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
[∗] 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 <http://www.whitehouse.gov/nsc/nss.pdf> .
[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’ <http://news.bbc.co.uk/1/hi/uk_politics/2857347.stm> for the Australian justification see ‘The Memorandum of Advice on the Use of Force Against Iraq’ <http://www.smh.com.au/articles/2003/03/19/1047749818043.html> .
[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) <http://www.asil.org/taskforce/oconnell.pdf> .
[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.
[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.
[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 <www.whitehouse.gov/news/releases/
2002/06/20020601-3.html>.
[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.
[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.
[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 <www.cfr.org/publication.php?id=5251>.
[38] This conclusion is shared by many commentators. See Byers, above n 31; O’Connell, above n 7; Daalder, above n 35.
[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) <www.counterpunch.org/haidon.1216.html>.
[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 <http://usembassy-australia.state.gov/press/2002-1202_Fleischerpreemptive.html> .
[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.
[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.
[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.
[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.
[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.
[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) <http://www.asil.org/insights/insigh78.htm> 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.
[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.
[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.