AustLII Home | Databases | WorldLII | Search | Feedback

Australian Year Book of International Law

You are here:  AustLII >> Databases >> Australian Year Book of International Law >> 2004 >> [2004] AUYrBkIntLaw 3

Database Search | Name Search | Recent Articles | Noteup | LawCite | Help

Garwood-Gowers, Andrew --- "Pre-Emptive Self-Defence: A Necessary Development or the Road to International Anarchy?" [2004] AUYrBkIntLaw 3; (2004) 23 Australian Year Book of International Law 51

Pre-Emptive Self-Defence: A Necessary Development or the Road to
International Anarchy?

Andrew Garwood-Gowers[∗]

I. Introduction

Following its success in removing the Taliban from power and dismantling Al-Qaida’s operations in Afghanistan in 2001, the United States of America turned its sights on a new target, Iraq. The next phase of its ‘war on terror’ however, involved proactive rather than reactive force, in that the United States did not intend to wait until it was attacked before mounting a military operation. In the National Security Strategy (NSS) of September 2002, President George W Bush unveiled details of the United States’ policy of pre-emptive military action. He stated that ‘to forestall or prevent … hostile acts by our adversaries the United States will, if necessary, act pre-emptively’.[1] This explicit claim to a right of pre-emptive self-defence against the threat posed by terrorism and weapons of mass destruction was ultimately not used to justify the war against Iraq: instead the United States and its allies argued that the use of force was authorised by previous United Nations (UN) Security Council resolutions.[2] However, the United States’ assertion on pre-emptive self-defence has re-ignited debate about the adequacy of the current international law framework on the use of force and, on a broader level, has highlighted the United States’ preference for unilateral rather than multilateral approaches to issues of international peace and security.

This claim to a right of pre-emptive self-defence is the latest and most radical step in the United States’ ongoing efforts to loosen international law’s constraints on the use of force. These have focused on expanding the scope for unilateral military action by extending the right of self-defence. Whilst the United States has always maintained that a broad customary international law right of self-defence exists alongside article 51 of the UN Charter, it has generally focused its efforts on altering the international community’s interpretation of article 51.[3] However, the current claim to a right of pre-emptive self-defence involves a reliance on customary international law rather than the Charter provision, and is essentially an attempt to resurrect the classic Caroline doctrine,[4] with some modification to account for contemporary conditions. What is particularly radical about the United States’ move is that pre-emptive force – which it has always quietly maintained as an option – now appears to have been publicly elevated to the forefront of its foreign policy.[5]

This article examines the concepts of anticipatory self-defence and pre-emptive self-defence in international law.[6] Section II re-visits the traditional debate over the legality of anticipatory self-defence, referring to doctrinal disputes and state practice. Section III then compares the current United States’ notion of pre-emptive self-defence with the customary international law concept of anticipatory self-defence as it has traditionally been understood. Section IV discusses whether or not current threats posed by terrorism and weapons of mass destruction mean there is now a need for international law to recognise a right of pre-emptive self-defence. Section V briefly explores the possible consequences of recognising such a right. Finally, section VI examines the United States’ motives in promoting this doctrine and assesses the prospects of it becoming part of international law. This article argues first, that the current United States’ claim to a right of pre-emptive self-defence has no basis in existing international law; second, that there is no need to introduce such a right because the existing mechanism of Security Council authorisation of force can deal with terrorist threats; and third, that there would be a serious risk of increased international conflict if this right were recognised.

It is important to note first that the discussion in this article is concerned only with the use of force against a threatened attack. It does not cover the more common self-defence scenario in which a state uses force to defend itself against an attack that has already occurred or is still occurring. In relation to terminology, the expressions ‘anticipatory self-defence’ and ‘pre-emptive self-defence’ are often used interchangeably to refer to the use of force to defend against the threat of an imminent attack. However, this article draws a distinction between the two expressions.[7] It uses the term ‘anticipatory self-defence’ to denote force used against the threat of an imminent attack, and ‘pre-emptive self-defence’ for force used against more remote threats. The latter clearly envisages the use of force against a much broader range of threats. As will be discussed, the United States’ doctrine of pre-emptive action falls squarely within this category.

II. The Legality of Anticipatory Self-Defence

Following the devastation of the Second World War, the primary aim of the newly established UN organisation was to prevent further military conflict.[8] The centrepiece of its attempts to limit the scope for states to use force unilaterally is the general prohibition on the use of force contained in article 2(4) of the Charter. It reads:

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.

This prohibition is also a fundamental rule of customary international law, to the extent that it is recognised as a principle of jus cogens.[9] The Charter does, however, provide for two situations in which force may be used legally. These are first, the use of force in self-defence in accordance with article 51, and second, force authorised by the Security Council under Chapter VII.[10]

The right of self-defence is derived from two sources: customary international law and article 51 of the UN Charter.[11] There is longstanding debate over the scope of this right, in particular whether it permits anticipatory self-defence. In the nineteenth century this type of force was a regular occurrence in the international system and was recognised as part of customary international law. Despite criticism from some scholars over its interpretation, the famous Caroline incident of 1837 is generally recognised as providing the classic criteria by which the legality of anticipatory self-defence should be judged.[12] That incident established that it was not necessary to wait until an actual attack had occurred before the right of self-defence could be exercised. Rather, force could be used if the necessity to act was ‘instant, overwhelming, leaving no choice of means, and no moment of deliberation’.[13] This statement formed the basis of the customary international law principle that a state could use necessary and proportional force when threatened with an imminent attack.

With the inception of the UN Charter in 1945 the legality of anticipatory self-defence became less clear. The first and most important part of article 51 reads:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence 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.

The ambiguous wording of this provision has provided a basis for scholars and states to argue both for and against the existence of a right of anticipatory self-defence.[14] On the one hand, article 51 makes express reference to the right of self-defence ‘if an armed attack occurs’. This appears to rule out any right of anticipatory self-defence, because by definition such action does not involve a prior armed attack. However, on the other hand, article 51 refers to the ‘inherent right of self-defence’, thereby suggesting that the earlier customary international law right of self-defence – presumably including anticipatory action – remains intact. This ambiguity has produced a doctrinal division, which has continued to the present day.

Any customary international law right of anticipatory self-defence that survived the Charter will have been influenced by state practice since 1945.[15] So has state practice in this period confirmed the existence of such a right or extinguished it? This too is a matter of controversy. There is disagreement between states and scholars over the interpretation of various incidents and their relevance to the issue of anticipatory self-defence. Authors such as Greenwood,[16] Franck,[17] O’Brien[18] and Arend[19] argue that state practice since 1945 confirms the existence of such a right. However, these writers often rely on incidents in which the states involved did not actually refer to anticipatory self-defence to justify their actions.[20] These incidents may appear at first glance to be examples of anticipatory action but are instead justified by states as self-defence under article 51. In other words, states claim to have suffered an actual armed attack that triggered their right to respond in self-defence according to article 51. States have adopted this approach because it is less controversial than openly relying on the doctrine of anticipatory self-defence. Examples of situations where states did not refer to anticipatory self-defence include Israel’s action in beginning the 1967 war with Egypt, Jordan and Syria, as well as Iraq’s invasion of Iran in 1980, and the United States’ shooting down of an Iranian airliner in 1988.[21] This reluctance by states to explicitly invoke anticipatory self-defence as a legal justification undermines the credibility of claims that such a right exists.

The most significant incident involving an explicit invocation of anticipatory self-defence as a legal justification was Israel’s bombing of an Iraqi nuclear reactor in 1981.[22] Israel claimed to be acting in response to the threat of nuclear attack from Iraq. Both the Security Council and the UN General Assembly condemned the Israeli action, with Security Council Resolution 487 (1981) describing it as a ‘clear violation of the Charter of the United Nations’.[23] However, the respective resolutions did not explicitly reject the concept of anticipatory self-defence. Some states, including Egypt and Mexico, were specifically opposed to any notion of anticipatory force, whilst France and Italy condemned the Israeli action because they believed the facts did not establish the existence of a threat of imminent attack by Iraq.[24] The United States was the only state that expressly supported the concept of anticipatory self-defence. However, it rejected the Israeli claim on the grounds that peaceful means of resolving the dispute had not been exhausted.[25] Despite the differences in reasoning, the majority of states were clearly opposed to recognising any right to use anticipatory force.

To date the International Court of Justice (ICJ) has not ruled on the legality of anticipatory self-defence. In the Nicaragua Case the Court expressly declined to discuss ‘the issue of the lawfulness of a response to the imminent threat of armed attack’, on the basis that this question did not arise on the facts.[26]

The present writer’s view is that there is no right of anticipatory self-defence under current international law. This is the position held by most states and is consistent with the overall aim of the Charter system to limit the scope for the unilateral use of force. However, common sense suggests that in exceptional circumstances it may be justifiable to take anticipatory action to avoid serious harm. Cassese offers a sensible perspective on this:

In the case of anticipatory self-defence, it is more judicious to consider such action as legally prohibited while admittedly knowing that there may be cases where breaches of the prohibition may be justified on moral and political grounds …[27]

If, however, one accepts the existence of a right of anticipatory self-defence, then this right is strictly limited by the criteria laid down in the Caroline incident. In other words, anticipatory force can only be used in instances where it is necessary to use force to avert an armed attack that is imminent. Therefore, if such a right exists it is extremely narrow.

III. The United States’ Current Notion of
Pre-Emptive Self-Defence

Although the United States’ current claim to a right of pre-emptive self-defence came to prominence in September 2002 with the NSS, there were in fact earlier indications as to the Bush administration’s thinking on this issue.[28] On 7 October 2001, in its letter to the Security Council advising that it had begun military action in Afghanistan following the 11 September 2001 attacks, the United States stated that ‘we may find that our self-defense requires further actions with respect to other organizations and other states’.[29] At the time this statement received little attention. However, it was a clear indication of the United States’ readiness to extend the war against terrorism beyond Al-Qaida and the Taliban, and as such was a precursor to the more detailed policy of pre-emptive action outlined in the NSS.

The NSS includes several references to a right of pre-emptive self-defence in the context of threats posed by rogue states or non-state terrorists and weapons of mass destruction. It states that the ‘United States can no longer rely solely on a reactive posture as we have in the past’, and ‘to forestall or prevent such hostile acts by our adversaries, [we] will, if necessary, act preemptively’.[30] Whilst the NSS is primarily a policy document, it was clearly constructed with a view to influencing the law on the use of force.[31] It represents another step in the United States’ post-11 September mission to expand the scope for unilateral military action.[32]

What is the nature of the right the United States is advocating? For a start it is clear that the United States is claiming a far broader right than the traditional notion of anticipatory self-defence laid down in the Caroline incident. The NSS refers to ‘taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack’.[33] This statement cannot be reconciled with the Caroline requirement that the necessity to act be ‘instant, overwhelming, leaving no choice of means, and no moment of deliberation’. Rather than focusing on specific imminent threats, the United States’ interpretation is broad enough to apply to potential or future threats. Reisman has described it as a ‘claim to use … high levels of violence to arrest an incipient development that is not yet operational, hence not yet directly threatening, but that, if permitted to mature, could then be neutralized only at a higher and possibly unacceptable cost’.[34] Essentially, this approach is intended to prevent ‘enemies’ of the United States from developing the types of weapons’ capabilities that might later be used against it in an attack. This has prompted some commentators to label it ‘preventive’[35] or ‘precautionary’[36] self-defence, or a ‘nip-it-in-the-bud’[37] strategy. Whatever the title, the United States’ claim has no basis in current international law.[38]

The United States has itself acknowledged that its policy of pre-emptive action does not sit comfortably with existing notions of self-defence. However, instead of rejecting the traditional framework entirely the United States has proposed that this framework be modified. Essentially it has tried to breathe new life into the Caroline formula by proposing a more flexible interpretation of the imminence requirement. The NSS states that:

Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat – most often a visible mobilization of armies, navies, and air forces preparing to attack. We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction – weapons that can be easily concealed, delivered covertly, and used without warning.[39]

The United States is thus arguing that the old rules on the use of force must be re-interpreted or updated to fit the current global environment.

The United States is relying on three characteristics of the current international system to justify the need for this re-interpretation.[40] The first is the development and proliferation of weapons of mass destruction: nuclear, chemical and biological; the second is the emergence of rogue states and non-state terrorists; and the third is the ineffectiveness of traditional methods of deterrence when applied to these groups. According to the United States, these developments have combined to produce a more dangerous and complex security environment than ever before. Thus, it argues that post-11 September it may be necessary to take military action to prevent states or non-state actors from developing, obtaining or actually using weapons of mass destruction.

A similar re-interpretation of the notion of self-defence has been suggested by members of the Australian government. In November 2002 Defence Minister Senator Robert Hill observed that:

Some would argue that it’s time for a new and distinct doctrine of pre-emptive action to avert a threat. A better outcome might be for the international community and the international lawyers to seek an agreement on the ambit of the right of self defence better suited to contemporary realities. But in the meantime those responsible for governance will continue to interpret self-defence as necessary to protect their peoples and their nations’ interests.[41]

Australian Prime Minister John Howard, has made similar comments on the need for a re-interpretation of the notion of self-defence, and has also raised the prospect of Australia taking pre-emptive action if necessary.[42]

As stated above, the United States’ proposal for updating the Caroline formula to meet this new reality rests on a re-interpretation of the concept of ‘imminent attack’.[43] What exactly does this phrase mean? An ordinary understanding of the concept suggests that an imminent attack is an attack that is about to happen. It indicates greater urgency and immediacy than a situation of ‘impending’ or ‘threatened’ attack. Although this definition is imprecise it nevertheless highlights the key feature of the concept: the close temporal connection between the threat of attack and the future commencement of that attack. In the past, an imminent attack was usually demonstrated by the presence of troops massing on a border in preparation for invasion. However, visible signs of preparation for an attack are less common in the modern era of military technology, particularly in the context of non-conventional or terrorist attacks.

Some scholars agree with the United States’ claims that there is a need to update international law’s understanding of the imminence requirement.[44] Greenwood has suggested there should be consideration of:

two factors which did not exist at the time of the Caroline incident. The first is the gravity of the threat. The threat posed by a nuclear weapon, or a biological or chemical weapon, if used against a city, is so horrific that it is in a different league from the threats posed (as in the Caroline) by cross-border raids conducted by men armed only with rifles. Where the threat is an attack by weapons of mass destruction, the risk imposed by a State by waiting until the attack actually takes place compounded by the impossibility for that State to afford its population any effective protection once the attack has been launched, mean that such an attack can reasonably be treated as imminent in circumstances where an attack by conventional means would not be so regarded. The second consideration is the method of delivery of the threat. It is far more difficult to determine the time scale within which a threat of attack by terrorist means would materialise than it is with threats posed by, for example, regular armed forces. These would be material considerations in assessing whether, in any particular case, an attack should be treated as imminent.[45]

Whilst these are certainly relevant factors, the danger in introducing a less-restrictive interpretation of the concept of imminent attack is that it may render that requirement virtually meaningless. An imminence requirement flexible enough to cover threats that are not immediately capable, or at least capable in the short-term, of being carried out, would leave states with an open-ended invitation to take pre-emptive action against almost any kind of alleged threat. Reaching agreement on a new understanding of the concept of imminence will be a difficult task, given that since the Charter’s inception states have failed to agree on any detailed provisions relating to the use of force.

The United States has so far failed to spell out in any detail the limits or criteria governing its doctrine of pre-emptive force.[46] For a start, there is no indication as to what constitutes an imminent threat in this context. Does possession of weapons of mass destruction by an unfriendly state mean that it is automatically deemed an imminent threat, or must there also be a proven intention to use such weapons?[47] On a lesser scale, does merely attempting to obtain or develop these weapons constitute an imminent threat? Is there any distinction between the threat posed by so-called ‘rogue’ states and that of non-state terrorists? Should the two be grouped together as they have been, or should there be separate approaches for each situation?

The Bush administration’s policy of pre-emptive action outlined in its NSS therefore raises more questions than it answers. Whilst it goes into detail about the changed security environment, which it claims necessitates a re-interpretation of the law on the use of force, the United States fails to provide concrete guidelines as to what a new right of pre-emptive self-defence would look like. The only clear-cut aspect of the policy is that the United States is claiming an extremely broad right to act pre-emptively: one that bears little resemblance to the existing understanding of anticipatory self-defence defined by the Caroline formula. The uncertainty surrounding the United States’ claim has prompted a United Kingdom Foreign Affairs Committee to recommend that the British government ‘set out in detail the thinking behind its policy on the pre-emptive use of military force, and whether this policy has been reviewed following the publication of the United States National Security Strategy in September 2002’.[48] So far neither the United States nor the United Kingdom has provided further details.

IV. Is there Really a Need for Pre-Emptive Self-Defence?

As mentioned above, the United States’ claim to a right of pre-emptive self-defence rests on the contention that the current threat posed by non-state terrorists and rogue states demands new or at least modified understandings of international law in relation to the use of force. The United States has argued that ‘September 11 changed everything and nations must respond and change their doctrines to face new and different threats’.[49] This claim raises two important questions. First, did 11 September 2001 really change everything, or is it more a case of our perception of the world changing? Second, what evidence is there that the existing rules and mechanisms governing the use of force are unable to respond to the threats posed by rogue states and non-state terrorist actors?

(a) Did 11 September 2001 change everything?

Contrary to the Bush administration’s claims, the international system did not change overnight with the horrific events of 11 September 2001. International terrorism committed by non-state actors is not a new phenomenon: in fact, the international community began addressing this issue as early as 1970 in the General Assembly’s Declaration on Friendly Relations.[50] What distinguished the 11 September attacks from previous terrorist acts was the scale of the destruction and, from an American perspective, the fact that they occurred on home territory, as opposed to being attacks on United States citizens or military personnel overseas.[51] In addition, 11 September generated unprecedented public awareness of terrorism, something that many governments have been quick to exploit as a justification for new or modified foreign policy and domestic legislation.[52] Whilst subsequent events like the Bali bombing suggest that there is indeed a greater threat of terrorism today than in the past, it is simplistic to claim that after 11 September the world was suddenly confronted with new and more dangerous threats. The reality is that these are essentially the same threats that the international community has been trying to combat for more than two decades through legislative, diplomatic, law-enforcement and military measures.

Two of the other aspects of the post-11 September world referred to by the United States in its NSS – so-called rogue states and weapons of mass destruction – are also not new developments. The imprecise term, ‘rogue state’, is a label that the United States has used for a number of years to stigmatise various regimes when it disapproves of its activities. Previous rogue states such as Sudan, Libya and Syria have now been replaced or overshadowed by the current members of the ‘axis of evil’, Iran and North Korea (and, prior to the removal of Saddam Hussein, Iraq). They are by no means a post-11 September development. Similarly, the prospect of weapons of mass destruction falling into the hands of terrorists has been a longstanding concern, dating back at least as far as the break-up of the Soviet Union in 1991.[53]

The final aspect of the Bush administration’s claims about a new and more dangerous international security environment concerns the notions of deterrence and containment. According to the NSS, ‘traditional concepts of deterrence will not work against a terrorist enemy whose avowed tactics are wanton destruction and the targeting of innocents’.[54] Few would disagree with this statement. However, the NSS then adds that deterrence is ‘less likely to work against leaders of rogue states’.[55] On the contrary, recent experience suggests that deterrence and containment do in fact work in relation to these states. For instance, Iraq was successfully contained for over ten years following the 1991 Gulf War.[56] Writing before the recent Iraq war, Mearsheimer and Walt argued convincingly that ‘both logic and historical evidence suggest a policy of vigilant containment would work, both now and in the event Iraq acquires a nuclear arsenal’.[57] It is therefore questionable whether the United States is justified in extending its reasoning on non-state terrorism to rogue states as well. Thus far, it has treated both sources almost identically.

The above analysis of the current international system is not intended to suggest that terrorism and weapons of mass destruction are insignificant issues or that they are easy to combat. Rather it is an attempt to place the Bush administration’s claims about current threats in an historical perspective. The most significant change since 11 September has not been in the threat of terrorism – although this may well have increased – but instead in how the international community, and in particular the United States, perceives that threat. What is interesting, and probably telling, is that very few states besides the United States have reached the conclusion that the world has changed so drastically that there is a need to modify the existing rules on the use of force.

(b) Are the existing rules and mechanisms on the use of force inadequate?

Although the Security Council system is a political mechanism that is by no means perfect, in the vast majority of situations, it will provide an adequate means of dealing with terrorist threats. Where there is a genuine threat posed by a non-state actor or rogue state, and alternative measures are either unavailable or ineffective, the Council is highly likely to authorise the use of force to deal with that threat.[58] Given the clear need to use pre-emptive force in such circumstances, the prospect of one of the permanent members exercising its veto power is slim. As a result, there is no need to step outside the existing mechanism and create a broad and potentially destabilising right of pre-emptive self-defence.

It is clear that the Security Council has the power to endorse pre-emptive military action. Once the Council has determined the existence of a breach or threat to the peace under article 39 of the Charter it has the option of authorising military force in accordance with article 42.[59] The fact that article 39 refers to ‘threat to the peace’ as well as ‘breach of the peace’ indicates that the Security Council is not limited to responding to incidents that have already occurred.[60] On the contrary, pre-emptive action to avert threats appears to have been an objective of the collective security regime at its conception.[61] Furthermore, unlike the right of anticipatory self-defence held by states – assuming for a moment that there is such a right – the power of the Security Council to authorise pre-emptive action is not limited to responding to the threat of an imminent attack. It may authorise the use of force against more remote threats of the type the Bush administration is referring to in its NSS. The Security Council’s power in this regard is therefore much wider than any possible right of a state to act in anticipatory self-defence according to the Caroline formula.[62]

In addition, the Security Council has the power to take action against threats posed by non-state actors. Determinations under article 39 are not limited to threats or breaches of the peace emanating from states; they may also stem from non-state actors such as terrorist groups. This is evident from previous Security Council resolutions relating to terrorist actions by Al-Qaida and other non-state actors.[63] These resolutions undermine the popular post-11 September notion that the presence of non-state actors in today’s international system means that the state-based Charter framework is outdated and inadequate. Whilst the non-state actor issue does complicate matters relating to the law of self-defence, there is no evidence that the existing collective security mechanism cannot cope with the challenge.[64] The Security Council clearly has the power to take action against the threat of non-state terrorism as well as state terrorism.

The real issue is not the Security Council’s power to authorise pre-emptive action but its willingness to do so. Recent divisions in the Security Council prior to the war in Iraq might suggest that the UN cannot be relied on to take decisive action in matters of international peace and security.[65] Some commentators have even declared the UN dead.[66] This is an exaggeration. The UN may be wounded but it is not dead. It has certainly suffered as a result of recent events and it will take time to rebuild relationships, particularly that of the United States and France. However, provided the Bush administration does not attempt to sideline it completely, the UN will recover.

In fact, despite the recent disagreements over Iraq, the Security Council is potentially in a strong position to deal with the threat of terrorism and weapons of mass destruction. For a start these are two problems that affect many states, not just the United States, and there is a wide consensus on the need to combat these threats.[67] Since 11 September there has been unprecedented international cooperation in the campaign against terrorism. At the same time, the Security Council does not face the deadlock that existed during the Cold War: there is no prospect of automatic veto from Russia or China. For these reasons the Security Council has the potential to be the major mechanism for responding to the threat of terrorism and weapons of mass destruction from both non-state actors and rogue states.

This potential should easily translate into concrete action when the Security Council is asked to deal with threats posed by non-state actors. Suppose, for example, there is evidence that a non-state terrorist group is planning an attack against a state. In this situation, as distinct from those involving threats emanating from a rogue state, there will be fewer issues likely to complicate or compromise the core question of whether force should be used to remove that threat. For instance, the types of economic, political and historical links that may exist between Security Council members and a rogue state are much less likely to arise in relation to non-state actors. Given that the alternatives to force – such as deterrence, containment or economic sanctions – are inapplicable or unlikely to have any impact on non-state actors, the issue will be relatively straightforward. The only significant complicating factor is the breach of a host state’s territorial sovereignty that occurs when military force is used to target a non-state actor situated within that state. However, this is unlikely to prove a major obstacle because that host state would receive little sympathy from other states, given that it had breached its international obligations by allowing terrorist groups to operate from its territory.[68] In such a situation, if clear evidence of a non-state terrorist threat was presented to the Security Council it would almost certainly authorise the use of pre-emptive force to remove that threat.

The more difficult scenario, as recent events surrounding Iraq have demonstrated, involves threats from rogue states. Here the Security Council will be less inclined to authorise pre-emptive military action to remove such threats than it will for those situations involving non-state terrorism. This is both understandable and sensible. For a start, force used against a state is likely to be of a much greater scale and have far more serious consequences for the international system than a more limited strike on a non-state terrorist actor. It may cause serious destruction within the rogue state itself, particularly if force is intended to procure regime change. These issues will loom large in the minds of Security Council members when considering how to deal with threats from rogue states.[69] In addition, those members may be reluctant to authorise pre-emptive force against rogue states simply because there is less need to use force. The Security Council has a wider range of tools at its disposal for dealing with these threats than it does when confronting threats from non-state actors. These may include a variety of sanctions, including economic embargoes and weapons inspections regimes.[70] As well as collective measures under the auspices of the UN, individual states may also be able to apply traditional forms of deterrence and containment to rogue states.

This is not to say that there will never be a need to use pre-emptive force to remove threats from rogue states. There may well be situations where a grave threat continues to exist despite the international community’s best efforts to avert it by non-forcible means. In those circumstances the Security Council can and will provide the necessary solution. Where there is clear evidence of a threat from a rogue state and alternative measures have failed, the Security Council would almost certainly authorise the use of pre-emptive force. It would have done so after 11 September if the United States had sought a resolution authorising the use of force against the continuing terrorist threat emanating from Afghanistan.[71] Similarly, in relation to Iraq, the Security Council would most likely have authorised the use of pre-emptive force if Iraq had posed a serious threat that could not have been contained by ongoing weapons inspections.[72] As it was, little convincing evidence was presented to the Council, which meant the majority of member states remained unconvinced by the United States’ and United Kingdom’s claims about Iraq’s weapons of mass destruction and its connections to Al-Qaida: claims that now appear to have been either exaggerated or even false.[73]

The UN not only provides an adequate means of dealing with specific threats from non-state terrorists and rogue states through collective security; it is also the best vehicle for securing effective international cooperation in the broader campaign against international terrorism.[74] Of primary importance is the perceived legitimacy of any action. In this regard, acting under UN auspices would have far greater credibility than a United States-dominated ‘coalition of the willing’. By providing a forum for the provision of evidence of terrorist threats the Security Council and General Assembly could help to allay fears that the United States, or other states, claiming to take military action against terrorism, are in fact pursuing ulterior motives. In addition, action under the UN umbrella is likely to attract greater international support than could otherwise be obtained. There may be states that, for political reasons, will not support a United States-led campaign against terrorism, but would do so if the UN were involved.[75] Acting through the UN is also likely to provide more effective support. The use of binding Security Council resolutions requiring cooperation from all states is clearly preferable to an ad hoc approach of trying to secure political assurances of assistance from individual states.[76] Therefore, acting outside the UN framework may not only be damaging to the cause of multilateralism, but possibly also a less-effective means of combating terrorism in the long run.[77]

Given that the Security Council will provide an adequate mechanism in the vast majority of situations involving threats from both non-state actors and rogue states, creating a right of pre-emptive self-defence is unnecessary. In fact, the question of taking unilateral pre-emptive action in self-defence should not even arise unless the Security Council is unable or unwilling to authorise force to remove a real threat of attack.[78] If exceptional circumstances like these arise, states will take the necessary action anyway, regardless of its illegality, to ensure their survival. Similarly, if there is no time to seek Security Council endorsement to use force, states will act unilaterally out of extreme necessity. It is better to leave these rare, hypothetical situations in a special category rather than try to create a new and potentially destabilising right of pre-emptive self-defence that covers them.[79] By attempting to cater for the exceptional circumstance, the existing system – which functions adequately in the majority of situations – may be seriously undermined. This is dangerous and unnecessary.

V. The Possible Consequences of Recognising
Pre-Emptive Self-Defence

There is a real danger that introducing a right of pre-emptive self-defence could lead to a return to the nineteenth-century days of ‘self-help’, in which a state of near anarchy prevailed in international relations.[80] By increasing the scope for unilateral action, pre-emptive self-defence would weaken international law’s general prohibition on the use of force, perhaps to the extent of rendering the Charter framework virtually worthless. In practice, there would no longer be a meaningful distinction between defensive and offensive force.[81] Recognising pre-emptive self-defence would mean granting states the right to use force unilaterally against other states or non-state actors based on their own perception of a threat. Unlike self-defence under article 51, which requires an armed attack, with pre-emptive self-defence there is no means of objectively verifying the existence of an alleged threat. As a result, there is great potential for states to abuse such a right. Instead of being used for defensive purposes pre-emptive self-defence could be used as a pretext for the removal of unfriendly governments or the pursuit of strategic goals.

Regardless of any United States’ intentions to limit the applicability of its pre-emption doctrine – which will be discussed in Section VI – once it has promulgated such a policy other states will inevitably seek to rely on it where it furthers their interests. As a United Kingdom Foreign Affairs Committee report concluded in late 2002, if the United States and United Kingdom were to support this broad right of pre-emptive self-defence, this could ‘be taken as legitimising the aggressive use of force by other, less law-abiding states’.[82] This is particularly worrying given the existing tensions in some parts of the world. Think for a moment about India and Pakistan, China and Taiwan, or North Korea and its neighbours. In situations like this pre-emption could raise the expectation of violence and lead to a belief by both sides that a first strike is necessary.[83] In effect it would be a rush to pre-empt the pre-emptor. The value of a military standoff would disappear.

This is not to say that states will automatically exercise any new right of pre-emptive self-defence. The decision to use force is influenced by a variety of factors, legality being only one consideration. However, even merely speculating about pre-emptive action is foolish and potentially destabilising.[84] Recall for example, the outrage amongst Asian nations in December 2002, following Prime Minister John Howard’s comments that if necessary Australia would take pre-emptive action to prevent attacks by organisations operating in South-East Asian states.[85] Consider also the usually pacifist Japan talking about the possibility of taking pre-emptive action if North Korea continues to develop its nuclear program.[86] Comments like these undermine norms of restraint and promote the dangerous notion that states are free to act outside the UN framework whenever they feel threatened. Rather than making the world a safer place, pre-emptive self-defence would be likely to increase international conflict and create a far more unstable, unpredictable international system.

VI. United States’ Motives and the Prospects of
Pre-Emptive Self-Defence becoming Law

Whilst it is clear that the United States is seeking to alter the law on the use of force to allow the use of pre-emptive force, it is uncertain exactly how widely the Bush administration intends such a right to apply. The first issue is whether this right would operate as a means of combating all threats or merely those related to terrorism and weapons of mass destruction. In this regard the comments of President Bush’s Press Secretary Ari Fleischer are significant:

QUESTION: So it’s a universal principle then that all nations are encouraged or entitled to rethink that position, and all nations are entitled to take a preemptive view of military action against terrorism?
MR. FLEISCHER: In the shadowy war against terror. As I indicated, doctrines must recognize the nature of the threat, and mutually assured destruction, of course, worked because you were dealing with nation-states. The point I made about the shadowy nature of terrorism, which the President reflected on after September 11th, and it was a change in doctrine reflecting that threat, not all threats.[87]

This indicates that the Bush administration intended pre-emptive self-defence to apply only in relation to terrorist threats. There is an immediate difficulty with this approach because international law still does not have a universally accepted definition of the term ‘terrorism’. It would therefore be open to states to label as a terrorist issue virtually any kind of threat, whether stemming from a state or a non-state actor, thereby potentially opening up the applicability of pre-emptive self-defence. What was originally intended as a doctrine of limited application becomes one of almost limitless application.

The second key issue in relation to the United States’ motives in promoting pre-emptive self-defence is whether it intended to create a universal doctrine. In other words, would all states possess a right of pre-emptive self-defence? Under normal principles of reciprocity and sovereign equality any customary international law right would be held equally by all states.[88] On this basis it was suggested by a group of Australian international law experts before the beginning of the war against Iraq that, ‘ironically, the same principle [of pre-emptive action that the United States is promulgating] would justify Iraq now launching pre-emptive attacks on members of the coalition because it could validly argue that it feared attack’.[89] As a matter of common sense the United States would not want ‘unfriendly’ states to possess a right of pre-emptive self-defence, and in fact the NSS explicitly warns other states not to abuse this right.[90] However, again it is a case of ‘easier said than done’. Once a doctrine has been promulgated other states will inevitably seek to rely on the same principle. This was illustrated soon after 11 September when Israel and India sought to act against states hosting terrorists – in those cases, the Palestinian Authority and Pakistan respectively – in the same manner that the United States had acted against Afghanistan and Al-Qaida.[91]

Whilst Ari Fleischer’s comments quoted above suggest that all states would possess a right of pre-emptive self-defence against terrorist threats, this may not have been the Bush administration’s real intention. The doctrine of pre-emptive self-defence may in fact be another example of a United States’ claim of exceptionalism. It may see pre-emptive self-defence as a special right reserved for the only current superpower in its mission to combat international terrorism.[92] Reisman has suggested that the United States’ notion of pre-emptive self-defence is a doctrine:

positioned at the interface of law and power. [It is] not based on a general right that is theoretically available to other states. By [its] nature, [it] constitute[s] a demand for an exception.[93]

Assuming this is the case, the Bush administration’s claim would represent a challenge to one of the fundamental principles of international law: the sovereign equality of states recognised in article 2(1) of the Charter.[94] If the United States alone were to possess a right of pre-emptive self-defence this would clearly be contrary to that principle.

For the United States to gain such a right, pre-emptive self-defence must of course become part of customary international law. The process by which customary international law develops is already underway following the United States’ explicit challenge to the existing law on the use of force. Whether a right of pre-emptive self-defence becomes law will depend on how other states respond to that claim.

It is too early to predict whether or not the international community will ultimately accept or acquiesce in the United States’ claim and create a new customary international law right of pre-emptive self-defence. So far the claim has received a degree of support from states.[95] There have been some expressions of agreement with the United States’ position. As discussed earlier, Australia has expressed its willingness to use pre-emptive force to avert terrorist threats, although it has not explicitly adopted a policy of pre-emption.[96] Japan[97] and India[98] have also referred to the option of taking pre-emptive action against North Korea and Pakistan respectively. However, on the whole, the United States’ claim has been met with concern.[99] If the recent Iraq war is viewed as a test of whether such a doctrine will be accepted, then widespread opposition to that military action indicates that the international community is a long way from embracing a right of pre-emptive self-defence.[100] At present the majority of states remain strongly opposed to introducing any such right.

Despite this current opposition, over time the United States’ claim may come to be accepted by the international community and hence develop into a new customary international law right. In the past, similar challenges to the use-of-force framework have initially been rejected but have eventually found acceptance. The claim of a right to use force against host states that support terrorism – the so-called Shultz doctrine – provides one such example.[101] When this assertion was first made by the United States in 1986 it was rejected by most states. Yet some 15 years later, after the 11 September attacks, it was almost unanimously accepted as providing a legal basis for the United States-led action against the Taliban in Afghanistan.[102] As a result, customary international law now encompasses a right to use force in self-defence against host states that support terrorist groups that have already committed attacks.[103] If the United States continues to promote a doctrine of pre-emptive self-defence, and events in the future convince other states of the need for such a right, then it may well become part of customary international law and result in a more expansive interpretation of article 51 of the Charter.

VII. Concluding Comments

More than a year after the Bush administration proclaimed its radical doctrine of pre-emptive self-defence there are still many unanswered questions. It remains unclear what limits there are on such a right, how widely it is intended to apply, and whether the United States will continue to promote this policy now that one of its main targets, Iraq, has been dealt with. However, a number of points are clear. First, the United States’ notion of pre-emptive self-defence has no basis in current international law. It must therefore be viewed as a challenge to the existing use-of-force framework. Second, the United States’ argument that new threats in today’s global system require new rules on the use of force does not stand up under closer scrutiny. The existing system of Security Council authorisation of force is an adequate means of dealing with threats posed by both non-state actors and rogue states. Third, rather than being a necessary development, pre-emptive self-defence would have dangerous consequences for the stability of the international system. It would undermine restraints on the use of force and could lead to increased military conflict. It is therefore fortunate that at this stage the international community remains opposed to any right of pre-emptive self-defence.

The future though is uncertain. Although the Bush administration appears to have retreated somewhat from its pre-emption rhetoric, it may be preparing itself for the next stage of its push to develop such a right.[104] The United States may now have decided that, as the only remaining superpower, it has a unique opportunity to re-shape the world as it desires. Its success in occupying Iraq and capturing Saddam Hussein, coupled with Libya’s recent decision to abandon its weapons-of-mass-destruction program, may be viewed by the Bush administration as evidence that pre-emption is not only necessary but also an effective means of achieving its foreign policy goals.[105] The fact that several months of diplomatic wrangling failed to produce explicit Security Council authorisation for force against Iraq may have convinced the Bush administration that in future it is simply easier to proceed unilaterally from the very beginning. This would mean by-passing the Security Council altogether. If the United States turns its attention to other rogue states, the absence of previous Security Council resolutions against those states may mean that, unlike the Iraq war, further military action can only have one possible legal basis: pre-emptive self-defence. Therefore, pre-emptive self-defence may soon be thrust even more directly onto the international agenda. If this occurs, and other states accept or acquiesce in a right of pre-emptive self-defence, it could mean a return to the dark old days where force, not the rule of law, governed international relations. Let us hope that the international community avoids going down this road to international anarchy.

[∗] BA, LLB(Hons) (Qld), LLM (Cantab); Associate Lecturer, Faculty of Law, Queensland University of Technology.

[1] The National Security Strategy of the United States of America (Washington, September 2002) 15 <> .

[2] For US legal justification see UN Doc S/2003/351 (letter dated 20 March 2003 from the Permanent Representative of the United States of America to the United Nations addressed to the President of the Security Council); for the UK justification see ‘Attorney General’s Iraq Response’ <> for the Australian justification see ‘The Memorandum of Advice on the Use of Force Against Iraq’ <> .

[3] This has been done by adopting strained definitions of the term ‘armed attack’. Eg the US maintained that a failed Iraqi assassination plot on former President George Bush in Kuwait in 1993 amounted to an armed attack. For more on this incident see D Kritsiotis, ‘The Legality of the 1993 US Missile Strike on Iraq’ (1996) 45 International and Comparative Law Quarterly 162.

[4] (1840-1841) 29 British and Foreign State Papers 1129.

[5] It has been revealed that the Clinton administration drew up plans to attack North Korea based on the notion of taking pre-emptive action to remove a nuclear threat. It did not, however, publicly promote such a policy, as the Bush administration has. See E Monaghan, ‘Clinton Planned Attack on Korean Nuclear Reactors’ The Times (16 December 2002) 12.

[6] The distinction between anticipatory self-defence and pre-emptive self-defence is explained in the next paragraph on terminology.

[7] Two other writers who make this distinction are W M Reisman, ‘Editorial Comment: Assessing claims to revise the laws of war’ (2003) 97 American Journal of International Law 82; M E O’Connell, ‘The Myth of Pre-emptive Self-Defence’ American Society of International Law Task Force on Terrorism (August 2002) <> .

[8] See the first part of the Preamble to the UN Charter: ‘We the peoples of the United Nations [are] determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind …’.

[9] Case Concerning Military and Paramilitary Activities in and against Nicaragua: Nicaragua v United States of America (Merits) (1986) ICJ Reports 3 [188] 190.

[10] Other possible exceptions include humanitarian intervention and the right to protect nationals abroad. Neither is universally accepted at present.

[11] This was confirmed by the ICJ in the Nicaragua Case, above n 9 [176], [177].

[12] One critic of the continuing reliance on the Caroline incident is T Kearley, ‘Raising the Caroline’ (1999) 17 Wisconsin International Law Journal 325.

[13] These are the famous words of US Secretary of State Daniel Webster, made in diplomatic correspondence between the US and UK following the Caroline incident. See above n 4.

[14] Authors who recognise anticipatory self-defence include D W Bowett, Self-Defence in International Law (1958) 187-92; T Franck, Recourse to Force (2002) 103; Sir Robert Jennings and Sir Arthur Watts, Oppenheim’s International Law (9th ed, 1992) 421. Those who reject it include I Brownlie, International Law and the Use of Force by States (1963) 257-76; C Gray, International Law and the Use of Force (2000) 112; L Henkin, How Nations Behave (1979) 141-44. Dinstein draws a distinction between anticipatory self-defence (unlawful) and interceptive self-defence (lawful), the latter being action taken at a ‘very early stage of an armed attack’. See Y Dinstein, War, Aggression and Self-Defence (2nd ed, 1994) 184-85.

[15] In the Nicaragua Case the ICJ recognised that the pre-Charter customary international law right of self-defence was not frozen. See [176].

[16] C Greenwood, ‘International Law and the Pre-Emptive Use of Force: Afghanistan, Al-Qaida, and Iraq’ (2003) 4 San Diego International Law Journal 7, 15.

[17] Franck, above n 14.

[18] W O’Brien, The Conduct of Just and Limited War (1981) 133.

[19] A C Arend, ‘International Law and the Preemptive Use of Military Force’ (2003) 8 The Washington Quarterly 94.

[20] This point is made by Gray, above n 14, 112-14.

[21] Ibid.

[22] For more on this incident see W T Mallison and S V Mallison, ‘The Israeli Aerial Attack of June 7, 1981, Upon the Iraqi Nuclear Reactor: Aggression or Self-Defense?’ (1982) 15 Vanderbilt Journal of Transnational Law 417.

[23] SC Res 487, 36 UN SCOR (2288th mtg), UN Doc S/RES/487 (1981); GA Res 27, 36 UN GAOR (56th plen mtg), UN DOC A/RES/36/27.

[24] It has been suggested that the responses of France and Italy imply that the two states recognised the concept of anticipatory self-defence but decided that the conditions under which it could be exercised did not exist in this particular situation. See Greenwood, above n 16, 14.

[25] The US response is discussed in A Cassese, International Law (2001) 309.

[26] Above n 9, [194].

[27] Cassese, above n 25, 310.

[28] President Bush referred to pre-emptive self-defence in an earlier speech at West Point military academy on 1 June 2002 <


[29] Letter dated 7 October 2001 from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, UN Doc S/2001/946.

[30] Above n 1.

[31] M Byers, ‘Letting the Exception Prove the Rule’ (2003) 17 Ethics & International Affairs 9, 11.

[32] The first step was its successful attempt to expand the right of self-defence to cover the use of force against states (eg Afghanistan) that harbour terrorists who have already committed terrorist attacks (eg Al-Qaida). This change appears to have occurred through a lowering of the threshold for state responsibility for the actions of non-state terrorist actors. For more on the Afghanistan war and its consequences for the right of self-defence see M Byers, ‘Terrorism, the Use of Force and International Law after 11 September’ (2002) 51 International and Comparative Law Quarterly 401; J L Paust, ‘Use of Armed Force against Terrorists in Afghanistan, Iraq and Beyond’ (2002) 35 Cornell International Law Journal 533.

[33] Above n 1.

[34] Reisman, above n 7, 87.

[35] I Daalder, ‘Policy Implications of the Bush Doctrine’ (16 November 2002), Council on Foreign Relations/American Society of International Law Roundtable on Old Rules, New Threats <>.

[36] Above n 31, 10.

[37] Reisman, above n 7, 87.

[38] This conclusion is shared by many commentators. See Byers, above n 31; O’Connell, above n 7; Daalder, above n 35.

[39] Above n 1.

[40] Above n 1, 13-15.

[41] Senator Robert Hill, ‘John Bray Memorial Oration’, University of Adelaide, (28 November 2002), referred to in A Martyn, ‘Disarming Iraq Under International Law – February 2003 Update’, Department of the Parliamentary Library Current Issues Brief No 9 2002-03, 3.

[42] Prime Minister Howard is quoted as having said: ‘It stands to reason that if you believed that somebody was going to launch an attack against your country, either of a conventional kind or a terrorist kind, and you had a capacity to stop it and there was no alternative other than to use that capacity, then of course you would have to use it.’ These comments are fairly uncontroversial but they provoked an angry response from many Asian states. See T J Haidon, ‘Australian Pre-emptive Military Strikes: Political and Legal Implications’ Counterpunch (16 December 2002) <>.

[43] The NSS actually uses the phrase ‘imminent threat’. What this really means is that there is no current threat but the possibility of a threat arising very soon. This accurately states the current US notion of pre-emptive action but it misrepresents the classic anticipatory self-defence requirement that there must be a threat of ‘imminent attack’.

[44] These include Greenwood, above n 16, 16; Reisman, above n 7, 16.

[45] Greenwood, above n 16, 16.

[46] This is unsurprising, as it is in the US interests to retain as flexible a doctrine of pre-emption as possible. For further discussion of the NSS see Daalder, above n 35.

[47] In his comments to a UK Foreign Affairs Committee inquiry on the war against terrorism, Professor Greenwood suggested that mere possession of a weapons capability would not be sufficient; there would have to be ‘some indication of an intention to use that [weapons capability]’. He indicated that such an intention could ‘come in part from a state’s past record and the fact that a state has itself been involved in activity of this kind’: with Iraq being the obvious example here. See United Kingdom House of Commons Foreign Affairs Committee, Foreign Policy Aspects of the War against Terrorism (2000-03) No 196 [156].

[48] Foreign Affairs Committee report, ibid [160].

[49] Comments of Ari Fleischer, Press Secretary to the President of the United States of America, at a Press Briefing at the White House, 2 December 2002 <> .

[50] Terrorism was recognised as a concern in this resolution. See Declaration on Principles of International Law Concerning Friendly Relations Among States, GA Res 2625, 25 UN GAOR (1883rd plen mtg), UN Doc A/RES/2625 (1970), Principle 1.

[51] Examples of previous terrorist attacks against the US include the 1986 bombing of a Berlin nightclub that killed several US servicemen; the 1998 bombing of US embassies in Nairobi and Dar es Salaam; and the October 2000 attack on the USS Cole in Yemen.

[52] Eg Australia has enacted a significant amount of anti-terrorism legislation since 11 September, including: Security Legislation Amendment (Terrorism) Act 2002 No 2 (Cth); Suppression of the Financing of Terrorism Act 2002 (Cth); Telecommunications Interception Legislation Amendment Act 2002 (Cth).

[53] Fortunately the only instance to date of terrorists using such weapons remains the 1995 sarin gas attack on a Tokyo subway by the Aum Shinrikyo cult.

[54] Above n 1, 15.

[55] Ibid.

[56] J Mearsheimer and S Walt, ‘Iraq: An Unnecessary War’ (2003) 134 Foreign Policy 50.

[57] Ibid 53.

[58] The Iraq situation can be distinguished from this, in that most states did not accept that Iraq was a serious threat, and were convinced that alternative measures (weapons inspections) were sufficient.

[59] Art 39 reads: ‘The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.’ Art 42 reads: ‘Should the Security Council consider that measures provided for in Article 41 [non-forcible measures] would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.’

[60] This is confirmed by art 1 of the Charter, which refers to taking ‘effective collective measures for the prevention and removal of threats to the peace …’.

[61] J Frowein, ‘Article 39’ in B Simma (ed), The Charter of the United Nations: A Commentary (2nd ed, 2002) 720.

[62] Greenwood, above n 16, 15.

[63] In relation to an assassination attempt on Egyptian President Mubarak see SC Res 1044, 51 UN SCOR (3267th mtg), UN Doc S/RES/1044 (1996); in relation to the attacks on US embassies in East Africa see SC Res 1189, 53 UN SCOR (3915th mtg), UN Doc S/RES/1189 (1998); in relation to Al-Qaida operations in Afghanistan see SC Res 1333, 55 UN SCOR (4251st mtg), UN Doc S/RES/1333 (2000) [8(c)].

[64] J Charney, ‘The Use of Force Against Terrorism and International Law’ (2001) 95 American Journal of International Law 835, 836.

[65] The inability of Security Council members to reach agreement on a resolution authorising the use of force against Iraq should not be seen as a failure. The Council is not there to rubber-stamp members’ requests to use force; it is designed to maintain or restore international peace and security: preferably through measures falling short of force. The majority of Security Council members believed that weapons inspections were working and hence there was simply no need to use force at that time.

[66] See M J Glennon, ‘Why the Security Council Failed’ (2003) 82 Foreign Affairs 16; R Perle, ‘Thank God for the death of the UN’ The Guardian (21 March 2003) 12.

[67] Above n 64, 837.

[68] This duty was first included in the Declaration on Principles of International Law Concerning Friendly Relations Among States, above n 50. It provides that: ‘Every state has the duty to refrain from organising, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organised activities within its territory directed towards the commission of such acts, when the acts referred to in this present paragraph involve a threat or use of force’.

[69] In the days leading up to the Iraq war many of the Security Council member states expressed concern at the possible humanitarian consequences of war against Iraq. See 58 UN SCOR (4721st mtg), UN Doc S/PV.4721.

[70] These are measures that can be taken under art 41 of the UN Charter.

[71] Unfortunately, the US made a strategic decision to by-pass the Security Council and rely instead on an expanded right of self-defence. For more on the Afghanistan war, see Byers, above n 32; Paust, above n 32.

[72] Although there was an element of power politics at play between the US and some European states prior to the Iraq war, there were other members of the Security Council who did not support the US. A clear majority of Security Council members were opposed to the use of force against Iraq because they believed weapons inspections were working.

[73] On doubts about the accuracy of claims of the threat posed by Iraq see R Norton-Taylor, ‘Tell us the truth about the dossier’ The Guardian (15 July 2003) 11.

[74] Above n 64, 836-37.

[75] Ibid 836.

[76] Ibid 836-37.

[77] Recent attempts to gain further UN involvement in stabilising and rebuilding Iraq may signal recognition of this. See M Allen and V Loeb, ‘US wants larger UN role in Iraq’, Washington Post (3 September 2003) 1.

[78] Above n 31, 13.

[79] Ibid 14.

[80] For more on the possible consequences of the Bush administration’s doctrine see Daalder, above n 35; O’Connell, above n 7; on a possible scenario in the future see T Farer, ‘Beyond the Charter Frame: Unilateralism or Condominium’ (2002) 96 American Journal of International Law 359.

[81] Above n 35.

[82] Above n 47 [154].

[83] Above n 35.

[84] Ibid.

[85] To be fair to Prime Minister Howard, when read in context, his comments are not particularly controversial. They did, however, provoke a furious response from Malaysia, Indonesia and other South-East Asian states. See M Metherell and C Marriner, ‘PM’s invasion threat angers Asia’ Sydney Morning Herald (2 December 2002) 1.

[86] See S Green, ‘Japan strike threat to Korea’ Sydney Morning Herald (15 February 2003) 13.

[87] Above n 48.

[88] Note that persistent objectors to a particular customary international law rule will not be bound by that rule.

[89] D Anton et al, ‘Coalition of the willing? Make that war criminals’ Sydney Morning Herald (26 February 2003) 12.

[90] It reads: ‘nor should nations use preemption as a pretext for aggression’, above n 1, 15.

[91] Israel undertook significant incursions into territory controlled by the Palestinian Authority after suffering a series of terrorist attacks in December 2001. See F Kirgis, ‘Israel’s Intensified Military Campaign Against Terrorism’ American Society of International Law Insights (December 2001) <> India threatened to use force against Pakistan after an attack by Pakistani-based militants on the Indian Parliament. See ‘India Moves Missiles to Pakistani Border’ The Guardian (27 December 2001).

[92] Some might prefer such a right to be limited to the US rather than being exercisable by all states; others would argue that an unchecked superpower is just as dangerous.

[93] Reisman, above n 7, 15.

[94] Art 2(1) of the UN Charter reads: ‘The Organization is based on the principle of the sovereign equality of all its Members.’

[95] The US claimed that 40 states supported using force against Iraq, although it would not reveal the names of all states. See S Anderson, P Bennis and J Cavanagh, Coalition of the Willing or Coalition of the Coerced? (2003) 1.

[96] See Section II of this article.

[97] Above n 86.

[98] ‘India’s neighbour warns it will use “full force” if India tries pre-emptive strike’, The Guardian (Charlottetown) (4 April 2003) B12.

[99] See G Frankel, ‘New US Doctrine Worries Europeans’ Washington Post (30 September 2002) 1.

[100] Although the US and its allies ultimately justified the war against Iraq on the grounds of Security Council authorisation, the major issue was whether to act pre-emptively against a threat and therefore much of the discussion prior to the war was based on the issue of pre-emptive self-defence. The war is now viewed by many as an example of pre-emptive self-defence, despite the official authorisation argument. It was opposed by major states like France, Germany, China, Russia, Mexico and Canada.

[101] Byers, above n 31, referring to US Secretary of State George Shultz, ‘Address to the National Defense University, Washington, January 15, 1986’, (1986) 25 ILM 206.

[102] This is not to say that all or even most international lawyers regarded the war against Afghanistan as legal, merely that the vast majority of states accepted the US justification and therefore the principle underpinning that justification – namely, that states have the right to use force in self-defence against host states that support terrorist groups that have already committed attacks - became part of customary international law.

[103] For more on changes to customary international law as a result of the war in Afghanistan see Byers, above n 32.

[104] Cf Daalder, above n 35, who suggests that the Bush administration has now realised that it was unwise to promote publicly pre-emptive self-defence and this will mean it is a short-lived doctrine.

[105] Note that it is unclear whether Libya’s decision to abandon its weapons-of-mass-destruction program was prompted by recent events in Iraq and fears that it could be targeted by the US in the future. It may simply be the latest step in Libya’s ongoing efforts to improve its international reputation and end its international isolation.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback