security Strategy of the US. 10

The essence of anticipatory self-defence is the imminence of armed attack byanother state. This idea seems to be based on military necessity, according to which the

best defence is to attack first and break up the enemy forces before they have time tomove. The rationale behind the doctrine of anticipatory self-defence, stressed by allthose who advocate it, is a strong meta-legal argument: in an era of nuclear weapons and

5 White House, The National Security Strategy of the USA , 15 (Sept. 17, 2002), available athttp://www.whitehouse.gov/nsc/nss.pdf

6 See, for example, Chris Bordelon, The Illegality of the US Policy of Preemptive Self-Defenceunder International Law, 9 Chap. L. Rev . (2005) p. 111, at pp. 111-114; Sean D. Murphy 2005, loc. Cit. n.4, p. 700.

7 Miriam Sapiro, The Shifting Sands of Preemptive Self-Defence, 97 AJIL (2003) p. 599, at 600.8

The SGs High-Level Panel takes anticipatory self-defence as a comprehensive term which coversthe right to act not just preemptively (against an imminent or proximate threat) but preventively (against anon-imminent or non-proximate one). See A More Secure World: Our Shared Responsibility, Report of the Secretary-Generals High-Level Panel on Threats, Challenges and Change , United Nations (2004),Part 3, para, 189, available at .

9 D.W. Bowett, Self-Defence in International Law (Manchester University Press 1958) pp. 188-92;McDougal, The Soviet-Cuban Quarantine and Self-Defence, 57 AJIL (1963) p. 587.

10 In the present article, the situation in the NSS is described as the Bush doctrine or preventive(preemptive) self-defence in order that there can be no confusion for those who refer to it as preemptiveself-defence.


5/43

5

sophisticated missile systems, it would be foolish and self-defeating to await the attack byanother state. McDougal, a leading advocate of this doctrine, wrote:

The conditions of necessity required to be shown by the target State have never been restricted to actual armed attack; imminence of attack has always been

regarded as sufficient justification States faced with a perceived danger of immediate attack cannot be expected to await the attack like sitting duck. 11

Advocates of anticipatory self-defence 12 appear to have given this non-legal argumenta legal foundation by claiming that Article 51, in allowing an inherent right of self-defence, wished to preserve the pre-existing customary law, which undoubtedly - so theysay - allowed for anticipatory self-defence as well. Bowett, for example, advocatesanticipatory self-defence in these terms:

The history of Article 51 suggests that the article should safeguard the right of self-defence, not restrict it. No State can be expected to await an initial attack

which, in the present state of armaments, may well destroy the States capacity for further resistance and so jeopardize its very existence. 13

2.2 Methodology

The best way to test the legality of anticipatory self-defence is to examine it in the lightof the sources of international law as enshrined in Article 38(1) of the Statute of theInternational Court of Justice, in particular, the two primary sources of international law,namely, treaty law (the Charter of the United Nations) and customary international law.The relevant provisions of the Charter will be interpreted in accordance with canons of treaty interpretation. When exploring customary international law, the paper will go tothe roots and critically examine the Caroline incident, which has been taken for granted

by many as classic formulation of anticipatory self-defence. Decisions of theInternational Court of Justice will also be considered as supplementary means for thedetermination of law. Juristic writings can hardly help in this respect in view of the widedivides among writers and the differences in the use of methodology. 14

11M. S. McDougal, loc. cit. n. 9, at p. 597.12 D. W. Bowett, op. cit. n. 9, at pp. 188-92; McDougal and Reisman, eds., International Law in

Contemporary Perspective: The Public Order of the World Community, Cases and Materials (New York,The Foundation Press Inc. 1981) pp. 983-984. See also C. H. M. Waldock, The Regulation of the Use of Force by Individual States in International Law, 81 Hague Recueil (1952 II) p. 451, at p. 496; Schwebel,Aggression, Intervention and Self-Defence, 136 Hague Recueil (1972-II) p. 480.

13 Bowett, op. cit. n. 9, at pp. 188-92.14 See Sean D. Murphy 2005, loc. Cit. n. 4, at pp. 706-20 (identifying the four different schools on the

right of self-defence, namely: the strict constructionist, the imminent threat, the qualitative threat and theCharter-is-dead schools); see ibid . at pp. 721-31 (highlighting the problem of clarifying methodology).


6/43


7/43

7

therefore, conclude that the correct interpretation of Article 2(4) is that any use of force by a State for whatever reason is banned unless explicitly allowed by the Charter and thatthe Charter allows only two exceptions, namely: (1) the right of self-defence under Article 51; and (2) enforcement action by the Security Council under Chapter VII. 19

Prohibition of the use of force is a rule having the character of jus cogens . The

International Law Commission in its commentary on the Vienna Convention on the Lawof Treaties expressed the view that the law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule of international lawhaving the character of jus cogens. 20 The Commissions stand was quoted with approval

by the International Court of Justice in the Nicaragua case. 21 In his Separate Opinion, thePresident of the Court Judge Nagendra Singh pronounced that the principle of the

prohibition of the use of force belongs to the realm of jus cogens .22 Judge Sette-Camarafirmly believed that the non-use of force rule is a peremptory norm. 23

A rule of jus cogens is a peremptory norm of general international law, a normaccepted and recognized by the international community of States as a whole as a normfrom which no derogation is permitted. Since there can be no derogation from a rule of

jus cogens All international treaties24

and rules of customary international law25

that arecontrary to a rule of jus cogens are null and void and without any legal effect. Thedoctrine of anticipatory self-defence, as alleged to be formulated in The Caroline incident, does not fulfill the requirement of an armed attack under Article 51, the onlyexception (in respect of the unilateral use of force) to Article 2(4) of the Charter. Sinceanticipatory self-defence is contrary to a rule having the character of jus cogens, it is nulland void and without any legal effect.

4. INTERPRETATION OF ARTICLE 51 IN ACCORDANCE WITH THECANONS OF TREATY INTERPRETATION

The right of self-defence of states is enshrined in Article 51 of the Charter in these terms:

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 maintaininternational peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council

19 Schwarzenberger, International Law as Applied by International Courts and Tribunals , Vol. 2,The Law of Armed Conflict, (London: Stevens & Sons 1976) p. 51; Oscar Schachter, loc. cit. n. 9, p. 1620;

Oppenheims International Law , Vol. 2, op. cit. n. 16, p. 154; Y. Dinstein, op. cit. n. 16, p. 86; M. Dixon,op. cit. n. 18, pp. 294-295.

20 Yearbook of the International Law Commission, Vol. 2, (1966) at p. 247.21 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. USA) Merits, 1986 ICJ

Rep. p. 14, at p. 100 (hereinafter Nicaragua case).22 Ibid., at p. 153.23 Ibid., at p. 199.24 Article 53, Vienna Convention on the Law of Treaties, May 22, 1969, 1155 U.N.T.S. 331

(hereinafter Vienna Convention).25 Antonio Cassese, op. cit. n. 16, at p. 143.


8/43


9/43

9

(1) The first and the primary argument made by the advocates of anticipatory self-defence is that the term inherent right in Article 51 must be interpreted to mean the pre-Charter customary law right, which allowed anticipatory self-defence, and that thiscustomary law right must not be impaired by nothing in the present Charter. 31 According to Bowett, The travaux preparatoires suggests that the Article should

safeguard the right of self-defence, not restrict it. Committee 1/1 stressed in its report thatthe use of arms in legitimate self-defence remains admitted and unimpaired. 32 Unfortunately, however, this argument is seriously flawed. First, travaux

preparatoires (drafting history) is merely a supplementary means and relying on it isunwarranted in a situation where the terms of the treaty are clear and unambiguous. 33 It isa rule of thumb of the grammatical construction that if an armed attack occurs qualifiesthe term inherent right. Second, even though we accept the validity of the allegedtravaux preparatoires , what it does mean is that States have the inherent right of self-defence which is of customary law origin and that the Charter does not reject or renouncethat inherent right. What the Charter does not impair is the existence of the inherent rightof self-defence but not the contents of such a right. The Charter clearly and effectively

imposes two important conditions on the right of self-defence of states: a state canexercise the right of self-defence (a) if an armed attack occurs; and (b) until the SecurityCouncil has taken measures necessary to maintain international peace and security. 34

Third, the argument is based on a selective construction taking only the terminherent right from the entire article, and neglecting and ignoring all the other importantwords of limitation in the context. Such a selective interpretation obviously lacks goodfaith because it fails to comply with an important canon of treaty interpretation: tointerpret the terms of a treaty in their context. The succeeding phrase if an armed attack occurs very clearly qualifies the preceding phrase the inherent right of self-defence.The phrase if an armed attack occurs is not only an obvious term of Article 51 but alsoits primary theme. To totally ignore such an important term of a treaty or even to degradeit amounts to a serious infringement of the canons of treaty interpretation. In this respect,Brownlie emphatically writes: ...When the Charter has a specific provision relating to a

particular legal category, to assert that this does not restrict the wider ambit of thecustomary law relating to that category or problem is to go beyond the bounds of logic.Why have treaty provisions at all? 35

(2) Secondly, advocates of anticipatory self-defence cite historic arguments, for example, the fact that the term of Article 51 did not appear in the Dumbarton OaksProposals and it was added later for the sole purpose of coordinating the security systemof the United Nations and the regional organizations. 36 It is true that the Article wasadded for the purpose of coordinating the security systems of the United Nations and of

31See McDougal, op. cit. n. 9, p. 597; Schwebel, op. cit. n. 12, p. 480.32 Bowett, op. cit. n. 9, pp. 185-6, 188-92.

33 See Article 32, Vienna Convention, (providing that preparatory work is only a supplementarymeans that can be used only when interpretation according to Article 31 leaves the meaning ambiguous or obscure); see also Kunz, loc. cit. n. 16, at p. 873.

34 See for example, Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (New York, Frederick A. Praeger 1950) p. 147.

35 I. Brownlie 1963, op. cit. n. 16, at p. 273.36 Bowett, op. cit. n. 9, at pp. 182-4; McDougal and Feliciano, Law and Minimum World Public

Order (New Haven, Yale University Press 1961) p. 235.


10/43

10

the regional organizations. If it is true we must also accept the original idea expressed bythe Latin American States that self-defence can be exercised if there is an armed attack or an act of aggression. 37 Furthermore, even though it was added for the purpose of reconciling the security systems of the general organization and the regionalorganizations, it has, at any rate, become an article of the United Nations Charter and we

have to apply and interpret it as a provision of a multilateral law-making treaty. Theallegation that the words if an armed attack occurs are redundant or superfluous cannot,therefore, be accepted because it is not in line with the intention of the drafters of theCharter. The link with the Chapultepec Treaty provides a very strong reason for theinclusion of the words if an armed attack occurs. 38 It is also significant that the NorthAtlantic Treaty and similar collective self-defence treaties based on Article 51 providesonly for self-defence against armed attacks, and not for defence against imminentdanger of armed attacks. 39

(3) Thirdly, they maintain that Article 51 only highlights one form of self-defence(namely, response to an armed attack), and that it does not negate other patterns of legitimate action in self-defence granted by customary international law. 40 This style of

interpretation is unwarranted and clearly contrary to logic. It is also a violation of themaxim of interpretation expressio unius est exclusio alterius . It does not make sense tostate the obvious (that self-defence can be exercised if an armed attack occurs) and toomit a reference to the ambiguous circumstance (that self-defence can be exercised inanticipation of an armed attack). Anticipatory self-defence (if lawful under Article 51)would call for more acute regulation by the article than a response to an armed attack

because chances for abuse are greater. It would also require closer supervision by theSecurity Council.

(4) Fourthly, they incidentally allege that Article 51 appears to be inept piece of draftsmanship. 41 In fact, there is nothing wrong with the draftsmanship. The expressionif an armed attack occurs is a very obvious proclamation. 42 The drafters of the Charter

37 See the Declarations of the Latin American States to that effect, 12 UNICO Documents, p. 687.38 See Oscar Schachter, loc. cit. n. 16, at p. 1634. Article 3 of the Rio Treaty , 1947 provides: The

Contracting Parties agree that an armed attack by any State against an American State shall be consideredas an armed attack against all the American states and, consequently, each one of the said ContractingParties undertakes to assist in meeting the attack in the exercise of the inherent right of individual or collective self-defence recognized by Article 51 of the Charter of the United Nations. In 1948, the Charter of Bogota came into being, establishing the Organization of American States (OAS). It in effectincorporates the Rio Treaty. Article 3 of the Rio Treaty stands as the collective self-defence provision of the OAS. See Kunz, The Inter-American Treaty of Reciprocal Assistance, 42 AJIL (1948) p. 117.

39 See Article 5 of the North Atlantic Treaty of April 4, 1949, which provides: if such an armedattack occurs, each of them, in exercise of the right of individual or collective self-defence recognized byArticle 51 of the Charter of the United Nations, will assist the parties so attacked.. For the text of the

treaty, see (last visited 19-05-07).40 See Bowett, op. cit. n. 9, at pp. 187-92; Julius Stone, op. cit. n. 15, at p. 44.41 See McDougal and Feliciano, op. cit. n. 36, p. 234.42 Hellen Duffy has this to say: The clause if an armed attack occurs was inserted at the initiative

of the US delegation at San Francisco Conference. During the debate on Article 51, the US representativemade clear that the insertion of such caveat was intentional and sound. We did not want exercised the rightof self-defence before an armed attack occurred. And that preparatory acts (such as the fact that a Statesends its fleet to attack another state) do not justify use of force in self-defence but only in preparatory actsnecessary to be ready in the case an armed attack came. See Hellen Duffy, The War on Terror and the

Framework of International Law , (Cambridg University Press 2005) p. 155, n. 53.


11/43

11

were great statesmen of the time and they would not insert a very obvious expression likethis without any clear purpose or objective. The leading opinion of scholars is in harmonywith this view. 43

4.2 Interpretation of Article 51 in good faith in accordance with the ordinary

meaning of its terms in their context

The meaning of inherent right : The authoritative interpretation of the term inherentright can be found in the judgment of the International Court of Justice in the Nicaragua case:

[T]he Court observes that the United Nations Charter itself refers to pre-existing customary international law; this reference to customary international lawis contained in the actual text of Article 51, which mentions the inherent right(in the French text droit naturel) of individual and collective self-defence,which nothing in the present Charter shall impair and which applies in the event

of an armed attack .44

It is clear that the World Court construed the expression inherent right as a reference

to a pre-existing right of a customary nature. We can also rightly infer from the judgmentthat the expression nothing in the present Charter shall impair means not to impair thefact that States have the inherent right of self-defence, and that it does not refer to thecontent or the ingredients of the right. The Court refers to the expression if an armedattack occurs as an essential content or ingredient which qualifies the expression theinherent right. This is a sensible interpretation of Article 51, rationalizing theemployment of the adjective inherent without ascribing to it far-fetched andunsupportable consequences as claimed by the advocates of anticipatory self-defence.

The meaning of if an armed attack occurs : The natural and ordinary meaning of the phrase if an armed attack occurs can be nothing less than restriction of the right of self-defence to an actual armed attack. An armed attack is an event capable of being

perceived and identified as such, and like any other event, occurs when it take[s] place or happen[s] or exist[s] 45 and not before. As rightly put by Quigley, the phrasethat appears in the four authentic texts of the Charter, other than English, more clearlyconfirms the meaning that an armed attack must have been commenced or on-going. 46 The meaning, therefore, is clear and unambiguous. Most publicists support this view.Kelsen, for example, emphatically states that: The Charter restricts the right of self-defence by stipulating that the rule applies only against an armed attack, and only as

43 See Ago, op cit. n. 16, pp. 64-7; Beckett, The North Atlantic Treaty, The Brussels treaty and theCharter of the United Nations (London, Stevens & Sons 1950) p. 13; Kelsen, op. cit. n. 34, pp. 797-8.

44 Nicaragua case, op. cit. n. 19, at p. 94, para. p. 176 (emphasis added).45 Jonathan Crowther, ed., Oxford Advanced Learners Dictionary of Current English , 5 th edn.

(Oxford University Press, 1995) p. 800.46 John Quigley, The Afghanistan War and Self-Defence, 37 Valparaiso Uni. L.R. (2003) p. 541, at

p. 544; see also Quincy Wright, The Prevention of Aggression, 50 AJIL (1956) p. 514, at p. 529; SeanMurphy, Terrorism and the Concept of Armed Attack in Article 51 of the UN Charter, 43 Harv . Intl L.

J . (2002) p. 41, at p. 44.


12/43

12

long as the Security Council has not taken the measures necessary to maintaininternational peace and security. 47

According to Jessup, Article 51 of the Charter suggests a further limitation on theright of self-defence: it may be exercised only if an armed attack occurs. Thisrestriction in Article 51 very definitely narrows the freedom of action which States had

under traditional international law.48

In connection with Cuban quarantine, QuincyWright expressed his view: It appears that the Charter intended to limit the traditionalright of self-defence by States to actual armed attack self-defence against threats wasexcluded in Article 51. 49

Goodrich, Hambro and Simons, famous commentators of the Charter of the United Nations, made the following comment: The exercise of the right of self-defence isexplicitly recognized as legitimate in the case of an armed attack against a Member therestraint shown by the United States government in the Cuban missile crisis, and its useof Article 52 of the Charter to justify quarantine measures instead of invoking the right of self-defence under Article 51, are evidence of recognition of the dangers inherent inrelying upon a claim to the right of self-defence going beyond the Charter text. 50

Therefore, under the law of the Charter, armed attack is an essential requirement for the exercise of the right of self-defence, that the phrase if an armed attack occursordinarily means that there must have been an actual armed attack or an on-going one,and that anticipatory self-defence is contrary to the natural and ordinary meaning of theterms of Article 51.

Jurisprudence of the International Court of Justice as to the requirement of armed attack : Although the International Court of Justice has not had before it any concretecase for it to once and for all determine the legality or otherwise of anticipatory self-defence, in all the four landmark cases involving issues of self-defence ( Nicaragua , Oil

Platforms , Palestinian Wall , Armed activities in Congo cases) it implicitly affirms therequirement of an armed attack as a pre-requisite for a lawful self-defence. The

jurisprudence of the Court appears to be in favour of a right of self-defence in the eventof an armed attack and not in favour of the so-called right of anticipatory self-defence. Inthe Nicaragua case, for example, the Court did not explicitly address the issue of anticipatory self-defence because it found that the parties relied only on the right of self-defence in the case of an armed attack which had already occurred, and since the issue of the lawfulness of a response to the imminent threat of armed attack has not been raisedthe Court expresses no view on that issue. 51 Nevertheless, the Court very clearly stated,even though obiter , that: In the case of individual self-defence, the exercise of this rightis subject to the State concerned having been the victim of an armed attack . Reliance oncollective self-defence of course does not remove the need for this. 52 In the same case,the World Court observes: in the language of Article 51 of the United Nations Charter,

47 Kelsen,op. cit. n. 34, at p. 497.48 Jessup, op. cit. n. 16, p. 166.49 Quincy Wright, loc. cit. n. 16, at p. 560. See to the same effect, Kunz, loc. cit. n. 16,at pp. 876-7.50 Goodrich, Hambro and Simons, Charter of the United Nations: Commentary and Documents , 3 rd

rev. edn. (New York, Columbia University press, 1969) p. 345.51 Nicaragua case, op. cit. n. 19, at p. 103. para 194.52 Ibid. para. 195 (Italics added).


13/43

13

the inherent right (or droit naturel) which any state possesses in the event of an armedattack, covers both collective and individual self-defence. 53

In the Case Concerning Oil Platforms (Iran v US) case, the Court ruled that theburden of proof of the facts showing the existence of an armed attack rests on the state

justifying its own use of force as self-defence. 54

In the advisory opinion on the Palestinian Wall ,55

the Court was even stricter ininterpreting Article 51 and concluded that Article 51 of the Charter recognizes theexistence of an inherent right of self-defence in the case of armed attack by one stateagainst another state. 56 This is a recent ruling (made after September 11 terrorist attacks)of the overwhelming majority of the World Court. 57 Out of the fourteen concurring

judges, all the thirteen Judges of the World Court (that is, excluding Judge Higgins)concur on this point. 58 Although Higgins in her Separate Opinion expresses her reservation in this respect, 59 the learned judge admitted that this statement of the Courtmust be regarded as a statement of the law as it now stands. 60

The International Court of Justice in the Case Concerning Armed Activities on theTerritory of the Congo first referred to Nicaragua case and followed it by stating that

since the parties did not raise any issue on the lawfulness of an anticipatory style of self-defence, the Court was not obliged to give any opinion on that issue. 61 The Courtnevertheless noted that while Uganda claimed to have acted in self-defence, it did notclaim that it had been subjected to an armed attack by the armed forces of the DRC. 62

The beginning of an armed attack : It is of major importance to pinpoint the exactmoment at which an armed attack begins to take place; this is also the moment when self-defence measures become legitimate. Indeed, verification of the precise instant at whichan armed attack commences is equivalent to an identification of the aggressor and thevictim State respectively.

53 See ibid. at p. 102, para. 193.54 Case Concerning Oil Platforms (Iran v US) , 2003 ICJ Rep. 161 (6 Nov. 2003).55 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , Advisory

Opinion, 2004 ICJ Rep. 136 (9 July 2004).56 Ibid. at p. 194, para. 139. But see Separate Opinion of Judge Higgins, para. 33.57 The judgment was made by 14 votes to 1; In favour: President Shi, Vice-President Ranjeva, Judges

Guillaume, Koroma, Vereshchetin, Higgins, Para-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Elaraby,Owada, Simma. Tomka; Against: Judge Buergenthal.

58 Judge Kooijmans agrees with the Judgment and states that the statement (that Article 51 recognizes

the existence of an inherent right of self-defence in the case of an armed attack by one state against another state) is undoubtedly correct and that it has been the generally accepted interpretation for more than 50years. However, the learned judge makes a reservation and states that Resolutions 1268 and 1373 created anew element and that the Court should not by-pass this new element; see Construction of a Wall , abovenote 36, Separate Opinion of Judge Kooijmans, paras. 35-36.

59 Ibid ., Separate Opinion of Judge Higgins, para. 33.60 Ibid .61 Case Concerning Armed Activities on the Territory of the Congo (Congo v Uganda), Judgment of

the International Court of Justice of 19 December 2005), para. 143.62 Ibid. para. 146.


14/43

14

The 1974 General Assembly Definition of Aggression refers to the first use of armedforce as prima facie evidence of aggression. 63 The most elementary example of an armedattack is a full-scale invasion of one country by another. An invasion constitutes theforemost case of aggression enumerated in the 1974 Definition of Aggression. 64 Whenlarge armed formations of State A cross an international frontier of State B, without the

consent of the Government of the latter, they must be deemed to have unleashed anarmed attack.On the other hand, a State may resort to force in self-defence even before its territory

is penetrated by another State. Since this is the nuclear age, pressing a button or pulling atrigger to launch Inter-Continental Ballistic Missiles (ICBMs), or taking off of bomberswith a clear intent to bomb the target state, may be treated as the beginning of an armedattack and the other State can certainly exercise measures of self-defence even before themissiles have hit its territory or the bombers have dropped bombs. 65 In this regard,

Nagendra Singh correctly writes:

If the provisions of Article 51 are carefully examined, it would appear that whatis necessary to invoke the right of self-defence is an armed attack and not theactual, physical violation of the territories of the State As long as it can be

proved that the aggressor State with the definite intention of launching an armedattack on a victim State has pulled the trigger and thereby taken the proximate acton its side which is necessary for the commission of the offence of an armedattack, the requirements of Article 51 may be said to have been fulfilled eventhough physical violation of the territories by the armed forces may as yet havenot taken place. 66

4.3 The overriding authority of the Security Council

According to the Charter system of maintaining international peace and security, prohibition of the use of force is the general rule whereas self-defence is merely anexception. The right to use of force is centralized and empowered to the Security Counciland unilateral use of force by states is strictly prohibited. Self-defence is a narrow

63 See the first part of Article 2, the General Assembly Resolution on Definition of Aggression, whichreads: The first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression, GA Res. 3314(29), 1974.

64 See Art. 3(a), the General Assembly Resolution on the Definition of Aggression, which reads:Any of the following acts qualify as an act of aggression: (a) the invasion or attack by the armed forces

of a State of the territory of another State, ibid.65 Dinstein is of the view that the imminence of an armed attack (provided that it is no longer a merethreat) does indeed justify an early response by way of interceptive self-defence. He goes on to say thatinterceptive self-defence is lawful, even under Article 51 of the Charter, for it takes place after the other side has committed itself to an armed attack in an ostensibly irrevocable way. Whereas a preventive strikeanticipates a latent armed attack that is merely foreseeable (or even just conceivable), an interceptivestrike counters an armed attack which is in progress , even if it still is incipient: the blow is imminent and

practically unavoidable. See Dinstein, op. cit. n. 16, pp. 182, 191.66 Nagendra Singh, The Right of Self-Defence in Relation to the Use of Nuclear Weapons, 5 Indian

YBIL (1956) p. 3.


15/43

15

exception that can be exercised only in a compelling and emergency situation. Thenatural and ordinary meaning of Article 51 clearly demonstrates that it allows the right of self-defence only until the Security Council acts. If indeed there is time for an approachto the Security Council, there is no need to use force unilaterally, and hence no right touse force in self-defence.

The so-called right of anticipatory self-defence is built upon the notion that a state atits own discretion can determine that it is in danger of attack by another state and useforce in self-defence. As the attack has not yet commenced or materialized, the decisionto use force could be extremely subjective and open to abuse and fabrication. In fact,according to the Charter, if a situation is merely likely to endanger international peaceand security, states have to rely on peaceful means only 67 or seek the assistance of theSecurity Council. 68 Only the Security Council has the authority to determine whether there is a threat 69 and if a state unilaterally decides that there is an imminent threat anduses force, it is a usurpation of the authority of the Security Council and violates Article51 as well as other important provisions of the Charter.

4.4

Interpretation of Article 51 in the context of the Charter and in the light of its object and purpose

According to the general rule of interpretation, an interpretation of a provision of atreaty is to be made in its context in the light of the object and purpose of the treaty. Interms of Article 51, in its context means (i) to interpret the article not selectively butcomprehensively taking into consideration whatever is written in the article itself; and (ii)to interpret the article in the context of the entire Charter including its Preamble.Therefore, a good faith interpretation of Article 51 must include a comprehensiveconstruction of the entire article plus the construction of other relevant and important

provisions of the Charter like the Preamble, Articles 1(1), 2(3) and (4), 24, and the entireChapter VII of the Charter in which Article 51 itself includes.

Relevant in the context is the Preamble of the Charter in which member states (1)determine to save succeeding generations from the scourge of war, and (2) ensure thatarmed force shall not be used save in common interest. In Article 1(1), the Charter

proclaims its dominant purpose as: to maintain international peace and security, and tothat end: to take effective collective measures for the prevention and removal of threats tothe peace, and for the suppression of acts of aggression or other breaches of the peace.

Whenever there is a dispute or differences between states, their primary andoverriding obligation under Article 2(3) of the Charter is to settle it by peaceful means insuch a manner that international peace and security, and justice, are not endangered. TheCharter affirmatively requires UN members to rely on alternatives to force to resolvetheir disputes, and suggests a number of peaceful means by which this obligation may bedischarged. 70

The most crucial factor in the context of the Charter is Article 51s interaction withArticle 2(4), which prohibits the use of force. The right of self-defence as laid down in

67 Article 33, Charter of the United Nations.68 Articles 35, 37 (1), ibid69 Articles 34, 37 (2), and 39, ibid.70 Article 33, ibid.


16/43

16

Article 51 is merely an exception to the general prohibition on the use of force, which isregarded as a rule having the character of jus cogens .

Furthermore, under Chapter VII of the Charter, the Security Council is entrusted withthe authority to determine the existence of any threat to the peace, breach of the peace, or act of aggression and to decide what enforcement measures should be taken. 71 If there is a

situation that may likely to endanger peace and security, a state has no right to use force but to settle it by peaceful means, including submitting it to the Security Council. 72 Dueto this overriding authority of the Security Council, Article 51 limits the right of self-defence to an armed attack which is a specie of aggression but a more severe type.Only when there is an armed attack or a severe type of aggression by another state, thevictim state may use force in self-defence. Even then that state must immediately reportthe situation to the Security Council and once the Council has taken measures, the victimstate must cease its use of force. 73 Anticipatory self-defence is simply not consistent withthis Charter system of maintaining international peace and security, according to which astate cannot use force in anticipation of a future attack (even though it may be imminent)and a state facing with a threat or danger of attack has still the obligation to use

alternatives to force and seek the assistance of the Security Council to take measuresagainst the potential aggressor.Therefore, the central theme of the entire UN Charter system is to avoid war,

maintain peace, give the highest value to collective measures under the authority of theSecurity Council to remove threats to the peace and acts of aggression, and keepunilateral use of force by states to a minimum. It is crystal clear that according to theCharter scheme the right of self-defence or unilateral use of force is a narrow exceptionto the general prohibition of the use of force and should be construed and appliednarrowly within strict limitations and restrictions. Therefore, the final conclusion is thatanticipatory self-defence is entirely contrary to the concept of self-defence as enshrinedin the UN Charter and in the light of its object and purpose.

4.5 Subsequent practice in the application of Article 51

According to Article 31 (3) of the Vienna Convention, together with the context,account shall be taken of any subsequent practice in the application of the treaty whichestablishes the agreement of the parties regarding its interpretation. Subsequent practiceof the parties is a very important element in treaty interpretation 74 and reference to

practice is well established in the jurisprudence of international tribunals. 75 However precise the text appears to be the way in which it is actually applied by the parties isusually a good indication of what they understand it to mean, provided the practice isconsistent, and is common to, or accepted by, all the parties. 76

71 Article 39, ibid.72 Chapter VI, ibid.73 Article 51, ibid.74 See J. Fitzmaurice, The Law and Procedure of the International Court of Justice: Treaty

Interpretation and Certain Other Treaty Points, 33 BYIL (1957) p. 203, at p. 210.75 The International Court of Justice, in the Competence of the ILO with respect to Agricultural

Labour case , (1922) PCIJ Series B, No. 2, 39-40, stated that: If there were any ambiguity, the Court might,for the purpose of arriving at the true meaning, consider the action which has been taken under the treaty.

76 See, for example, US-France Air Services Arbitration 54 ILR (1963) p. 303.


17/43

17

The background history of Article 51 indicates that the phrase if an armed attack occurs, reflects the State practice of the time, that is, it represents the widespread

practice of States by the year 1945. 77 Although the requirement of an armed attack maynot arguably be consistent with the old customary law (the so-called Caroline formula) itis in accord with the existing State practice; in other words, it is in line with the

customary law of the time. A number of General Assembly Declarations and Resolutionson the use of force by States and the contemporary State practice based on theseauthoritative instruments can very well lead to the development of customaryinternational law on the use of force as well as self-defence.

The 1970 General Assembly Declaration on Principles of International Law has beenregarded as an authoritative interpretation of the principles enshrined in Article 2 of theCharter. As far as the use of force is concerned, the Declaration proclaims that Everystate has the duty to refrain from the threat or use of force to violate the existinginternational boundaries of another state or as a means of solving international disputes,including territorial disputes and problems concerning frontiers of States. A war of aggression constitutes a crime against the peace, for which there is responsibility under

international law.78

It is difficult to reconcile a system in which all parties earnestlyendeavor to peacefully settle a dispute with the unilateral use of force in anticipation of amere threat of attack by another disputant.

Further, anticipatory self-defence clearly runs counter to the General AssemblyResolution on the Definition of Aggression, which provides that the first use of armedforce by a state in contravention of the Charter shall constitute prima fac ie evidence of anact of aggression. 79

In respect of the actual practice of states, advocates of anticipatory self-defencenormally refer to the three incidents as precedents of preemptive use of force: the CubanQuarantine, the Six Day War, and the Israeli bombing of Iraqi nuclear reactor. These will

be examined in detail when analyzing customary international law on this issue. A brief analysis for the time being is that only in the last incident, the responsible state officiallyinvoked anticipatory self-defence. However, even in that incident, the responsible statewas unanimously condemned by the Security Council for the destruction of the reactor asa blatant violation of the Charter of the United Nations and international norms. Theconclusion, therefore, is that very few states invoked anticipatory self-defence in inter-state uses of force after 1945 and that post-UN Charter state practice has never supportedsuch a claim of self-defence which is wider than the armed attack requirement of theUN Charter.

4.6 Any relevant rules of international law: customary principles of necessityand proportionality

Article 31(3)(c) of the Vienna Convention provides for any relevant rules of international law applicable in relations between the parties to be taken into account,

77 Roberto Ago firmly maintains that the principles that were current in general international law atthe time when the Charter was drafted in no way differed, as to substance, from those laid down in Article51; see Ago, op. cit. n. 16, p. 66.

78 Ibid.79 Definition of Aggression, GA Res. 3314 (XXIX), Art. 2, UN Doc. A/3314 (Dec. 14, 1974).


18/43

18

together with the context. necessity and proportionality are the essential elements of alawful self-defence as required by customary international law. 80 The concept of necessity limits the use of force to situations in which forcible measures are necessaryto respond to the armed attack 81 or to otherwise repel aggression. Peaceful alternativesmust not have been available to the state invoking self-defence. The proportionality

requirement, on the other hand, limits the amount and scope of the force that may be usedto fulfill the need to defend. The force used in self-defence must be proportionate to theoffence in its extent, manner and goal. The defence must not be unreasonable or excessive.

These customary doctrines cannot properly be applied when anticipatory force isused. 82 Determinations of necessity and proportionality after all, are dependent on thefacts of the particular case. The facts of a case cannot be meaningfully analyzed beforethey actually exist; an analysis before that time is merely speculation. Thus, one whoengages in anticipatory self-defence may thwart the application of these rules because theneed for force and the necessary amount cannot be ascertained. 83

5. REAPPRAISAL OF THE CAROLINE INCIDENT AND CUSTOMARYINTERNATIONAL LAW BEFORE SEPTEMBER 11

Many writers are of the view that the Caroline incident 84 is a classic precedent of anticipatory self-defence and a rule of customary international law has been formedthrough subsequent State practice. However, a close and careful analysis of the incidentreveals that there are some misconceptions, which do not reflect the correctunderstanding of it. It is submitted that too much emphasis has been given to the incidentas a precedent of anticipatory self-defence between states, which is not actually the case.

5.1 The Caroline incident: not a precedent for anticipatory self-defence for inter-state use of force

The incident arose out of the Canadian Rebellion of 1837 against the British colonialrule. Sympathetic American volunteers on the New York side of the Niagara River joinedwith the Canadian insurgents. On December 13, armed American nationals invaded andseized Navy Island in Upper Canada in violation of British sovereignty. The leader of theAmerican insurgents established a provisional revolutionary government there for the

purpose of overthrowing British rule. The Americans repeatedly fired on British ships passing the island from December 13 through December 29. Within a few days,additional supplies and more American insurgents were ferried to the island on boardships, including the Caroline, a steamer flying a US flag. Eventually, over 1,000 well-armed Americans were encamped on British territory. Although the US Government

80 Nicaragua case, op. cit. n. 19, at p. 103.81 Ibid.82 Brownlie, op. cit. n. 16, p. 257.83 Ibid., p. 259.84 29 British and Foreign States Papers , pp. 1137-1138.


19/43

19

assigned the US Marshall to take control of the situation, he was unable to prevent thecontinuing armed attack on British territory and navy vessels.

On December 29, 1837, insurgents camped on the US side of the Niagara River firedat British troops stationed on the Canadian side. That same day the Caroline landed at

Navy Island with additional men and supplies including a large cannon and ammunition.

That night, in response to the armed invasion and occupation of British territory, therepeated attacks by US insurgents stationed on both sides of the River, and the ongoingshipments of armed men and ammunition from the US to Canada, British troops boardedthe Caroline while it was moored on the US side of the River. The British burned thevessel and sent her over Niagara Falls. 85

In response to this incident, the US Secretary of State Webster complained to theBritish Foreign Secretary, who sent Lord Ashburton to Washington as a Minister Plenipotentiary with instructions to resolve the dispute. On July 27, 1842, Webster sent anote to Lord Ashburton, also enclosing a copy of the letter of April 24, 1841, which hadoriginally addressed to Fox, stating that:

It will be for [Her Majestys] 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 local authorities of Canada, didnothing unreasonable or excessive; since the act justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it. 86

Many writes regard the Caroline incident as a precedent for the right of anticipatoryself-defence. 87 However, if we examine carefully the facts of the case, the Americanrebels had established themselves on Navy Island in Canadian waters from which theyraided the Canadian shore and attacked passing British ships. The Caroline was engagedin ferrying recruits, supplies and arms to the rebels. It is clear that the rebels had alreadyattacked the Canadian shore and passing British ships quite a number of times. Only after that the British force from Canada attacked the Caroline and destroyed it. It wasobviously intended to cut the blood vein of the rebels by destroying the supporting ship.Although it can be argued that the act was intended to prevent further attacks from therebels, the Caroline incident cannot, taking into consideration previous immediate attacks

by the rebels against the British and occupation of the British territory, be said as agenuine case of anticipatory self-defence. 88

Furthermore, it is interesting to note that the Caroline incident was not that of armedhostilities between two sovereign States. It was just an incident of an armed band (rebels)attacking the territory of a State, relying on the support from the territory of another State, and the former State intruding the territory of the latter, to attack the ship that wassupporting the rebels. The Caroline incident can hardly be classified as a precedent

85 See R.Y. Jennings, The Caroline and McLeod Cases, 32 AJIL (1938) p. 82, at pp. 82-84.86 29 British and Foreign States Papers , p. 1129.87 See, for example, Bowett, op. cit. n. 9, pp. 108-9; Schwebel, loc. cit. n. 12, pp. 479-81.88 See Dinstein, op. cit. n. 16, at p. 184 (stressing that reliance on the Caroline incident in the context

of anticipatory self-defence is misplaced and that there was nothing anticipatory about the British actionagainst the Caroline ).


20/43

20

indicating the exercise of the right of self-defence of a State against an attack or imminent attack by another State, inasmuch as in that incident there was neither actualuse of force nor even a threat of force against the British by the United States. 89 Therefore, it is against logic to take the Caroline incident as a precedent of the right of anticipatory self-defence of one sovereign state against another on the ground of

imminence of attack by the latter.90

This analysis clearly demonstrates that the significance of the Caroline incident, andof the statement of principle of the United States Secretary of State Webster, has beenwidely exaggerated. 91 Since there had been no other formulation or definition of the rightof self-defence throughout the years, it is not surprising that the Caroline incident wasraised to be a classic formulation of customary law. The striking words: instant,overwhelming, having no choice of means, and no moment for deliberation, borrowedfrom American criminal law, perhaps attracted the writers who were searching for aconvincing explanation of the right of self-defence under international law. This is thereason why Jimenez de Arechega rightly put:

The so-called customary law of self-defence supposedly pre-existing the Charter simply did not exist. Before 1945, self-defence was not a legal concept but merelya political excuse for the use of force. For the concept of legitimate defence tocome into existence, it is necessary that a corresponding notion of illegitimate useof force already exists. It is only with the United Nations Charter that the

prohibition of force and consequently the legitimacy of self-defence becomeestablished as symmetrical legal concepts. It follows that to exercise self-defencelegitimately, a State must comply with all the requirements established in Article51 of the Charter and not with some loose conditions mentioned in a diplomaticincident between the United States and the United Kingdom some 140 years ago;as was the case of the Caroline. 92

From the foregoing analysis, the following conclusions can be drawn:

(1) At the time of the Caroline incident (that is 1837), there were no definitive legal rules justifying the use of force and states were using various terms like necessity, self- preservation or self-defence as nothing more than political excuses. At that time useof force was not yet prohibited by international law. A state had a right to use forceagainst another state for whatever reason and for no reason at all.

89 Roberto Ago emphatically affirmed that: The writers mostly from the English-speaking world,speak of self-defence to indicate an act that is designed to ward off a danger, a threat emanating, in many

cases, not from the State against which the act is directed but from individuals or groups that are private.This school of thought treats as a typical example of self-defence the celebrated case of the steamer Caroline... No distinction is drawn as to the fundamental issue whether the threat comes from the foreignState itself, or from mere private individuals, or even insurgents. See Ago, loc. cit. n. 16, p. 61, n. 253.

90 Dinstein, op. cit. n. 16, at p. 185, states that The question was not whether Britain had a right to goto war against the US in the exercise of self-defence (since any state then had a right to go to war againstanother state for any reason). The question, rather, was whether Britain could use forcible measures of self-defence within US territory without plunging into war.

91 See Grieg, op. cit. n. 16, p. 884.92 Jimenez de Arechega, loc. cit. n. 16, p. 9.


21/43

21

(2) As armed attacks by the rebels against the British had already been in progress, andthe rebels occupation of the British territory also amounted to an on-going armedattack, the inference that the Caroline incident is a classic precedent for theanticipatory self-defence is fundamentally flawed.

(3) In the Caroline incident, the attacks were made by the rebels (private individuals)

against the British. There were no attacks by the US as a sovereign state againstBritain, another sovereign state. Therefore, the most that can be inferred from theCaroline incident is that a State can use preventive force against an armed band or rebels. 93 The incident by no means can be treated as a precedent which allows a rightof anticipatory self-defence by one sovereign state against another.

(4) Even if one accepted that the Caroline incident actually formulated the right of anticipatory self-defence between sovereign states, it would merely be a practice

between two states, the US and Britain (merely an Anglo-American practice). To beestablished as a rule of general customary international law, it must be supported bysubsequent widespread and consistent state practice accompanied by opinio juris .

(5) The burden of proving widespread and consistent state practice and opinio juris in

support of the right of anticipatory self-defence lies on those who advocate it.5.2 Doubtful status of anticipatory self-defence as customary law even before the

UN Charter

It has been established beyond reasonable doubt that the Caroline incident cannot bea precedent of anticipatory self-defence between sovereign states. Still the permissiveschool regards it as the classic formulation of anticipatory self-defence. It is generallyassumed by them that the customary law of the 19 thcentury, as evidenced by the Caroline incident, permitted anticipatory action in face of imminent danger. 94 Brownlie, however,had made a thorough and almost exhaustive research of state practice of the time andconcluded that the advocates of anticipatory self-defence ignore the possibility that thecustomary right may have received some more precise delimitation in the period between1920 and 1945. 95 According to the learned writer, contrary to the Caroline formula, theState practice in the period between 1920 and 1939 indicated that self-defence wasmainly a resistance to an act of aggression which was defined as an invasion or an attack

by armed forces. 96 During the Second World War, Germany attacked the Soviet Union. The defence

counsel argued before the Nuremberg Tribunal that the German attack on the SovietUnion had merely anticipated a Soviet attack. 97 The Tribunal would seem to haveimplicitly accepted the legality of anticipatory action since it dismissed this argument inrelation to the facts. 98 The Tokyo Tribunal considered a similar argument. The

93 Anticipatory action was taken on several occasions against armed bands operating fromneighbouring territory; see Brownlie, The Use of Force in Self-Defence, 37 BYIL, (1961) p. 226.

94 Bowett, op. cit. n. 9, pp. 31, 58, 256, 269; Waldock, loc. cit. n. 12, at p. 463; Julius Stone, Legal Control of International Conflicts (London, Stevens & Sons, 1954) p. 244.

95 Brownlie 1963, op. cit. n. 16, p. 274.96 Ibid. Brownlie believed that the State practice at that time was clearly reflected by the Convention

for the Definition of Aggression of 1933, the Balkan Entente of 1934, and the Saadabad Pact of 1937.97 Trial of Major German War criminals , (Her Majestys Stationery Office), Part 18, p. 160.98 Nuremberg Judgment , United Kingdom, Command Papers , 6964, p. 35.


22/43

22

Netherlands had declared war on Japan on 8 December 1941, before any attack hadoccurred against the Netherlands East Indies. However, Japan had, as a matter of fact,laid plans to attack the Netherlands East Indies on that date; it had made its war aims,including the seizure of those territories, known and which had been decided upon at theImperial Conference of 5 November 1941. 99 As a result the Tribunal rejected the view

that the Netherlands action was unlawful and held that the declaration could not changethe war from a war of aggression on the part of Japan into something other than that. 100 An important point to be highlighted here is that although the Nuremberg and the

Tokyo Tribunals were established after the Second World War, the applicable law wasnot the Charter of the United Nations. In accordance with the inter-temporal rule, theyessentially applied the Kellogg-Briand Pact and the pre-UN Charter customary law as theexisting law at the time of the Second World War. It is clear that both Tribunals justaccepted the Caroline formula as customary law, without taking into account subsequentState practice.

In any event, we can conclude that with the possible exception of Netherlands actionagainst Japan in 1941, state practice in the period between 1920 and 1945 contained few

instances of anticipatory action in self-defence. It generally restricted the legitimate rightof self-defence to an armed attack or an act of aggression. 101 Therefore it is not true to saythat the right of anticipatory self-defence was established as customary international law

before the UN Charter.

5.3 Anticipatory self-defence, even if accepted as pre-Charter customary law,could not survive the UN Charter

The use of force is prohibited by Article 2(4) of the Charter of the United Nations asone of its fundamental principles. This prohibition of the use of force is universallyaccepted as a rule of jus cogens , a peremptory norm of general international law fromwhich no derogation is permitted. Any treaty or customary law that is contrary to a ruleof jus cogens is null and void and without any legal effect. By virtue of the prohibitionmade by a rule having the character of jus cogens , all the so-called pre-Charter customaryrights, such as, anticipatory self-defence, right to use force to rescue nationals abroad,have become null and void.

Under the UN Charter, all uses of force are unlawful and prohibited, apart from thetwo exceptions expressly allowed in the Charter itself: self-defence and enforcementaction. 102 As far as the right of self-defence of states is concerned, the Charter emphatically and vividly provides in Article 51 that it is to be exercised if an armedattack occurs against a Member of the United Nations. This provision has, it is submitted, once and for all abolished the possibility of preventative action in self-

99 Peter Malanczuk, ed., Akehursts Modern Introduction to International Law , 7 th rev. edn. (London,Routledge 1997) p. 314.

100 Judgment of the International Military Tribunal for the Far-East (Tokyo, 1948) pp. 994-995.101 The background history of Article 51 indicates that the phrase if an armed attack occurs, reflects

the State practice of the time, that is, it represents the widespread practice of States by the year 1945.Roberto Ago firmly maintains that the principles that were current in general international law at the timewhen the Charter was drafted in no way differed, as to substance, from those laid down in Article 51; seeAgo, op. cit. n. 16, p. 66.

102 See the authorities referred to in op. cit. n, 19.


23/43

23

defence. Actual armed attack is an essential requirement for legitimate self-defence under the law of the Charter. It can, therefore, be concluded that the so-called right of anticipatory self-defence, even if accepted as pre-Charter customary law, could notsurvive the Charter and have been abolished once and for all with the entry into force of the Charter.

5.4 No widespread and consistent state practice and opinio juris in support of anticipatory self defence before September 11

It has already been proven beyond reasonable doubt that the so-called right of anticipatory self-defence, alleged to have established in the Caroline incident, was notsupported by subsequent state practice so as to become a rule of customary internationallaw, that even though it represented pre- Charter customary international law it could notsurvive the UN Charter, and that since it is contrary to Article 2(4) (a rule prohibiting theuse of force and having the character of jus cogens ) and Article 51 (the authoritativestatement of the Charter requiring an armed attack for a lawful self-defence), it is null

and void and without any legal effect.The final question that needs to be tackled here is whether the contemporary state practice (that is state practice after 1945), accompanied by opinio juris , makesanticipatory self-defence the customary law of the time, as claimed by its advocates.Article 38 (1)(b) of the Statute of the International Court of Justice refers to internationalcustom, as evidence of a general practice accepted as law. This provision makes it clear that there are two essential elements of international custom: (1) State practice; and (2)opinio juris .103 With this in mind, let us now examine state practice and opinio juris after the entry into force of the UN Charter.

Some writers argue that there were very few incidents invoking the right of anticipatory self-defence by states because situations to exercise such a practice veryrarely occurred. This is not actually the case. After 1945 until now, there were numerouscases of border clashes and trans-border cross-firings between neighbouring countries,and troops maneuvers and suspicious preparations of arms and weapons systemsthroughout the world. If states believed that anticipatory self-defence were allowed byinternational law, they would definitely have used this legal justification to attack rivalcountries and there would have been a number of incidents of anticipatory self-defence.The truth is that (although some writers are arguing very enthusiastically for such adangerous excuse to go to war) states actually believe that the law is Article 51 of the UNCharter which very clearly prohibits anticipatory form of self-defence and that accordingto this law whoever attacks first will be the aggressor. Fear of creating a dangerous

precedent is the main reason why States seldom invoke anticipatory self-defence in practice.

Advocates of anticipatory self-defence normally refer to the three incidents (Cubanmissile crisis, the Six day War and the Israel destruction of Iraqs nuclear reactor) andclaim that they are incidents justifying anticipatory self-defence and by virtue of these

103 North Sea Continental Shelf cases (FRG v Denmark) (FRG v Netherlands), 1969 ICJ Rep. p. 3;Continental Shelf (Libya v Malta), 1985 ICJ Rep. p. 29.


24/43


25/43

25

Representative at the United Nations Headquarters presented it in a dramatic manner tothe Security Council 110 . The following are the details of the statement of the PermanentRepresentative of Israel made before the Security Council in the morning of 5 June 1967:

In the early hours of this morning, Egyptian armored columns moved in an

offensive thrust against Israels borders. At the same time Egyptian planes took off from airfields in Sinai and struck out towards Israel. Egyptian artillery in theGaza Strip shelled the Israel villages. Netania and Kefar Javetz have also been

bombed. Israeli forces engaged the Egyptians in the air and on land and fighting isstill going on. In accordance with Article 51 of the Charter, I bring thisdevelopment to the immediate attention of the Security Council. 111

On the following day, Abba Eban, Israels Foreign Minister repeated this fabricatedstory to the Security Council. Most radio stations and newspapers spread the fabricatedstory of an Egyptian aggression against Israel and the whole world sympathized with thesupposed victim. When the war was over in six days, after defeating the Egyptian, Syrian

and Jordanian armies and occupying the Old City of Jerusalem, the West Bank, the GazaStrip, the Sinai Peninsular and the Golan Heights, the Israeli Representative at theSecurity Council Meeting declared triumphantly that in accordance with its rightunder Article 51 of the Charter, the victim defended itself, alone and successfully. 112

Therefore, the official justification of Israel for the Six Day War before the United Nations organs was not that it acted in anticipatory self-defence, but that Egypt was theaggressor and Israel was the victim. Only after some time, when the false story of accusing aggression against the victim had become discredited, Israel changed her tactics.

Nowadays the Israelis rely on the argument that, although not attacked by Egypt, theywere in danger of being attacked, and hence they resorted to a pre-emptive strike. For these reasons, the failure of the United Nations organs to condemn Israel in the Six DayWar by no means implied the acknowledgment of the international community of thelegality of anticipatory self-defence. The Six Day War can never be a precedent of anticipatory self-defence.

(3) Israeli Destruction of Iraqs Nuclear Reactor (1981) : On 7 June 1981, Israeliwarplanes raided Baghdad and destroyed the Iraq nuclear reactor, which was built for

peaceful use of nuclear energy under strict IAEA supervision. Israel claimed that it wasexercising its inherent right of self-defence as understood in general international law andas preserved in Article 51 of the United Nations Charter. 113 Nevertheless, the SecurityCouncil unanimously decided against Israel and strongly condemned the military attack as a clear violation of the Charter of the United Nations and the norms of internationalconduct: 114 A large number of States from all parts of the world affirmed that such a

preemptive strike was contrary to international law. 115

110 UN Document S/PV 1347, 5 June 1967, 4.111 Ibid.; 4 United Nations Chronicle , July 1967, p. 4.112 Security Council Official Records, 1358 th Meeting, 13 June 1967, S/PV 1358, at 20.113 18 United Nations Chronicle , No. 8 (1981) p. 5.114 SC Res. 487 (June 19, 1981).115 18 United Nations Chronicle , No. 8, (1981) pp. 5-9, 61-74; 20 ILM (1981) pp. 965-97.


26/43

26

What is amazing is that even this incident has been cited by some writers as a precedent of states recognition of anticipatory self-defence. Greenwood referring toFranck, for example, stated that although international reaction was generallycondemnatory of Israel, in most cases that reaction was based on a conclusion that Israelhad failed to demonstrate that there was an imminent threat from Iraq and had thus failed

to satisfy the Caroline requirements for anticipatory self-defense, rather than on anyrejection of anticipatory self-defense as such. 116

It is submitted that this is not the case. A closer examination of the statements made by states during the Security Council debate will once and for all clear the air in thisregard. From the Security Council resolution and the debates before and after theresolution, the following facts are established:

(i) Out of the many representatives of states participated in the Security Councildebate, none of them specifically argued that anticipatory self-defence was legal or thatthe condemnation of Israel was due to the fact that its use of force did not satisfy theCaroline requirements for anticipatory self-defense (not even the US representative). 117 Only the UK representative (only one among the sixty delegates which participated in thedebate) very generally referred to the phrase instant or overwhelming necessity of self-defence without more, but even such a general reference was made after admitting therequirement of an armed attack. 118

(ii) In the Security Council debate, Mexico, 119 Guyana, 120 and Syria 121 specificallyrejected the concept of anticipatory self-defence by referring to the requirement of anarmed attack under Article 51.

(iii) A close scrutiny of the Iraqs nuclear reactor incident reveals the fact that it wasin fact not a case of anticipatory self-defence and was only a case of preventive strikeagainst unforeseeable future threat. It seems to be the reason why many states did notspecifically name it as anticipatory self-defence and reject it as such. The other reasonmay be the confusion and the imprecise usage of the terms anticipatory, preemptive and

preventive and many states might have thought that preemptive or preventive strike

116 See, Christopher Greenwood, loc. Cit. n. 3, at p. 13; id . at 14, referring to T.M. Franck, Recourseto Force: State Action Against Threats and Armed Attacks (Cambridge University Press 2002) pp. 105-107.

117 Mrs. Kirkpatrick (United States of America) first stated: We were shocked by the Israeli air strikeon the Iraq nuclear facility and promptly condemned this action and later expressed a few consolatorywords like Israel might have sincerely believed it was a defensive war and Israel is an important andvalued ally. Nowhere in her statement can be found any argument for anticipatory self-defence. See 20

ILM (1981) p. 985.118 Sir Anthony Parsons (United Kingdom) said, It has been argued that the Israeli attack was an act

of self-defence. But it was not a response to an armed attack on Israel by Iraq. There was no instant or

overwhelming necessity for self-defence. See 20 ILM (1981) p. 977.119 Mexico maintained that it is inadmissible to invoke the right to self-defence when no armedattack has taken place. The concept of preventive war was definitely abolished by the Charter of theUnited Nations, se e 19 ILM (1981) pp. 991-2.

120 Mr. Sinclair (Guyana) stressed the point that while Article 51 of the Charter confers upon member states the right of individual self-defence if an armed attack occurs against them, no where did it providefor the use of preemptive strike, see 18 United Nations Chronicle , No. 8, (1981) at p. 69.

121 Syria contended that Article 51 of the Charter clearly defines self-defence as an inherent rightonly if an armed attack occurs and that the notion of preemptive strike was unacceptable. Statement of Mr.El-fattal, 36 SCOR, 2284 mtg. (June 16, 1981), at 6.


27/43

27

meant to express anticipatory self-defence (as we understand today). It does not,therefore, mean that many states were reluctant to reject anticipatory self-defence. Anumber of states including Soviet Union, 122 Brazil, 123 Egypt, 124 Spain, Pakistan, andYugoslavia, in very strong words, condemned the attack by using the terms preemptive or

preventive strike. Many states affirmed that the attack was an act of aggression to be

taken enforcement action under Chapter VII of the Charter.(iv) The Israeli representative defended his case entirely relying on the right of

anticipatory self-defence, referring to authorities like Waldock and Bowett. 125 Iraqcountered that self-defence was permissible only against an armed attack. 126 Therefore,the unanimous condemnation of Israel by the Security Council impliedly indicates therejection of the notion of anticipatory self-defence by the international community. Or atthe minimum it can be regarded as a strong precedent of the rejection of the internationalcommunity of the notion of preventive war.

(v) As the incident itself is not a use of force against an imminent attack, what isestablished without any doubt is that it can never ever be construed as a precedentsupporting anticipatory self-defence.

A careful analysis of the three incidents, relied on by advocates of anticipatory self-defence, clearly shows that they are not really precedents for anticipatory self-defence.Out of the three incidents, in the first two, the incumbent states never officially invoked,or justified their conduct before the UN Security Council by reference to the so-calledright of anticipatory self-defence. State practice includes both what states say and whatthey do. However, as far as the element of opinio juris is concerned, the official

pronouncement or legal justification of its action by a state before the UN Body is themost conspicuous example of it. Therefore, the fact that the incumbent state itself hadrefrained from officially invoking anticipatory self-defence before the authoritative body

means that it did not believe that such a practice was lawful and this is a clear demonstration of absence of opinio juris even on the part of the incumbent state, let alonethe international community.

122 Soviet Union stated: Indeed, the raid of the Israeli Air Force on the nuclear research centerrepresents an attempt to strengthen its criminal practice of carrying out so-called pre-emptive strikes to replace international law with the law of the jungle the representative of Israel has cited even legalarguments to support the doctrine of preventive war. These arguments are familiar to us from the 1930s and1940s when another State carried out pre-emptive strikes right and left until it collapsed under the weightof its own crimes, UN Doc. S/PV 2283, 22-23, (15 June 1981).

123 The Brazilian representative stated: My country joined other Member States in a clear condemnation of the aggression suffered by Iraq. The notion of preventive aggression was unacceptable

under the legal system which bound all nations. Toleration of that nation would lead to the destruction of the United Nations, Sweeney, Oliver, and Leech, Cases and Materials on the International Legal System,3rd edn. (New York, The Foundation Press Inc. 1988) p. 1468.

124 19 ILM (1981) p. 980.125 Statement of Mr. Blum, UN Doc. S/PV.2280, 52-55 (June 12, 1981). Mr. Blum stated that Israel

was exercising its inherent and natural right of self-defence, as understood in general international law andwell within the meaning of Article 51 of the UN Charter, ibid. at p. 52, and that the notion of anticipatoryself-defence is permissible under international law, ibid. at pp. 53-55.

126 Repertoire of the Practice of the Security Council , (1981-1984) pp. 202-04 ; see also 18 United Nations Chronicle, No. 8, (1981) at p. 7.


28/43

28

Apart form these three major incidents, there are three further examples of the UnitedStates relying partially on anticipatory self-defence to justify the unilateral use of forceagainst terrorists and their sponsoring states. The first was the US air strike on April 141986 on Libyan targets allegedly used as bases for terrorists in response to the terrorist

bombing of a discotheque in Berlin. The US argued that the use of force was meant to

prevent future terrorist attacks. The air strike was questioned by the internationalcommunity. A proposed resolution in the Security Council to condemn the US action wasvetoed by the US, the UK and France. However, the General Assembly adopted aresolution censuring the US. 127 The second was the US attack of June 26, 1993 bytomahawk missiles on Iraqi intelligence forces in response to an unsuccessful Iraqi plot toassassinate former President George Bush, sr. The action was again criticized by theinternational community but the criticism was less strident. 128 Thirdly, in 1998, trucksloaded with bombs blew up outside the US embassies in Kenya and Tanzania killingmore than 200 people. The US attacked by Tomahawk missiles on 20 August 1998 onthe alleged terrorist outposts in Afghanistan and a Sudanese pharmaceutical plant.International reaction was mixed, with the most intense criticism focused on the Sudan

attack.129

Apart from a few Western governments which approved or kept quiet, moststates condemned the Air strikes. They did not accept them as legitimate self-defenceunder the UN Charter. 130

The conclusion is that from 1945 until 2001, only a single state, Israel, expresslyinvoked anticipatory self-defence in an inter-state use of force in relation to itsdestruction of Iraqs nuclear reactor in 1981. The Security Council, however,unanimously decided that it was a violation of international law and most states in theinternational community condemned and reprimanded Israel. Apart from Israel, the USused force in three situations to prevent terrorist attacks. Although these uses of forcewere supported by its allies and some Western countries, they were opposed by others. Itis, therefore, unequivocal that the right of anticipatory self-defence, as claimed to beformulated in the Caroline incident, was not supported by post-UN Charter State practiceand was never established as customary international law before September 11.

6. STATE PRACTICE AFTER SEPTEMBER 11 AND ITS NORMATIVEIMPACT IN THE 21 ST CENTURY WORLD ORDER

The Cold War period ended with the collapse of the Soviet Union. Many internationallawyers were optimistic about the situation and expected a new productive world order

127 G.A. Res. 41/38, 41 st Sess., 78 th plen. mtg. (1986) (stating that the General Assembly was gravely

concerned at the aerial and naval military attack perpetrated against the cities of Tripoli and Bengazi andcondemned the attack on Libya as a violation of the Charter of the United Nations and of international law.See also Michael Byers, Terrorism, the Use of Force and International Law after 11 September, 51 ICLQ(2002) p. 401, at p. 407.

128 Most of the Arab world expressed regret regarding the attack; Arab Governments Critical, NewYork Times , 28 June 1993, at A7.

129 Phil Reeves, Outraged Yeltsin Denounces Indecent US Behaviour, Independent (London), 22August 1998, p. 2.

130 Jackson Nyamuya Maogoto, Battling Terrorism: Legal Perspectives on the Use of force and theWar on Terror , (Aldershot, Ashgate 2005) p. 127.


29/43

29

free from bitter rivalry between the two super powers. Nevertheless, their expectationswere frustrated when the 21 st century was ushered in with the terrorist attacks on theWorld Trade Centre and the Pentagon on September 11, 2001. The United Statesreactions to these attacks were far-reaching. First, the US and its allies used military forcein Afghanistan (2001), alleging that the de facto Government of Afghanistan (the

Taliban) harboured and gave safe havens to Al Qaeda terrorists. Secondly, the US withthe support of like-minded States invaded and occupied Iraq (2003), and deposed SaddamHussein, alleging that Iraq had links with Al Qaeda and that Saddam Hussein, withstockpiles of weapons of mass destructions, was a dangerous threat to the US and itsallies. The incidents of September 11 and the US military responses raise severalimportant issues under international law regarding the use of force and demonstrateattempts to widen the scope of self-defence. We have seen earlier that the pre- September 11 state practice was clearly not in favour of anticipatory self-defence and its status ascustomary international law. The main focus of this section is to examine the post-September 11 state practice to see whether international law on self-defence has changedin view of the practice of the sole super power of the world.

The United States use of force in Afghanistan (2001)

On October 7, 2001, the US informed the UN Security Council that it was exercising itsinherent right of individual and collective self-defence by attacking Al Qaeda terroristtraining camps and military installations of the Taliban regime in Afghanistan. The USmain justification, therefore, in respect of its use of force against Afghanistan was self-defence against armed attacks by the terrorists. Commentators have raised three mainquestions: (1) the meaning of armed attack in Article 51 of the Charter; (2) the law of state responsibility, in particular whether and under what circumstances a state isresponsible for actions undertaken by non-state actors; and (3) the customaryinternational law requirements of necessity and proportionality. 131 Since the present paper is limited only to the question of the legality of anticipatory self-defence, the space doesnot permit to touch upon these important issues and the focus will be more on thenormative impact of the US use of force in Afghanistan.

The legality of the use of force in Afghanistan by the US and its allies was hotlydebated among commentators and they were deeply divided again. Some argued for while others argued against the US use of force. What is ironic is that arguments of almost all commentators (even those who strongly supported anticipatory self-defenceand rejected the requirement of armed attack) premise

Afghanistan- Legality of Anticipatory Self-Defence in 20 Century World Order Reappraisal

Documents

Transcript of Afghanistan- Legality of Anticipatory Self-Defence in 20 Century World Order Reappraisal