Pre-Emptive Self-Defence When does an armed attack occur?

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Pre-Emptive Self-Defence

When does an armed attack occur?

Michael Sandin

Juridiska institutionen Examensarbete 30 hp.

Ämnesinriktning: International law Vårterminen 2021

Grupphandledare: Jarna Petman Engelsk titel:

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Abstract

The Charter of the United Nations¹ (UN Charter) was signed in 1945 following two world wars with the objective of outlawing interstate force completely and maintain international peace and security. The challenges of 1945 are not, however, the same as those of today. This leaves us with a legal framework on the use of force not fully compatible with modern day threats.

The right to self-defence in international law is stipulated in article 51 of the UN Charter. A literal reading of the article does not grant states the right to act pre-emptively, that is, acting in self-defence against an attack that has not yet fully materialized. The seemingly restrictive regulation has not, though, refrained states from acting pre-emptively when such action has been deemed necessary.

From the signing of the UN Charter, until today, there are several cases of state practice where pre-emptive self-defence has been used, and where the defending state has argued legal practice in accordance with Article 51 of the UN Charter.

The reactions from the international community have varied from case to case, and the debate regarding the scope of self-defence has been going on since the signing of the Charter. It did, however, gain new attention when the United States (US) in its 2002 National Security Strategy (NSS) for the first time made the doctrine of pre-emptive self-defence part of a state’s official policy. The debate regarding the legality of the doctrine has continued until the present day.

In this thesis, a case study has examined whether the doctrine of pre-emptive self-defence has reached the status of customary international law. There are several instances where pre-emptive self-defence has been used in state practice, but the uses are not consistent or general enough, and the legal justification has not been sufficiently uniform, thus falling short of fulfilling the requirements of general practice and opinio juris required to create a new legal norm under customary international law. The response from the international community to the different cases strengthens this conclusion. There is, however, no question states will continue to push the boundaries should the applicability of present law continue to supply insufficient means of self-defence. The risk with having an outdated law, which states perceive as ineffective in relation to the threats of today, is an erosion of the trust in the UN Charter and a continued bypass of the UN Security Council (UNSC).

1Charter of the United Nations, 24 October 1945, 1 U.N.T.S. XVI

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Abbreviations

AUMF Authorization for Use of Military Force IAEA

ICBM International Atomic Energy Agency

Intercontinental Ballistic Missiles

ICJ International Court of Justice

ICJ Statute Statute of the International Court of Justice

IGO Inter-Governmental Organization

IRGC The Iranian Military of the Quds Force of the Islamic Revolutionary Guard Corps

JCPOA The Joint Comprehensive Plan of Action NATO North Atlantic Treaty Organization NPT

NSS Treaty on the Non-Proliferation of Nuclear Weapons National Security Strategy

OAS Organization of American States

UAR The United Arab Republic

UK The United Kingdom

UN United Nations

UNEF United Nations’ Emergency Force

UNGA United Nations General Assembly

UNMOVIC The United Nations Monitoring, Verification and Inspection Commission

UNSC

US United Nations Security Council

The United States of America

VCLT The Vienna Convention on the Law of Treaties of 1969

WMD Weapons of Mass Destruction

WWII Second World War

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1 Introduction

1.1 Background

Since the signing of the UN Charter in 1945 the way of which war and conflict are fought, and the adversaries faced, have changed. WMD, especially nuclear weapons, could inflict harm to a small nation in ways from which it would never recover. Rapid technological advancements allow such weapons to be delivered fast and silent, effectively removing the ability for a satisfying protection once the attack is initiated or the button pressed. Also, the drafters of the UN Charter, who had interstate conflicts in mind, did not foresee the threat of non-state actors. Weak or collapsed states have provided a safe haven for the growth of terrorist organizations, effectively changing the dynamic of international conflict.

A terrorist organization, unlike a state, does not necessarily have a territory, nor a civilian population, to protect. It does not care about international law. These threats of WMD, terrorism and “rogue states”² with little regard to international law require a legal framework on self-defence that allow states to properly protect themselves. These developments of new and more lethal threats have resulted in a practice by states, dating back at least sixty years, where they continue to push the boundaries of when the use of force in self-defence is allowed.

Article 2(4) of the UN Charter prohibits the use of force. There are two exceptions to this prohibition: self-defence authorized by the UNSC as stipulated in Chapter VII of the UN Charter, and self-defence according to Article 51. As the International Court of Justice (ICJ) has stated in the Nicaragua Case, norms of customary international law can exist parallel to those of the UN Charter, and grant the same obligations and rights.³ By the practice of states, acting pre- emptively against threats posed by both other states and non-state actors as if the action would be within the legal scope of Article 51 of the UN Charter, a relevant question to examine is if such actions have created a new legal norm in customary international law, allowing pre-emptive self-defence as a legitimate act of self- defence.

2 A term explained as states that: brutalize their own people, disregard international law, wants/have acquired WMD with the intent to use or threat to use, sponsor terrorism, reject basic human values in The United States National Security Strategy of September 2002, p. 14, URL:

https://2009-2017.state.gov/documents/organization/63562.pdf (last visited 21 May 2021)

3 Nicaragua Case (Merits) Nicaragua v United States (1986) ICJ Rep 14, para. 175-6

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1.2 Purpose and Research Question

The purpose of this thesis is to highlight the development of use of force in self- defence in international law as justified by the doctrine of pre-emptive self- defence. According to this doctrine, legal self-defence can be used to halt a tangible course of action that the victim state perceive will shortly evolve into an armed attack against it. The victim state has good reasons to believe such an attack is likely, and, if it takes place, will result in significant harm.⁴ Such action was, for example, taken by Israel in 1981 when they executed an air-strike on a not yet operational nuclear reactor inside Iraq. Israel claimed that the action was in self-defence and that the self-defence was necessary to prevent a future WMD attack.⁵ Following the terrorist attacks of September 11, 2001 (9/11), the US stated it would use force in self-defence pre-emptively against threats by its adversaries should that be necessary to maintain its national security⁶. This positioning by the US reignited the debate regarding the doctrine’s legality in international law.

This thesis will examine whether the doctrine of pre-emptive self-defence has become a part of international law, and thus if it is a legitimate way of using force in self-defence. In order to reach a conclusion, the following question will be answered:

- Has the doctrine of pre-emptive self-defence reached the status of customary international law?

1.3 Method and Material

The research question will be answered by examining the content of the doctrine of pre-emptive self-defence and cases of state practice relevant to the topic. In order to establish the legality of pre-emptive self-defence in international law, a variety of different legal sources and other relevant material will be examined.

The study employs a traditional legal dogmatic- and a legal positivist methodology⁷. The traditional legal dogmatic methodology requires the sources used to be authoritative and gives guidance when deciding which ones set precedent if a dispute occurs. Since this thesis deal with international law, a view of what international law actually consists of is required in order to apply the legal dogmatic method. Legal positivism is chosen since it is the dominating legal theory, and its proposition of international law as a normative system represent a description of the legal order generally considered authoritative. A legal

4 Deeks, Ashley S, Ch. 29 Taming the Doctrine of Pre-Emption, in Marc Weller (ed) Part III The Prohibition of the Use of Force, Self-Defence, and Other Concepts, The Ox-ford Handbook of the Use of Force in International Law, 2015, pp. 662-63

5 Un Doc. S/14510 (Letter from the Permanent Representative of Israel to the Security Council, 8 June 1981)

6 The United States National Security Strategy of September 2002, p. 15

7 Nääv, M, Zamboni, M, Juridisk metodlära, Studentlitteratur, Lund, 2018, pp. 21, 47

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positivist perspective on the law also harmonises well with the purpose of this theses since the aim is to determine de lege lata.⁸

International law, as described by legal positivists, is the body of rules that regulate the relations between and conduct of states. The legal positivist theory in general (all though there are many sub-categories) focuses on what the law is in a given time and place and strives to reach a conclusion on a formal rather than ethical or moral criteria of identification. The theory acknowledges consent is required for international law to exist. It could be said that international law consists of a common consent among an international community that a body of rules is required to regulate the conduct of members within that community.⁹ The sources used to establish the legality of pre-emptive self-defence in international law are the ones listed in Article 38 of the Statute of the International Court of Justice¹⁰ (ICJ Statute). Article 38 is not a formal listing of the sources of international law. It is used by the ICJ to resolve international disputes and establish de lege lata. It is however commonly viewed as a list of international law sources.¹¹

Article 38(1)(a) of the ICJ Statute contains international conventions such as bilateral or multilateral treaties and article 38(1)(b) contains customary international law. These norms represent primary sources of international law.

Article (1)(d) lists judicial decisions and the teachings of the most highly qualified publicists. This could be described as secondary sources of international law and will be used as guidance when determining primary sources of international law.¹²

Customary international law, as listed in Article 38(1)(b), stems from custom.

In order for custom to become legally binding customary international law two elements must be fulfilled. The objective element, usus, is a consistent practice by states. The subjective element, opinio juris, requires the state to believe the practice reflect a legal obligation. Both these elements together make the emerging of a new legally binding customary norm possible.¹³

The UN is an inter-governmental organization (IGO). The doctrine of the organization stems from the will and opinions of its members. Resolutions from UNSC and the United Nations General Assembly (UNGA) could therefore be seen as opinio juris in relevant cases. While resolutions from the UNGA are non- binding, they can, and sometimes do, contribute to the process of new treaties or customary norms. Resolutions from the UNSC when acting under Chapter VII of the UN Charter are binding on all member states.¹⁴

Some non-traditional sources will also be used in this thesis such as official state documents, official statements, and news articles from prominent media

8 Amnéus, D, Responsibility to Protect By Military Means – Emerging Norms on Humanitarian Intervention?, Department of Law, Stockholm University, Stockholm, 2008, pp. 25-6

9 Ibid, p. 27; Jennings, R, Watts, A, Oppenheim’s International Law, 9th edition, Vol. 1, Oxford: Oxford University Press, 2008, p. 4

10 Statute of International Court of Justice, United Nations, 18 April 1946.

11 Bring, O, Mahmoudi, S, Wrange, P, Sverige och Folkrätten, 5th ed., Stockholm: Nordstedts Juridik, 2014, p. 27

12 Ibid, pp. 27-33

13 Ibid, p. 29

14 Ibid, pp. 21, 32

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outlets. The primary reason for this is to show possible opinio juris, and to be able to examine the most recent events.

1.4 Definitions and Delimitation

There are mainly three different terms states and scholars use when discussing the use of force in advance of an armed attack: anticipatory self-defence, pre- emptive self-defence and preventive self-defence. Even though these are the most commonly used terms, the meaning put into the terms vary between commentators. In this paper, the definition of pre-emptive self-defence places the doctrine in-between anticipatory self-defence and preventive self-defence, according to the following definitions:

Anticipatory self-defence: The use of force in self-defence used to halt an imminent armed attack by a state or a non-state actor. This definition stems from the Caroline Case and lets a state respond before an attack is completed, but only when the need to respond is ‘instant, overwhelming, and leaves no choice of means, and no moment for deliberation’.¹⁵

Pre-emptive self-defence: “The use of force in self-defence to halt a particular tangible course of action that the victim state perceives will shortly evolve into an armed attack against it. The attack appears more distant in time than an attack forestalled by anticipatory self-defence, but the potential victim state has good reason to believe the attack is likely, is near at hand, and, if it takes place, will result in significant harm”.¹⁶

Preventive self-defence: The use of force in self-defence to stop a future threat of an attack that has not yet taken place and without the knowledge of when or where the attack may emerge.¹⁷

Cyber attacks as possible armed attacks that would justify the use of force in self-defence in international law have been left outside the scope of this examination, since a whole thesis could be written solely about this topic.

1.5 Outline

The paper is divided into six chapters. Following the introduction, the second chapter will give a brief overview of the generally agreed upon principles of the law on self-defence in international law, including how customary international law is established. This is required to give the reader basic knowledge in preparation for following chapters. The third chapter examines the doctrine of pre-emptive self-defence with special focus on the Bush Doctrine. Chapter four broadens the examinations scope and explores different writers and states interpretations of key elements regarding the doctrine. Chapter five contain state

15 Deeks, 2015, p. 662

16 Ibid, pp. 662-63

17 Ibid, p. 663

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practice in a number of cases where use of force in self-defence prior to an actual armed attack has been used. Lastly, there will be a conclusion.

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2 The Law

2.1 The UN Charter

The Charter of the United Nations was drafted in San Francisco 1945, after two World Wars, with the ambition to outlaw force completely. The charter was signed by representatives from fifty nations on 26 June 1945. Today, the UN consists of 193 member states.¹⁸

The Vienna Convention on the Law of Treaties of 1969¹⁹ (VCLT) stipulates how the UN Charter should be interpreted. Article 31 (1) and (2) states that a treaty should be interpreted according to its ordinary meaning and context with regards to its object and purpose. Article 32 states that preparatory work and the circumstances of its conclusion may be regarded in the interpretation of a treaty should that be necessary to interpret a treaty according to Article 31. The ICJ has stated though that consideration of developments in international law sometimes might be needed.²⁰

2.1.1 The prohibition of the use of force

The central rule on the use of force regulating the present-day jus ad bellum is found in article 2(4) of the UN Charter, which proclaims:

“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.”²¹

The use or threat of force, stipulated by the article, is only abolished in the

“international relations” of Member States and does not cover Intra-State conflicts. The term “force”, even though not preceded by the adjective “armed”,

18 Information from UN website, URL: https://www.un.org/en/about-us (last visited 21 May 2021)

19 Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, Volume 1155.

20 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), (2009), Judgment, ICJ Rep. 213, p. 33

21 Dinstein, Y, War, Aggression and Self-Defence, 4th ed., Cambridge: Cambridge University Press, 2005 p. 85.

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does not include psychological or economic pressure.²² It should be noted that there has been, and still to a limited extent is, a debate regarding the scope of

“force”, where developing countries and formerly the Eastern bloc countries claimed that the prohibition of the use of force also comprised other forms of force such as political and, in particular, economic coercion.²³

Regarding the threat of force in Article 2(4) the ICJ in the 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons stated that:

“The notions of ‘threat’ and ‘use’ of force under Article 2, paragraph 4, of the Charter stand together in the sense that if the use of force itself in a given case is illegal – for whatever reason – the threat to use such force will likewise be illegal.”²⁴

Generally, the use or threat of force against the territorial integrity or political independence by one state against another is prohibited, with two exceptions:

legal use of force authorized by the UNSC and legal use of force in self-defence.

All other uses of force are illegal.²⁵

2.1.2 The UN Security Council

Only the UNSC can authorize the use of force against a state. According to Article 39 of the UN Charter, the UNSC are responsible for maintaining or restoring international peace and security. Should the UNSC find the existence of any threat to the peace, breach of the peace, or acts of aggression, it shall give recommendations, or decide what measures shall be taken in accordance with Article 41 and 42.

The measures stipulated in Article 41 are solutions not involving armed force that the UNSC can call upon the Members of the UN to apply in order to give effect to its decisions. These measures may include interruptions of economic relations, disconnection of other means of communication, and the severance of diplomatic relations.

Should measures taken in accordance with Article 41 prove to be inadequate, or would such measures be inadequate from the start in order to maintain or restore international peace, Article 42 grants the UNSC military action if necessary. In addition, it also grants Members of the United Nations military action, such as demonstrations, blockade, and other operations, if the UNSC gives the member mandate.

The second exception to the prohibition of the use of armed force, legal force in self-defence, is found in Article 51.

22 Dinstein, 2005, p. 86.

23 Dörr, O & Randelzhofer, A, Purposes and Principles, Article 2(4) in Simma, B (Ed), The Charter of the United Nations: a commentary. Vol. 1, 3rd ed., Oxford Commentaries on International Law, 2012 pp. 208–9.

24 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Rep 1996, p. 226, para 47.

25 Yoo, J, Using Force, The University of Chicago Law Review, Vol. 71, No. 3, 2004, 729, p. 738

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2.2 Article 51

Article 51 of the UN Charter regulates the right to legal self-defence and stipulates that:

“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 UNSC has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the UNSC and shall not in any way affect the authority and responsibility of the UNSC under the present charter to take at any time such actions as it deems necessary in order to maintain or restore international peace and security.”

The provision needs to be read in conjunction with article 2(4) of the charter since it is an exception to the prohibition. Therefore, only one of two opposing states can use legal self-defence, which must be a response to unlawful use of force, an armed attack.²⁶

The law on self-defence in international law is the subject of the most fundamental disagreement between states and between writers. The development of the ‘Bush doctrine’ of pre-emptive self-defence reignited the debate after the 9/11 attacks and brought a fundamental reappraisal of the law on the use of force against terrorism.²⁷

Even though there are fundamental disagreements regarding the scope of the right to self-defence, almost all states and writers agree that there are more to self-defence than what is stipulated in the UN Charter. Proportionality and necessity, deriving from customary law, are aspects of the law on self-defence still relevant today but not included in article 51.²⁸

2.2.1 Inherent right

The first sentence of article 51 provides: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs…”. The sentence creates several legal effects. One effect is that the article recognizes the inherent right of self-defence and, in this respect, can be contrasted from the General Treaty since the latter did not expressly recognize the inherent right or expressly exempt it from the prohibition of war. This is because self-defence was considered a manifestation of state sovereignty, inviolable and undefinable by any treaty. Another legal effect is the protection of this inherent right against ‘impairment’ by the provisions and use of the Charter.

‘Impairment’ could in this case refer to two different respects: the respect of the

26 Dinstein, 2005, p. 177.

27 Gray, C, International Law and the Use of Force, 4th ed., Oxford Public International law, 2018 p.

120.

28Shaw, M N, International Law, 5^th ed., Cambridge: Cambridge University Press, 2003 p. 91

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existence of the right in international law per se, in respect of the right’s legal scope, or both.²⁹

This explanation of ”inherent right” was also put forth by the ICJ in the Nicaragua Case which stated that: “On one essential point, this treaty itself refers to pre-existing customary international law; this reference to customary law is contained in the actual text of Article 51, which mentions the ‘inherent right’ (in the French text the "droit naturel") of individual or collective self-defence, which

‘nothing in the present Charter shall impair’ and which applies in the event of an armed attack. The Court therefore finds that Article 51 of the Charter is only meaningful on the basis that there is a ‘natural’ or ‘inherent’ right of self-defence, and it is hard to see how this can be other than of a customary nature, even if its present content has been confirmed and influenced by the Charter.”.³⁰

2.2.2 Armed Attack

There is unity among states regarding the lawfulness of self-defence if an armed attack occurs. The ongoing controversies rather centres around what actually constitutes an armed attack. The textbook case of an armed attack is one where a military division of one state enters the territory of another state. Another accepted example of an armed attack is one where a state attacks forces of another state outside its territory. It gets tricky, however, when trying to define the concept and identify the exact start of an armed attack. Examples showcasing this difficulty is intercontinental ballistic missiles (ICBM) and naval mines.³¹

”Aggression” is a term used several times in the Charter and is defined by the UNGA in the Resolution on the Definition of Aggression.³² An armed attack is a sort of aggression, but the threat of force is not included in the definition.³³ Further, no explanation or definition of ”armed attack” can be found in the Charter, nor in the definition of Aggression.

2.3 Customary International Law

The disagreement regarding the scope of self-defence is commonly based on different interpretations of Article 51. The reference in the article to ‘inherent right’, as mentioned in chapter 2.2.1, is often seen as a way of preserving the earlier customary international laws right to self-defence since the Charter does not take away pre-existing rights without express provision. Others would argue that the wording of Article 51 is clear and that no right to self-defence arises except when an armed attack occurs.³⁴ Even though states and writers disagree

29 Murray, C A, The Inherent Right of Self-Defence in International Law, Vol. 19, IUSGENT, 2013, p. 84

30 Nicaragua Case (Merits) Nicaragua v United States (1986) ICJ Rep 14, para. 175-6

31 Gray, 2018, p. 134-5.

32 General Assembly Resolution 3314 of 14 December 1974

33 Dinstein, 2005, p. 184.

34 Gray, 2018, p. 124.

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regarding the interpretation of Article 51, almost all agree that there is more to self-defence in international law than what is stipulated in the Charter.

The view that a customary international law right on self-defence exists alongside Article 51 was stated by the ICJ in the Nicaragua case, as mentioned above.³⁵ This does not mean both rules need to be exact in content. The law establishing self-defence is found in the UN Charter while the characteristics of that law can be found in customary law.³⁶

In order to assess whether a norm can be considered part of customary international law it is needed to establish both a “general practice”, and the belief that such practice is the correct behaviour and legally binding, opinio juris. The approach to establish customary international law is generally accepted by states and adopted by the ICJ, as well as recognized in the literature.³⁷ If used to identify Customary International law, there needs to be a “general practice” that is

“accepted as law”.³⁸

2.3.1 The Caroline Case

The traditional definition of the scope of self-defence in customary international law stems from the Caroline case. The case centres around an incident from 1837 where British subjects seized and destroyed a vessel, called Caroline, in an American port. The seize was a response to raids performed by American Nationals and insurgents in Canadian territory, and the Caroline was a vessel used to transport supplies from the American side to a Navy Island, a British possession on the river boundary between Canada and the United States where the insurgents planned their attacks towards Canada. Following the seize and destruction of the Caroline, the American Secretary of State laid down the essentials of self-defence in international customary law. There had to exist “a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation”. Such conditions where not only required in order for self-defence to become legitimate, but the action taken in pursuance of it could not be excessive ”since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it”, i.e proportionate.

The principles laid down by the Secretary of State was accepted by the British government at the time and are considered as part of customary international law.³⁹

2.3.2 Proportionality and Necessity

Almost all states agree that self-defence must be necessary and proportionate, two requirements traced back to the Caroline case. The requirements have played

35 I.C.J Rep 1986, p. 14, para 176.

36 Ibid, para 175, 181, 194

37 International Law Comission, Second Report on Identification of Customary International Law, UN Doc.

A/CN.4/672, para. 21

38 Ibid, para 22; ICJ Statute Article 38 (1)(b)

39 Shaw, 2003, pp. 1024-5.

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a vital role in state justification of the use of force in self-defence and in international response. The Nicaragua Case⁴⁰, the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons⁴¹, The Oil Platforms Case⁴² and Armed Activities on the Territory of Congo⁴³ are all examples of when necessity and proportionality have been included in the deliberation regarding self-defence and have given more validity to the claim that proportionality and necessity are limits on all self-defence, both collective and individual.⁴⁴

40 I.C.J. Rep 1986, p. 14, para 194.

41 I.C.J. Rep 1996, p. 226, para 41.

42 Oil Platforms (judgment) Islamic Republic of Iran v. United States of America, I.C.J. Reports 2003, p. 161, para 43.

43 ICJ Rep 2005, p. 168, para 147.

44 Gray, 2018, p. 158-9.

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3 Pre-Emptive Self-Defence

3.1 Pre 9/11

Following the inception of the UN Charter in 1945 there has been, and still is up to this day, a doctrinal division regarding the legality of anticipatory self-defence as part of customary international law. If this right still exists, it is by nature of customary law influenced by state practice since 1945. Several authors argue that state practice since 1945 confirms the existence of anticipatory self-defence.

States in these cases does not always themselves argue anticipatory self-defence as a legal basis for their actions. More often states argue they were the victim of an actual armed attack which activated the right of self-defence according to article 51. This argumentation, even though the action itself seems like anticipatory self-defence, was probably used due to the controversial nature of anticipatory action.⁴⁵ In chapter 5, cases of state practice where states have used either anticipatory- or pre-emptive self-defence in their relations to other states or non-state actors are listed, and contain cases from as long as sixty years ago.

One case in which a state used anticipatory self-defence as legal basis for their action was the Osirak bombing by Israel in 1981 (see chapter 5.3). The Israeli action was condemned by both the UNSC and the UNGA in two separate resolutions.⁴⁶ The resolutions did however never reject the doctrine of anticipatory self-defence per se. Some states, following the Israeli action, such as Egypt and Mexico, condemned the notion of anticipatory action. Others, including France and Italy, condemned the Israeli action since the case lacked evidence of an imminent attack by Iraq. The US supported the notion of anticipatory self-defence but rejected the Israeli claim due to a lack of exhaustion of peaceful and diplomatic means to solving the conflict.⁴⁷

The ICJ has never ruled on the legality of anticipatory self-defence. In the Nicaragua Case the Court purposely declined to give any statement regarding

“the issue of the lawfulness of a response to the imminent threat of an armed

45 Garwood-Gowers, Andrew. Israel's Airstrike on Syria's Al-Kibar Facility: A Test Case for the Doctrine of Pre-Emptive Self-Defence, Journal of Conflict and Security Law, volume 16, number 2, 2011, p. 263

46 Security Council Resolution 487 of June 19 1981; General Assembly Resolution 36/27 of 13 November 1981.

47 Garwood-Growers, 2011, p. 274

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attack” since the Court found that facts of the case did not require it.⁴⁸ In the Nuclear Weapons case the Court took a similar approach, avoiding the topic altogether.⁴⁹

The authors doctrinal division together with the sometime ambiguous state practice involving anticipatory self-defence and the reluctance from the ICJ in giving a definite statement of its legality, made the legal status of anticipatory self- defence somewhat unclear prior to the Bush doctrine in 2002, see chapter 3.4.

3.2 The Bush Doctrine

3.2.1 Theoretical construction

When the US and others launched Operation Enduring Freedom on 7 October 2001 (see chapter 5.4) the US Permanent Representative to the UN wrote to the president of the UNSC stating that the action was in self-defence with legal justification found in article 51 of the UN Charter.⁵⁰ In the letter he used the word “ongoing” threat referencing a continued threat to the US by Al-Qaeda and the Taliban.⁵¹ The letter however went further than just claiming a right to self- defence against Afghanistan since it also contained the phrase “[w]e may find that our self-defence requires further actions with respect to other organisations and other states”.⁵² Since then, it has become clear the reason for this wording was an ambition to secure advanced support for an extension of the right to self- defence to encompass the sphere of unilateral pre-emption.⁵³

President Bush continued the work towards an expansion of the self-defence doctrine in his State of the Union address in 2002. In his speech, President Bush concluded that it was in the intersection between terrorism, rouge states and WMD the biggest threat to America was found, and that there was an “axis of evil” consisting of Iran, Iraq and North Korea.⁵⁴ The President continued building on the new doctrine when he, in the beginning of June 2002, claimed a right to use pre-emptive force on states deemed a threat but without the need for an actual attack on the US to have taken place.⁵⁵ President Bush stated that the

48 I.C.J. 1986, Rep 14, para 194.

49 I.C.J. Rep 1996, p. 226

50 Un Doc. S/2001/946 (letter from the Permanent Representative of the United States to the Security Council, 7 October 2001)

51 Ibid.

52 Ibid.

53 Henderson, C, The Bush Doctrine: From Theory to Practice, Vol. 9, JCSL, 2004, p. 6

54 State of the Union Address, 29 January 2002, URL: https://georgewbush-

whitehouse.archives.gov/news/releases/2002/01/20020129-11.html (last visited 21 May 2021)

55 Remarks by the President at 2002 Graduation Exercise of the United States Military Academy at West Point, 1 June 2002, URL: https://georgewbush-

whitehouse.archives.gov/news/releases/2002/06/20020601-3.html (last visited May 21 2021)

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US needed to “confront the worst threats before they emerge”⁵⁶ and that they had to be “ready for pre-emptive action when necessary”.⁵⁷

All the previous build-ups took formal shape in the National Security Strategy (NSS), released in September 2002.⁵⁸ This document made clear the US would not make difference “between terrorists and those who knowingly harbour or provide aid to them”.⁵⁹ It appears that the doctrines of deterrence and containment used during the Cold War had been replaced when facing threats of the twenty-first century such as international terrorism and WMD. In other words, since the threat now came from a combination of terrorist organizations without a nation or citizens to protect and unstable dictators with WMD, the corresponding strategy for self-defence had to change as well.⁶⁰ And, following the NSS, there was no doubt that the US would exercise its “right of self-defence by acting pre-emptively against such terrorists”.⁶¹

3.2.2 Legal justification

Some authors have argued that the prohibition of the “threat or use of force” in article 2(4) of the UN Charter has lost its validity⁶², but seeing how states almost always try to seek justification for their actions when using force, it is clear that the prohibition is still in effect. There are two exceptions to the prohibition of force by states in the UN Charter: either collective security action authorized by the UNSC under Chapter VII, or individual and collective self-defence under Article 51. Pre-emptive action could be authorized by the UNSC, while self- defence according to Article 51 is restricted to when an armed attack occurs.⁶³

However, if a state acts in accordance with the strict principles of customary international law by fulfilling the requirements of necessity, proportionality and imminency, or as put forth in the Caroline Case: “necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation”⁶⁴, self-defence action taken in anticipation of an armed attack will be legitimate.⁶⁵ This legal reasoning is found in the NSS from 2002:

“For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent

56 Ibid.

57 Ibid.

58 The National Security Strategy of the United States of America (NSS), September 2002

59 Ibid, p. 5

60 Henderson, 2004, p. 7

61 NSS, 2002, p. 6

62 See for example: T.M. Franck, Who Killed Article 2(4)?, American Journal of International Law, Volume 64, number 4, 1970, pp. 809, 835

64 Shaw, 2003, p. 1025.

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threat—most often a visible mobilization of armies, navies, and air forces preparing to attack.”⁶⁶

The NSS continued by stating: “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.”⁶⁷

What can be gathered from the NSS in regard to the Bush Administration’s view on the legitimacy of self-defence prior to an actual armed attack is that it hinges on the existence of an imminent threat. The administration does however set the goal of expanding the definition of such imminence in order to deal with new threats of international terrorism and WMD. By doing this, the US leaves the previously recognized boundaries of customary law on self-defence as described above for a new, potentially unlawful, security strategy of a wider pre- emptive nature. The question is whether the events of 11 September made such an expansion on the scope of imminence justified, and if so, what the reactions from the international community were, and if the community accepted the change as legitimate.⁶⁸

3.2.3 Interpretation of imminence

Traditionally, the main actors in international relations have been states, and therefore international law that regulates the recourse to force is focused on states and their dealings, with little to no consideration of terrorist groups. This is also true for WMD, which at the time of the creation of the law was not seen as a major problem. But, when considering that terrorism and WMD can strike states in ways that international law could not anticipate, especially after 9/11, it is easy to see how the development of the doctrine of pre-emptive self-defence started.⁶⁹ President Bush expressed concerns regarding this by saying that “if we wait for threats to fully materialise, we will have waited too long”.⁷⁰

Previously, when following the criteria of the Caroline Case, a state that was attacked by conventional means usually had enough time to prepare before the actual attack took place and survived, since the traditional way of attacking another state was by mobilisation of troops and other overt actions visible by the victim state.⁷¹ When faced with the threats of today such as secretly state- sponsored attacks by terrorists in possession of advanced technology and WMD, some writers argue that the requirements of the Caroline Case cannot rationally

66 NSS, 2002, p. 15

67 Ibid, p. 15

69 Ibid, p. 9

70 Remarks by the President at 2002 Graduation Exercise of the United States Military Academy at West Point, 1 June 2002.

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apply as is, but requires modification in order to meet the new threats and give states a chance at survival.⁷² Some writers also argue that terrorists often target civilians rather than military installations with some degree of protection, as civilians and non-combatants are soft targets that most likely will be destroyed if attacked, making pre-emptive self-defence the only method of effectively stopping terrorist attacks from materializing.⁷³ Basically the argument is that when an WMD- or terrorist attack is considered “imminent” by the traditional standard it may very well be too late for a state to mount an effective defence.⁷⁴ If there was a terrorist group not yet responsible for any attacks, when could the requirement of “imminent” be considered fulfilled in regard to an attack from such a group?⁷⁵ In the NSS, the thought of taking unilateral pre-emptive action is “compelling…even if uncertainty remains as to the time and place of the enemy’s attack”.⁷⁶ By the wording in the NSS, it seems as if the Bush Administration is putting forth a rule which gives it the right to attack any terrorist group or state whenever a possible threat is located, regardless of whether such action has support from the international community. The general acceptance of such a doctrine among the international community is understandably low, at least in this raw form.⁷⁷

3.2.4 Acceptebility of the doctrine

The United Kingdom (UK), main ally to the US, did not expressly accept nor reject the Bush Doctrine. The UK Defence Secretary stated in December 2001:

“We may need to coerce regimes and states which harbour or support international terrorism, with the threat and, ultimately the use of, military force in the event that diplomatic and other means fail”.⁷⁸ In February 2003, the UK Foreign Secretary, responding to a Foreign Affairs Committee report, stated that the Government is of the opinion that a response in self-defence against an imminent threat, both from other states and terrorist groups, are legitimate actions, and that this view did not need configuration following the publication of the US’s NSS in 2002. By not specifying what exactly lies within the word

“imminent”, some argue that the Foreign Secretary thereby purposely remains vague thus not setting a fixed perimeter on the use of anticipatory action in advance of an armed attack.⁷⁹ The UK Attorney-General, when giving advice

72 Sofaer, A, D, On the Necessity of Pre-Emption, European Journal of International Law, Volume 14, Number 2, 2003, p. 214

73 Mullerson, R, Jus Ad Bellum: Plus Ca Change (Le Monde) Plus C’est La Meme Chose (Le Droit), Journal of Conflict and Security Law, Volume 7, Number 2, 2002, p. 180

75 Ibid, pp. 9-10

76 NSS, 2002, p. 15

78 Norton-Taylor, R, Prepare to fight terror worldwide, says Hoon, The Guardian, 6 december 2001, URL:

https://www.theguardian.com/uk/2001/dec/06/politics.september11 (last visited 21 May 2021)

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regarding the legality of the use of force in relation to Iraq in 2003, answered: “I am aware that the USA has been arguing for recognition of a broad doctrine of a right to use force to pre-empt danger in the future. If this means more than a right to respond proportionately to an imminent attack (and I understand that the doctrine is intended to carry that connotation) this is not a doctrine which in my opinion exists or is recognized in international law”.⁸⁰

Australia on the other hand gave open support for the Bush Doctrine when it was published, and the Australian prime minister asserted a right to make unilateral pre-emptive attacks.⁸¹ This might in part be due to the terrorist attack against a Bali nightclub in October 2002 that killed and injured several Australian citizens.⁸²

When examining the international reactions to Operation Iraqi Freedom (see chapter 5.5), it is clear most states were not willing to accept pre-emptive self- defence as a legal basis for, at least, that action.⁸³

The High-level Panel Report and the Secretary-General’s Report In Larger Freedom both addressed the question whether the right to self-defence should be expanded in order to meet new threats. The two reports understood the doctrine of pre-emptive self-defence as action against a non-imminent threat and rejected it. They did however, by some argued controversially, accept anticipatory self- defence when faced with an imminent threat as legal practice, but did not go all the way in accepting the Bush Doctrine of pre-emption. When a threat is not imminent, for example a state acquiring nuclear weapons-making capacity, but without the actual possession of nuclear weapons ready to launch, pre-emptive action cannot be considered legal. When dealing with such a potential future threat, action must the authorized by the UNSC, since unilateral pre-emptive action poses too big of a threat to global order.⁸⁴

In 2006 the US published a new NSS continuing its commitment to the doctrine of pre-emption.⁸⁵ The NSS stated that “[t]he place of preemption in our national security strategy remains the same”.⁸⁶ One thing that had changed though was that the main adversary in the war on terror now consisted of islamic extremists.⁸⁷ And, the previously mentioned axis of evil in 2002, consisting of Iran, Iraq and North Korea, had been replaced by Iran and Syria as the biggest

80 Attorney General's Advice on the Iraq War Iraq: Resolution 1441, The International and Comparative Law Quarterly, volume 54, number 3, 2005, p. 768

81 Frankland, N, Australia supports pre-emptive strikes, The Guardian, 2 December 2002, URL:

https://www.theguardian.com/world/2002/dec/02/iraq.australia (last visited 21 May 2021); The Howard line on Pre-emption, The Sydney Morning Herald, 3 December 2002, URL:

https://www.smh.com.au/opinion/the-howard-line-on-pre-emption-20021203-gdfwl3.html (last visited May 21 2021)

82 Myrie, C, Many Dead in Bali Blast, BBC, first reported 12 October 2002, URL:

https://www.bbc.com/news/av/world-asia-pacific-14666715

83 Gray, 2018, p. 250

84 High-level Panel Report, UN doc A/59/565, 2 December 2004, para 188-91; UN General Assembly, In Lager Freedom, UN doc A/59/2005, 21 March 2005, para 124-25.

85 The National Security Strategy of the United States of America, March 2006, URL:

https://georgewbush-whitehouse.archives.gov/nsc/nss/2006/ (last visited 21 May 2021)

86 Ibid, p. 23

87 Ibid, p. 9

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threats deemed “sponsors of terror”.⁸⁸ The 2006 NSS, like the previous version, did not specify exactly what requirements needed to be fulfilled before the right to pre-emption was activated, nor the scope of such action. It repeated the words of the 2002 strategy “under long-standing principles of self-defense we do not rule out the use of force before attacks occur, even if uncertainty remains as to the time and place of the enemy’s attack”⁸⁹ with the addition of the words “[t]he reasons for our actions will be clear, the force measured, and the cause just”.⁹⁰ The strategy did not contain any further discussion regarding the imminence requirement, international law or about the UN’s role in international peace and security.⁹¹

In 2010 President Obama presented a new NSS leaving the question of pre- emption open.⁹² From US practice on targeted killings and their legal argumentation for the intervention in Syria, it seemed as if the way forward now contained less lean on pre-emptive self-defence and more focus on the expansion of the meaning of “imminence”.⁹³ (For further discussion on “imminence” see chapter 4.3).

3.3 Targeted Killing

Leaving the rhetoric’s of the US being in a “global war on terror”, President Obama still claimed in 2008 the US was at war with Al-Qaida and all of its associates that continued to try and inflict harm on the US and its allies.⁹⁴ This war against Al-Qaida is still justified domestically through the Authorization for Use of Military Force (AUMF)⁹⁵ as self-defence following the 9/11 attacks, and covers military action both inside Afghanistan as well as targeted killings⁹⁶ against those who are suspected of cooperating with Al-Qaeda outside of Afghanistan.⁹⁷ The US gradually increased the number of drones used for targeted killings, both inside and outside of Afghanistan, as part of the war on Al-Qaida, and the targets varied from members of Al-Qaeda in Pakistan to AQAP in Yemen and

88 Ibid, pp. 9, 20

89 Ibid, p. 23

90 Ibid, p. 23

91 Gray, 2018, p. 251

92 National Security Strategy of the United States of America, May 2010, URL:

https://obamawhitehouse.archives.gov/sites/default/files/rss_viewer/national_security_strategy .pdf (last visited 21 May 2021)

93 Gray, 2018, p. 252

94 NSS, 2010,

95 Authorization for Use of Military Force, PUBLIC LAW 107–40—SEPT. 18, 2001, URL:

https://www.congress.gov/107/plaws/publ40/PLAW-107publ40.pdf (last visited 21 May 2021)

96 ”targeted killing” is a term generally used to describe a pre-meditated use of lethal force against an individual or individuals specifically identified in advance, see: UN Special Rapporteur Philip Alston, Study on Targeted Killing, UN doc A/HRC/14/24/Add.6, 28 May 2010.

97 Gray, 2018, pp. 233-4

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AlShabaab in Somalia.⁹⁸ The practice of targeted killings continued under President Trump.⁹⁹

In order to justify the killings of non-state actors in third states that had not been a part of the attacks of 9/11, a new legal framework was put forth by members of the Obama administration in a series of speeches arguing that the US still was at war with Al-Qaeda, thus removing the need to justify each individual strike with the self-defence requirements of necessity and proportionality. The targeted killings are all a part of the same war that has been going on since 9/11, and they are justified due to the “continuing imminent threat” that Al-Qaeda and their allies pose to the US and its nationals, allies and interests.¹⁰⁰ Or, as put forth by a US State Department Legal Advisor in a speech in 2016: “In the view of the United States, once a State has lawfully resorted to force in self-defense against a particular armed group following an actual or imminent armed attack by that group, it is not necessary as a matter of international law to reassess whether an armed attack is imminent prior to every subsequent action taken against that group, provided that hostilities have not ended.”¹⁰¹

3.4 The Unwilling or Unable Doctrine

Another branch of the US legal framework on self-defence, following the expansion of the targeted killings-programme, was the development of the

“unwilling or unable” doctrine. This doctrine grant victim states a right to self- defence against imminent attacks from non-state actors in states that are unwilling or unable to deal with the terrorists within their territory themselves.

The doctrine was put forth when the legal framework for the targeted killings programme was presented by members of the Obama administration, but only briefly since the doctrine was not fully developed at the time. For example, in 2011 the National Security Advisor said: “We reserve the right to take unilateral action if or when other governments are unwilling or unable to take the necessary actions themselves.”¹⁰² In the previously mentioned speech by the US State

98 Heyns, Akande, Hill-Cawthorne, and Chengeta, The International Legal Framework Regulating the Use of Armed Drones, International & Comparative Law Quarterly, Vol. 65, No. 4, 2016, p. 791;

Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations, 5 December 2016, pp. 3-7, URL:

https://obamawhitehouse.archives.gov/sites/whitehouse.gov/files/documents/Legal_Policy_Re port.pdf (last visited 21 May 2021)

99 Gray, 2018, p. 234

100 Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations, p. 5

101 Speech by Brian Egan, US State Department Legal Adviser, 2016, URL:

https://www.justsecurity.org/wp-content/uploads/2016/04/Egan-ASIL-speech.pdf (last visited 21 May 2021)

102 Speech by John Brennan, Harward Law School, 2011, URL:

http://opiniojuris.org/2011/09/16/john-brennan-speech-on-obama-administration- antiterrorism-policies-and-practices/ (last visited 21 May 2021)

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Department Legal Advisor from 2016 he continued by explaining that the US viewed the “unwilling or unable” doctrine as part of the necessity requirement of self-defence.¹⁰³ The formal adaptation of this doctrine, originally designed to justify targeted killings in Pakistan, Yemen and Somalia, but later also used against ISIS in Syria, was formally adopted in the 2016 White House Report on Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations.¹⁰⁴

3.5 Summary

Anticipatory self-defence, the “light” version of pre-emptive self-defence which requires and armed attack to be “imminent”, is usually not used as a legal argument even though the action taken in reality would be considered anticipatory action. The ICJ has dodged the question regarding its legitimacy, and writers’ opinions are divided. The High-Level Panel Report and the Secretary- General’s report In Larger Freedom both accepted anticipatory self-defence when faced with an imminent threat as legal practice. This did not stop the US though from presenting a NSS in 2002 declaring a war on terrorism, with the outspoken goal of implementing a doctrine of pre-emptive self-defence. A doctrine which removes the “imminent” requirement in so forth that it is no longer a missile launched towards the territory of one state, or the mobilization of troops, that is required to activate the legal right to force in self-defence, but rather a tangible course of action that the victim state perceives will evolve into an armed attack further down the road. The argumentation for a need of such a doctrine is the emerge of new threats which did not exist at the time of the signing of the UN Charter. Rouge states with WMD-ambitions combined with terrorist organizations without any territory or population to protect makes such an argument understandable. The attacks on 9/11 made these threats a gruesome reality.

Following the 9/11 attacks the UNSC condemned the attacks in several resolutions, and the US was supported by an overwhelming number of states as it took military action against Al-Qaeda in Afghanistan. Prior to the invasion both the US and the international community had used diplomacy and urged the Taliban regime of Afghanistan to change its policy and hand over the Al-Qaeda members within its territory. And even though the invasion was conducted after the 9/11-attacks, Al-Qaeda had attacked the US several times prior with the outspoken aim of continuing such action in the future. UNSC resolutions, among them resolution 1368 passed the day after the attack, and resolution 1373 passed a few weeks later, recognizing the inherent right of individual and collective self- defence, arguably opened the door to self-defence against non-state actors, or at least gave supporters of such action a tool.

103 Speech by Brian Egan, US State Department Legal Adviser, 2016

104 Gray, 2018, p. 237

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The US continued by invading Iraq in 2003. The support from the international community which the US had when invading Afghanistan in 2001 was now significantly decreased. It is reasonable to assume an attack of the scale displayed on 9/11 spread fear among states of being targeted themselves, maybe giving the US more room to manoeuvre than would otherwise have been the case.

Technically the legal justification for the invasion of Iraq, as described in chapter 5.5, was a series of UNSC Resolutions, but in the letter to the UNSC the US, unlike the UK and Australia, included a right to self-defence.

Following the two wars, the US started shifting its focus from outright claims of a right to pre-emptive self-defence in favour of different interpretations of the

“imminence” requirement in anticipatory self-defence as stipulated by the Caroline Case, but in theory to the same effect. Pre-emptive self-defence was not being accepted by the international community, and even the US closest Ally, the UK, did not recognize pre-emption as a valid legal justification. But, as will be shown further in chapter 4, both the US, its allies and a lot of writers have put in work reshaping the requirements of anticipatory self-defence in order to widen the doctrine, even though retracting somewhat from the use of the word “pre- emptive”.

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4 Interpretation

4.1 The UN Charter

Yoo compares The UN Charter and its regime on the use of force with domestic criminal law and argues they have a lot in common. The Charter prohibits violence from one state against another in the same way domestic criminal law prohibits violence by one individual against another. Within a country, the government has monopoly on legal uses of force in the same way the UN has that power internationally. Domestic criminal law recognizes that an individual sometimes needs to defend herself when the government is not able to provide adequate protection. In the same way, the UN Charter copies this self-defence mechanism in Article 51, referencing the “inherent” right of self-defence where the UN is not able to prevent illegal use of force. According to the UN Charter system, there are three different types of uses of force: legal use of force authorized by the UNSC; legal use of force in self-defence; and illegal use of force.¹⁰⁵

Based on the rules stipulated by the UN Charter, Yoo points out some authors have drawn the conclusion that the use of force in self-defence by a nation is even more limited than that of an individual in domestic criminal law. These authors interpret a nation’s right to self-defence according to Article 51 as permitting self-defence only as a response to an actual “armed attack”, in some cases even arguing that the response in self-defence first requires a transborder attack to have taken place.¹⁰⁶

In order for such interpretations to be valid, one must be under the assumption that the pre-existing right to reasonable anticipatory action in self- defence under international customary law was extinguished by the UN Charter.

According to Yoo there is nothing that validates the assumption that a limitation of customary law was the intent of the drafters of the Charter. On the contrary, the right to self-defence is by many considered as one of the core rights of any

105 Yoo, 2004, p. 738.

106 Ibid, pp. 738-39, referring to Dinstein, 2005, pp. 177-8; Brownlie, I, International Law and the Use of Force by States, Oxford: Oxford University Press, 1963, pp. 275-80.

Pre-Emptive Self-Defence When does an armed attack occur?