PRE-EMPTIVE SELF-DEFENCE AND THE RULE OF LAW

Pre-Emptive Self-Defence and the Rule of Law

Table of contents

Chapter 1: Introduction3

Chapter 2: Theoretical Framework5

The Use of Force in International Law5

The Effect of Article 51 on Customary Law9

The Cuban Missile Crisis10

The Six Day War11

The Osirak Reactor12

The Limits of Pre-emptive Self-Defence14

The Need for Information16

Invasion of Privacy21

Limits of Intelligence— Limits of Power22

Self-Defense and the Wild West23

Pre-emption and US Foreign Policy24

International Law and Self-Defense31

Strict-Scrutiny Standard34

Past Failure35

The Need to Objectify Counterterrorism36

Chapter 3: Research Design40

Research Design40

Literature Search40

Keywords41

Chapter 4: Discussion42

The Law Against Preemptive Self-Defense44

The General Prohibition on Force44

The Exception of Self-Defense46

Actual Armed Attack47

Anticipatory Self-Defense50

Preemptive Self-Defense54

The Policy Against Preemptive Self-Defense59

Chapter 5: Conclusion68

References70

Pre-Emptive Self-Defence and the Rule of Law

Chapter 1: Introduction

International law has long held that the use of force between states is illegal. There are only two exceptions to this general rule, being Security Council authorisation for the use of force, and that done in self-defence. The latter exception has been subject to much debate, particularly in the interpretation and application of Article 51 of the United Nations (UN) Charter, which today provides statutory authority for the use of force in self-defence. More recently however, the debate has revolved around the so-called doctrine of pre-emption; that is, whether military force that is employed pre-emptively can be justified under the rubric of self-defence. The United States (US) for example, in its recent National Security Strategy, has instituted a policy of using pre-emptive self-defence to 'forestall and prevent hostile acts' by terrorist groups and rogue states using weapons of mass destruction (WMDs) (The White House 2002: 15). In light of this current policy and the international reaction to it in the wake of the Iraq War, the extent to which the US can employ a doctrine of pre-emption that conforms with, and is permitted by, international law, is an important question for analysis.

This paper evaluates the notion of pre-emptive self-defence. In particular, it examines whether the customary laws that give rise to that right can be extended to address the threats of terrorism and WMDs. In doing so, it addresses firstly the general laws relating to self-defence and secondly, the limits of the doctrine of preemption and the effect of this on US policy.

Aims and Objectives

The aim of this paper is to evaluate the notion of pre-emptive self-defence. In particular, it examines whether the customary laws that give rise to that right can be extended to address the threats of terrorism and WMDs.

Significance of the Study

This study is significant in many contexts. The study identifies many aspects of “Pre-Emptive Self-Defence and the Rule of Law. It argues that despite the threat posed by terrorism and WMDs, the extended version of pre-emption sought by the US is not only potentially dangerous, but will be rejected by the international community as a whole. If the US is to maintain its policy of pre-emption, it will be best served by accepting the traditional laws, and by providing solid evidence for each of its claims in a multilateral setting, preferably the Security ...